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Sri Lanka cannot escape war crime charges

[Express Buzz, Tuesday, 29 December 2009 19:18 No Comment]

Although Sri Lanka is not a signatory to the Rome Convention which set up the International Criminal Court (ICC), the island nation can still be dragged before the ICC without its consent, senior cabinet minister and a former Professor of Law, G.L.Peiris, has said.

He told The Sunday Island on December 20, that the UN Security Council had the right to request the Chief Prosecuting Officer (CPO) of the ICC to embark on an investigation of the complaints it had received with a view to prosecution. The CPO could, on his own, seek the approval of the Pre-Trial chamber of the ICC to conduct investigations.

In the Sri Lankan case, the UN’s Special Rapporteur for Extrajuicial Killings and Arbitrarty Executiuons, Philip Alston, had called for clarifications on the allegation that the Sri Lankan army had killed three top leaders of the LTTE and their families when they had come to surrender waving white flags as per a prior arrangement between them and the Lankan government. The allegation had been made by no less a person than Gen.Sarath Fonseka, a former Army Commander who is now a candidate in the January 26 Presidential election.

It is felt that Alston’s letter could well be the first step in a UN bid to get key Sri Lankan decision makers and officials to appear before the ICC.

CPO COULD ACT INDEPENDENTLY

According to former diplomat Bandu de Silva, Sri Lanka might be able to block a Security Council initiative with the help of a Russian or a Chinese veto, but it should be borne in mind that the CPO could act independently. The CPO was already thinking of bringing the US before the court for war crimes, he said.

In an article in The Sunday Island on December 27, Kalana Senaratne, said that the CPO could on his own make a case for prosecution by analyzing the seriousness of the charges made and seeking further material from UN organisations, rights bodies and inter-governmental bodies.

“The statements made by Sarath Fonseka can only add to the evidence that is piling up in the CPO’s office right now.”

“If the prosecutor comes up with a serious case, the Security Council would need to take note of it, which could result, not in the setting up of a special tribunal, but in approving and directing the ICC to initiate an inquiry – which is possible under Art 13 (b) of the Statute,” Senaratne said.

Additionally, the ICC could come into the picture legitimately under the Rome Treaty on the grounds that Sri Lanka had failed to investigate the complaints on its own, and that external investigation was therefore necessary. Denial of Fonseka’s allegations would, therefore, not do. Colombo would have to investigate, Senaratne said.

OTHER COUNTRIES COULD ASSERT JURISDICTION

Minister Peiris hinted at the possibility of other countries asserting jurisdiction on war crimes.

A Spanish court heard a case against Israeli Generals under the “universal jurisdiction theory under a private plaint by relatives of the affected parties (Geneva Convention).”

The District Court of Colombia heard the case against Israeli Lt.Gen.Moshe Ya’alon under a private plaint.

DANGER OF ARREST ABROAD  

Peiris had also said that there was a “real danger” of Sri Lanka’s Defense Secretary Gotabaya Rajapaksa or the former commander of the 58 Army Division, Maj.Gen.Shavendra Silva, being questioned, if not arrested, when being abroad.

According to Kalana Senaratne, the Westminster Magistrate’s Court had issued an arrest warrant against Israeli Foreign Minister, Tzipi Livni, for alleged war crimes committed by Israel during the operations in Gaza in December 2008.

BAD OMEN

That the international community is not too pleased with Sri Lanka even now, six months after the end of the war against the LTTE, is evident from the fact that the European Council has recommended the denial of EU trade concesssions under the GSP Plus scheme on the grounds that Colombo has not kept its promise to safeguard human rights and work towards ethnic reconciliation.

ENS

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