War crimes prosecution untenable - Senior lawyer

Sarath Malalasekera

Amidst wide speculation that measures would be taken by the International Community to prosecute the political and military leaders of Sri Lanka for alleged crimes committed during the recently concluded conflict in the North, Senior Criminal Lawyer Upali Senaratne stated that such a move is not possible under International Criminal Law, except under extreme circumstances which will never materialise given Sri Lanka's strong relationship with certain powerful and more understanding states in the world.

Commenting on this further Senaratne referred to certain suggestions made by persons about the possibility of taking Sri Lankan leaders to the International Criminal Court (ICC) for example. This is the ultimate desire of the LTTE and the pro-Tiger diaspora. There is no such possibility under the Roman Statute which has established the ICC.

Quoting eminent authorities on the subject of International Criminal Law, Senaratne mentioned that there is even a strong procedural bar which prevents nationals of a non-State Party from being tried before the Court.

The Senior Criminal Lawyer emphasised that as certain commentators on the subject have pointed out, the only possibility that exists is if the Security Council of the UN decided to refer the Sri Lankan case to the ICC or if it decided to establish an International Criminal Tribunal designed specifically to prosecute alleged war crimes committed in Sri Lanka - which was done in the case of the former Yugoslavia and Rwanda.

He stated that this was simply wishful thinking, given the fact that powers such as Russia and China, who understand Sri Lanka's momentous defeat of the LTTE to be welcome development that ushers in a sustainable and durable peace to the country, would never let Western powers arrive at such a preposterous decision to prosecute Sri Lankan leaders for defeating the world's most ruthless terrorist organization.

The firm relationship that President Mahinda Rajapaksa has established with these countries effectively closes all doors through which any illegitimate prosecution could be pushed through, in this regard. Also, it was stated that comparing the situations in Yugoslavia, Rwanda and Sudan with that of Sri Lanka is utterly irresponsible.

In Sri Lanka, what was seen was a fight against the brutal terrorism of the LTTE conducted in the most ethical manner by the Sri Lanka Armed Forces and the Police, which also included a massive humanitarian mission rescuing close to 300,000 innocent civilians held hostage by the LTTE. How can that be compared with the brutalities that were seen in other countries, Senaratne queried.

He mentioned that it is also significant to note that President Rajapaksa has on a number of occasions when addressing the masses, referred to the fact he is ready to face any consequence if that is the price he has to pay for liberating this country from the clutches of terrorism.

In conclusion Senaratne said it is the duty of the legal profession in Sri Lanka, to assist President Mahinda Rajapaksa at this hour when the collective effort of every single member of the profession is urgently required for the protection of not only the valiant leadership given to the defeat of the LTTE by President Rajapaksa, but also in defence of the country's sovereignty, territorial integrity and independence.