Sri Lanka and the International Criminal Court

Sri Lanka and the International Criminal Court

By Thambu Kanagasabai

April 28, 2017

There appears to be some confusion as to the scope of functions and jurisdiction of the ICC  and more particularly its jurisdiction over Sri Lanka’s alleged war crimes.

The ICC is an Inter-Governmental Organization and an International Tribunal which sits in the city of Hague in the Netherlands. Due to the demands of various countries which suffered war crimes and crimes against humanity, particularly Israel faced Nazi war crimes, the idea of an ICC was mooted in 1975 by Benjamin Ferencz, a war crime investigator, and the UN General Assembly began preparing the draft for an ICC with the help of International Law Commission. As a result, the General Assembly convened a conference in Rome in June 1998 where the Treaty was finalised and was formally adopted by the UN on 17th July 1998 with 120 countries voting in favour 7 countries opposing and 21 countries abstaining.

The Rome Statute

came into force on 1st July 2002 and the ICC was formally established. 124 countries signed and ratified it. However, Sri Lanka is one country which did not sign and ratify the Treaty, when Ranil Wickremesinghe was the Prime Minister. The reasons for not signing are obvious, viz the ongoing war between Liberation Tigers of Tamil Eelam (LTTE ) and the Government which involved serious human rights violations, with prospects for more violations.

It is to be noted that the large-scale atrocities committed by the armed forces during the Yugoslav wars and the genocide in Rwanda in the early 1990s prompted the UN Security Council to establish two Ad Hoc [special purpose] International Criminal Tribunals to try the war criminals.

The passing of the Rome Statute of 1998 was a remedy for the above flaw in universal justice. Unless a state signs and also ratifies the Rome Statute, a state will not be legally bound or responsible under the provisions of the Statute. It is to be noted that 41 UN members including Israel, Sudan, USA and Russia have signed the Treaties, but have not ratified the Treaty, thus freeing themselves from the legal obligations under the Statute.

The Court primarily deals with war crimes, crimes against humanity and genocide. Genocide involves five crimes, crimes against humanity sixteen crimes, and war crimes involving eleven, besides other crimes involved in international and non-international armed conflicts.

The Office of the Prosecutor, [Chief organ of the ICC] is responsible for conducting investigations and prosecutions. This provision applies only to states which have ratified the Rome Statute. The Office may open an investigation under three circumstances.

[1] When a situation is referred to the Office by a state party which has signed and ratified it.
[2] When referred by the UN Security Council acting to address a threat to international peace and security.
[3] When the pre-trial chamber authorises the opening of an investigation on the basis of information received from other sources, such as individuals or non-government organisations.

So far this office has indicted 39 individuals including Sudan’s Omar al-Bashir and is now conducting ten investigations. It has to be stated that the Rome Statute Art. 13B recognises that the Security Council has the authority to refer cases to the ICC in which the Court would not otherwise exercise jurisdiction. This provision allows the Security Council to haul up countries which have not signed and ratified the Rome Statute, like Sri Lanka. This power was exercised by the Security Council for the first time in 2005 when it referred to the Darfur massacre in Sudan in 2002, a second referral by the Security Council made against Libya for its crimes committed during the Libyan civil war in 2011 when Libya and Sudan were not signatories to the Rome Statute like Sri Lanka. The Security Council by its Resolution 1706 in August 2006 also bears responsibility and takes action to protect civilian populations from genocide, war crimes, ethnic cleansing and crimes against humanity during an armed conflict. [Responsibility to Protect] [R2P]

Another provision which can haul up individuals who are accused of war crimes, etc, is the ‘Universal Jurisdiction clause.

This provision allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the accused crime was committed and regardless of the accused’s nationality, country of residence or any other relation with the prosecuting entity. This clause reinforces the concept that ‘no place should be a safe haven for those who have committed genocide, crimes against humanity, extra judicial executions, war crimes, torture and forced disappearances.’ It is to be noted that the Security Council uses this provision to refer specific situations to the ICC like Darfur and Libya in 2005 and 2011. Likewise the UN under this clause has authority to set up specific courts to investigate and prosecute crimes against humanity such as the International Criminal Tribunal for Rwanda and former Yugoslavia in 1994 and 1993.

Universal Jurisdiction can be requested by a particular nation as well as by International Tribunal. Under this clause any member state can initiate prosecution against person/persons accused of war crimes, etc, and can detain him if he is present in that state or can demand his extradition from the state where he is residing. The source for this principle is the concept that any serious crime like war crimes against international law must not be allowed to go unpunished, as such crimes harm the international community or international order. In the case of Chilean ex- Dictator

Augusto Pinochet against whom prosecution was initiated in the UK in 2002, Britain could not succeed in extraditing him from Spain where he was residing and was still at large avoiding trial and conviction. The main drawback of this provision is the reluctance or refusal of a state to extradite an accused person who is residing in that particular state, unless the accused voluntarily visits or presents himself in the state which initiated the prosecution. This is always unlikely to happen.

In view of this drawback, it is not a sure guarantee that any one accused of war crimes, etc, in Sri Lanka can be successfully prosecuted outside Sri Lanka by a state invoking this Universal Jurisdiction clause unless that person visits that state or is extradited from the state where he is residing.

However, the ICC can initiate prosecution by setting up a special Ad Hoc Tribunal. Another authority vesting provision on UN is Article.22 of the UN Charter authorising it to establish a Special Ad Hoc Tribunal in the exercise of its powers in fulfillment of its functions and purposes as laid down in Article 1.

Viewing the above alternatives available, the affected Tamil victims can opt to choose one or more of the following to advance their causes for justice and remedies for their grievances.

[a] To lobby and agitate for the International Criminal Court to set up a special Ad Hoc Tribunal to try those involved in war crimes, viewing the Security Council’s discretionary power under Article 13B of the Rome Statute, while exerting pressure on the Security Council to apply this power.
[b] To lobby and agitate in the UN to pass a resolution recommending the Security Council to refer the Sri Lankan war crimes, etc, for adjudication before the ICC.
[c] To canvass a UN member state which has ratified the UN Conventions to initiate prosecution under the Universal Jurisdiction clause to expose the crimes committed by an individual and declare him as a wanted person.
[d] To press the ICC to set up a special court invoking and applying the Universal Jurisdiction clause as it has done before to Sudan and Rwanda.
[e] To canvass for diplomatic, political and/or economic measures with pressure to take appropriate steps to uphold accountability and justice.
[f] To solicit the support of one or more UN member states or Security Council member states to look into the causes of Tamils and canvass the support of other member states for the setting up of Hybrid Courts like the ones for Sierra Leone in 2002, Kosovo, Cambodia and East Tumor where local and international judges participated after consultations with those states.

Sri Lankan Prime Minister Ranil Wickremesinghe is taking credit for not signing the Rome Treaty and claims as the saviour of former President Mahinda Rajapaksa from the electric chair, but it is clear Sri Lanka can be brought before an International Tribunal if and when the UN and/or Security Council passes a resolution to that effect after exercising the powers given to them under the UN Charter and Rome Statute.

“WHEN ACCOUNTABILITY IS SHIELDED, JUSTICE DIES LEAVING RECONCILIATION MEANINGLESS AND IRRELEVANT”

“Justice grinds slowly but surely”

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The International Criminal Court and beyond

 02 June 2024

^{Illustration by Keera Ratnam} 

Recent weeks have seen several senior politicians from the two leading opposition parties in the UK, reiterate the importance of ensuring Sri Lanka is referred to the International Criminal Court (ICC). Keir Starmer, the man widely tipped to become Britain’s next prime minister, called on the ruling government to push through a referral two years ago. Support for such a move has since grown. As Starmer released a statement to commemorate the Tamil Genocide, Ed Davey of the Liberal Democrats committed his party to sending Sri Lanka to the ICC, “so at long last there can be accountability for the genocide committed against Tamil people”. No matter who occupies Downing Street next month, steps must be undertaken to ensure the situation in Sri Lanka is swiftly sent to The Hague. Justice for atrocities must finally be delivered.

The ICC is the world’s highest legal body that investigates and prosecutes the gravest of crimes. The atrocities inflicted on the Tamils, which have left more than 160,000 people still unaccounted for, more than meet the threshold to demand international attention. As is being increasingly recognised, it was a genocide. But the complete failure of Sri Lanka’s domestic accountability mechanisms to hold perpetrators to account, alongside the continued unwillingness of repeated Sri Lankan governments to do so, means that only an international process gives any glimmer of hope that justice will be served. All avenues have been exhausted and the ICC is the court of last resort. For decades now, Tamil victim-survivors have demanded an urgent referral.

That call was heard not just on the island. In 2019, over 17,500 Brits signed a petition demanding Sri Lanka be referred to the ICC, prompting an official government response. At the time, the UK limply requested that faith be kept in the UN Human Rights Council process. But a further five years on from that British reply, there has been no progress. Though more resolutions are slated to be introduced in Geneva this year, after more than a decade of similar moves it has become clear to all that the Human Rights Council is toothless. Sri Lanka continues to deny that a genocide took place, whilst perpetrators including rapists and murderers, still roam free. Indeed, those accused of leading the genocide may even run for office again this year. The UN Human Rights Council process has fallen flat.

This is evident even to UN Human Rights chiefs, who have called on member states to consider referring Sri Lanka to the ICC. Though Sri Lanka is technically not party to the Rome Statute, a referral is not impossible. There are other innovative avenues that can be explored, such as how the case of Myanmar was brought to the court, for example. Sri Lanka could also be raised at the UN Security Council in New York. Even if it fails at this stage, through a Russian or Chinese veto, the fact that 15 years on from the genocide the atrocities are still being discussed at the world’s highest body would send a powerful message to Sri Lankans and beyond on the importance of accountability and justice. The massacres cannot, and should not, be allowed to be simply forgotten.

For all its flaws, the ICC is still a powerful body. As the recent request for arrest warrants on Israeli and Palestinian leaders shows, their decisions have a significant impact around the world. But, at the same time, there also needs to be movement beyond the court. A referral alone will not lead to the progress that the island desperately needs. There must be sanctions and travel bans on accused war criminals. States that value human rights and transparency must re-evaluate the bilateral trade and military ties they hold with Colombo. And there must be a concerted effort to ensure Tamil people can exercise their right to self-determination and a long-lasting peaceful solution is finally found. Only then can the abuses and violence that continue to plague the island be halted. It must be a priority for the next British prime minister, no matter which party they come from.

https://www.tamilguardian.com/content/international-criminal-court-and-beyond