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Alleged war crimes: How should the Govt respond?
View(s):Even though it is four years since the end of the war the demand for a war crimes investigation does not seem to have abated. It is possible that with the passage of time such agitation would lose its momentum pursuing an unattainable goal or on the other hand, intensify depending on the dictates of the emerging political demography.
It is therefore not only prudent but necessary to adopt a strategic and cohesive action plan to counter any contingency that could adversely affect the political stability of Sri Lanka. The Government cannot be preoccupied in the long term contradicting the diaspora and western governments who at the instigation of the diaspora and/or in the prosecution of their own agendas engage in activities that are inimical to the interests of the country.
The United Nations and the diaspora apologists are not without clout. They would wait for the right political climate to emerge to move into action. If it was possible for the UN and the Western governments to constitute a tribunal to probe alleged war crimes they would have done so already. Possibly in an attempt to prepare ground for the creation of a tribunal, the UN appointed a Panel of Experts ostensibly to advise the Secretary General on matters related to the conflict situation prevalent in Sri Lanka. The resulting report has entered the UN system and is now classified as a UN document quoted in international circles.
The tribunal created by NGOs that sat in Ireland also sought to articulate the alleged war crimes committed in Sri Lanka. In both situations the allegations were totally unsubstantiated and grounded on hearsay material. The Geneva Resolutions initiated by the US possibly with the connivance of India urging GOSL to implement recommendations of the LLRC is not only an attempt to interfere in the internal affairs of the GOSL but also to make inroads for interventions in the future by way of an International Tribunal. Alistair Bert, a junior minister in the foreign office in the UK, issued an ultimatum that the GOSL must take the consequences if no investigation into war crimes is initiated. Western governments would not engage in rhetoric without a grand design for any future action against Sri Lanka especially where there is a substantial presence of Tamil people.
It must be understood that the establishment of an International Tribunal may be justified on the ground that a State Party against whom there is credible evidence refuses or neglects to probe the alleged war crimes or atrocities. In this respect, the POE, the Irish tribunal, the reports of The Human Rights Watch, International Crisis Group, etc. and the reports of the State Department and European Union, could be utilised as justification for the creation of a tribunal notwithstanding the fact that the contents thereof remain questionable, fabricated and pregnant with bias. The statements by former US Secretary of State Hillary Clinton and Alistair Bert are evidence of perceived expressions of the Sri Lankan Government’s failure to probe the alleged violations Sri Lanka stands accused of.
Options for an international intervention
There are already mechanisms in place to deal with State Parties who are perceived as violators of international criminal law. For example, positive action could be taken against a state for alleged violations upon a resolution adopted by the Security Council, triggering the jurisdiction of the International Criminal Court (ICC). It is important to observe that, such international jurisdiction might be exercised even where a country did not sign the Rome Statute. For example, Security Council adopted a loosely worded resolution which allowed military intervention in Libya securing a regime change. In the same resolution, Libya was referred to the ICC even though it has not signed the relevant Treaty.
A resolution has also been adopted with respect to the conflict in Sudan — another state which is not a signatory to the Rome Statute. Consequently, the ICC Prosecutor issued a warrant of arrest against Sudan’s President who is under the constant risk of apprehension.
Agreement between UN and the concerned State
It is also possible for the UN to adopt a resolution at the General Assembly to initiate an accountability mechanism, such as a war crimes tribunal, in respect of a country that has suffered as a result of alleged international crimes. However, this can only be done with the agreement of the relevant country. In the absence of consent, no action is possible since the General Assembly is not empowered with binding prerogatives over a non-cooperating state.
The government of Cambodia urged the United Nations to initiate an inquiry into the atrocities committed between 1975 and 1979. An agreement was accordingly reached between the Royal Government of Cambodia and the United Nations setting out the modalities of the Tribunal which was then created under the name the Extraordinary Chambers in the Courts of Cambodia. Bangladesh has also experienced war crimes, but decided to adopt an approach more attentive to the principle of national sovereignty. Its war crimes tribunal is indeed purely a domestic court with no direct involvement of the United Nations.
Universal Jurisdiction
Another aspect of great concern is the development of the principle of Universal Jurisdiction by an increasing number of countries. Universal Jurisdiction allows any country to initiate criminal proceedings and issue a warrant of arrest in respect of any person alleged to have committed war crimes in another country.
On April 11, 2000 a warrant of arrest was issued by a Belgian Investigating Judge, against the Minister of Foreign Affairs of Congo for violations of Humanitarian Law. The Government of Congo objected to the issuance of the warrant for alleged offences committed outside the territory of Belgium and also on several other grounds. Even though the warrant of arrest was ultimately considered unlawful by the International Court of Justice, there have been a number of instances where warrants of arrest have been issued against state actors by domestic courts outside the jurisdiction where the offences were allegedly committed.
In 2005 human rights groups in Britain had been critical of the British authorities for its failure to arrest Doron Almog, an Israeli General for whom an arrest warrant for alleged war crimes had been issued. When the aircraft in which he was travelling landed in London, Almog remained on board at Heathrow Airport upon being informed that he could face arrest and returned to Israel.
Universal Jurisdiction is still undergoing development and therefore is devoid of a well structured body of law. There is very little material to turn to for guidance hence the possibility of the tribunal making arbitrary orders cannot be discounted. In England this law underwent change in that the magistrate before issuing a warrant of arrest is required to obtain the sanction of the Director of Public Prosecutions as a precondition for the issuance of a warrant. In continental Europe the status quo still remains.
International crimes: Legal background
For an inquiry to be initiated there has to be evidence of genocide, crimes against humanity, or war crimes. Each of these crimes has specific definitions that embody the ingredients that are required to be established.
In international law, genocide would mean acts committed with intent to destroy in whole or in part national, ethical, racial, or religious group as such, for instance by inflicting on such groups, bodily injury, or harm. There is no evidence that the security forces in Sri Lanka were engaged in the commission of genocide.
Crimes against humanity includes acts committed as part of a wide spread or systematic attack directed against any civilian population. There is no evidence of any crimes against humanity.
War crimes, in the definition adopted by the Rome Statute, include grave breaches of the Geneva Conventions and, generally, acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat. However, these provisions do not apply to situations of internal disturbances and tensions such as riots and isolated and sporadic acts of violence or other acts of a similar nature. Moreover, nothing in paragraphs 2(c) and (e) of Article 8 of the Rome Statute shall affect the responsibility of a government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State by all legitimate means.
If one looks at the various ingredients to be established, it would be seen that the GOSL has at all times restrained itself from engaging in acts that are perceived as violations of international criminal law.
Conclusion
I wrote to His Excellency soon after the end of the war emphasising the need to establish an appropriate mechanism of accountability in relation to alleged war crimes, if any. It was, and still is, my considered view that GOSL’s reluctance to hold an inquiry would lend support to the anti Sri Lankan sentiment which is already taking root to the extent of absolving the LTTE of any wrong doing.
Sri Lanka would eventually be placed on the dock if we remain indifferent to the agitation of the international players. An international inquiry conducted without the contribution of the GOSL would be an absolute disaster, since it would be hijacked by biased, politically-motivated actors and thus become a tool to discredit GOSL. It would shatter investors’ confidence and debilitate the political psyche and stamp an indelible blot on the integrity of the country, which has to be averted at all costs.
On the other hand, an investigation into the atrocities committed by the LTTE would be a huge embarrassment for the diaspora and its apologists. Turning to the LLRC, the western governments have been urging the implementation of its recommendations strenuously.
It is possible that the Western governments would seek to coerce the Government into the full implementation of its proposals by threatening possible sanctions for the failure of its implementation. The US is on record articulating the ‘sanctions’ theory to intimidate the GOSL. In this regard, the GOSL recently released a press statement in which a timeline for the implementation of the LLRC is set out. With the benefit of hindsight, however, I think the LLRC can be counterproductive, given that some of the recommendations can be implemented while yet others are obviously not practicable.
The antagonists of the GOSL would await the change of regime and seek the cooperation of the administration in office for accommodation to institute an inquiry. This is what is happening in Cambodia and Bangladesh. Imposing sanctions on weaker nations by the more affluent Western governments is gradually finding favour among the so-called international community. Therefore it is absolutely necessary to preempt any inquiry being launched on a later date by instituting our own inquiry. In the event of a regime change whenever it would happen all those who were instrumental in bringing the war to a close would be at the mercy of the regime in office and the diaspora apologists. That is why the domestic inquiry ought to be credible. Were it not so, it would risk being considered as an attempt by the current regime to escape justice and consequently discarded.
The GOSL ought not to shy away from the need for an inquiry because such an exercise would help to preempt the GOSL from being hauled up before an international tribunal on unsubstantiated allegations and hearsay.
It would also help to dispel from the minds of those who are led into the belief that serious atrocities were committed by Sri Lankan security forces in the prosecution of the campaign against a terror outfit. The GOSL ought to keep in mind the role played by the UN and the Western governments in the creation of Kosovo. Sri Lanka would be naïve not to recognise the potential dangers that are looming on an international scale that would eventually threaten its territorial integrity. The TNA along with The Global Tamil Forum and the so-called Trans National Government are following the trail of Kosovo.
(Nihal Jayasinghe was a former Supreme Court Judge and High Commissioner in Britain. At present, he serves on the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea Extraordinary Chambers or ECCC)
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