Is Sri Lanka in danger of being held accountable by the International Criminal Court?

There 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:

1. If the state is party to the Rome Statute.  Sri Lanka is not party to it.
2. 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).
3. 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.
4. If Sri Lanka requests the ICC investigate such crimes which may have occurred due to its own inability to do so.
5. 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 non‐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.