Can Tamil diaspora efforts to get President Rajapaksa arrested as a war crminal succeed?

An Interview with Prof.Lakshman Marasinghe by Namini Wijedasa

Pro-LTTE diaspora groups recently succeeded in planting a story in local and international media that President Mahinda Rajapaksa cancelled a trip to the UK since he feared arrest over war crimes. This has reopened a debate on whether a head of state has unqualified immunity from arrest in another country. What does international law say on this?

Prof.Lakshman Marasinghe

The traditional view is that international law becomes a part of the domestic law of a state when that state has decided to legislate the international law rules through the parliament of that state. The UK parliament in 1708 legislated the international law rules so as to provide immunity to certain categories of foreign state dignitaries. Thus, a head of state was entitled to immunity from all legal processes before the foreign court. This privilege is ancient and the courts recognized this as a legal fact in 1844 in the decision of the House of Lords in The Duke of Brunswick v The King of Hanover.

However, the granting of immunity is a sovereign act of the receiving state. I don’t think there is any doubt the president would be granted immunity by UK. He will not travel to the UK like any one of us. He would no doubt have his visit recognized by the UK government, a matter which his foreign minister would do through the UK High Commission.

But on October 4, 2001, the UK became a signatory to the Rome Treaty which established an International Criminal Tribunal at The Hague giving each of the signatories what in fact amounts to universal jurisdiction over four categories of universal wrongs characterized under the Rome Treaty. These are crime of genocide, crime against humanity, war crimes and crime of aggression.

Article 27 reads that, “the Statute apply equally to all persons without any distinction based on official capacity as a Head of State or Government, a member of a Government or Parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.”

Article 27 of the Rome Statute quite clearly cuts the very basis upon which diplomatic immunity was conceived as fundamental to sovereign intercourse among nations. The UK by being a signatory to the Rome Treaty placed upon itself an obligation not to award immunity to whomever may have committed any one of the four crimes. That obligation is one that the UK courts are empowered to apply.

A report in UK’s The Independent newspaper said that immunity for heads of state is only active if the person allegedly responsible for offences is in the UK on an official capacity and not on a private trip like the one that President Rajapaksa was due to make. Is this true?

If the head of state is visiting another state, the question of sovereign immunity must be established before he enters that state. The receiving state has a right to refuse the award of immunity to that person which means he will not be covered by immunity. Immunity for a private visit must be first established. But then for certain crimes such as violation of human rights, war crimes — at least in the UK law — aggrieved parties could go to courts and claim that the visiting dignitary be arrested and charged under its own law notwithstanding the immunity. That was what happened to Pinochet. Now under the Rome Statute there is no prospect of immunity at all.

The same report said: “...but there is apprehension among some abroad that one may be vulnerable even during official visits because the law is not sufficiently clear”. Is this correct?

I believe that is correct. The problem is that in the UK there are two sets of laws operating in this area — the domestic law and the provisions of the Rome Treaty. The UK is bound by both and therefore the uncertainty.

The Global Tamil Forum has been trying to get proceedings instituted against President Rajapaksa and other Sri Lankan officials or military on allegations of war crimes. The government has asked them to substantiate their claims. Could they succeed?

At the beginning of this year Canada arrested a Canadian national of former Rwandese nationality who had committed war crimes in Rwanda on an application made to the Canadian courts by other Rwandese nationals of the Hutu ethnic group. He had participated in the ethnic killings of Tutsis. Canada decided to hold the trial before the Canadian courts without submitting him to the International Criminal Court, with the consent of the all powerful ICC ‘prosecutor-general’. The danger is therefore of the diaspora moving the UK courts to issue an arrest warrant. This was what happened to Pinochet. Such an application for arrest could be made by anyone, who may not even reside in the UK. In the Pinochet case, the application was made by a judge of a magistrate’s court in Spain based on the right of universal jurisdiction which the UK courts have, UK being a signatory to the Rome Treaty.

The government has asked pro-LTTE groups to substantiate their allegations of war crimes. How much information would these groups have to furnish to a court in the UK to get a Sri Lankan head of state or official indicted?

These are normally heard before the Bow Street Magistrate. In the Pinochet second decision before the House of Lords, Lord Goff made the point that “the courts of this country must remain conscious of the fact that a foreign dignitary should not be impleaded in our courts unless there are compelling reasons to do so”. As recently as last week, Prime Minister Cameron informed the Government of Israel that he will propose to the UK Parliament legislation to protect visiting foreign dignitaries from being arrested against charges detailed under Article 5 of the Rome Treaty, unless they themselves had personally committed such wrongs.

At the end of the day it is a question of burden of proof. The two levels of proof known to the Law of England are beyond reasonable doubt and a balance of probabilities.

We have only the House of Lords decision in the second hearing of Pinochet to go with. It certainly cannot be a mere balance of probabilities or what is referred to as the Carr-Bryant Rule. It must go much beyond that. The evidence must be so compelling that the court should have no alternative but to issue the warrant of arrest. In Pinochet’s case there was overwhelming evidence against him.

So, the chances of an indictment are slim?

However, I might mention a matter which greatly disturbs some of us who deal with this area of the law. Article 13 of the Rome Treaty mentions three sources from which the exercise of jurisdiction of the International Criminal Court could be aroused. First, by any one of the state parties that has signed the Treaty, such as the UK. Second, by way of a resolution passed in the Security Council invoking the powers vested in that Council under Chapter VII. That was the route taken to implead President Omar Bashir of Sudan. Third is a most disturbing aspect where, by a combination of Article 13 (c) and 15 (1), the prosecutor may himself proprio motu initiate proceedings.

This appears to make the prosecutor a very powerful person. Of course, he must under Article 57 seek an authorization from the “pre-trial chamber” and thereafter under Article 58 have a writ of arrest issued. The iniquitous nature of such a power is all too obvious. A warrant thus issued under Article 58 at the behest of one person - the prosecutor - would now become enforceable in Timbuktu against and unsuspecting head of state on a visit to view ancient African artefacts!

This matter regarding the prosecutor’s powers may come before the Appeals Chamber, taken from Kenya where the present prosecutor obtained a writ of arrest against some of the state functionaries there — including the president and prime minister — over the election riots of yesteryear.

What are the latest developments that might indicate that heads of state may not be granted immunity in future?

The two very latest are of the president of the Sudan and the president and prime minister of Kenya. Many African leaders have been previously charged, particularly from the Congo, and President Charles Taylor of Sierra Leone is presently before the court. Then, what of the Yugoslavian duo?

Do you think international law will be amended to favour heads of state on the argument that diplomacy cannot function with threat of arrest hanging over national leaders?

I don’t see a trend towards re-establishing the immunity for heads of state for such crimes. Particularly after Charles Taylor and those charged with war crimes in Yugoslavia, the world community is in no mood to be charitable towards persons of that ilk and including Omar Bashir of Sudan.

My belief is that the question of immunity to heads of state and others who have participated in committing crimes catalogued in Article 5 of the Rome Treaty have evoked not sympathy but universal revulsion. To consider providing immunity to those heads of state and those of their ilk, who had thus far gone before the ICC, simply boggles the mind and may not in reality be considered by the international community... at least not in the present day and time.

(Prof Marasinghe is Emeritus Professor of Law, University of Windsor, Windsor Ontario Canada and Attorney-at-Law of the Inner Temple, Barrister-at-Law. He is also Visiting Professor of Law, University of Colombo.This interview appears in Lakbima News of November 14th 2010)