Marino OCampo, the Prosecutor for the International Criminal Court (ICC), during a press briefing for the 9th session of Assemblyof Parties for the Rome Statute said, "if there becomes clarity that nationals of state parties committed crimes, that could be an option [for ICC action]." Clearly, in O’Campo’s view Sri Lanka’s Dr Palitha Kohona, a Sri Lanka citizen holding dual nationality in Australia, might fall within the jurisdiction of the ICC, as Australia is a party to the governing Rome Statute of the ICC.
With International Criminal Court prosecutor Luis Moreno Ocampo at the UN on Tuesday, Inner City Press asked him about the killings in Sri Lanka and if and when the ICC could take action.
"Ocampo began with the obvious, that Sri Lanka is not a state party to the Rome Statute of the ICC. But as Inner City Press pointed out in its question, several of those suspected of war crimes in Sri Lanka have dual citizenship, some with countries that ARE members of the ICC," Inner City Press reported.
Palitha Kohona has been widely believed to be complicit in "aiding and abetting" killing of surrendees in Sri Lanka’s war against Liberation Tigers.
However, United Nation’s Rome Statute for the ICC provides safeguard to support a nation’s sovereignty by mandating the principle of complementarity. This doctrine renders a case inadmissible before the ICC, if it is currently under investigation by a state with jurisdiction over it. The concept of complementarity, however, allows for ICC jurisdiction in situations when the state is unable or unwilling to proceed with an investigation or where the state investigation is conducted in bad faith such as when it is used to shield the person from criminal responsibility.
Thus, legally active groups in Australia first must demonstrate that Australia is "unable or unwilling" to prosecute Australian citizen Kohona in an Australian court before ICC will be willing to entertain complaints against Kohona.
"To ensure the primacy of Australian jurisdiction to prosecute for international crimes, and thereby to enable ratification of the Rome Statute, the Australian government introduced the ICC Act 2002," the author of a Sydney Law Review article says. Australia also created additional amendment acts to create offenses that are equivalent of the crimes of genocide, crimes against humanity and war crimes set out in the Rome Statute.
Sydney Law Review: Rome Statute Implementation
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