Feature Article

UN Rights Chief must act to refer “Sri Lanka” crimes to ICC

[TamilNet, Monday, 16 March 2020, 22:26 GMT]
The UN High Commissioner for Human Rights Michelle Bachelet should act, using powers vested with her, to prompt the UN Security Council to pass a referral to the ICC to investigate the crimes committed against the Tamils between 2002 and 2009 and post-2009, Tamil legal activists based in Jaffna said. The legal activists, who didn’t wish to be named due to the fear of persecution, said the Article 13(b) of the Rome Statute and Chapter VII of the Charter of the United Nations, were the only available means towards an ICC-led criminal process. The Statute’s Article 15, Article 13(a) and (c) were not helpful in the case of Eezham Tamils, they said referring to the recent ICC Pre-Trial Chamber decisions on Myanmar (Rohingya) and Afghanistan situations.

Since the ICC didn’t have jurisdiction over Myanmar, the ICC Prosecutor has found a way to pursue the case using the jurisdiction within the territory of Bangladesh, as the latter is a State Party to the Rome Statute.

In the case of a recent decision to initiate investigations on the crimes committed in Afghanistan, the Prosecutor has invoked Article 15 as the territory of that State, where the crimes were committed, is a State Party to the Statute.

The US military personnel involved in many of the crimes belong to a State, which is not a State Party to the ICC. However, their crimes would be investigated since the jurisdiction applies to the concerned territory where the crimes occurred.

As expected, the ICC move has triggered hostile reactions from the US.

The Appeals Chamber of the ICC delivered the following decision on 05 March 2020 on the situation in the Islamic Republic of Afghanistan:

The ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’ is amended to the effect that the Prosecutor is authorised to commence an investigation ‘in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002’

Afghanistan deposited its instrument of accession to the Rome Statute on 10 February 2003, and it is a State Party to the Rome Statute of the ICC since then.

The territories of other States Parties applicable in the case of Afghanistan are Poland, Romania and Lithuania where the US has been operating clandestine CIA facilities involved in the situation in Afghanistan. The three states are also State Parties to the ICC.

The ICC Prosecutor has initiated an investigation on the situation in Afghanistan evoking proprio motu of Article 15 of the Rome Statute, without a formal request from another party.

According to Article 15 (1), “[t]he Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.”

The “jurisdiction” clause restricts the crimes to the State Parties to the Rome Statute unless referred by the Security Council.

Article 12 restricts the jurisdiction of article 13, paragraph (a) and (c), stating that the Court may exercise its jurisdiction if the “States are Parties to this Statute”.

For the ICC to initiate proprio motu investigations, its jurisdiction must satisfy either the territorial condition specified in Article 12(2)(a) or the nationality (citizenship) condition of Article 12(2)(b). Both these requirements apply to the territory or nationality of a State Party to the Statute.

Furthermore, Article 11 (Jurisdiction Ratione Temporis) of the Rome Statute states the following: (1) The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute; (2) If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

“Sri Lanka” is not a State Party to the Rome Statute of the ICC. Even if it becomes a State Party in the future, it has to give exclusive consent to investigate the crimes committed for the period before the “entry into force of this Statute for that State”.

However, according to Article 13(b) of the Rome Statute, such preconditions do not apply in “[a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations”.

Article 13 (b) referrals are based on powers of the Security Council under Chapter VII as well as the universal jurisdiction arising from the nature of the crimes.

Therefore, in the case of “Sri Lanka”, the ICC could act meaningfully if the UN Security Council refers the situation to the Court.

The Security Council has invoked such referrals in its 2005 on the situation in Darfur, Sudan (SC Resolution 1593) and the situation in the Libyan Arab Jamahiriya (SC Resolution 1970) in 2011.

The conditions are sufficient for the UN Security Council to document that the SL state is “unwilling or unable” to investigate or prosecute grave crimes in violation of international law have been already satisfied by the conduct of the previous and the incumbent regimes in Colombo.

Furthermore, the SL State’s unwillingness and its inability to prosecute grave crimes must be a subject matter for the UN Human Rights High Commissioner, who is the principal human rights official of the United Nations, to forward to the Security Council.

The independent role of UN Human Rights High Commissioner as the principal UN human rights official comes from a separate mandate of the UN General Assembly. As such, the UN Rights Chief doesn’t need to wait for any specific resolution to get passed in the Human Rights Council to initiate the Security Council process for the ICC referral.

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