Is Sri Lanka in danger of being held accountable by the International Criminal Court?
Repost This ArticleThere has been much debate about the issue of war crimes in Sri Lanka. Both major political parties contesting the elections have used the issue for political leverage, each accusing for the other of betraying the country and the armed forces to the international community. (I will not speculate on what may or may not have happened during the last stages of the war.) There has also been much debate about the authenticity of Channel 4 video footage. There have been many versions of what transpired during these last few weeks–some have been favorable to the armed forces and some have not. This article will attempt to assess whether Sri Lanka is in fact in danger of being held accountable by the International Criminal Court (ICC) for its conduct during the last stages of the war.
Members of the Sri Lankan military who were engaged in the war against the LTTE, members of the Ministry of Defense, and the Sri Lankan president are in no real danger from being prosecuted by the ICC. The ICC, based in The Hague, The Netherlands, is the first ever permanent international institution with jurisdiction to prosecute individuals responsible for the most serious crimes of international concern: genocide, crimes against humanity, the crime of aggression, and war crimes. The ICC treaty, the Rome Statute of the International Criminal Court, went into force in 2002.  To date, 139 states have signed and nearly 100 states have acceded to or ratified this treaty. In order for a country to be under the jurisdiction of the ICC, it the Rome Statue has to be ratified. Asia is poorly represented at the ICC, and countries such as India, Pakistan, and China are not signatories. Sri Lanka is not party to the statute.
The ICC only has jurisdiction over genocide, crimes against humanity, the crime of aggression, and war crimes under the following circumstances:
- If the state is party to the Rome Statute. Sri Lanka is not party to it.
- If the alleged crimes have been committed in a country, or, if the crime was committed onboard a vessel or aircraft which is party to the statute (all alleged crimes have occurred in Sri Lankan territory).
- If the alleged individuals are nationals of countries party to the convention.  All possible members are either Sri Lankan or American. Because neither country is party to the convention, the ICC does not have any jurisdiction.
- If Sri Lanka requests the ICC investigate such crimes which may have occurred due to its own inability to do so.
- If the alleged crimes committed are referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.  Any such move by any member of the United Nations Security Council would be blocked by either China or Russia. Both are permanent members of the Security Council, due to our close diplomatic ties and due to their own internal considerations and these two countries would not ago ahead with any such investigation.
To date, three states party to the Rome Statute – Uganda, the Democratic Republic of the Congo and the Central African Republic – have referred situations occurring in their territories to the Court. All three states are Party to the Rome Statute and thus fall under the jurisdiction of Rome Statute.
In addition, the Security Council has referred to the ICC the situation in Darfur, Sudan – a nonâ€state party. The Prosecutor has opened and is conducting investigations in all of the above-mentioned situations. Nearly 80 percent of the cases that are referred to ICC are turned down because they are manifested outside the jurisdiction of the Court; only 20 percent actually warrant further analysis.
Also of note, is that even if Sri Lanka were a signatory of the ICC, the jurisdiction of the ICC would be complementary to national courts, meaning that the Court would only act when countries themselves are unable or unwilling to investigate or prosecute. Thus, even if we were signatory to the statute, if these alleged crimes were investigated in Sri Lanka there would be no room for the ICC to step in.
Taking these facts into consideration, there is no real danger of any case being brought against the members of Sri Lankan Military or the current administration. Such fears are simply unfounded.
Shakya Lahiru Pathmalal is a Political Consultant.
Sigh! I am relieved now. I was peeing in my pants at the prospect of war crimes charges. So there really are loopholes that we can exploit to escape from war crimes. We can kill with impunity and never get caught. What an encouraging news for me! We should start a consulting business to advise war criminals all over the world – how to escape after unleashing violence on hapless citizens. After the loss of GSP+, this new “business” may bring in some revenue. Let us put our best and only “skills” – KILLING & DECEIT, to good use this way. Sri Lanka should be a model state for all war criminals to follow. We should aim for that.
Shakya:
Have you forgotten that some countries have laws to prosecute even foreign individuals if they have committed crimes against humanity? Surely you know why Robert Mugabe is hiding from the world? It is a matter of time that individuals in SL, too, would face the same situation.
Actually, you ought to be ashamed of yourself. Thousands of innocent civilians have died due to the recalcitrant attitude of both parties – the LTTE and the SL regime. I just can’t believe that instead of holding these butchers as criminals you people are talking about betraying the country. Whatever happened to the conscience and Buddhist philosophy? Where is the Dharma? Just remember this – there was a time not too long ago MR thought that it would be a breeze to win in an election but he would not have certainly bargained for what he is facing now. Is this a divine providence?
exactly. winning an election on a supremacy ride and genocide. but all humans suffer thier conscious. mahinda is facing tremondous pressure and pain to protect himself and family from the mess he has created. I am sure many in the close cirlces know where the government money and time are spent today. you cann see all the missions and visits simply a validation of this claim. so yes, thumbing victory with a worrysome future. to believe china 100%, I am not sure china will not be there too long if its interest is at stake, an example is Libya. stop dreaming and stop misleading the people that we are safe, ltte cancer is gone and with thes cancer, more 40,000 have been killed, after ltte is finished the true protection for tamils also disapperared. the recent tna meeting event shows exactly where sri lanka is going. also increasing intolerance towards minorities and twisting history lectures simply shows the ignorance sinhala budhist. what i am worried about is that who is next. sinhala budhist want a villain always – first muslims in 1900, then burgers, then tea estate tamils and sri lankan tamils and JVP. now what is next?
malays?? sinhala chritians???
“Is this a divine providence?”
It’s called politics.
I cannot recall there was any action by the International Criminal Courts
in the famous recent events, regarding transgressions of electoral procedures, for example regarding the disenfranchisement of many voters in Florida in the 2002 Bush V Gore Election, where youger Bush, brother of the winning candidate, was the Governor.
Or to research a topic nearer home, and dearer ostensibly to the two leading candidates in the present election, was there any condemnation of Sri Lanka following the decision to disenfranchise plantation workers in following the grant of Independence and the first election in 1948, by bodies like the Commonwealth or the UN.
Would the writer please elaborate further with historic precedents..
The topic is “Is Sri Lanka in danger of being held accountable by the International Criminal Court?”, and the answer is “No”.
jansee and others who voice siilar concerns, as for your question in regards to particular countries having laws governing the prosecution of foreign individuals. I have not forgotten this, as some countries may have such laws, though it does not pertain to the question being asked here. The current system will not support such a prosecution. It would be up to individuals such as your self to take the impetus to change the system so such loopholes are removed.
There’s always a silver lining somewhere on this planet! Since SL is not a signatory to the ICC it could look forward to granting distinguished citizenship to war criminals who may wish to enjoy the rest of their lives in sunshine and other comforts in paradise isle. Besides they won’t feel lonesome.
What will be the position of SL nationals being prosecuted in other countries where they may have dual citizenship or Green Cards? US is not a siganotory to the Rome Convention but there are some circumstances where their citizens can be prosecuted for cruelty to other humans e.g Abhu Grail prison in Iraq where US prison wardens were prosecuted in US courts and convicted.
Do not worry. When the Pirith Noole is tied every thing will be ticka ti boo