Gajalakshmi Paramasivam

20 June 2021

 

 

GENOCIDE TRIAL ICC

 

  This morning   I was greeted by the following message from a Canadian Tamil leader:

[@IntlCrimCourt Tamils in Canada and all over the world congratulate you, hope you will render justice to the victims of Genocide in SL

My conviction is that we can find common ground in the quest ..]

 

As per my memory, former Sri Lankan Prime Minister Mr Ranil Wickremesinghe said that Sri Lanka was not party to the Rome Statute. As per ICC Q&A:

 

Under what conditions does the ICC exercise its jurisdiction?

When a State becomes a party to the Rome Statute, it agrees to submit itself to the jurisdiction of the ICC with respect to the crimes enumerated in the Statute. The Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party. Also, a State not party to the Statute may decide to accept the jurisdiction of the ICC. These conditions do not apply when the Security Council, acting under Chapter VII of the United Nations Charter, refers a situation to the Office of the Prosecutor…..

 

The ICC prosecutes individuals, not groups or States. Any individual who is alleged to have committed crimes within the jurisdiction of the ICC may be brought before the ICC. In fact, the Office of the Prosecutor’s prosecutorial policy is to focus on those who, having regard to the evidence gathered, bear the greatest responsibility for the crimes, and does not take into account any official position that may be held by the alleged perpetrators.]

 

Australia, the UK as well as Canada are parties to the Rome Statute of the International Criminal Court. Hence, unless there are provisions outside the above, Sri Lankan Tamils have no direct jurisdiction to directly apply the principles underpinning the Rome Statute.

 

To my mind, the best way is to first put our own side – mentally through the process. As per this process, we need to step into the shoes of the ICC’s new prosecutor about whom Times of India presented the following:

 

[British lawyer Karim Khan was sworn in Wednesday as the new chief prosecutor for the International Criminal Court, pledging to reach out to nations that are not members of the court and to try to hold trials in countries where crimes are committed.
Khan, a 51-year-old English lawyer, has years of experience in international lawyer as a prosecutor, investigator and defense attorney. He takes over from Fatou Bensouda of Gambia, whose nine-year term ended Tuesday.
“The priority for me, and I believe that's the principle of the Rome Statute, is not to focus so much on where trials take place, but to ensure that the quest for accountability and inroads on impunity are made,” Khan said, referring to the treaty that founded the court, in his first speech after taking his oath of office.
“The Hague itself should be a city of last resort," he said. "Wherever possible, we should be trying to have trials in the country or in the region.”]

 

In order to hold a trial in Sri Lanka, without UN Security Council intervention, the ICC would need to get the consent of the Sri Lankan government to accept the jurisdiction of the ICC. If that did happen, it  is highly likely to be political suicide. The effect on the armed forces would be weak commitment to become the official forces – especially against rebels who declare themselves to be free of the official system of law. It is that ‘freedom’ from law that often leads to victory in war.

 

The opportunity available to the ICC is to prosecute a Tamil or Sinhalese who is now living in Australia, Canada or the UK . In terms of natural laws relating to jurisdiction – both sides need to belong to the same sovereign body. If therefore those of Sri Lankan origin residing in these member countries seek to take action they have to find someone who lives in that country. It is not clear whether diplomats are exempt . Article 27 of the Rome Statute states:

 

[Article 27 Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. ]

 

Given that this current Sri Lankan government sends former army officers to countries such as Australia as its representatives – the opportunity seems to be available in these countries if those officers become nationals of these countries.

 

Here in Australia, would Former soldier Ben Roberts-Smith become liable under the Rome Statute? If yes, what about all Australians of Sri Lankan origin who were directly involved in the war? What about Mr Murugappan who was with the LTTE – now awaiting clearance to become Australian?

 

If one is seeking to improve the global system all one has to do is to access the Universal system of Justice / Dharma through one’s own conscience. Not many realize that they have direct access to the Universal system through their own truth. Once accessed the system does the rest. It is when we seek to win – that we often block that system by covering up our side’s guilt and enlarging the opposition’s. The Opposition is attractive when we are Equals. They become enemies when we ‘see’ more faults by covering up our own.