The United States of America has not ratified the Rome Statute establishing the International Criminal Court (“ICC”). Consequently, it is unlikely that the USA will accept the jurisdiction of the ICC extending its tentacles into any challenges they faced in armed conflicts such as Iraq and Afghanistan.

Remember, in Sri Lanka’s case, we are talking about investigations into the internal affairs of Sri Lanka and not for example the elimination of Bin Laden on foreign soil.

Much meat is made in the recent UNHRC Report of the refusal by the Government of Sri Lanka to co-operate with the UN and allow an international investigation into Sri Lanka. Sri Lanka is one step further removed than the USA from the International Criminal Court. Sri Lanka is not even a State party to the Rome Statute. Accordingly, Sri Lanka has no legal obligation to co-operate. However, Sri Lanka’s engagement with international actors should combine mutual respect and civic invitations.

Therefore, an appraisal of the Report should also question the notion of parallel legitimacy within its recommendations dealt with here in seriatim:

1. The establishment of a hybrid court: international judges, independent prosecutors and investigators
The principle accusation here is the absence of a credible national process of accountability. In recent years, the independence of the upper echelons of the judiciary has been questionable. The Lessons Learnt and Reconciliation Committee found itself straddling issues of perceived legitimacy and independence in a fluid set of circumstances. However, Sri Lanka has an evolved legal system with well-established foundations in Roman-Dutch Law.

Constitutionally, the judicial process has the ability to operate justly and independently but requires self-styled reform and greater independence. Now is the time to visibly reinforce the principle of separation of powers of the judiciary, legislature and executive to ensure transparency and due process.

2. For the Government of Sri Lanka to invite the Office of the High Commissioner of Human Rights to establish a fully-fledged country presence.
This proposal would set in motion a dangerous precedent for international law to attempt to intervene in the sovereignty of Non-State Parties and undermines not only the sovereignty of Sri Lanka but also the authority of the Rome Statute and the raison d’etre for becoming a prima facie State Party.

3. To enact legislation to criminalise war crimes, crimes against humanity, genocide and enforced disappearances.
Enactment of legislation is a role for the national Parliament.

4. To dispense with the current Missing Persons Commission and transfer all cases to a credible institution We must strengthen the Missing Persons Commission by giving it greater independence, a proper mandate to investigate allegations of missing persons and make recommendations for the prosecution of alleged perpetrators. The very nature of restorative justice implies a continual process of learning and diligence.

5. Publish reports of all previous presidential commissions of inquiry on rights violations.
This is an unprecedented eradication of national sovereignty to judge Sri Lanka on past perceptions of error and the previous administration’s plausible ineptitude in grasping opportunities to provide justice. The corresponding perception is unwelcome and does not afford the current administration the freedom it requires to pursue its electoral mandate. It further contravenes the people’s mandate.

6. Recommendations are made in the Report for the UN and Member States to apply stringent vetting procedures to Sri Lankan police and military personnel identified for peacekeeping and military exchanges of training.
This presents an obvious threat to national security, therefore this recommendation should be summarily dismissed. Secondly, the international community must be reminded politely, that our security forces have successfully removed terrorism, thereby completing a task that appears to be the envy of other nations.

7. UN/Member States should prosecute wherever possible under universal jurisdiction those responsible for torture and war crimes. Perhaps the most famous example of a refusal to allow the intervention of international law with State Sovereignty is The Republic of Nicaragua v The United States of America (1986) ICJ 1. It is a public international law case decided by the International Court of Justice (ICJ) prior to the Rome Statute of the ICC. The ICJ ruled in Nicaragua’s favour and awarded reparations to Nicaragua. Initially, the USA refused to accept the jurisdiction of the ICJ, an argument that the Court rejected as all UN Member States are parties to the ICJ by virtue of their ratification of the UN Charter. Paradoxically, the ICC does not carry the same level of jurisdiction.

Even though the ICJ held that the USA had violated international law by supporting the rebel group against the Nicaraguan government and by mining Nicaragua’s harbours, the USA blocked the enforcement of the judgment of the UN Security Council thereby preventing Nicaragua from securing any compensation.Despite the Nicaraguan Case, the USA continues to play a welcomed part in the United Nations.

8. UN and Member States should consider further international action if progress in Sri Lanka is insufficient to ensure accountability for international crimes. Sri Lanka does have the capacity to produce a result faster than the Chilcott Inquiry into Iraq provided external recommendations do not compromise the independence of a new domestic process. Upholding safety of citizens irrespective of ethnicity is a fundamental tenant of Sri Lanka’s constitutional commitment to Her people. The Government at no stage has said that it wished to be portrayed as alien to the UNHRC Report.

The present leadership remains resolutely committed to delivering restorative justice through lasting reconciliation. That said, the threat of embryonic measures to be deployed at speed in a delicate period of healing indirectly promotes retrospective application of international law to Non-Party States.
To this end, unwarranted attempts to jeopardise Sri Lanka’s traditional yet somewhat malnourished foreign policy standpoint of friendship to all and enmity to none, must be protected diplomatically.

Chamali Fernando is a Barrister in England of 13   years call and is also a licensed attorney for the State Bar of New York,   USA. Chamali is a Policy Advisor to the Coalition for an International Court   for the Environment and stood in the 2015 British General Election as the   Conservative Parliamentary Candidate for Cambridge.