ERASING THE EELAM VICTORY Part 18D Pt 2b
Posted on May 9th, 2021

KAMALIKA PIERIS

The Report on Sri Lanka presented by UN High Commissioner for Human Rights, to the 46th session of the UNHRC in February 2021, carried an invitation to the Member states of the UN, to report Sri Lanka to the International Criminal Court (ICC) or prosecute Sri Lanka in their own country, under Universal Jurisdiction. We have to thank the Tamil Separatist Movement for this unwelcome possibility of getting hauled up before the ICC or encountering Universal Jurisdiction.

The threat of appearing before an international forum on the charge of mismanaging the country’s affairs and ill treating its citizens will infuriate Sri Lanka. Sri Lanka is not a badly run, grossly mismanaged State. It is not a bumbling, inexperienced new state either. Sri Lanka is possibly one of the oldest sovereign states in the modern world.  It has a long history of successful rule .Sri Lanka has firmly withstood externally induced attempts at destabilization and has never allowed   its central government to lose control. Sri Lanka will not take kindly to an ICC probe or Universal Jurisdiction.

INTERNATIONAL CRIMINAL COURT (ICC)

The International Criminal Court (ICC) developed from the work of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). These were established by the United Nations in 1993 and 1994 to try individuals suspected of committing war crimes.

The UN General Assembly had earlier called upon the UN International Law Commission, to initiate a permanent international criminal court that would try international crimes including crimes against humanity, genocide and war crimes, using the universal jurisdiction principle.

The International Criminal Court was established in 1998, under the Rome Statute by a vote of 120 to seven, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen. Four signatory states, Israel, Sudan, United States  and Russia later decided not to ratify the treaty. As of December 2020, there were 41 countries which had not signed. Sri Lanka is one to them. Others include China, India, Indonesia, Malaysia, Nepal and Pakistan.

The ICC is the only permanent international court with jurisdiction to prosecute individuals  for genocide, crimes against humanity, war crimes and the crime of aggression. The ICC is a court of last resort, acting only when national courts are unable or unwilling to act. The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere.

The ICC has the power to prosecute individuals who belong to a state which has signed the Rome Statute. Also individuals who have committed crimes in an ICC state. Two Uyghur activist groups filed a complaint with the ICC in 2020 against China. ICC refused to take action. China was not a signatory to the ICC

There is a third entry point for prosecution by the ICC. The ICC will also hear cases referred to the ICC by the UN Security Council.  The request to prosecute Sudan’s Omar Hassan al Bashir and Libya’s Muammar al Qadhafi came through a United Nations Security Council Resolution. This is the route that will have to be used in the case of Sri Lanka. However, the consent of a non-party state is needed before ICC can proceed.

An important innovation of the ICC is its recognition of     victims.  For the first time in the history of international criminal justice, victims are able to present their views and observations before the Court. They are also entitled to reparation. Reparations can include compensation, restitution and rehabilitation.

The Court issued its first judgment in 2012 against Congolese rebel leader Thomas Lubanga Dyilo, guilty of the war crime of using child soldiers. Since then, ICC has indicted 44 people. Proceedings against 24 have been completed. Proceedings against 20 are ongoing.

As at 2021, the ICC has opened investigations in thirteen countries. Afghanistan, Burundi, Central African Republic, Côte d’Ivoire, Sudan, Congo, Georgia, Kenya, Libya, Mali, Uganda and Myanmar. ICC is conducting preliminary examinations in nine states Colombia, Guinea, Nigeria, Palestine, Philippines, Ukraine, Bolivia, and Venezuela.

The ICC has faced a number of criticisms, including objections about its jurisdiction, accusations of bias, the fairness of its case-selection and trial procedures, as well as doubts about its effectiveness.

The ICC has been accused being a tool of Western imperialism, since it was only punishing leaders from small, weak states while ignoring crimes committed by richer and more powerful states. Also that ICC was focusing disproportionately on Africa. In 2016, all nine countries ICC was investigating were African.

Sudan, Uganda, Ethiopia, Kenya have charged ICC with political bias.  In 2013 Kenya decided to withdraw from the ICC and urged the other 33 African states who had signed to do the same. In 2017, the African Union agreed to collectively withdraw from the ICC. In 2016, Burundi withdrew.

One of the biggest critics of the ICC is the US, the only Western nation not to ratify the Rome Statute.  The American Service Members’ Protection Act 2002 (ASPA) authorizes the President of the United States to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned at the request of the International Criminal Court.”

In 2018 USA said U.S. would do everything “to protect our citizens” should the ICC attempt to prosecute U.S. servicemen over alleged detainee abuse in Afghanistan.  If that happened, ICC judges and prosecutors would be barred from entering the U.S, their funds in the U.S. would be sanctioned and the U.S. will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans, said US.

The United States ordered sanctions against the ICC prosecutor Fatou Bensouda and the ICC’s head of Jurisdiction, Complementary, and Cooperation Division, Phakiso Mochochok for an investigation into alleged war crimes by U.S. forces and the Central Intelligence Agency (CIA) in Afghanistan since 2003. ICC responded that it will continue to investigate war crimes.

UNIVERSAL JURISDICTION

Universal jurisdiction is a doctrine of international law that holds that certain crimes such as torture, war crimes, genocide, crimes against humanity, forced disappearances, are so   grave, that society is entitled to go beyond national borders to prosecute offenders. International treaties such as the 1949 Geneva Conventions, the 1973 Convention against Apartheid, the 1984 Convention against Torture, provide for states to use universal jurisdiction.

Under Universal jurisdiction a state can try persons for crimes committed outside the state, but only very serious crimes, such as genocide, war crimes and crimes against humanity are considered worthy of such prosecution. They are considered to be crimes that   affect the world community as a whole.

Universal Jurisdiction is also used to prevent criminals from slipping through the gaps between national jurisdictions. Under Universal Jurisdiction, a state cannot shield a suspect.  The state is required to exercise jurisdiction or to extradite the person to a state willing to do so or surrender the person to an international criminal court. No place should be a safe haven for those who have committed heinous crimes.

Over the past 15 years, a number of states have started to apply universal jurisdiction legislation with regards to war crimes, crimes against humanity, torture or genocide, said Human Rights Watch. But as at 2015, there seem to have been only 17 reported cases. Most of these cases concern low- or mid-level perpetrators who had been hiding in the state, admitted HRW.

But there were some high profile arrests too. In 1961, Universal Jurisdiction enabled Israel to prosecute a senior Nazi official, Adolf Eichmann, for his role in the Holocaust during World War II. In 1998 former Chilean dictator Pinochet was extradited from London at the request of Spain. In 2005 former Peruvian President Alberto Fujimori was extradited from Chile to Peru.

Hissène Habré, President of Chad  was arrested   in 2016 and charged before an international tribunal in Senegal  for, inter alia, ordering the killing of 40,000 people. He had   been supported as President by France and the United States, who provided training, arms, and financing. He was sentenced to life imprisonment. He is the first head of state to be convicted in the court of another nation.

 In 2015, Center for Constitutional Rights, (CCR) based in New York, wanted U.S. officials held accountable for torture, war crimes, and crimes against humanity under universal jurisdiction. US had refused to conduct investigations at home.CCR then linked with Berlin-based European Center for Constitutional and Human Rights (ECCHR), the International Federation for Human Rights (FIDH) and the Canadian Center for International Justice (CCIJ).

CCR filed cases in Germany, France, Switzerland, Spain, Canada and with United Nations Committee Against Torture (CAT).  Investigations into U.S. torture are on-going in Spain and the UN. United Nations Committee Against Torture  was also reviewing Canada’s failure to uphold its universal jurisdiction obligations to investigate George Bush for torture, following the filing of a case against him during his visit to British Columbia in 2011.

In November 2011, the Kuala Lumpur War Crimes Commission tried through universal jurisdiction to  convict in absentia former US President George W. Bush and former British Prime Minister Tony Blair for the invasion of Iraq.

In May 2012, the Kuala Lumpur War Crimes Commission again under  universal jurisdiction took testimony from victims of torture at Abu Ghraib and Guantanamo, and convicted in absentia former President Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, and others for conspiracy to commit war crimes. The tribunal referred their findings to the International Criminal Court. The legitimacy of the tribunal and its findings have been questioned.  

There is now a retreat from rampant universal jurisdiction. Spain passed a law in 2005 which said that Spanish courts could try genocide cases even if they did not involve Spanish nationals. Spain then became a convenient port of call for those who wished to push universal jurisdiction. Henry Kissinger was called to Spain to give testimony about the US Government’s Operation Condor.

in 2006, the Spanish High Court agreed to investigate a case in which seven former Chinese officials, including  former President, Jiang Zemin, and former Premier Li Peng were alleged to have  engaged in  genocide in Tibet, decades ago. China denounced the investigation as interference in its internal affairs and dismissed the allegations as “sheer fabrication”.

Spain then decided to change direction. Spain   passed a law in 2009 that restricted investigations to those “involving Spanish victims, suspects who are in Spain or some other obvious link with Spain”. This was followed by Organic law 1/2014.

Organic law 1/2014 expanded the list of crimes covered by universal jurisdiction in Spain but restricted the targets. For genocide, crimes against humanity or war crimes, the accused had to be a Spanish national, a foreigner who habitually resides in Spain or a foreigner who happens to be in Spain and whom the Spanish authorities have refused to extradite. This law led to the dramatic closure of practically all criminal cases in the National Court, leaving  victims ‘in a state of great legal helplessness, ‘reported analysts.  

From its inception universal jurisdiction has been contentious, raising hackles not only in authoritarian states but in democracies too, said analysts.  the domestic legislation differed in each country, prosecutions are costly and cumbersome, evidence and witnesses were not easy to find. The end result was highly variable and  may include miscarriages of justice. There is also the danger of politically motivated prosecution. complaints can be filed without sufficient evidence simply to cause political embarrassment.

Former US Secretary of State, Henry Kissinger did not like Universal Jurisdiction. he said it was  a breach of a state’s sovereignty. Any state could set up universal jurisdiction tribunals and this could quickly degenerate into  trials of the states’ opponents. Universal Jurisdiction with its divergent national criminal procedures, standards of evidence, accepted forms of punishment and the like  will  only help   to  fragment international criminal law, added analysts.

Spain’s experience with China shows that diplomatic relations can get adversely  affected. When national judges turn to universal jurisdiction, they cannot help creating diplomatic frictions, observed analysts. 

The weaknesses in universal jurisdiction of independent  states, strengthens the case for limiting the exercise of universal jurisdiction to the International Criminal Court (ICC). ICC was created  to eliminate the inefficient, double-standard-ridden international criminal justice regime that was emerging from the patchwork of tribunals created in the 1990s. It was intended as the first universal institution for enforcing international criminal law.

ICC is assuredly an imperfect tool, but single states are at a much greater disadvantage when it comes to investigating and prosecuting complex criminal cases across state boundaries under universal jurisdiction, concluded analysts.  (continued)

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