By

Mohan Samaranayake

Now for some time, both before and after the January 8 change, whenever the question of Geneva human rights process targeting Sri Lanka came up for discussion, a major concern expressed was whether, at the end of such process, Sri Lanka’s political and military leadership during the war against LTTE can be taken before the International Criminal Court (ICC), based in The Hague, The Netherlands, for trial and punishment. Every time this was raised, UNP big wigs kept on asserting “have no fears, no Sri Lankan can be taken before the ICC since Ranil Wickramasinghe who served as Prime Minister from 2001 to 2004 prevented Sri Lanka from signing the Rome Statute of the ICC”.

During the recent Parliamentary debate on the UNHRC Resolution L. 29, on Sri Lanka, co-sponsored by the United States, Sri Lanka and other partners, according to media reports, the same assertion was made by no less a person than the Minister of Justice, Wijeyadasa Rajapakshe, PC without having any doubt about what he was telling. Proving the age old dictum that “a lie repeated becomes the truth” many people seem to believe this statement. Even an astute and well informed Journalist like the Editor, The Island apparently believes it as he wrote in his editorial titled “A Trojan Horse” on 18 September 2015: ” Prime Minister Ranil Wickramasinghe takes pride, and rightly so, in the fact that, he, as the PM of the UNP- led UNF government (2001-2004), prevented Sri Lanka from being a signatory to the Rome Statute and thereby, foreclosed the possibility of its political and military leaders being hauled up before an international war crimes tribunal”.

Since my knowledge about how Sri Lanka didn’t become a signatory to the Rome Statute is contrary to the repeated assertion by UNP big wigs, in order to make sure that I would not err, I did a fresh search to ascertain the facts pertaining to this subject and following is what I have found:

The idea of establishing a permanent international judicial mechanism to hear cases of serious crimes of international concern and punish those who are accountable was first mooted at the Paris Peace Conference convened in 1919, at the end of the First World War. However, to make a long story short, though several steps were taken, it did not materialize until the end of the Cold War between the two super powers. In 1994 the International Law Commission of the United Nations which was entrusted with the task of formulating the statute of the proposed international court presented the final draft.

Four years later, the international community gathered in Rome, Italy for a meeting named the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, from 15 June to 17 July 1998 to finalize the draft statute which, when ratified would establish such a court. After intense negotiations and debate the statute was adopted on 17 July. Of the participant states at the Conference 120 voted for the statute; seven states namely the United States, China, Iraq, Israel, Libya, Qatar and Yemen voted against. 21 countries including Sri Lanka and India abstained from voting.

In accordance with the Article 125 of the Statute which deals with signature, ratification, acceptance, approval or accession, the Statute was opened for signature by all states in Rome, at the headquarters of the Food and Agriculture Organization, on 17 July 1998 and thereafter in Rome at the Ministry of Foreign Affairs, Italy until 17 October 1998. Since then it remained open for signature at the UN Headquarters in New York until 31 December 2000. After the deadline to sign countries can ratify but no longer sign the treaty. Following the required number of 60 ratifications was achieved on 11 April 2002 the ICC came in to force on 1 July 2002.

By abstaining from voting at the Rome Conference Sri Lanka decided right at the beginning, for obvious reasons, not to be a signatory to the Rome Statute of the ICC. When this decision was taken Sri Lanka was ruled not by Prime Minister Ranil Wickramasinghe but by President Chandrika Kumaratunga with Lakshman Kadirgamar serving as the Minister of Foreign Affairs. Mr. Wickramasinghe became Prime Minister for the second time only in December 2001, almost one year after the December 2000 deadline to sign the Rome Statute. The UNP claims credit for something that someone else has done.

In fact, by co-sponsoring the US Resolution (L. 29) moved in the Human Rights Council which was adopted on 1 October this year, Maithri-Ranil government has paved the way for hauling up Sri Lanka’s political and military leadership during the war against LTTE, or any individual for that matter, before the ICC.

It can happen in one of the two ways.

1. The Resolution L. 29 is based on the report of the UN Office of the High Commissioner for Human Rights (OHCHR) of its investigation on Sri Lanka requested by the HRC resolution 25/1 which recommends Sri Lanka, among other things, to accede the Rome Statute of the ICC. The operative clause no. 1 of the Resolution L.29 goes: “Takes note with appreciation … the report of the Office of the High Commissioner for Human Rights….of its investigation on Sri Lanka …, and encourages the Government of Sri Lanka to implement the recommendations contained therein …” Now with the commitment made by the Maithri-Ranil government it will have to implement recommendations of the Report including the one on the accession to the Rome Statute, thereby removing the hither to existed obstacle.

2. Acting under chapter VII of the Charter of the United Nations the UN Security Council can also refer a case to the ICC for investigation in spite of the fact that the country concerned is not a signatory to the Rome Statute. Indicting Sudanese President Omar Al-Basher is a case in point. For the UNSC to undertake such an investigation it has to be approved by minimum 9 members out of 15 including the 5 permanent members who are privileged to veto any resolution moved in the Council.

As it has been witnessed so far China and Russia can be expected to oppose (veto) a resolution of that nature against Sri Lanka. Now with Sri Lanka co-sponsoring the Resolution L. 29, in the event UNSC deciding to refer Sri Lanka’s case to the ICC these two veto wielding countries will find no reason to oppose the move as it is the result of an undertaking by Sri Lanka itself.

Courtesy:The Island