by Gideon Boas
The charges filed in the Melbourne Magistrates Court against Sri Lankan president Mahinda Rajapaksa claiming civilians were bombed in breach of the laws of war in 2009 during Sri Lanka’s civil war raise a number of important questions. While it is clear that the Attorney-General would not authorise the commencement of war crimes charges as sought, the issues raised and the nature of the response speak volumes about where Australia is placed politically in relation to the investigation and prosecution of war crimes in this country.
The Sri Lankan authorities, and Australia’s Attorney-General, were quick to announce that international law would never support the issuing of proceedings against a head of state, as this would violate the principle of sovereign immunity.
It is true that immunity would very likely attach to Rajapaksa for the time that he served as president. The International Court of Justice dealt with a comparable case in 2003, making it clear that international law did not permit a sitting senior member of government to be pursued by a foreign state, even where they had committed war crimes or crimes against humanity. In a poorly reasoned judgement, the court rejected Belgium’s arrest warrant for the Congolese foreign minister at the time, which had been issued under powerful domestic laws which granted Belgium courts universal jurisdiction over such heinous crimes.
Despite this, questioning the international community – and the state of international law – over whether it has matured over the past decade in the debate over immunity versus impunity is not such a bad idea. There is, however, one thing that is certain – it will not be Australia asking that question.
Despite our recent endeavours (driven by Kevin Rudd) to make a case for a seat on the UN Security Council, and our purported desire to assert our relevance in the international community, the fact remains that we are a parochial and unsophisticated country, both socially and politically. Fearful of allowing international law to play any real role in our own domestic legal and political life, lest we be contaminated by cosmopolitan politics and conceptions of international morality, our own Federal Court could hold as recently as 1999 that genocide (yes, genocide) was not a crime under Australian law.
Plagued with legislation on war crimes that does not adequately empower us to prosecute crimes against humanity, genocide, and at least some categories of war crimes committed prior to 2002, the idea of following the United Kingdom in legislating retrospectively, or frankly reassessing our legislative framework, seems unlikely at the moment. There just does not seem to be enough political capital in prosecuting people who have committed horrendous atrocities against people in other countries, whether they now live in Australia or not.
Of course, the prosecution sought by Jegan Waren against the Sri Lankan president was never going to get off the ground. I doubt that was genuinely the aim. It should, however, serve to highlight how inadequate the response internationally and in our own country has been to the clear evidence of massive human rights atrocities and war crimes by the Sri Lankan authorities against the Tamils during the bitter civil war in that country. This allegedly included atrocities perpetrated by people holding Australian citizenship and possibly by people now living here.
The swift quashing of any measured legal and social discussion about this issue, clearly motivated by Rajapaksa’s presence at CHOGM in Perth, exposes how unprepared our leaders are to examine the question of war crimes, atrocity and responsibility within our own community. But this does not mean that we have to follow suit. A groundswell of support for bringing to justice war criminals hiding in Australia from the Second World War in the 1980s led to the setting up of a special investigation unit within the Australian Federal Police and some prosecutions. We also prosecuted over 800 Japanese defendants for war crimes in the late 1940s and 1950s.
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