A war crimes case filed against the Sri Lankan president in an Australian court cannot proceed without the federal government's consent, Australian Prime Minister Julia Gillard says. Sri Lankan-born Australian citizen Arunachalam Jegatheeswaran has lodged a war crimes indictment against President Mahinda Rajapaksa in the Melbourne Magistrates Court.
The move came as Mr Rajapaksa was due to arrive in Perth for the Commonwealth Heads of Government Meeting (CHOGM).
But Ms Gillard on Tuesday made it clear no case could proceed without the government's say-so.
"No such legal action can be taken on an issue like this without the consent of the attorney-general," Ms Gillard told ABC Radio in Perth.
"And the attorney-general hasn't received any request in relation to this matter."
Mr Jegatheeswaran's lawyers say they have written to Attorney-General Robert McClelland to alert him to the case.
Mr McClelland's spokesman says he has not received any request for consent in relation to the matter, but federal police are looking into it.
“The Australian Federal Police (AFP) has received a request to investigate the matter, which it is evaluating," the spokesman said.
He also noted that Australia has obligations under international law which extends immunity to visiting heads of state.
Ms Gillard reiterated her government was concerned about the persistent war crimes allegations.
"Australia and like-minded countries have been urging and will continue to urge Sri Lanka to address the serious allegations that have been made of human rights violations," she said.
The indictment was filed under the Australian Criminal Code and is now set for first hearing on November 29.
A series of reports have accused Sri Lanka of committing war crimes during its final 2009 offensive against the Tamil Tiger rebels.
The offensive crushed the Tigers - who have also been accused of atrocities - and brought the decades-old conflict to an end.
Mr Rajapaksa also was cited in a separate brief of evidence prepared by the International Commission of Jurists' Australian branch and handed to the Australian Federal Police earlier this month.
That brief also reportedly levels allegations against Sri Lankan High Commissioner to Australia Thisara Samarasinghe. Both strenuously deny the claims.
Australian National University international law expert Donald Rothwell says proponents of the cases face a significant challenge in proving that serious war crimes can overrule diplomatic immunity.
"While there may be sufficient grounds upon which to launch a war crimes prosecution, both High Commissioner Samarasinghe and President Rajapaksa would be able to claim immunity from prosecution which would bar the matter from proceeding in an Australian court," Professor Rothwell said.
Mr Jegatheeswaran's lawyer, Lucien Richter, said he did not believe diplomatic immunity was an issue in this case.
"There is some authority to suggest that where crimes are of a substantial and international nature, such as war crimes or crimes against humanity, then effectively the authority of being head of state doesn't grant him immunity from those things," Mr Richter said.
"Certainly the ICJ (International Commission of Jurists') in their submission have come to a simple conclusion that immunity would not be a barrier to this prosecution."
(Australian Associated Press- October 25, 2011)
