ICC restricted from intervening in Sri Lanka

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By 2017-09-12

By KEERTHI
KUMBURUHENA
LL.B (Sri Lanka), LL.M (Aberdeen),
Attorney-at-Law

The International Criminal Court (ICC) was founded to investigate crimes such as genocide, war crimes and crimes against humanity and aggression. It has been established through the Rome Statute, which entered into force on 1 July 2002. ICC ('the Court') could, issue a warrant of arrest for a person if it is satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court (Article 58(1)).

Sri Lanka is not a State Party to Rome Statute

It is a precondition to the exercise of jurisdiction of the ICC that a State becomes a Party to the Rome Statute (Art. 12 (1)). Only State Parties could refer their issues to the Court (Arts. 13 (a)& 14 (1)). In other words, the ICC has jurisdictions mainly over the State parties. Alternatively, it may exercise its jurisdiction if a non-State Party has accepted the jurisdiction of the Court by declaration, in respect of the crime in question (Art. 12 (3)).

Accordingly, a State which is not a Party to this Statute, may, by declaration, accept the exercise of jurisdiction by the Court in respect of the crime in question. Alternatively, even if a State is not a party to the Rome statute, the Court may exercise its jurisdiction if there is a situation where one or more of the crimes, which appear to have been committed, is referred to the Prosecutor by the UN Security Council (UNSC) acting under Chapter VII of the Charter of the United Nations (Art. 13 (b)).

For instance, the ICC intervened in the matter in Darfur, Sudan through a reference by the UNSC. On a rare occasion, the Court may exercise its jurisdiction if the Prosecutor of ICC has initiated an investigation, 'proprio motu' on the basis of information on crimes within the jurisdiction of the Court (Arts. 13 (c) & 15 (1). The Court may invite any State which is not a party to the Rome Statute to provide assistance under this Part on the basis of an 'ad hoc' arrangement or an agreement with such a State or any other appropriate basis. (Art.87 (5) (a)).

Sri Lanka is not a State party to the Rome Statute and we have never accepted the jurisdiction of ICC by way of any declaration as defined in Articles 12 (2) and (3). Thus, the ICC cannot at any time intervene in Sri Lanka under Article 13 (a) or (c). And, there has been no reference to the Prosecutor by the Security Council acting under the aforesaid Chapter VII. Moreover, we have not accepted any invitations of 'ad hoc' arrangements so far and therefore, ICC cannot intervene through Article 87 either.

Not only Sri Lanka. The ICC still has no jurisdiction over many States which are not State parties of the Rome Statute. Even the United States and India are not State parties to the ICC. Although the United States signed the convention, they have not ratified it. India has neither signed nor ratified. Another example is Syria, where the ICC does not have jurisdiction. ICC could exercise its jurisdiction if Syria was a State party to the Rome Statute or if it made a declaration accepting the ICC's jurisdiction under Article 12 (3). Syria is neither a State party nor has it made any declaration accepting the jurisdiction of the Court and there is no reference from UNSC.

Is ICC only complementary?

The jurisdiction of the ICC is based on the 'principle of complementarity'. The Preamble of the Court says 'the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions' (paragraph 10). Article 1 says 'ICC shall be complementary to national criminal jurisdiction'. This means the Court could intervene in a domestic matter only if the State parties had failed, were unable or reluctant to investigate it. Hence, even if Sri Lanka had signed the Rome Convention, the ICC could have never interfered in the National Court proceedings or investigations unless there had been a serious failure or neglect in the domestic proceedings.

The ICC does not replace the domestic criminal justice system, but acts as a complement to it. Thus, it could prosecute cases only in circumstances where State Courts are passive or found inadequate. The ICC should rely on the cooperation of the State to enforce warrants. The principle of 'complementarity' has gradually limited the ICC's freedom of prosecution and investigation in cases where the domestic Court proceedings are pending. In addition, the Court has no jurisdiction to hear a matter which has been already investigated at domestic level.

When State parties wish to cooperate with ICC, they shall not disregard the procedures laid down in national laws. In other words, domestic civil and criminal procedure laws should not be negated while complying with a request of the Court to assist investigations or prosecutions (Art. 93(1)). Requests for assistance shall be executed in accordance with the relevant procedure under the law of Sri Lanka and, unless prohibited by such law, in the manner specified in the request, including procedure outlined in the Rome Statute or permitting persons specified in the request to be present at and assist in the execution process (Art. 99 (1)).

Jurisdiction of ICC limited

The jurisdiction of the Court is limited to the most serious crimes of concern to the international community. The Court has jurisdiction in accordance with the Rome Statute in respect of (a) genocide, (b) crimes against humanity, (c) war crimes and (d) the crime of aggression (Art. 5 (1)).

The Article 8 (1) says 'the Court shall have jurisdiction in respect of war crimes in particular when committed'. Crimes against humanity has been defined as '.... committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack' (Art. 7 (1)).

Furthermore, the ICC elaborates the legal principle of 'nullumcrimen sine lege', which means a person shall not be criminally responsible under the Rome Statute, unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court (Art. 22 (1))

Warrants summons & arrests beyond jurisdiction

Before the issue of a warrant of arrest or a summon to appear before the ICC, it has to be satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court and such an arrest is necessary to ensure the person's appearance at trial, to ensure that the person does not obstruct or endanger the investigation or the Court proceedings; or to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same (Art. 58 (1)).

Even if a person is arrested on a request of the ICC, such a person should be brought promptly before the competent judicial authority in the custodial State which would determine, in accordance with the law of that State (Art. 59 (2)).

ICC forfeits right to intervene if the case is being investigated in Sri Lanka

Certain cases are inadmissible in ICC investigations. First, if the case is being investigated or prosecuted by a State, over which it has jurisdiction, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution, it is inadmissible (Art. 17 (1) (a)). Secondly, if the case has been investigated by a State over which it has jurisdiction and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute, it is inadmissible (Art. 17 (1) (b)).

In order to determine the aforesaid 'unwillingness' of a State to prosecute a case, the Court shall consider, whether (a) the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court, (b) there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice, (c) the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice (Art. 17 (2) (a-c)).

In order to determine 'inability' of a State to prosecute a case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings (Art. 17 (3)). The ICC cannot even initiate an investigation if the information available to the prosecutor does not provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed or the case is or would be admissible under article 17 mentioned above (Art. 53 (1) (a-b)). In such a case, the Court should not issue warrant or summons (Art. 53 (2) (a)).

ICC's Jurisdiction challengeable

ICC shall satisfy itself that it has jurisdiction in any case brought before it (Art. 19 (1)). Its jurisdiction could be challenged in three ways. First, by an accused or a person for whom a warrant of arrest or a summons to appear has been issued. Secondly, by a State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted. Thirdly, by a State from which acceptance of jurisdiction is required by declaration (Art.19 (2) (a-c)).

Where the person sought for surrender brings a challenge before a National Court on the basis of the principle of 'ne bis in idem' as provided in Article 20 of the Rome Statute, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility (Art.89 (2)).

No prosecution possible against State Immunity

The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law in respect of the State or diplomatic immunity of a person or property of a third State, unless the Court could first obtain the cooperation of that third State for the waiver of the immunity (Art.98 (1)).

In addition, the Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court could first obtain the cooperation of the sending State for the giving of consent for the surrender (Art.98 (2)).

ICC cannot be detrimental to National Security

A State could deny the disclosure of information to the ICC in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests (Art. 72 (1)). If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to obtain resolution opposing it (Art. 72 (4)).

If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps would be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means (Art. 72 (5)).

If the originator of the information is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of Article 72. If the originator is not a State Party and refuses consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a pre-existing obligation of confidentiality to the originator (Art. 73).

A State Party may deny a request for assistance, on the whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security (Art. 93 (4)). Alternatively, the State party could provide the assistance subject to conditions or provide the assistance at a later date in an alternative manner. The ICC shall abide by them (Art. 93 (5)). If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the 'consent of that State' (Art. 93 (10) (b) (ii) (a)).

No prosecution for mistakes and shortcomings

A 'mistake of fact' or 'mistake of law' shall be a ground for excluding criminal responsibility if they negate the mental element required by the crime (Article 32 (1-2)). Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge (Art. 30 (1)).

The 'knowledge' means awareness that a circumstance exists or a consequence would occur in the ordinary course of events (Art. 30 (3)). In addition, Rome Statute intends to believe that children have no intention and knowledge in respect of any crime in question. Therefore, the ICC shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime (Art. 26).

ICC cannot interfere in the Independence of our Judiciary

The Rome Statute itself provides a very limited jurisdiction to the ICC by imposing many restrictions upon it. These restrictions have made it far more impossible for the ICC to intervene in issues in Sri Lanka, unless the State makes a declaration accepting its jurisdiction or enter into an 'ad hoc' arrangement or agreement.

Even if the UNSC referred Sri Lankan matters to the ICC, it could only act as a 'complementary' to our National Courts, Laws and Procedures. Eventually, our National Courts would never become secondary.

At a time when certain elements are looking up to the ICC to enter into the realm of our judiciary and make it impact upon our system, it is absolutely essential to comprehend that the ICC has to function under very strong restraints and cannot in anyway trespass into the independence of our judiciary on some pretext or other.

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