Sri Lanka will be submitted to jurisdiction of ICC

New Enforced Disappearances Bill  Sri Lanka will be submitted to jurisdiction  of ICC

-G.L. Peiris

Former External Affairs Minister Prof. G.L. Peiris, in an interview with the Daily Mirror, aired his views on the International Convention for the  Protection of All Persons from Enforced Disappearances. Following are excerpts of the interview: 

• US, UK, Australia and Canada have not signed it
• Norway, Denmark, Sweden, Finland etc. haven’t ratified it 
• It is the most obnoxious piece of legislation 
• It provides for extradition of persons to be tried in a foreign country if requested 
• This is even worse than inviting foreign judges here
• Govt should be ashamed of doing it to place armed forces in jeopardy 
• Subject Minister is given enormous powers under this bill
• Govt acts hastily to please elements that supported it
• Later, it regrets 

Q : The Joint Opposition is critical of the bill to give effect to the International Convention to Protect All Persons from Enforced and Involuntary Disappearances. What is the reason for it? 
It was to have been debated last week. It was put off. There was a statement made by Leader of the House Lakshman Kiriella that the government had, by no means, withdrawn this bill. Any impression that the government abandoned the bill is wrong. On the contrary, they are planning to bring it quite soon.   

Alongside, TNA MP M.A. Sumanthiran asked what was the use of the government if bills are withdrawn under pressure.   

This is grave a danger. This is the most dangerous piece of legislation that has come before Sri Lanka Parliament since 1994, when I first entered Parliament. It is the most obnoxious piece of legislation with dire consequences of which the public is totally unaware. It’s therefore very necessary to have informed public opinion on it.   

Section 3(III) of the bill defines the offence of enforced disappearances. This offence is declared to be committed by a superior who ‘exercises effective responsibility for and control over activities which were concerned with the offence of enforced disappearances

Q : How do you support your argument in this regard? 
Section 3(III) of the bill defines the offence of enforced disappearances. This offence is declared to be committed by a superior who ‘exercises effective responsibility for and control over activities which were concerned with the offence of enforced disappearances. The gist of offence is therefore not something done by the superior. He is sought to be made liable solely by virtue of the office or the position which he held at that time. So, if he was in a position of command, then he becomes liable whether he has done anything or nothing. That is the concept of command responsibility. It’s imputed to the superior officer although he may have done nothing, whatsoever, to the incident alleged to have occurred. The ambit of offence is therefore incredibly wide. That is from the Commander in Chief of the Armed Forces, the Army Commander, the Secretary Defence and the persons in charge of units and battalions right down the line. The net is cast very wide.  

Q : How does it happen?
He is sought to be made liable for acts of omission, not acts of commission. This is a grave offence punishable by imprisonment up to 20 years. It is necessary to understand the true scope of the offence. Anyone who is alleged to have assisted in this way is also brought within the ambit of criminal liability.   

Section (V) declares that it is a non-bailable offence. The real danger inherent from this bill is clear in Section (VIII).   

It says, “Where a request is made to the government of Sri Lanka by or on behalf of the government of a convention state for the extradition of any person accused or convicted of an offence under Section III. The Minister shall, on behalf of the government of Sri Lanka, forthwith notify the government of the requesting state of the measures the government of Sri Lanka has taken or proposed to take for the prosecution or extradition of that person for that offence.   

Any foreign government or agency acting for that government can make an allegation relating to this office of enforced disappearances. There is no requirement of presenting evidence. Only bare assertion that such an offence has been committed by X. On the mere receipt of that information, the government of Sri Lanka is under an obligation to take measures for prosecution of extradition and to keep the requesting countries informed of the measures that are being taken.   

There was this controversy over foreign judges. That is the resolution adopted by the UNHRC on October 1, 2015. That refers to commonwealth or other foreign judges, investigators and prosecutors and so on. After that the Sri Lankan government announced within the country that they won’t tolerate foreign judges. That is contrary to the solemn pledge they gave to the international community. There is provision in it to create new laws and offences which weren’t there at the time of war, and to give retrospective effect to those offences. There is very strong opposition in the country to foreign judges. Now it’s even worse. The accused persons are sent to foreign countries.  

There is a principle of Public International Law that extradition isn’t allowed in the case of political offences. That protection is taken away by Section 13 of the new law. That is the normal protection a citizen of Sri Lanka is entitled to under the customary international law as well as the Extradition Act of 1977

Q : Yet, the government says there’s no real danger because we aren’t party to the Rome Treaty. What is your view?
However, if that foreign country is a signatory to the Treaty of Rome the person concerned can be submitted to the jurisdiction of the International Criminal Court (ICC) through it. Any person extradited in this manner can be tried by the law of that country or in the alternative by the ICC. The government has repeatedly said that there’s no danger because we haven’t signed the Treaty of Rome. That is now completely a false argument because we are extraditing to a country that has signed the Treaty of Rome. The, the jurisdiction of ICC becomes operative.   

Section 9(I) of the Bill says the provisions in the Mutual Assistance in Criminal Matters Act No 25 of 2002 shall apply. These provisions are invoked. Any extradition government with a country that is party to this convention is modified to the extent of including the provisions contained in this new law.   
There is a principle of Public International Law that extradition isn’t allowed in the case of political offences. That protection is taken away by Section 13 of the new law. That is the normal protection a citizen of Sri Lanka is entitled to under the customary international law as well as the Extradition Act of 1977. Danger is greatly enhanced by this.   

Very wide power is given to the Minister of the government regarding the content of this legislation. Section 18 (III) says the Minister may make regulations prescribing the criteria upon which a person is expelled, returned, surrendered or extradited to another state.  

Section 22(II) says every regulation made by the Minister shall be published in the gazette and shall come into operation immediately on the date of such publication. Section 22 (III) is a very dangerous provision. The Minister makes a regulation. It comes into operation immediately. Subsequently, Parliament refuses to approve this regulation. Then, it ceases to be valid on the day parliament refuses to approve it. But, anything done by the government or the minister during that interim period remains valid. There may be a significant interval between the publication of it in the gazette and being put to Parliament for debate. All the harm may have been done during that interim period. Section 21 gives the minister power to issue guidelines and directions for the implementation of this law.   

Any person with a legitimate interest – foreign funded NGOs or all manner of persons - has the right to go to high court to seek implementation of them.   

Article 10 and 11 of the International Convention empowers any member state to arrest any person even a foreigner present within its jurisdiction on suspicion of being involved in enforced disappearances in any other country. 

Q But, there are other laws governing such matters in Sri Lanka. What will happen to them?
We must draw attention to the repugnant provisions. That is Section 23 of this bill. It says the provisions of this Act shall have effect notwithstanding anything to the contrary in any other written law. In the event of conflict between this act and others, the provisions of this act will prevail. It’s almost like the Constitution. Any other law is swept aside to the extent of inconsistency. This law is elevated to a very high plane. It has a special sanctity.   

This is about Sri Lankan citizens- the army- navy or anyone else attached with the previous rule- to be sent out of the country to be tried under any other law. The purpose of this bill is that it gives effect within Sri Lanka to the provisions of the International Convention. Article 10 and 11 of the International Convention empowers any member state to arrest any person even a foreigner present within its jurisdiction on suspicion of being involved in enforced disappearances in any other country. The state that carries out such an arrest can prosecute the suspect without extradition of him to his own country. Also, the suspect arrested can be handed over to an international tribunal even though the suspect’s own country doesn’t come under the jurisdiction of the ICC. Hereafter, if any army official concerned with defence matters is abroad for medical treatment or on holiday with his family, he can be arrested in that country and handed over to a court handling the jurisdiction of the ICC. That is exactly like the Pinochet case. He was the former President of Venezuela. He was arrested at a London clinic soon after he had undergone surgery. That litigation took almost a decade. He was prosecuted in an English court on a warrant issued by a Spanish court. All these can happen to a Sri Lankan military leader who is prosecuted in the war against terror.   

Article 32 of the International Convention enables any member state to complain to the ten member committee on enforced disappearances in Geneva that Sri Lanka isn’t fulfilling its obligations under this convention. Then, the committee has all powers to investigate the complaints. We are submitting ourselves to the jurisdiction of that committee. Why is Sri Lanka doing it? None of the countries critical of us has done what they want us to do. This convention hasn’t even been signed by them.  

Q What are the countries that haven’t signed it?
It hasn’t been signed by the United States, the United Kingdom, Australia and Canada. Some countries have signed it, but not ratified it. If it hasn’t been ratified, it can’t be given effect in those countries. Scandinavian countries come under this category like Denmark, Norway, Sweden and Finland. India signed it. Yet, it didn’t ratify it. In contrast, Sri Lanka signed and ratified it in 2015, soon after the change of government. Today, Minister Mahinda Samarasinghe says that it’s a pity that Sri Lanka signed and ratified it in a hurry. He says we have to give effect to this because we signed and ratified it. It means the government doesn’t have the political will to do it even. The government is conceding that that it made a horrendous blunder. That is what we are also asking. These countries that didn’t sign it or ratify it are concerned with the protection of their armed forces. They aren’t prepared to do anything putting their armed forces in danger. You can compare what those countries owe their armed forces and what our country owes our armed forces. Our armed forces delivered our country from terrorism. The government should be ashamed of doing these things to put the armed forces in jeopardy.   

These countries that didn’t sign it or ratify it are concerned with the protection of their armed forces. They aren’t prepared to do anything putting their armed forces in danger. You can compare what those countries owe their armed forces and what our country owes our armed forces. Our armed forces delivered our country from terrorism

Q What is the danger involved since we ratified it?
We ratified it. But, the treaty doesn’t automatically become part of our law. It has to be adopted by Parliament. We are determined to ensure that Parliament doesn’t pass it. The government, in order to please the elements that helped it, is acting hastily and then regretting. These regrets are coming too late.