Mangala Samaraweera, MP, had raised an interesting point about the Rome Statute which set up the International Criminal Court (ICC). This was during a recent press conference. The point raised was that President Rajapaksa should be thankful to Ranil Wickremasinghe who, as the Prime Minister during 2001-2004, took a firm decision not to sign the Rome Statute; thereby preventing Sri Lankan leaders and/or Armed Forces personnel from being tried before the ICC. There are some fundamental issues of constitutional law as well as international law that need to be pointed out, in particular, for the benefit of the lay public.
Can the Prime Minister sign/ratify a treaty?
Firstly, the most fundamental question that arises is this: could the then Prime Minister have signed/ratified the Rome Statute without the approval of the Executive President (i.e. former President Chandrika Kumaratunga)? If the answer is ‘no’, would Mangala admit that even President Kumaratunga needs to be thanked on this issue? So, what is the position under the Constitution?
Could a Prime Minister sign/ratify an international treaty without the concurrence of the President? What of Article 33(f) of the Constitution? The President, as Head of State, is empowered to not only represent Sri Lanka but also enter into international conventions and treaties which are not inconsistent with the Constitution or written law. Entering into treaties is not the prerogative of the Prime Minister under the Constitution. Therefore, the question needs to be asked in all seriousness – did Ranil Wickremasinghe (or perhaps Mangala Samaraweera) believe that international treaties could be signed as secretively as the Ceasefire Agreement was signed with the late V. Prabhakaran, as was done in February, 2002? I hope not.
Why only Ranil?
Secondly, no government that came to power since 1998 (when the Rome Statute was adopted) has taken the decision to sign/ratify the Rome Statute. Therefore, I do not see why only Ranil Wickremasignhe should be thanked for not signing the Rome Statute.
Rome Statute: being mindful of its provisions
Thirdly, the statement implies that there is only one, single, way in which nationals of a particular State could be brought before the ICC. At least, this is the idea that Mangala Samaraweera tries to convey, and perhaps what Ranil Wickremasignhe would prefer Mangala conveyed, to the public. Whether this is sheer ignorance of the provisions of the Rome Statute, or is simply an act of political deception, I do not know. Yet, as I have already pointed out before (see ‘An ICC Investigation: Why it is doomed to fail’, The Island, 15 May 2009), there are a number of ways in which nationals of a non-State Party could be brought before the ICC, however remote the chances of success may be.
One such way is under Article 13(b) of the Statute, whereby ICC’s jurisdiction is triggered when the UN Security Council refers a situation to the ICC, under Chapter VII of the UN Charter (as it was done concerning Darfur, Sudan). The other method is referred to in Article 13 (c), when the Chief Prosecutor could decide to launch, on his own initiative, an investigation (i.e. an investigation ‘propriot motu’). Now, even though both these methods are bound to fail (as I have argued in the article cited above) the fact remains that no national is safe from being subject to investigation or prosecution before the ICC simply because a State is not a Party to the Rome Statute. In this regard, it should also be remembered that there is even the (theoretical) possibility of the UN Security Council deciding to establish an ad-hoc criminal tribunal under Chapter VII powers of the UN Charter (the prime examples being the formation of the International Criminal Tribunal for the Former Yugoslavia in 1993 and the International Criminal Tribunal for Rwanda, in 1994 prior to the establishment of the ICC). So, I do not think one should be thankful to any single politician for not signing, or ratifying, the Rome Statute.
Responsibility of the Opposition
Apart from the above, Mangala Samaraweera’s statement raises other important issues over which some clarification might be necessary. Answers to the following questions would be useful, in this regard.
One: what is the position of the Opposition concerning the Rome Statute, today? Does it believe that signing the Rome Statute is necessary? While it is quite obvious that the Government would not, it would be interesting to receive the Opposition’s response.
Two: does the Opposition believe that the Armed Forces have committed war crimes during, in particular, the last stages of the conflict? If the answer is ‘Yes’, what does it propose to do? Or what would it ask the Government to do? Should not the Opposition claim that a serious inquiry into alleged war crimes be initiated without further delay? Should not the Opposition demand one, in fact?
But, if the answer is ‘No’, would the Opposition come out more clearly in stating that the Armed Forces did not commit war crimes? Or could it inform the ‘international community’, categorically, that the Opposition believes that no war crimes were committed, and that it (the ‘international community’) should drop all charges and accusations leveled in this regard?
It is time that the Opposition conducted itself, in a far more responsible manner, on the issue of the allegations relating to war crimes. Asking anyone to be thankful to Ranil Wickremasinghe for not signing the Rome Statute is simply not enough.