International Criminal Court & Sri Lanka

by Thanbu Kanagasabai, LLM, London, April 25, 2017

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

ICC is an Inter Governmental Organization and an International Tribunal which sits in the city of Hague in Netherlands. Due to the demands of various countries which suffered war crimes, crimes against humanity particularly Israel who faced the Nazi war crimes, the idea of an ICC was mooted in 1975 by Benjamin Ferdencz , 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, General Assembly convened a conference in Rome in June1998 where the Treaty was finalized which was formally adopted by the UN on 17th July 1998 with 120 countries voting in favour with 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 Wickremasinghe was the Prime Minister. The reasons for not signing are obvious, viz the ongoing war between Liberation Tigers of Tamil Eelam 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 Yogoslav 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.

As a remedy for the above flaw in the universal justice concept was the passing of the Rome Statute of 1998. Unless a state signs and also ratifies the Rome Statute, a state not will be legally bound or responsible under the provisions of Rome 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 involve sixteen crimes, and the war crimes involve eleven, besides other crimes involved in international and non international armed conflicts.

The Office of the Prosecutor, [Chief organ of 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 to open an investigation on the basis of
information received from other sources, such as individuals or non-government
organizations.

So far this office has indicted 39 individuals including Sudan’s Omar Al-Basheer 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 Security Council to haul up countries which have not signed and ratified the Rome Statute, like Sri Lanka. This power was exercised by Security Council for the first time in 2005 when it referred the Darfur massacre in Sudan in 2002, a second referral by Security Council was 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. Security Council by its Resolution 1706 in August 2006 also bears responsibility and take 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 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 UN under this clause has authority to set up specific courts to investigate and prosecute crimes against humanity: such as 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 UK in 2002, Britain could not succeed in extraditing him from Spain where he was residing and he is 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, ICC can initiate prosecution by setting up special Ad Hoc Tribunal. Another authority vesting provision on UN is Art.22 of UN Charter authorising it to establish Special Ad Hoc Tribunal in the exercise of its powers in fulfillment of its functions and purposes as laid down in Art 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 the war crimes, viewing the Security Council’s discretionary power under Art 13B of Rome Statute, while exerting pressure on 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 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 declares him as a wanted person.
[d] To press 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 Wickremasinghe is taking credit for not signing the Rome Treaty and claims as the saviour of former President Mahinda Rajapaksha from electric chair, but it is clear Sri Lanka can be brought up 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, JUSTIES DIES LEAVING RECONCILIATION MEANINGLESS AND IRREVALANT”
“Justice grinds slowly but surely”

Former Lecturer in Law, University of Colombo