{"id":114125,"date":"2021-05-09T15:42:57","date_gmt":"2021-05-09T22:42:57","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=114125"},"modified":"2021-05-09T15:42:57","modified_gmt":"2021-05-09T22:42:57","slug":"erasing-the-eelam-victory-part-18d-pt-2b","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2021\/05\/09\/erasing-the-eelam-victory-part-18d-pt-2b\/","title":{"rendered":"ERASING THE EELAM VICTORY Part 18D Pt 2b"},"content":{"rendered":"

KAMALIKA PIERIS<\/em><\/span><\/h2>\n\n\n

The Report on\nSri Lanka presented by UN High Commissioner for Human Rights, to the 46th<\/sup>\nsession of the UNHRC in February 2021, carried an invitation to the Member\nstates of the UN, to report Sri Lanka to the International Criminal Court (ICC)\nor prosecute Sri Lanka in their own country, under Universal Jurisdiction. We\nhave to thank the Tamil Separatist Movement for this unwelcome possibility of\ngetting hauled up before the ICC or encountering Universal Jurisdiction. <\/p>\n\n\n\n

The threat of\nappearing before an international forum on the charge of mismanaging the\ncountry\u2019s affairs and ill treating its citizens will infuriate Sri Lanka. Sri\nLanka is not a badly run, grossly mismanaged State. It is not a bumbling,\ninexperienced new state either. Sri Lanka is possibly one of the oldest\nsovereign states in the modern world.  It\nhas a long history of successful rule .Sri Lanka has firmly withstood\nexternally induced attempts at destabilization and has never allowed   its central government to lose control. Sri\nLanka will not take kindly to an ICC probe or Universal Jurisdiction.<\/p>\n\n\n\n

INTERNATIONAL\nCRIMINAL COURT (ICC)<\/strong><\/p>\n\n\n\n

The\nInternational Criminal Court (ICC) developed from the work of the International\nCriminal Tribunal for the Former Yugoslavia (ICTY) and the International\nCriminal Tribunal for Rwanda (ICTR). These were established by the United\nNations in 1993 and 1994 to try individuals suspected of committing war crimes.<\/p>\n\n\n\n

The UN\nGeneral Assembly had earlier called upon the UN International Law Commission,\nto initiate a permanent international criminal court that would try\ninternational crimes including crimes against humanity, genocide and war\ncrimes, using the universal jurisdiction principle. <\/p>\n\n\n\n

The\nInternational Criminal Court was established in 1998, under the Rome Statute by\na vote of 120 to seven, with 21 countries abstaining. The seven countries that\nvoted against the treaty were China<\/a>, Iraq<\/a>, Israel<\/a>, Libya<\/a>, Qatar<\/a>, the United\nStates<\/a>, and Yemen<\/a>. Four\nsignatory states, Israel, Sudan, United States<\/a>  and Russia later decided not to ratify the\ntreaty. As of December 2020, there were 41 countries which had not signed. Sri\nLanka is one to them. Others include China, India, Indonesia, Malaysia, Nepal\nand Pakistan. <\/p>\n\n\n\n

The ICC is\nthe only permanent international court with jurisdiction<\/a> to prosecute\nindividuals<\/a>  for genocide<\/a>, crimes against humanity<\/a>, war crimes<\/a> and the crime of aggression<\/a>. The ICC is a court of\nlast resort, acting only when national courts are unable or unwilling to act<\/strong>. <\/strong>The official seat of the Court is in The Hague<\/a>,\nNetherlands, but its proceedings may take place anywhere.<\/p>\n\n\n\n

The ICC has\nthe power to prosecute individuals who belong to a state which has signed the\nRome Statute. Also individuals who have committed crimes in an ICC state. Two Uyghur\nactivist groups filed a complaint with the ICC in 2020 against China. ICC\nrefused to take action. China was not a signatory to the ICC<\/p>\n\n\n\n

There is a\nthird entry point for prosecution by the ICC. The ICC will also hear cases\nreferred to the ICC by the UN Security Council. \nThe request to prosecute Sudan\u2019s Omar Hassan al Bashir and Libya\u2019s Muammar\nal Qadhafi came through a United Nations Security Council Resolution. This is\nthe route that will have to be used in the case of Sri Lanka. However, the\nconsent of a non-party state is needed before ICC can proceed.<\/p>\n\n\n\n

An important\ninnovation of the ICC is its recognition of    \nvictims.  For the first time in\nthe history of international criminal justice, victims are able to present\ntheir views and observations before the Court. They are also entitled to\nreparation. Reparations can include compensation, restitution and\nrehabilitation.<\/p>\n\n\n\n

The Court\nissued its first judgment in 2012 against Congolese rebel leader Thomas Lubanga Dyilo,<\/a> guilty of\nthe war crime of using child soldiers<\/a>. Since then,\nICC has indicted 44 people. Proceedings against 24 have been completed.\nProceedings against 20 are ongoing. <\/p>\n\n\n\n

As at 2021,\nthe ICC has opened investigations in thirteen countries. Afghanistan, Burundi,\nCentral African Republic, C\u00f4te d’Ivoire, Sudan, Congo, Georgia, Kenya, Libya,\nMali, Uganda and Myanmar. ICC is conducting preliminary examinations in nine\nstates Colombia, Guinea, Nigeria, Palestine, Philippines, Ukraine, Bolivia, and\nVenezuela. <\/p>\n\n\n\n

The ICC has\nfaced a number of criticisms, including objections about its jurisdiction,\naccusations of bias, the fairness of its case-selection and trial procedures,\nas well as doubts about its effectiveness.<\/p>\n\n\n\n

The ICC has\nbeen accused being a tool of Western imperialism<\/a>, since it\nwas only punishing leaders from small, weak states while ignoring crimes\ncommitted by richer and more powerful states. Also that ICC was focusing\ndisproportionately on Africa. In 2016, all nine countries ICC was investigating\nwere African.<\/p>\n\n\n\n

Sudan,\nUganda, Ethiopia, Kenya have charged ICC with political bias.  In 2013 Kenya decided to withdraw from the\nICC and urged the other 33 African states who had signed to do the same. In\n2017, the African Union agreed to collectively withdraw from the ICC. In 2016,\nBurundi withdrew.<\/p>\n\n\n\n

One of the\nbiggest critics of the ICC is the US, the only Western nation not to ratify the\nRome Statute.  The American\nService Members’ Protection Act<\/a> 2002 (ASPA)\nauthorizes the President of the United States to use “all means necessary\nand appropriate to bring about the release of any U.S. or allied personnel\nbeing detained or imprisoned at the request of the International Criminal\nCourt.” <\/p>\n\n\n\n

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

The United\nStates ordered sanctions against the ICC prosecutor Fatou Bensouda and the\nICC’s head of Jurisdiction, Complementary, and Cooperation Division, Phakiso\nMochochok for an investigation into alleged war crimes by U.S. forces and the\nCentral Intelligence Agency (CIA) in Afghanistan since 2003. ICC responded that\nit will continue to investigate war crimes<\/a>. <\/p>\n\n\n\n

UNIVERSAL\nJURISDICTION<\/strong><\/p>\n\n\n\n

Universal jurisdiction\nis a doctrine of international law that holds that certain crimes such as\ntorture, war crimes<\/a>, genocide,\ncrimes against humanity, forced\ndisappearances<\/a>, are so   grave, that society\nis entitled to go beyond national borders to prosecute offenders. International\ntreaties such as the 1949 Geneva Conventions, the 1973 Convention against\nApartheid, the 1984 Convention against Torture, provide for states to use\nuniversal jurisdiction. <\/p>\n\n\n\n

Under\nUniversal jurisdiction a state can try persons for crimes committed outside the\nstate, but only very serious crimes, such as genocide, war crimes and crimes\nagainst humanity are considered worthy of such prosecution. They are considered\nto be crimes that   affect the world\ncommunity as a whole. <\/p>\n\n\n\n

Universal Jurisdiction is also used to prevent\ncriminals from slipping through the gaps between national jurisdictions. Under\nUniversal Jurisdiction, a state cannot shield a suspect.  The state is required to exercise\njurisdiction or to extradite the person to a state willing to do so or\nsurrender the person to an international criminal court. No place should be a\nsafe haven for those who have committed heinous crimes. <\/p>\n\n\n\n

Over the past\n15 years, a number of states have started to apply universal jurisdiction\nlegislation with regards to war crimes, crimes against humanity, torture or\ngenocide, said Human Rights Watch. But as at 2015, there seem to have been only\n17 reported cases. Most of these cases concern low- or mid-level perpetrators\nwho had been hiding in the state, admitted HRW. <\/p>\n\n\n\n

But there\nwere some high profile arrests too. In 1961, Universal Jurisdiction enabled\nIsrael to prosecute a senior Nazi official, Adolf Eichmann, for his role in the\nHolocaust during World War II. In 1998 former Chilean dictator Pinochet was\nextradited from London at the request of Spain. In 2005 former Peruvian\nPresident Alberto Fujimori was extradited from Chile to Peru. <\/p>\n\n\n\n

Hiss\u00e8ne Habr\u00e9, President of\nChad<\/a>  was arrested   in 2016 and charged before an international tribunal in Senegal<\/a>  for, inter alia, ordering the killing of\n40,000 people. He had   been supported as\nPresident by France<\/a> and the United\nStates<\/a>, who provided training, arms, and financing. He was sentenced to\nlife imprisonment. He is the first head of state to be convicted in the court\nof another nation. <\/p>\n\n\n\n

 In 2015, Center for Constitutional Rights, (CCR)\nbased in New York, wanted U.S. officials held accountable for torture, war\ncrimes, and crimes against humanity under universal jurisdiction. US had refused to conduct investigations at home.CCR\nthen linked with Berlin-based European Center for Constitutional and Human\nRights (ECCHR), the International Federation for Human Rights (FIDH) and the\nCanadian Center for International Justice (CCIJ). <\/p>\n\n\n\n

CCR filed\ncases in Germany<\/a>, France<\/a>, Switzerland<\/a>, Spain,<\/a> Canada <\/a>and with\nUnited Nations Committee Against Torture (CAT).  Investigations into U.S.\ntorture are on-going in Spain and the UN. United Nations Committee Against\nTorture  was also reviewing Canada\u2019s\nfailure to uphold its universal jurisdiction obligations to investigate George\nBush for torture, following the filing of a case against him during his visit\nto British Columbia in 2011. <\/p>\n\n\n\n

In November 2011, the Kuala\nLumpur War Crimes Commission<\/a> tried through\nuniversal jurisdiction to  convict in\nabsentia<\/a> former US President George W. Bush<\/a> and former\nBritish Prime Minister Tony Blair<\/a> for the\ninvasion of Iraq. <\/p>\n\n\n\n

In May 2012, the Kuala\nLumpur War Crimes Commission<\/a> again\nunder  universal jurisdiction took\ntestimony from victims of torture at Abu Ghraib<\/a> and Guantanamo<\/a>, and\nconvicted in absentia former\nPresident Bush, former Vice President Dick Cheney<\/a>, former\nDefense Secretary Donald Rumsfeld<\/a>, and others\nfor conspiracy to commit war crimes. The tribunal referred their findings to\nthe International\nCriminal Court<\/a>. The legitimacy of the tribunal and its findings have been\nquestioned.   <\/p>\n\n\n\n

There is now a retreat from rampant universal jurisdiction. Spain\npassed a law in 2005 which said that Spanish courts could try genocide cases\neven if they did not involve Spanish nationals. Spain then became a convenient\nport of call for those who wished to push universal jurisdiction. Henry\nKissinger<\/a> was called to Spain to give testimony about the US Government’s Operation\nCondor<\/a>. <\/p>\n\n\n\n

in 2006, the Spanish\nHigh Court<\/a> agreed to investigate a case in which seven former Chinese\nofficials, including  former President, Jiang Zemin<\/a>, and former Premier<\/a> Li Peng<\/a> were alleged\nto have  engaged in  genocide in Tibet<\/a>, decades ago.\nChina denounced the investigation as interference in its internal affairs and\ndismissed the allegations as “sheer fabrication”. <\/p>\n\n\n\n

Spain then decided to change direction. Spain   passed a law in 2009 that restricted\ninvestigations to those “involving Spanish victims, suspects who are in Spain\nor some other obvious link with Spain\u201d. This was followed by Organic law 1\/2014.<\/p>\n\n\n\n

Organic law 1\/2014 expanded the list of crimes covered by\nuniversal jurisdiction in Spain but restricted the targets. For genocide,\ncrimes against humanity or war crimes, the accused had to be a Spanish\nnational, a foreigner who habitually resides in Spain or a foreigner who\nhappens to be in Spain and whom the Spanish authorities have refused to\nextradite. This law led to the dramatic closure of practically all criminal\ncases in the National Court, leaving \nvictims \u2018in a state of great legal helplessness, \u2018reported analysts.  <\/p>\n\n\n\n

From its inception universal jurisdiction has been contentious,\nraising hackles not only in authoritarian states but in democracies too, said\nanalysts.  the domestic legislation\ndiffered in each country, prosecutions are costly and cumbersome, evidence and\nwitnesses were not easy to find. The end result was highly variable and  may include miscarriages of justice. There is\nalso the danger of politically motivated prosecution. complaints can be filed without sufficient\nevidence simply to cause political embarrassment.<\/p>\n\n\n\n

Former US Secretary of State, Henry Kissinger did not like Universal\nJurisdiction. he said it was  a breach of\na state’s sovereignty<\/a>. Any state\ncould set up universal jurisdiction\ntribunals and this could quickly degenerate into  trials<\/a> of the states\u2019\nopponents. Universal Jurisdiction with its divergent national criminal\nprocedures, standards of evidence, accepted forms of punishment and the\nlike  will  only help \n to  fragment international criminal law, added\nanalysts. <\/p>\n\n\n\n

Spain\u2019s experience with China shows that diplomatic relations can\nget adversely  affected. When national\njudges turn to universal jurisdiction, they cannot help creating diplomatic\nfrictions, observed analysts.  <\/p>\n\n\n\n

The weaknesses in universal jurisdiction of independent  states, strengthens the case for limiting the\nexercise of universal jurisdiction to the International\nCriminal Court<\/a> (ICC). ICC was created  to eliminate the inefficient,\ndouble-standard-ridden international criminal justice regime that was emerging\nfrom the patchwork of tribunals created in the 1990s. It was intended as the\nfirst universal institution for enforcing international criminal law. <\/p>\n\n\n\n

ICC is assuredly an imperfect tool, but single states are at a\nmuch greater disadvantage when it comes to investigating and prosecuting\ncomplex criminal cases across state boundaries under universal jurisdiction, concluded\nanalysts.  (continued)<\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[104],"tags":[],"class_list":["post-114125","post","type-post","status-publish","format-standard","hentry","category-kamalika-pieris"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/114125","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=114125"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/114125\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=114125"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=114125"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=114125"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}