Sri Lanka may have won the war, but now it is time to face legal challenges from the international community and the international courts.
By S.V. Kirubaharan in France
The International Court of Justice (ICJ) began its important task in 1946, dealing with international disputes and arbitration of judicial settlements between states. The ICJ is also known as the World Court. Before it was established, there was the Permanent Court of Arbitration – PCA (1899), but this was not a court in the traditional sense, and the Permanent Court of International Justice-PCIJ (1922). These settled disputes through negotiation, enquiry, mediation, conciliation, arbitration and judicial settlement.
Many confuse the ICJ with the ICC – International Criminal Court, which is governed by the Rome Statute adopted on July 17, 1998. The ICC is a permanent tribunal which came into force on July 1, 2002, also has its office in The Hague, Netherlands. The task of the ICC is to prosecute individuals for crimes against humanity, war crimes and genocide. Presently the ICC cannot exercise jurisdiction over the crime of aggression, this will be decided after January 1, 2017.
In April 1946, the PCIJ was dissolved and the ICJ took over its responsibilities, focusing on two primary tasks. One is settling legal disputes – contentious cases submitted to it by States. The other is giving advisory opinions – Advisory proceedings on legal affairs referred to it by UN institutions and other specialised agencies.
Under contentious cases, the ICJ deals with sovereignty, frontier/border/territorial and maritime areas as well as the application of conventions to disputes on aerial incidents, oil platforms, nuclear tests, etc.
Some examples of contentious cases are: Indonesia and Malaysia’s sovereignty claims over the Islands of Pulau Ligitan and Pulau Sipadan; also Malaysia and Singapore’s claims of the Islands of Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge; frontier disputes between Burkina Faso and Niger, Benin and Niger; territorial dispute between Libya and Chad; the territorial and maritime dispute between Nicaragua and Colombia; maritime delimitation and territorial questions between Qatar and Bahrain – sovereignty over the Hawar islands, the shoals of Dibal and Qit’at Jaradah, and the delimitation of the maritime areas of both countries.
The application of the 1971 Montreal Convention on the Lockerbie aerial incident between Libya and USA as well as Libya and UK; the oil platforms dispute between Iran and USA (US Navy attack caused destructions to three offshore oil production complexes of Iran in October 1987 and April 1988); issues regarding nuclear tests between Australia and France (Australia filed a case against France concerning nuclear tests by the French in the Pacific Ocean); India and Pakistan about the trial of Pakistani prisoners of war – who surrendered to India in Pakistan’s Eastern Province, present Bangladesh on December 16, 1971 and the destruction of a Pakistani aircraft by India on August 10, 1999 are a few more examples of contentious cases.
Some examples of situations on which ICJ advisory opinions were sought are: in 2008 the unilateral declaration of independence of Kosovo; in 2003 the construction of the wall in the Occupied Palestinian territory; in 1998 the case of immunity from legal process of a Special Rapporteur (Independence of Judges and Lawyers Dato’ Param Cumaraswamy) of the Commission on Human Rights; in 1995 legality of use of nuclear weapons; in 1993 the legality of the use of nuclear weapons in armed conflict and in 1950 the reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, etc.
Disputes
The conflicts between India and Sri Lanka may end up in the ICJ. There is no reason for Sri Lanka to take India to the ICJ. In the case of the island of Katchchathivu, it was granted to Sri Lanka purely on the basis of good will and friendship rather than on any historical grounds. Therefore Sri Lanka will not be able to bring this to the ICJ. But there are ample reasons for India to take Sri Lanka to the ICJ.
In 1974 the Prime Minister Indira Gandhi ceded Katchchathivu to Sri Lanka due to the fact that during this period, the Sri Lankan Prime Minister Srimavo Bandaranayake was very unpopular domestically. Therefore Indira Gandhi helped Srimavo to acquire some popularity out of Katchchathivu. At the same time it was said by political analysts that Delhi was exacting some political counter-play on Tamil Nadu.
Anyhow, it is to be observed that Katchchathivu was included in Kayts (Oorkavatthurai) electorate in Sri Lanka only after 1974. Never before in any of the electorates in Sri Lanka!
Recent statements and interviews on both sides indicate that the relationship between the two countries is very strained.
The resounding victory of All India Anna Dravida Munnetra Kazhagam (AIADMK), under the leadership of Jayalalitha is pressurising the central government to listen to the government of Tamil Nadu.
The election manifesto of AIADMK (Paragraph 16 – Special welfare scheme for Sri Lankan Tamil refugees now lodged in camps across the state.) and the Chief Minister Jayalalitha are strongly committed to improving the situation of the people in the North and East of Sri Lanka. It is believed that presently Jayalalitha is following the path of M.G Ramachandran (MGR), a popular film star and the founder of AIADMK. MGR was the Chief Minister of Tamil Nadu three times and had a deep understanding of the Tamils of Sri Lanka.
Indo-Lanka accord
The Indo-Lanka accord, signed on July 29, 1987, was expected to resolve the ethnic conflict in Sri Lanka. Under this agreement the Tamil hereditary land, the North and Eastern provinces were merged by a special decree of the executive president of Sri Lanka.
Eighteen years after this merger, Rajapaksa’s government prepared the ground for this case to be heard in the Supreme Court and in 2006 the demand for the de-merging of these two provinces was filed. The Supreme Court delivered its “politically biased decision” on October 16, 2006, stating that the merger of these two provinces by a Presidential decree was null and void. In fact, this is one of many breaches of the Indo-Lanka accord by Sri Lanka.
The Indo-Lanka accord states “2.3 There will be a referendum on or before December 31, 1988 to enable the people of the eastern province to decide whether… and the paragraph 2.3 (a)…The president may, at his discretion, decide to postpone such a referendum.”
Neither did a referendum take place nor did the President postpone such a referendum. The accord was not honored and the Supreme Court decided to de-merge these two provinces. Therefore an international agreement was breached.
On January 24, 2007, the Tamil Centre for Human Rights – TCHR published a press release titled North East de-merger could be lodged in the World Court predicting many counter remedies from the Indian side. Things have now started to happen. (http://www.tchr.net/press_rel_urg_act_tchr_2007.htm)
As predicted by TCHR, the then opposition leader of Tamil Nadhu, Jayalalitha filed a case in the Supreme Court in India on 1 May 2009, claiming that the island Katchchathivu given during Indira Gandhi’s premiership in 1974 to Sri Lanka, should be taken back, as Indian fishermen were not being allowed to go for fishing on the island.
Also Katchchathivu was ceded to Sri Lanka without the approval of the two Houses of Parliament. The Sri Lanka government maintains a deafening silence on the Katchchathivu issue.
“SC issues notices to Centre, Tamil Nadu on Katchchathivu issue 1/5/2009 The Supreme Court issued notices to the Union Government and the state of Tamil Nadu on a petition filed by AIADMK chief and former state Chief Minister J.Jayalalitha seeking direction to the government to retrieve Katchchathivu island from Sri Lanka…that the island which was given to Sri Lanka in 1974 should be taken back as Indian fishermen were not being allowed to go for fishing in the island…
(http://www.lawyersclubindia.com/news/Sc-Issues-Notices-To-Centre-Tamil-Nadu-On-Kachchathivu-Issue-2170.asp)
(http://advocatekamalkumarpandey.wordpres com/2009/01/06/legal-news-06012009/)
On May 29, 2001, then Minister of Fisheries and Aquatic Resource of Sri Lanka, Mahinda Rajapaksa said, “It is impossible to give it back (Katchchathivu) to them as it has been recognised by the international community as an integral part of our country since it was handed over by late Indira Gandhi,’’ (http://www.hinduonnet.com/2001/05/29/stories/03290006.htm)
543 Indian fishermen killed
According to the electronic media, Truth Dive of June 25 2011, “In total 543 Indian Tamil fishermen have been killed by Sri Lankan Navy, 2000 fishermen has been disabled and 700 fishermen went missing.” On the other hand Sri Lankan officials say that Indian authorities are holding 78 of their fishermen and 16 Sri Lankan vessels.
http://truthdive.com/2011/06/25/sushma-and-Jayalalitha-forge-alliance-to-retrieve-katchatheevu.html http://www.zimbio.com/International +human+ rights/ articles/ oHkYbx2DBOI/ Jayalalitha + seeks + PM + help + free+ fishermen. In the light of these affairs, as soon as Jayalalitha became the Chief Minister of Tamil Nadu, she moved a unanimous resolution on 8 June 2011 in the legislative assembly, with regard to the situation of Tamils in Sri Lanka. This referred to the constant harassment faced by Tamil Nadu fishermen by the Sri Lanka navy personnel and demanded that the Indian government impose economic sanctions against Sri Lanka, until the Tamils are given equal rights and until war crimes charges are brought against those responsible.
Another resolution moved by Jayalalitha calls upon the Tamil Nadu government to plead itself, the case pending in the Supreme Court on the legitimacy of the transfer of Katchchathivu to Sri Lanka.
Cases in the ICJ
All these three issues – the breach of the Indo-Lanka accord, the claim to Katchchathivu and the killing and harassment of Indian fishermen, are leading to international friction and could endanger the maintenance of international peace and security in that region. Therefore, the Indian authorities can report this breach of the Indo-Lanka International agreement, to the UN Security Council – under Chapter VI of the UN Charter, articles 34, 35 and 36.
If the Indian authorities happen to make this complaint to the UN Security Council, eventually this complaint would lead to a hearing in the ICJ. At the same time the maritime delimitation and territorial question of Katchchathivu would be added to the same case or filed separately.
If legal action is sought through the ICJ, no states would be able to come to the rescue of Sri Lanka. Therefore it is advisable for Sri Lanka to learn from other similar cases heard and pending in the ICJ.
The Territorial and Maritime dispute cases between Nicaragua and Colombia and Peru and Chile will yield lessons. Concerning the Katchchathivu dispute, the case between Qatar and Bahrain; sovereignty issues over the islands and the delimitation of the maritime areas of both countries and the case between Cambodia and Thailand over the Temple of Preach Vihear are both similar cases that could indicate what may happen between India and Sri Lanka.
The breach of the Indo-Lanka accord is a breach of international agreement, and will in this sense be a case similar to the one between former Yugoslavia, Republic of Macedonia and Greece.
While Sri Lanka is preparing for cases which may come up in the ICJ, it must seriously consider the consequences of selling lands and properties to other countries. It is obvious that the purpose of this is to fill the pockets of some ministers and bureaucrats.
The case pending between Germany and Italy in the ICJ gives an understanding of how far the present sale of land is going to effect the future of Sri Lanka. Also the advisory proceedings on Liechtenstein and Germany may offer some lessons for Sri Lanka.
Sri Lanka will have presumably taken note of the triangular development that took place within the last few days – US secretary of state Hillary Clinton’s visit to Chennai; the MoU signed on July 13, between the Commonwealth and the ICC, and the statement made on July 15, by the official spokesperson of the Ministry of External of Affairs of India.
Sri Lanka may have won the war, but now it is time to face legal challenges from the international community and the international courts.