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)