Acting UN special envoy to Burma, Vijay Nambiar, is facing calls from two Sri Lankan rights group to be included in an investigation into the army’s execution of surrendering Tamil Tiger rebels in 2009.

The charges were submitted to the International Criminal Court (ICC) by the US-based Tamil’s Against Genocide (TAG) and the Swiss Council of Eelam Tamils (SCET). They refer to Nambiar’s time as the UN’s Chief of Staff when he was sent to Colombo to aid negotiations towards an end to the country’s lengthy civil war.

Following instructions from Sri Lankan President Mahinda Rajapaksa, in May 2009 Nambiar told surrendering Tamil Tigers that they would be safe to cross no-mans land if they hoisted a white flag. “Just walk across to the troops, slowly! With a white flag and comply with instructions carefully. The soldiers are nervous about suicide bombers,” said a text from foreign secretary Palitha Kohona, sent via the Red Cross.

But in what has come to be known as the ‘white flag incident’, all were gunned down in what observers say would be tantamount to a war crime.

Nambiar’s complicity or involvement in the incident, which Rajapaksa later triumphed in, is yet to be fully investigated. Sri Lankan opposition politician and then-chief of the Sri Lankan Army, Sarath Fonseka, claimed in an interview that there was a direct order from then defence secretary Gotabhaya Rajapaksa to shoot dead the entire leadership of the Tamil Tigers.

Fonseka is now in jail following the claims and his attempt to oppose Mahinda Rajapaksa in the subsequent polls.

The submission by the two groups, TAG and SCET, asks “whether VIJAY NAMBIAR was in fact an innocent neutral intermediary or in fact a co-perpetrator within the negotiation-related community.

It also pours doubt on the efficacy of Nambiar’s presence there, given that his brother, Satish Nambiar, was at the time working as an advisor to the Sri Lankan military, as well as questioning his “subjective knowledge” of the Sri Lankan Army’s “widely (or routinely) adhered to policy of executing surrendering [Tamil] combatants, after generally blindfolding and stripping them naked”.

UN chief Ban Ki-moon has however rejected calls for an inquiry into Nambiar, despite the Chief of Staff’s own assertion in May 2009 that, “As far as the UN is concerned, where there are grave and systematic violations of international humanitarian law [in Sri Lanka], these are things which should be looked at by the international community, by the United Nations.”

This reluctance of senior members of the UN to investigate possible human rights violations will likely concern Burma observers, particularly given that Than Shwe visited Sri Lanka shortly before the incident and is alleged to have offered his Sri Lankan counterpart anti-insurgency “advice”.

Nambiar was in Burma shortly after the elections in November last year to meet with Aung San Suu Kyi and senior members of the junta.