Should Sri Lanka panic about international war crimes prosecutions yet?

Should Sri Lanka panic about international war crimes prosecutions yet? Should Sri Lanka panic about international war crimes prosecutions yet?

China_catch_me_if_you_can1BY NAYANTHA WIJESUNDARA   
LL.M (Colombo); Ph.D in Conflict and Peace Studies (Colombo); LL.B (London); Attorney-at-Law 
 
I have observed with amazement the current discourse in Sri Lanka about the possibility of an international war crimes prosecution with regard to the Sri Lankan war. The discourse is largely incomplete, biased and often misleading. Hence, I felt it opportune to write a succinct piece on this issue just to put the matter into perspective for the layman who has no expertise on the workings of international criminal justice. I will not discuss whether the Sri Lankan war requires dissection before the international criminal justice system as that is an evaluation of the merits of the matter which falls beyond the scope of this modest piece of writing. 
 
Is it possible that the Sri Lankan case could be taken before an international forum? Yes. Should we be concerned? Of course, yes. Should we panic now? Not yet. Why do I say this? Well, let’s look at how international criminal justice could work in the Sri Lankan context.

In March 2014, the UNHRC passed a resolution on Sri Lanka, which, among other things, authorized the High Commissioner for Human Rights to initiate an investigation into alleged crimes between the years 2002-2009, with a view to ensuring accountability. The word ‘accountability’ should caution Sri Lanka because this means prosecutions. Some say the adoption of the resolution would automatically lead to international prosecutions on Sri Lanka.

However, the UNHRC does not have the mandate to establish a war crimes tribunal on Sri Lanka. What it could do is compile a report based on its investigations and recommend that there should be international prosecutions on Sri Lanka, which it probably will given the current trajectory of the issue. 
 
Question
 
Now the question arises within the UN system, who, or what organ of the UN could establish such a tribunal? There are two ways to do this. One is through the Security Council and the other, remote as it may be, through the General Assembly. The former has already set precedent in this regard whereas the latter remains a theoretical possibility and is fraught with practical difficulties. Hence, I will only consider the Security Council.

The Security Council is mandated to maintain international peace and security and has the power to take any measure to uphold this objective. The ad hoc tribunals for the former Yugoslavia and Rwanda were set up on this basis. It is possible to argue that it has been five years since the conclusion of Sri Lanka’s war and it does not pose a threat to international peace and security or that the Sri Lankan armed conflict was purely a domestic affair with no international ramifications, and hence, the Security Council cannot establish an ad hoc tribunal on Sri Lanka. This view however, will not prevail in case the Security Council decides Sri Lanka does pose a continuing threat to international peace and security as the Council has unfettered discretion to make such a determination in terms of the UN Charter. As absurd as this may seem, there will be no possibility of challenging such a determination. 
 
The next step at the Security Council would be to adopt a resolution establishing an ad hoc tribunal on Sri Lanka. This aspect needs careful consideration. The Security Council can adopt such a substantive resolution only if 9 or more of its 15 members vote in the affirmative. Also, there cannot be any negative votes (veto) by any of the 5 permanent members, that is, China, Russia, UK, France and USA. Although the UN Charter says there has to be the concurrence of all permanent members, a practice has evolved in the Security Council that allows it to adopt a resolution of this nature even if some of the permanent members abstain from voting. So, in Sri Lanka’s case, even if China and Russia abstain from voting, a resolution could be adopted if the other three permanent members vote in favour of the resolution and the overall votes in favour of the resolution amount to at least 9. The only way to defeat a resolution is for China and/or Russia to veto it. 
 
The other way the Sri Lankan situation could be taken to an international judicial forum is through the International Criminal Court (ICC). It is with regard to the ICC that there seems to be the most number of divergent views in Sri Lanka. Some say Sri Lankans can never be taken to the ICC as Sri Lanka has not ratified the ICC treaty while others say the prosecutor of the ICC has power to initiate proceedings against Sri Lanka irrespective of the fact that Sri Lanka has not ratified the ICC statute. Permit me to clarify the matter. 
 
Three ways 
 
There are three ways in which the ICC jurisdiction could apply to Sri Lanka.

  • Firstly, through ratification of the ICC treaty by a State. When this is done, the prosecutor has the power to look into allegations pertaining to the nationals of that State. As Sri Lanka is not a party to the treaty, this will not happen.
  • Secondly, non-parties to the ICC statute, like Sri Lanka, can accept the jurisdiction of the ICC in an ad hoc manner. Which means, the particular State can accept the jurisdiction of the Court in a limited sense, with clear parameters as to the jurisdiction. For example, this was recently done by Ukraine which gave the ICC jurisdiction to look into alleged crimes committed between the period of November 2013 to February 2014. But I don’t see this happening in Sri Lanka.

The first and second methods above happen with the consent of the State in question.

  • However, the third method does not need such State consent. Here, the UN Security Council can refer a situation to the ICC Prosecutor without the consent of the State concerned. This is where Sri Lanka has to be watchful as it places the country at the mercy of factors beyond its international sphere of influence. This is where, the relationship with China and Russia comes into play again since there has to be a Security Council resolution to refer the situation to the ICC. These are the only three ways in which Sri Lanka could come within ICC jurisdiction and there is simply no other manner in which the ICC could probe into the Sri Lankan war. 

 
The gist of this discussion is that, whether it is a UN ad hoc tribunal or the ICC, the key factor is the UN Security Council. So, everything depends on the continued support of the Chinese and Russians. The question arises whether they would veto a resolution if tabled at the Security Council.

So far, Sri Lanka has drawn solace from the fact that China and Russia are our friends and they will never allow such a resolution to be passed. I take exception to this view. International relations are not based on friendship, but on realpolitik. Politics is a capricious phenomenon and political alliances could change overnight and no country, including Sri Lanka, could afford to take their allies for granted. A prime example is India, who we thought was our friend until it voted against us in the UNHRC in 2012 and 2013. 
 
The High Commissioner for Human Rights is expected to submit an oral update in September and a report on Sri Lanka to the UNHRC in March 2015 at its 28th session. What if the report comes out with damning allegations against Sri Lanka portraying the country as a rogue state? What if the report concludes that there are credible allegations of war crimes and crimes against humanity? What if the Secretary General refers the High Commissioner’s report to the Security Council? Only time will tell whether China and Russia would continue to support us should this possibility become reality. We’d better not find out the hard way as we did with India, as its cost would be too much to bear. 
 
Must do more 
 
To be realistic, Sri Lanka is not that important to either Russia or China, for them to go out on a limb to defend us. As Dayan Jayatilleka had repeatedly said, we must help our allies to help us. We must give them a firm footing to support us in the international arena. We saw China, Pakistan and Russia defending us at the recently concluded session of the UNHRC, but for them to mount a solid defence on our behalf in the future we must do more.

The point here is that the government should work on the reconciliation front in a proactive manner and build a credible case for the country. It must show that it is genuinely attempting at reconciliation and international criminal prosecutions would only hinder those efforts and destabilize the country. Basically, the government needs to come up with an action plan that could be sold at an international forum.

The transitional justice discourse on the part of the government must appear sincere to an international audience. If the government takes such a proactive step, it could be hoped, although without any guarantees, that China and Russia would come to our aid. If not, I do not see the continued support of these two countries for too long and the establishment of an ad hoc criminal tribunal for Sri Lanka or the ICC taking up the matter could become a very real possibility. 
 
Some Sri Lankans learned in international law say Sri Lanka would be safe if taken before an international Court as there is no evidence to say the government forces committed mass atrocities. But the fact is, international criminal and evidence law is a very organic thing. It is in a continuous state of flux. For various reasons, international law is interpreted in diverse ways to suit the political needs of powerful States. The development of anticipatory self-defence to justify the Iraq invasion is a case in point. Another factor is, a very aggressive form of human rights advocacy has crept into international criminal justice and it is transforming into a robustly victim-oriented discipline.

For example, the ad hoc tribunal for the former Yugoslavia ‘created’ a whole host of customary international law which was unheard of before the tribunal was established. This Court has held that even killing one person is enough to amount to genocide! In international criminal law, the manoeuvring space for the State and military is becoming increasingly narrower. So, if the Sri Lankan case goes before an international Court, there is no guarantee that new interpretations to the law will not be given to convict Sri Lankans on the dock. 
 
Due to the deteriorating human rights track record, a bungling foreign office and the proactive separatist lobby, Sri Lanka is nobody’s darling at the moment. Hence, the best course of action for Sri Lanka is to nip the issue at the bud, that is, prevent the case going before an international Court in a scenario where the international space for the country is increasingly narrowing. Although there is no need to hit the panic button yet, there is ample reason to get our act together fast. It is imperative that urgent and sincere efforts at reconciliation are taken by the government.

(The writer is a former prosecutor of the Attorney General’s Department and presently reading for an Advanced Masters in Public International Law at Leiden University in the Netherlands and can be contacted at: naywij@gmail.com)