Much ado about nothing: Is Sri Lanka in danger of being held accountable by the International Criminal Court?

Image from Joe Klamar/AFP/GETTY

Early last year I set about examining, as a recent graduate, the feasibility of any citizen of Sri Lanka being tried in the International Criminal Court (ICC) over the alleged war crimes and crimes against humanity that were committed in the last phases of the war between the government of Sri Lanka and the LTTE. I concluded that 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. I wish to revisit the question of if in fact any citizen in Sri Lanka can be held accountable under the ICC within the current context.

There has been much discussion about the issue of war crimes in Sri Lanka in the past week.  The current government and all major political parties have recently commented at many capacities on United Nations panel investigations and its leaked report. Since many commentators have written, and talked exhaustedly about whether any such crimes were committed by the GoSL and the LTTE, this article will not speculate on any of the alleged accusations or its validity. It will simply pose the question of if, in fact, Sri Lanka is in danger of being held accountable by the International Criminal Court under the present context.

Even under the current context it is clear that 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, 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 these two countries would not ago ahead with any such investigation.)

The latter point was clearly apparent when Russia opposed any discussion of Sri Lanka on the UN Panel report at the Security Council on the 18^th of April.

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.

Thus, one has to ask why there has been so much interest from where there are no real grounds do so. The possible explanation could be closer to home: the President has called upon the people of Sri Lanka to turn the May Day rally into a protest against the United Nations. May day rallies have been historically reserved for the working man to protest against incumbent governments on perceived/real issues in relation to society. Issues that have historically been raised are the cost of living, labor conditions etc. In fact, in Sri Lanka the cost of living has been sky rocketing, the food prices have shot up significantly; so has the price of petrol and electricity, to name a few. (These increases have partly been attributed to increases in global commodity prices, and natural disasters here at home). However, the discussions on these uses have conveniently been avoided. Now, it seems that the opposition together with the government will join hand in hand and protest about an issue that has no real legal bearing. I shall leave the thinking reader to assess what is really going on.