Universal jurisdiction and Sri Lanka: Does govt. have coherent policy?

By Dharshan Weerasekera

In March 2021, the U.N. High Commissioner for Human Rights recommended that actions under universal jurisdiction be pursued against Sri Lankan military officers and civilian leaders who led the war against the LTTE. (A/HRC/46/20). The recommendation was repeated in March 2022 and September 2022. (A/HRC/49/9 and A/HRC/51/5). Meanwhile, in March 2021, by resolution 46/1, the Human Rights Council established a mechanism to collect evidence of war crimes purportedly committed during the war to be forwarded to countries interested in prosecuting individuals for the crimes in question.

Unfortunately, there is little or no discussion in local newspapers and academic journals about whether the drive to pursue Sri Lankans under universal jurisdiction is legitimate. It is in the public interest to start such a discussion. I argue that, firstly, universal jurisdiction as currently understood in international law cannot be applied to Sri Lankan officers and civilian leaders who oversaw the war. Secondly, there is a danger that acts of commission or omission by the government could lead to the relevant law being changed in regard to the said matter, with grave consequences not just for Sri Lanka but for other countries as well.

In this article, I shall briefly explain: i) what universal jurisdiction is and its benefits as well as drawbacks, ii) the unique attribute about universal jurisdiction and the danger of Sri Lanka setting a precedent, iii) the sources of the allegations of war crimes against Sri Lanka, iv) the flaw in the government’s response so far.

i) Definition, benefits and drawbacks of universal jurisdiction

Universal jurisdiction is the capacity of States to prosecute non-citizens for international crimes such as genocide, crimes against humanity, war crimes and others. The benefit of the procedure is that it provides a way to hold accountable persons who may have committed certain heinous crimes who might otherwise avoid answering for such deeds by hiding behind domestic laws. The drawback is that this process can be exploited. Anthony J. Colangelo, a scholar at Columbia University, says:

“Universal jurisdiction has been hailed as a catalyst for the global struggle to bring to justice elusive international criminals like tyrants and terrorists, while on the other hand decried as a dangerously pliable tool for hostile states to damage international relations by initiating unfounded proceedings against each other’s officials and citizens.” (Anthony J. Colangelo, ‘The Legal Limits of Universal Jurisdiction,’ Virginal Journal of International Law (2006), Vol. 47, 20, p. 151.)

ii) The unique attribute of Universal Jurisdiction

According to Colangelo, the unique feature of universal jurisdiction is that in regard to its exercise adjudicative jurisdiction (the authority to subject a person to judicial process) and prescriptive jurisdiction (the authority to apply a country’s laws to persons and things) are both determined by international law.

Adjudicative jurisdiction is determined by the relevant treaties. Colangelo says, “The treaties proscribing the various universal crimes represent a relatively longstanding consensus not only as to the prohibition of these crimes but also—necessarily—as to their substance” (p. 155.)

Prescriptive jurisdiction, meanwhile, is determined by customary international law. Colangelo says, “Evolution in custom likewise may alter and even expand the capacity of states to allow procedurally for universal adjudicative jurisdiction over perpetrators of international crimes” (p. 174). In my view, this is where the problem arises. Customary international law can evolve or change through state practice, which naturally includes acquiescence.

To turn to the current position of customary international law in regard to universal jurisdiction, Roger O’Keefe, a well-known lecturer at Cambridge University, contends that there must be some link between the impugned conduct and the interest of the prescribing State. (See Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concepts,’ Journal of International Criminal Justice 2 (2004), pp. 5-6) For instance, he discusses a number of ‘heads of jurisdiction,’ namely—territoriality, nationality of the offender, nationality of the victim, or offender’s service in the armed forces of the prescribing State—one or more of which are required for the exercise of universal jurisdiction.

It is difficult to imagine circumstances where other countries could claim such links in regard to acts purportedly committed during the conflict in Sri Lanka. Therefore, as matters stand, attempts at invoking universal jurisdiction against Sri Lankans who led the war-effort would most likely fail at the initial stage. However, if the government acquiesces when attempts are made to invoke universal jurisdiction based on material submitted by the impugned mechanism pursuant to a call for such action by the U.N. High Commissioner for Human Rights, a judge might interpret his or her role as facilitating the UNHRC’s human rights mandate and issue summons on the accused.

iii) The sources of the allegations of war crimes against Sri Lanka

To the best of my knowledge, there are three sources: first, reports by private organizations and NGO’s, second, reports associated the U.N. or the UNHRC and finally, the impugned mechanism. Of these, the findings of private organizations and NGO’s usually do not carry much weight unless they are supplemented by official reports of the U.N. or other recognized bodies.

To turn to the latter, there are two reports that are relevant to Sri Lanka: a) the Report of the Secretary General’s Panel of Experts (March 2011) also called ‘Darusman Report,’ and b) the Report of the Office of the High Commissioner’s Investigation on Sri Lanka (OISL report) of September 2015. The Darusman Report was commissioned by then U.N. Secretary General Ban Ki Moon for his personal use and not the result of a collective decision by a UN body. It suffers from this infirmity. However, the OISL report was authorised by resolution 25/1 of March 2014 and is the only official report of the UNHRC on the subject of war crimes in Sri Lanka.

Unfortunately, the findings of this report are of dubious value. To give just one example, consider perhaps the most famous allegation, the so-called ‘White Flag’ incident. The allegation is that, LTTE Political Wing leaders Nadesan, Pullidevan along with Nadesan’s wife and a number of others surrendered to the army and were subsequently killed.

The OISL panel analyzed photos and videos of the dead bodies, and also considered witness testimonies and open sources. They then conclude: “[Nadesan and the others] may have been executed by the Sri Lankan security forces sometime after 6.000 am on 18th May. However, further investigation is required to determine the full facts as to what happened and who was responsible for the killings” (OISL report, para 305).

The point is that, after analyzing all of the evidence in its possession, the best that the OISL panel could do is conclude that it does not know exactly what happened and recommend further investigations in order to find out what happened. It is difficult to see how a judge would issue summons based on such findings. (For a detailed analysis of all of the OISL’s charges, see Dharshan Weerasekera, ‘A Factual Appraisal of the OISL Report,’ Sarasavi Publishers, 2020)

That leaves the evidence-gathering mechanism established under resolution 46/1. The problem with this mechanism is that the material purportedly collected by it is accessible only to a handful of officials at the High Commissioner’s office. It is reported that, the unit has amassed over a hundred thousand pieces of evidence. However, it is a fundamental principal of the law of evidence that, ‘Evidence is weighed, not counted.’

No one knows what would happen if the material in question was subjected to even a rudimentary assessment considering such factors as delay, exculpatory evidence, conflict of interest (for instance, whether the witnesses were paid or granted other benefits). It is also reported that, the unit is funded entirely though voluntary contributions, which raises the spectre of politicization.

iv) The Flaw in the Government’s policy

The government has rejected the impugned mechanism. However, to the best of my knowledge, it has never yet objected to the High Commissioner’s call for countries to exercise universal jurisdiction against Sri Lankans. In my opinion, this leaves an opening for the UNHRC to continue to use the material purportedly collected by the unit regardless the government’s putative objections to it.

Conclusion

The government has an obligation to put an end to attempts at sullying the war-victory if, as it now appears to be the case, the available sources of evidence of purported war crimes are either demonstrably weak, or worse, the evidence is being funneled in secret directly to the prosecuting agencies without the accused persons or the government ever getting a chance to respond.

The government also has a responsibility not to permit alterations in customary international law in ways adverse to the interests of Sri Lanka as well as other countries. Concerned citizens should demand of the government whether it has a policy on the universal jurisdiction issue separate from that towards the evidence-gathering mechanism, and if so to explain exactly what that policy is.

(The writer is an Attorney-at-law.)