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SRI LANKA: Avoiding The UNSC For An International Investigation

Parasaran Rangarajan for There are several ways of avoiding the UNSC for a trial to commence against accused war criminals.
These images of war crimes committed at Mullivaikal in 2009 will forever be associated with the Majinda administration in Sri Lanka. Courtesy:

( !N"!N# - The $nternational Criminal Court ($CC# remains relatively new% formed in &''&% to address allegations of war crimes% crimes against humanity% genocide% and serious violations of international law. The Rome Statute remains the founding legislation of the court which e()ressly states the conditions re*uired for ta+ing u) a situation for ,oth investigations and trial. There are several ways in which this may occur and ,egin with the )rovisions detailed in -rticle .& of the Rome Statute% all which re*uire the concerned )arty to ,e a mem,er of the court in some way. -nother way that the international court may consider a case is through referral from the U.N. Security Council (UNSC# when there is an /international investigation0 into the last )hases of the civil war in Sri an+a conducted% either ,y the U.N. 1uman Rights Council (UN1RC# or through the )owers e(ercised ,y the U.N. Secretary-2eneral (UNS2# under -rticle 33 of the UN Charter. The UNS2 fact finding missions are rarely rejected furthering the case for use of -rticle 33 of the UN Charter which the government of Sri an+a was *uic+ to critici4e when the UN !ffice of egal -ffairs% the UNS25s own legal team% advised him to e(ercise this instrument at the time of the genocide. Regardless% in ,oth scenarios% the UN1RC and UNS2 are re*uired )resent their findings to the UNSC for referral to the $CC for further action. 1owever% the UNSC has ,een at the center of controversy in recent times as it rejected a referral for the situation in Syria to the $CC after investigation ,y the UN1RC due to vetoes ,y Russia and China. $n the case of Sri an+a% an international investigation which must ,e )resented to the UNSC% might ,e vetoed ,y China as it is a strong su))orter of the Raja)a+sa regime due to economic and strategic interests in the $ndian !cean. This fact cannot ,e overloo+ed as an international investigation into the genocide which occurred in Sri an+a% a term for what ha))ened which cannot ,e argued now as it has ,een used ,y the government of $ndia recently as well as the UN% would ,e )ointless in terms of ,ringing change on the island without a meaningful and legally ,inding trial of the accused.

SL Pres. Majinda Rajapaksa

There are several ways of avoiding the UNSC for a trial to commence against accused war criminals. !ne% which has ,een suggested in the case of Sri an+a ,y well +nown legal scholar and Professor "r. 6rancis 7oyle of the University of $llinois is to use -rticle && of the UN Charter which allows for the UN to set u) a /su,sidiary organ0 such as a tri,unal to )rosecute the war criminals u)on &89 majority vote at the U.N. 2eneral -ssem,ly (UN2-# and call u)on all mem,er states to su))ort a tri,unal in case of such a veto at the UNSC u)on the )resentation of the findings of an international investigation. -nother via,le o)tion which has not ,een discussed in the case of Sri an+a is for a State mem,er of the $CC to invo+e -rticle .: of the Rome Statute which allows the State to refer a situation which falls under jurisdiction of the court for investigation. -rticle .; of the Rome Statute allowing for the $CC Prosecutor to commence a /)ro)rio motu0 investigation is also )ossi,le ,ut once again re*uires all the conditions of jurisdiction to ,e fulfilled or re*uires referral from the UNSC. This is certainly )ossi,le although the )re-conditions to the e(ercise of jurisdiction of the $CC as s)ecified under -rticle .& are *uite restricted. $t is im)ortant to note that the island nation of Comoros referred $srael% also non-signatory to the Rome Statute% to the $CC invo+ing -rticle .: of the Rome Statute for the first time in history earlier this year using a similar method for the incident involving $sraeli forces raiding the flotillas to 2a4a sent from Tur+ey as the vessels were registered in Comoros% giving the $CC means for jurisdiction under -rticle .& (&# (a# of the Rome Statute. To )ro)erly utili4e this method in the case of Sri an+a% we must first give recognition to the notions of criminal lia,ility% res)onsi,ility% and com)licity under customary law. <e may refer to The $nternational Criminal Tri,unal for the 6ormer =ugoslavia ($CT=# and its hearings for this matter. $n Prosecutor v. Furundzija (Case No. $T-3;-.>8.#% Prosecutor v. Vasiljevic (Case No. $T-3?-9&-T#% and Prosecutor v. Blaskic (Case No. $T-3;-.:#% it was found that /aiding0 in international criminal law entails )roviding )ractical assistance that has a su,stantial effect on the commission of the crime. 6urthermore% an /aider0 must intentionally )rovide assistance to the )er)etrator with +nowledge of the )er)etrator5s intent to commit a crime% ,ut need not himself or herself su))ort the aim of the )er)etrator as stated in Blaskic and several instances in Furundzija. -nother im)ortant fact to ta+e note of is that the $CT= stated that a )erson may ,e lia,le as an accessory whether the assistance is )rovided ,efore% during% or after the s)ecific crime in *uestion is committed inVasiljevic and Blaskic. Ne(t% in the $nternational Criminal Tri,unal for Rwanada ($CTR#% the su))ly of arms is directly lin+ed with criminal lia,ility for genocide. $n Akayesu% the $CTR stated that@ /By procuring means, such as weapons, instruments or any other means, used to commit genocide, with the accomplice knowing that such means would be used or such a purpose.! The $CC has e()ressly stated under -rticle &; (9# (c# of the Rome Statute that a )erson shall ,e held lia,le for )unishment for crimes within jurisdiction of the court such as war crimes or genocide if that )erson@ /For the purpose o acilitating the commission o such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means or its commission.! Reali4ing that a State signatory to the Rome Statue or a national of that State can ,e held criminally lia,le ,y the international justice system for su))lying arms +nowing that it will ,e used for war crimes% we turn ,ac+ to the arms su))lies to Sri an+a in &''3 when the genocide

was ta+ing )lace. The U.S.% $ndia% and many other nations cut off arms su))lies to Sri an+a )rior to &''3 when it was re)orted that there wide s)read human rights a,uses ta+ing )lace on the island including war crimes as documented ,y government agencies and human rights organi4ations. 1owever% e(amining data from the Peace Research $nstitute !slo (PR$!# and United Nations Commodity Trade Statistics "ata,ase (C!ATR-"B#% we see that over C..9A US" in ammunition were su))lied in &''3 to the government of Sri an+a from the Phili))ines% 7ra4il% Cy)rus% Netherlands% and Swit4erland. There is an interactive ma) created to highlight these authori4ed transactions and although there were no arms em,argoes at the time% customary law in terms of +nowledge of the usage of these wea)ons in light of re)orts of war crimes still a))ly@ $n addition% the U-B su))lied over .D. +ilograms of ,om,s% grenades% ammunition% and mines to the government of Sri an+a in &''3 according to the data )rovided ,y the UN organi4ation C!ATR-"B. <e may also loo+ to arms su))liers )arty to the Rome Statute in late &''? as well since they most certainly were aware of the situation on the ground at the time. Needless to say% the Sri an+an -ir 6orce ,om,ed the /No 6ire Eones0 in &''3 ma+ing the mentioned nations or individuals who acted u)on the authori4ations accom)lices to the genocide as much of the international community cut off their arms su))lies to Sri an+a in light of re)orts of allegations of war crimes ,eing committed. Therefore% the notion these individuals or nations were not aware of the intent of the government of Sri an+a will ,e difficult to )rove although they might have su))orted it which is not re*uired for the $CC to e(ercise jurisdiction. -ny one of the mentioned nations or the individuals of that nation that are )arty to the Rome Statute may ,e referred to the $CC ,y another )arty of the Rome Statute under -rticle .:. Aost im)ortantly% the government of Sri an+a can ,e investigated ,y the $CC and the case may )roceed to trial without UNSC referral and even though Sri an+a is not )arty to the Rome Statute due to the o,servations of former $CC Prosecutor Aoreno !5 Cam)o in his )reliminary investigation in the allegations of war crimes in $ra*. -lthough that case did not )roceed due to various reasons which do not a))ly to the case of Sri an+a% his o,servation holds to ,e a))lica,le% s)ecifically he noted that@ /"ome communications submitted legal arguments that nationals o "tates Parties may have been accessories to crimes committed by nationals o non#"tates Parties. $he analysis o the % ice applied the reasonable basis standard or any orm o individual criminal responsibility under Article &'.! "ue to the fact that nations and nationals of States )arty to the Rome Statute such as the U-B su))lied ,om,s to Sri an+a with the +nowledge that war crimes were ta+ing )lace and the government of Sri an+a did not have any intention of ending these offensives% the concerned individuals of the aiding State and the non-State PartiesF the Raja)a+sa regime may ,e investigated ,y the $CC for these war crimes using the reasona,le standards for individual criminal res)onsi,ility under -rticle &; of the Rome Statute )rovided there is enough evidence as noted ,y $CC Prosecutor !5 Cam)o. !ne might wonder% why Russia or China has not ,een ta+en to the $CC for su))lying arms to Syria when it is noted there are war crimes occurring there ,ut it is very sim)le% ,oth are not signatories to the Rome Statute% there is no referral from the UNSC% and thus far no referral ,y a State )arty has ,een conducted where jurisdiction can

,e e(ercised. Therefore% using these )recedents% we may esta,lish a lin+ ,etween a non-State Party and the nationals of State Parties to the genocide in Sri an+a in &''3 re*uesting the $CC to commence an investigation without a))roval ,y the UN1RC% UNS2% UNSC or without Sri an+a signing the Rome Statute ,y com,ining and citing customary law% re*uesting a State Party to the $CC to invo+e -rticle .: allowing for referral where jurisdiction re*uirements are met under -rticle .& (&# (,# as a mem,er state national is involved who aided the government of Sri an+a in this genocide and individual criminal res)onsi,ilities in -rticle &; of the Rome Statute are relevant. Parasaran Rangarajan: Editor-in-chie or the International La! "o#rnal o London and $e$%er o the legal de&art$ent o the Pri$e 'inister(s ) ice o the T*TE+