Image courtesy of Daily News.
by Minister Mangala Samaraweera.
International legal practitioners both here in Sri Lanka and overseas have expressed their utter shock at the purported opinion expressed by Professor G.L. Peiris in the Daily Mirror of 21st July, 2017, which isn’t only legally fundamentally flawed, but is also factually false. The question is if Professor Peiris has committed violence to the law in sheer ignorance of the law or being fully aware of the law, he deliberately attempts to mislead the public in the interest of narrow political gains. We leave it to the public to decide.
Under the subtitle “Submission to the Jurisdiction of the International Court” The Professor argues that once the International Convention for the Protection of All Persons from Enforced Disappearance Bill (hereinafter referred to as “the Bill”) is passed by Parliament, “a member of the Sri Lanka Armed Forces, or indeed any citizen can find himself hauled up before the ICC”. The Professor then attempts to make a convoluted argument to support his fundamentally flawed legal opinion, a perusal of which clearly reflects that either he hasn’t read the Statute of the International Criminal Court (“the Rome Statute”) or he is deliberately stating falsehoods.
The ICC doesn’t have jurisdiction over any alleged offence committed by a Sri Lankan within the territory of Sri Lanka.
It’s important to mention at the outset that regardless of what domestic laws are enacted by any state, an international court or tribunal, including the International Criminal Court (ICC) can investigate or prosecute only crimes over which it has jurisdiction in terms of the law under which the said court/tribunal is established. This is the case in respect of any court or tribunal, be it international or domestic.
Giving the benefit of the doubt that Professor Peiris may not have read the Rome Statute (although one would expect any person let alone a professor of law to read the relevant legal instruments before expressing a legal opinion), I draw the Professor’s attention to Articles 12 and 13 of the Rome Statute, which is reproduced verbatim below:
Preconditions to the exercise of jurisdiction(by the ICC)
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.* [Article 5 describes the crimes over which the Court has jurisdiction, namely Genocide, Crimes against Humanity, War Crimes and the Crime of Aggression].
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3(emphasis added):
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.
Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
In terms of Article 12.1, a State which becomes a Party to the Statute accepts the jurisdiction of the Court, i.e. the State accepts that the Court has the power to investigate and prosecute crimes (described under Article 5) committed on its territory or by its nationals. At the outset it must be pointed out that Sri Lanka is not a Party to the Statute and, consequently Sri Lanka has not accepted the jurisdiction of the Court over alleged crimes committed within our territory or by our nationals.
Article 13 stipulates the three bases on which the ICC will exercise its jurisdiction over a crime. Namely, if a State, which is a Party to the Statute (referred to as a “State Party”) refers such crimes to the Prosecutor of the ICC [Vide Article 13(a)]; or where the UN Security Council refers a situation to the Prosecutor acting under Chapter VII of the Charter of the UN [Vide Article 13(b)]; or if the Prosecutor initiates an investigation on his own motion [Vide Article 13(c)]. However, Article 12.2 clearly provides that in the case of referrals by a State Party as provided for under Article 13(a) or where the Prosecutor initiates an investigation of his own motion as provided for under Article 13(c), the Court can exercise jurisdiction only if such crimes were committed (a) on the territory of a State Party to the Statute (including on a vessel or aircraft registered to that State Party); or (b) by a national of a State Party to the Statute.
In simple terms the ICC cannot investigate or prosecute crimes committed on the territory of a state, or by a national of a state, which is not a State Party to the Statute of the ICC. As noted above Sri Lanka is not a Party to the Statute of the ICC and as such the ICC does not have jurisdiction in terms of its own Statute over any crime committed on the territory of Sri Lanka or by a Sri Lankan national, unless a Sri Lankan national commits a crime on the territory of a State, which is a Party to the Statute. To illustrate this point by example – Australia is a State Party to the Statute. If a Sri Lankan national commits a war crime in Australia then the ICC could exercise jurisdiction over that crime. But a Sri Lankan, against whom there is an allegation of war crimes or crimes against humanity, alleged to have been committed within the territory of Sri Lanka cannot be “hauled up before the ICC” contrary to Prof. Peiris’ deeply flawed legal opinion. One practicing attorney expressing shock and dismay at the outrageously wrong opinion stated that the aforesaid legal position is well known and “even a first year law student who has examined the Rome Statute would know this”.
The only exception to the above rule is provided under Article 13(b), which gives powers to the UN Security Council, acting under Chapter VII of the Charter of the United Nations, to refer a situation in which crimes appear to have been committed to the ICC Prosecutor, even where such crimes have been committed on the territory or by a national of a state, which is not a Party to the Rome Statute.
The Charter of the United Nations is the legal instrument that governs the conduct of the UN. Chapter VII, Article 39 provides as follows: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”. And the measures that are contemplated under Article 41 include setting up of judicial bodies, such as International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), both of which were established by the UN Security Council acting under Chapter VII as a measure to prevent ongoing conflict, which threatened “international peace and security” in the regions.
In terms of Article 13(b), the UN Security Council can refer a situation for investigation to the Prosecutor, where it determines that the situation poses “a threat to international peace and security”. The conflict in Sri Lanka did not pose a threat to “international peace and security” and in any event the conflict is concluded. So there is no legal basis for the UN Security Council to refer any crime or crimes committed within the territory of Sri Lanka to the ICC Prosecutor. In any event, a UN Security Council referral is not dependent on the domestic laws of a state. If serious crimes in International law are being committed within any specific conflict or situation, and the UN Security Council passes a resolution determining that such situation or conflict poses a threat to “international peace and security” (without either of the five permanent members – US, UK, France, Russia and China – vetoing against such resolution) then such crimes can be referred to the ICC, regardless of the State concerned recognizing the said crimes under its domestic laws as punishable crimes or not. So passing the Bill has no relevance to the situation contemplated under Article 13(b).
The only other instance, where a crime (as described under Article 5 of the Rome Statute) committed on the territory of a non-state party can be subject to the jurisdiction of the Court is in terms of Article 12.3, where a state which is not a Party to the Statute can by declaration lodge with the Registrar of the Court accepting the jurisdiction of the Court over a particular crime in question. That is to say, a State has the discretion to accept jurisdiction of the Court in respect of a specific crime if that State so wishes, even if the said State is not a Party to the Rome Statute. It is important to note here, that this can happen only if the State wishes to do so, and that the ICC cannot compel a State to accept the jurisdiction of the Court in this manner.
Given that Prof. Peiris is prone to grab every passing pebble to throw in the works in order to achieve his political ambitions, we would also anticipate the Professor coming back with a response to the effect that he suspects that the present Government could lodge such a declaration before the ICC and consequently have our citizens “hauled up before the ICC”. Anticipating even such a worthless argument, it is nevertheless important to note that no incumbent government in Sri Lanka could lodge a declaration accepting the jurisdiction of the ICC over a specific crime or crimes committed in Sri Lanka in terms of Article 12.3, without the sanction of the President and Parliament voting for such a decision and the constitutionality of such a move being tested by the Supreme Court at the very least. In any event, this situation would not arise particularly under this Government as it is in fact the UNP government, under the leadership of the Prime Minister, which avoided the extension of the ICC jurisdiction to Sri Lanka by the farsighted decision not to sign onto the Rome Statute.
So the accurate interpretation of the law and the factual status is that whether Parliament passes the Bill or not, no citizen of Sri Lanka can be hauled before the ICC in respect of any allegation of crime committed within the territory of Sri Lanka. Professor’s Peiris opinion to the contrary is not only legally flawed but is also factually false.
It is also of value to note that the ICC does not have retroactive jurisdiction to try past crimes even in respect of State Parties. In terms of Article 11.1 – “The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute”; and per Article 11.2 – .”If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3”. So for argument’s sake, even if a future government of Sri Lanka were to become a State Party to the Rome Statute, the Court will have jurisdiction only in respect of crimes committed after the date the Country becomes a State Party and not in respect of crimes committed prior to such date.
Past violations cannot be prosecuted under the proposed Law
Professor Peiris also pontificates at length about the applicability of the Bill to past violations, studiously ignoring the bedrock legal principle nullum crimen sine lege, i.e. “no crime without law”, which is the moral principle in criminal law and international criminal law that a person cannot or should not face criminal punishment except for an act that was criminalized by law before he/she performed the act. This principle is entrenched in our Constitution and the jurisprudence of our Supreme Court. Article 13(6) of the 1978 Constitution provides as follows:
“No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed”.
The Proviso to Article 13(6) provides as follows: “Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”.
In Justice Sarath Silva’s decision in the case of Nallaratnam Singharasa vs. AG (2006), analyzing the Proviso to Article 13(6), the Supreme Court determined that Sri Lanka being “dualist” legal system, international treaties and conventions that the country has signed onto or is party to, are enforceable within the country, only upon the enactment of an enabling domestic law. In terms of the said decision of the Supreme Court, regardless of the date of signature and ratification, an international Convention or Treaty will have force of law within Sri Lanka only upon the enactment of the enabling domestic law, unless the enabling domestic legislation expressly provides for retroactive application of the law. For example, the Offences against Aircrafts Act No. 24 of 1982 (which was passed by Parliament for the purpose of prosecuting Mr. Sepala Ekanayake for hijacking of the Alitalia aircraft – Sepala Ekanayake v Attorney-General 1987), expressly provides in section 1 as follows:
(1) This Act may be cited as the Offences against Aircraft Act.
(2) The provisions of section 2 and Part I of this Act shall come into operation on the date of enactment of this Act.
(3) The provisions of Part II of this Act shall be deemed for all purposes to have come into operation on July 3, 1978, being the date on which—
(a) The Convention for the suppression of unlawful seizure of aircraft, signed at The Hague on December 16, 1970; and
(b) The Convention for the suppression of unlawful acts against the safety of Civil Aviation, signed at Montreal on September 23, 1971,
Entered into force in respect of Sri Lanka, and accordingly any person who has committed, on or after July 3, 1978, any act or omission which constitutes an offence under that Part shall be liable to be tried and punished for such offence under the provisions of that Part. – Unquote.
The Bill does not provide for retroactive application of the law to include past violations. In fact the Bill expressly provides that the proposed Law “shall come into force on the date of certification in terms of Article 79 of the Constitution” [vide section 1 of the Bill] .
Thus the letter of the law as noted above, is irrefutable proof that the crime of Enforced Disappearance becomes a punishable offence in Sri Lanka only on the date when the law is certified by the Speaker. As such, any alleged offences of Enforced Disappearance committed in Sri Lanka prior to that date cannot be prosecuted under the proposed law in terms of the aforesaid legal principle – nullum crimen sine lege. No doubt Professor Peiris must surely be cognizant of this fundamental principle of law, and wishes to ignore it in the interest of his narrow political motives, thus attempting to mislead the population – an act unbefitting of a former academic and a professor of law.
In the throes of attempting to establish his redundant argument that the Bill is applicable to past violations, Prof Peiris attempts to confuse the UNHRC Resolution 30/1 with the Bill. The Government has taken numerous steps pursuant to UNHRC Resolution 30/1, such as passing the law on Office for Missing Persons and proposes other transitional justice mechanisms, to deal with the past violations, to promote reconciliation and to ensure the non-recurrence of violations and conflict. The Bill is a forward looking law being enacted for the sole purpose of ensuring non-recurrence. In this context, Prof. Peiris’attempt to mislead the public is unpardonable and cannot even be justified as being part and parcel of political tactics given that the objective of the Bill is to criminalize the act of Enforced disappearances, which Professor Peiris himself admits is a “heinous offence and if it has occurred must be visited with deterrent punishment”. The proposed law does just that – provide for a deterrent punishment for the crimes of Enforced Disappearances, if committed in the future and will contribute towards non-recurrence.
The Bill has no implications on our Extradition laws
Professor Peiris also attempts to wax eloquent about the impact of the Bill on the extradition laws of the country, ignoring another fundamental principle of law, applicable to extraditions, namely dual criminality, which is a basic requirement in the extradition law of many countries, including Sri Lanka. Dual criminality means, that a suspect can be extradited from one country to stand trial for breaking a second country’s laws only if a similar law exists in the extraditing country. So before any person is extradited to another state, the requesting state has to demonstrate that the offence, for which the person is requested to be extradited to the requesting state, is also recognized as a criminal offence punishable under the law of the sending state. This is expressly provided for in our Extradition Act No. 8 of 1977 (as amended) – “the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of Sri Lanka if it took place within Sri Lanka, or outside Sri Lanka” [vide section 6(1)(c) of the Extradition Act].
As demonstrated above, the act of Enforced Disappearance will be recognized as a criminal offence punishable under our domestic law only once the Bill is passed as law.An “Enforced Disappearance” committed prior to that date is not recognized as a criminally punishable offence under our domestic laws. As such, any request for extradition for an offence of “Enforced Disappearance” committed prior to, that date from any foreign state would not meet the test of dual criminality, and will thus not meet the pre-requisite for extradition. Therefore, Professor Peiris’ arguments re implications of the Bill on our extradition laws does not hold water. Furthermore, the extradition provisions are there primarily to oblige the extradition of third party nationals to other States Party to the Convention requesting the extradition of their nationals to stand trial at home for enforced disappearance. As we don’t wish to become a haven for serious criminals, I believe that we can all agree that this is a good thing.
“The conflict in Sri Lanka did not pose a threat to “international peace and security” and in any event the conflict is concluded. So there is no legal basis for the UN Security Council to refer any crime or crimes committed within the territory of Sri Lanka to the ICC Prosecutor”
The Bill is not “one sided”. The proposed law is applicable to all!
The lack of credibility in respect of the entire opinion published by Professor Peiris can be assessed simply by one statement he makes under the subtitle, “what kind of convention has the government ratified?” He goes on to purportedly argue that “the only parties to be proceeded against are the State, its officials, and its organs. There is no corresponding obligation to deal with terrorists. One can hardly conceive of a more one sided approach; but the government is obviously happy with it”. To support this false contention, Professor Peiris selectively cites only Article 2 of the Convention, studiously avoiding the Bill which is the subject of his debate. We have cited below verbatim, section 3 sub-sections (1) and (2) of the Bill, which are self-explanatory, and which amply reflects the intellectual disingenuous methodology used by Prof. Peiris to advance his untenable arguments.
“3 (1) Any person who, being a public officer or acting in an official capacity, or any person acting with the authorization, support or acquiescence of the State –
(a) arrests, detains, wrongfully confines, abducts, kidnaps, or in any other form deprives any other person of such person’s liberty; and
(b) (i) refuses to acknowledge such arrest, detention,wrongful confinement, abduction, kidnapping, or deprivation of liberty; or
(ii) conceals the fate of such other person; or
(iii) fails or refuses to disclose or is unable without valid excuse to disclose the subsequent or present whereabouts of such other person,
shall be guilty of the offence of enforced disappearance, and shall after conviction after trial on indictment by the High Court, be punished with imprisonment for a term not exceeding twenty years, and also be liable to pay a fine not exceeding one million rupees and shall further be liable to pay compensation not less than five hundred thousand rupees to a victim”.
(2) Any person who(emphasis added) –
(a) wrongfully confines, abducts, kidnaps or in any other form deprives any other person of such person’s liberty; and
(b) (i) refuses to acknowledge such wrongful confinement, abduction, kidnapping, or deprivation of liberty; or
(ii) conceals the fate of such other person; or
(iii) fails or refuses to disclose or is unable without valid excuse to disclose the subsequent or present whereabouts of such other person,
shall be guilty of an offence under this Act, and shall after conviction after trial on indictment by the High Court, be punished with imprisonment for a term not exceeding twenty years, and also be liable to pay a fine not exceeding one million rupees and shall further be liable to pay compensation not less than five hundred thousand rupees toa victim”. – unquote.
Any person capable of reading the text in the Bill can see that section 3(2) refers to “any person” and consequently, any person, be it a member of the LTTE or any other group or private party can be prosecuted for the crime of Enforced Disappearance under the said section. Professor’s Peiris’ purported interpretation based on a blatant concealment of the relevant provisions of the proposed law, tantamount to an insult to the intelligence of our public.
It is remarkable that Professor Peiris’ entire “response” is in fact an indictment on our Military. He continues to protest that the passing of the International Convention for the Protection of All Persons from Enforced Disappearance Bill will lead to members of our Military being hauled up before the courts for the crime of Enforced Disappearance. There may be some allegations against individual members of the military, but to date, no one has alleged that the Military as an entity has committed these crimes. Yet, the clear inference of Prof. Peiris’ statements is that members of our Military are prone to commit this crime. No doubt even the international community, following these exchanges will reach that conclusion based on Prof. Peiris’ own statements. Why he wishes to make such sinister insinuations in the pretext of protecting the military is best known to Prof. Peiris.
“It is remarkable that Professor Peiris’ entire “response” is in fact an indictment on our Military. He continues to protest that the passing of the International Convention for the Protection of All Persons from Enforced Disappearance Bill will lead to members of our Military being hauled up before the courts for the crime of Enforced Disappearance. ”
What is more shocking than the fact that Professor Peiris, got it all wrong either due to ignorance of the law or in an attempt to mislead the public for political gains, is the fact that his entire purported opinion in essence advocates that the ‘heinous crime” (as he aptly describes) of Enforced Disappearance should not be criminalized in our domestic law!! All communities of Sri Lanka, without exception have been subject to this grievous crime over the decades. Thousands of Sinhalese, Tamils and Muslims have disappeared. People have disappeared from all parts of the country, South, North, East or West. It has affected, the rich, the poor, students, journalists. Thousands of children have been abducted and conscripted by the LTTE and consequently disappeared. The highest number of disappearances is from among the security forces (over 5000 members of the military are still missing). In 1990, we lost over 600 members of our police force at the hands of the LTTE. Be it in war or peace, people have been disappeared, “white vanned” without a trace. No segment of the society has been spared. It has happened under consecutive regimes. So it must stop now.
It is time that the Government fulfills its constitutional duty to provide equal protection of the law guaranteed under Article 12 of our Constitution to each individual living in the country. And what better way to start that process than by criminalizing this endemic crime that has plagued us for so many decades. No civilized person in their right mind would oppose this worthy effort to halt the continuation of this grave crime to ensure non-recurrence. Yet, Professor Peiris vehemently argues that it shouldn’t be done. In other words he vicariously advocates that the law leaves a gap in order to facilitate perpetrators of Enforced Disappearances to commit such cowardly and dastardly acts with impunity, even in the future, secure in the knowledge that such conduct is not criminalized in our law books.
It is indeed utterly shocking that one could compromise on humanity in this manner for political expedience.