Photo courtesy of Kumanan Kanapathippillai
The need for justice, truth and reparation for crimes under international law, human rights violations and abuses committed by state officials and armed opposition groups has been swept under the carpet on many occasions. The unwillingness to investigate and prosecute in fair trials and the obstacles imposed within the system creates an illusion of impregnable power, shielding state officials and all those suspected of criminal responsibility from accountability.
Although the possibility of prosecuting and punishing state officials for the brutal acts committed by them within the state was seen as an impossibility in the past, recent developments in the law have turned the tables; the demand for justice, truth and reparation has increased over the years creating the need to enforce international mechanisms to ensure that demand is met.
History of criminal prosecution
International tribunals were set up to try people who were accused of committing crimes against humanity and war crimes. The first international tribunal to hear and determine such cases was the Nuremberg trials where a series of trials were held in Nuremberg, Germany from 1945 to 46, in which former Nazi leaders were indicted and tried as war criminals by the International Military Tribunal. The Nuremberg tribunal was followed by other forms of ad hoc tribunals mainly that of Yugoslavia and Rwanda that were was set up to prosecute those who were accused of war crimes, genocide and crimes against humanity.
The establishment of these ad hoc tribunals significantly altered the course of international criminal law as it set precedence for the establishment of the International criminal court (ICC) on July 1, 2002. However, the ICC can only try and prosecutes crimes committed by individuals from countries that are signatories to the Rome Statute that created the ICC in 2002. Unfortunately, Sri Lanka is not a party to the Rome Statute and the only means of referring Sri Lanka to the ICC would be through the UN Security Council, which comprises of veto states who have vested geopolitical interests impeding on the process.
Although the prospects of international prosecution were dim, the arrest of Augusto Pinochet, the former Chilean President and Commander in Chief of the Chilean armed forces, restored hope as it put universal jurisdiction back on the table. He was known for the killings, torture and disappearances of his opponents after he seized power in 1973. Following the end of his term, when he was visiting the UK, he was arrested and a warrant was issued to extradite Mr. Pinochet to Spain to stand trial for human rights violations committed in Chile. On March 24, 1999 the House of Lords held that Mr. Pinochet could in fact be extradited to Spain. His arrest in a foreign country rattled the world as it shattered the illusion of absolute immunity placed on state officials under international law. This case illuminated a beacon of light upon a branch of law that was obscure and limitedly used – the principle of universal jurisdiction.
Universal jurisdiction: an introduction
The principle of universal jurisdiction “provides for a state’s jurisdiction over crimes against international law even when the crimes did not occur on that state’s territory, and neither the victim nor perpetrator is a national of that state. The principle allows national courts in third countries to address international crimes occurring abroad, to hold perpetrators criminally liable, and to prevent impunity”. The commission of heinous crimes falling within the ambit of international law are considered as hostes humani generis “enemies of all mankind” giving way for prosecution under universal jurisdiction, thereby granting the liberty to any state having due authority to hold such perpetrators accountable despite the nationality of the perpetrator or the victim and where the crime was committed.
According to the Universal Jurisdiction Annual review, a total of 125 international criminal charges were brought under universal jurisdiction. This includes 34 charges for war crimes, 25 charged under genocide, 66 charges for crimes against humanity and 17 charges for conflict related sexual violence.
Universal jurisdiction is not an exception to the general international rules surrounding jurisdiction for a specific set of crimes. On the contrary, it has been recognized since ancient times and is part of customary international law. However, often states need to show a connection to the territory, nationality or that it is a matter of national security when it decides to extend its arm to exercise jurisdiction beyond its territories. This wrong limitation is imposed based on the principle of sovereign equality and non-interference in the domestic affairs of other sovereign states.
The legal basis for universal jurisdiction has been in existence since Middle Age but turn more frequent over the last century. The 1949 Geneva Convention on the laws of war provides that state parties should extradite or prosecute those who have been suspected of committing war crimes. Moreover, the general agreement that international customary law allows the use of universal jurisdiction with regard to crimes considered particularly heinous by the international community such as war crimes, torture, crimes against humanity, genocide, piracy, hijacking, acts of terrorism and attacks on UN personnel is vital in terms of enforcement. The legal obligation for state parties to invoke universal jurisdiction are further set out in the 1949 Geneva Conventions, the 1973 Convention against Apartheid, the 1984 Convention against Torture, and the 2006 Convention against Enforced Disappearance.
The need for universal jurisdiction is primarily to obtain justice; it acts as a platform to bring to justice and captures people who have evaded justice at home for the horrendous crimes they have committed. Justice can also be used as a mechanism to prevent future violations of rights since the practice of internationally prosecuting perpetrators would set precedence to deter future violators. It is also seen as a catalyst to promote social reconciliation as prosecutions abroad for crimes committed at the home front would promote social healing of victims and families of victims. It is an essential tool to reveal the truth and establish official records of the incident and is necessary to uplift the rule of law for the lack of prosecution thereof impedes on the supremacy of the law.
Prosecuting under universal jurisdiction
With regards to instances where universal jurisdiction was used against state officials, in 2021 a case was filed in Argentina lower courts against military and civilian leaders in Myanmar, including State Counsellor Aung San Suu Kyi and Army Chief Min Aung Hlaing of Myanmar for genocide and crimes against humanity committed against the Rohingya people since 2017. The Argentinian Federal Court issued a historic decision ordering the judicial authorities to investigate the crimes against humanity and genocide allegedly committed against the Rohingya people.[i]
Moreover, universal jurisdiction was revied through Europe in the recent years after proceedings were initiated against the Syrian state and military officials before the French Specialized Unit for the prosecution of genocide, crimes against humanity, war crimes and torture and for the alleged use of chemical weapons during the war in Syria in August 2013 at two different locations. Proceedings were also initiated in Sweden against the members of the Syrian government including President Bashar al-Assad.
When considering the Sri Lankan context and cases that were registered under universal jurisdiction, a criminal complaint was submitted by the International Truth and Justice Project (ITJP) to the Attorney General of Singapore requesting the immediate arrest of former President Gotabaya Rajapaksa for war crimes and for the violation of international humanitarian law and international criminal law during the civil war. The complaint addresses the breach of the Geneva Conventions during the civil war in 2009 when he was secretary of defence and claims that these are crimes subject to domestic prosecution in Singapore under universal jurisdiction. In 2019, 11 victims of torture filed a civil case against Mr. Rajapaksa in California. However it was withdrawn when he became president.
The US has charged three Sri Lankans for supporting an Islamic State cell responsible for the 2019 Easter attacks and contributing to the heinous crime that killed 268 people. They were charged in December 2020 by the federal court in Los Angeles. At present the accused are being held by Sri Lankan authorities. However they need to be extradited to the US to stand trial and the release is yet to be communicated by the Sri Lankan authorities.
In order to avoid prosecution under universal jurisdiction, many states in the past have attempted to incorporate national amnesty to their laws to bar prosecution. In 2021 G.L. Peiris, chairman of the Sri Lanka Podujana Peramuna (SLPP), stated that measures would be put into place through the constitution to guarantee protection for their armed forces from potential war crimes trials. However, it should be noted that under the ambit of universal jurisdiction, national amnesty cannot legally bar prosecutions relying on universal jurisdiction.
Limitations and obstacles of universal jurisdiction
The prosecution under universal jurisdiction comes with its own limitations and obstacles. For instance although the principal of universal jurisdictions has developed overtime, its foundation remains shaky because several gray areas are present within its core, obscuring the implementation of justice. Also, states that attempt to prosecute under universal jurisdiction have poorly developed legal frameworks and lack the relevant national laws to invoke universal jurisdiction and international law.
When reflecting on the practical aspect such as the lack of understanding and knowledge of the judiciary in domestic courts and the process of incorporating domestic laws to monist countries require the recognition of international crimes within their domestic framework.
Major obstacles arise due to the particle aspects of gathering evidence, which is located primarily in the country where the crimes were committed and not the prosecuting country. The problem of evidence arises in the areas of investigation, documents and identification and protection of witnesses and victims.
This was evident in the case of Colonel Kumar Lama from Nepal who was arrested in 2013 in the UK and charged for torture allegedly committed during the Maoist conflict in 2005 when the prosecution failed to prove the facts beyond a reasonable doubt due to the difficulties in obtaining relevant evidence and the lack of technological know-how at the time to procure such evidence. However, with the advancement of technology, the practical constraints that barred effective prosecution have decimated with the years as prosecutors are able to obtain relevant information with ease and have the means to be aware when a potential suspect enters the territory.
Prosecution under universal jurisdiction is further derailed by the swift exit of accused parties the moment they get wind of action being instituted in the foreign state they are residing in. Such a situation transpired when Jagath Dias, who served as the commander for the 57th division of the army, was withdrawn from Germany in September 2011 after a case was filed by the European Center for Constitutional and Human Rights (ECCHR) and TRIAL International when he was posted as an ambassador in Germany.
The prevalence of international immunity has also been a bar to prosecution. However, this changed with the development of the law in the International Court of Justice (ICJ) judgement in Congo Vs. Belgium (2022) regarding the former Congolese Minister of Foreign affairs. The judgement acknowledged the capacity of holding an incumbent officer accountable for acts committed in their private capacity even when the criminal allegation is a crime against humanity or a war crime.
Despite its shortcomings universal jurisdiction remains one of the most viable solutions of seeking justice and holding officials who have absconded from justice to be held accountable for the violence and tyranny they have inflicted within their states.
[i] TRIAL International, 2022. Universal Jurisdiction Annual Review 2022. Universal jurisdiction, an overlooked tool to fight conflict-related sexual violence. Geneva: TRIAL International, p.19.