The report of the UN Human Rights Council-mandated investigation on Sri Lanka will be made publicly available on Wednesday, 16 September at 10h30 CET time and 14h00 UTC time, says the OHCHR.
Zeid Ra’ad Al Hussein – The UN High Commissioner for Human Rights
UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein will hold a press conference to discuss the findings of the report, including recommendations for the way forward, on Wednesday at 10h30 CET in Geneva. The press conference will be webcast live on http://webtv.un.org.
The OHCHR Investigation on Sri Lanka was mandated by the Human Rights Council in Resolution 25/1 in March 2014. The resolution requested the High Commissioner to “undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission (LLRC), and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedures mandate holders.”
Today, UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein at the opening session of the Human Rights Council said; “On Wednesday I will release the report of the comprehensive investigation that OHCHR was mandated to conduct in March 2014, including my recommendations. Its findings are of the most serious nature. I welcome the vision shown by President Sirisena since his election in January 2015, and the commitments made by the new Government under his leadership. But this Council owes it to Sri Lankans – and to its own credibility – to ensure an accountability process that produces results, decisively moves beyond the failures of the past, and brings the deep institutional changes needed to guarantee non-recurrence.”
Naga / September 14, 2015
Though OHCHR investigation is described as a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes, by no means can it be described as a complete investigation establishing and identifying those involved in the crimes. It may estabish that there is prima facie evidence of serious crimes committed during the period under review.
This report will not lead to any prosecution of anyone for war crimes or crimes against humanity.
Rome Statute established an international procedure to try war crimes and crimes against humanity and the court that can inquire into these types of crimes is the International Criminal Court (ICC). Rome Statute entered into force on 1 July 2002,and ICC can only inquire into crimes committed after this date. The final Eelam war happened in May 2009 and ICC will have jurisdiction over war crimes committed during the final phase of the Eelam war. ICC has jurisdiction to investigate only four categories of crimes, namely, war crimes, crimes against humanity, genocide and crime aggression.
ICC will have jurisdiction only under the following three circumstances as laid down in Article 13 of the Rome Statute. These are:
1) Referral by a state party to the treaty to the Prosecutor; 2) Referral to the Prosecutor by the Security Council under Chapter VII of the UN Charter; and 3)Prosecutor’s proprio motu initiative (own initiatiave) on the basis of information he receives.
The first situation has to be clearly ruled out because Sri Lanka is not a state party to the Rome Treaty.
There is only a very remote chance for the second circumstance given the fact that it will be difficult for the Security Council to agree to an investigation into the Sri Lanka situation because of the support Sri Lanka enjoys with veto wielding powers China and Russia.
The third circumstance, namely, Prosecutor on his own initiative starting an investigation as provided for in Article 15 of the Rome Statute, is described as one of the most delicate provisions of the Rome statute. What is important here is that the Prosecutor’s own initiative will have to be approved by the ICC Pre-Trial Chamber before he could proceed to investigate.
When Article 15 was debated the main controversy was whether the Prosecutor should be empowered to trigger the jurisdiction of the ICC on his own motion in the absence of a referral by a state party or by the Security council. Many countries feared that conferring such excessive powers on the prosecutor would lead to abuse of the power. That was the reason why Article 15 requires the approval of the ICC’s Pre-Trial Chamber for the Prosecutor to investigate. Article 15 further requires that before approaching the Pre-Trial Chamber, the Prosecutor must analyse the seriousness of the information and conclude that there is a reasonable basis to proceed with an investigation. Thus, in the first place, the Prosecutor must consider all the factors before placing his request to the Pre-Trial Chamber with supporting materials as well as victims’ representations. Only if the Pre-Trial Chamber is satisfied that there is reasonable basis to proceed it would authorise the Prosecutor to commence investigations.
In my opinion,the only possibility open to the Tamils is to resort to Article 15 of the Rome Statute. They can submit the OHCHR report to be released on Wednesday to the Prosecutor of ICC and urge him to use his proprio motu initiative under Article 15 to initiate action. It must be borne in mind that the ICC Prosecutor had been reluctant to use his powers under Article 15 and the power had been rarely used. It was used in the case of the Situation in the Republic of Kenya in the year 2010 and in the situation in Ivory Coast. In the case of Siutation in Kenya, the Pre-Trial Chamber by a two to one decision authorized the Prosecutor to conduct investigation.
The OHCHR Report on Sri Lanka on its own may not be adequate for the Prosecutor to seek autorization from the Pre-Trial Chamber.If convinced of the seriousness of the crimes based on the OHCHR Report, the Prosecuor may then on his own collect further evidence and come to a conclusion that there is a reasonable basis to proceed with the next step to seek authorization of the ICC Chamber. If the Prosecutor decides to seek authorization of the Pre-Trial Chamber, the victims may make representations to the Pre-Trial Chamber and convince the Pre-Trial Chamber of the seriousness of the situation. Only after the Pre-Trial Chamber’s authorization can the Prosecutor start formal investigation into war crimes committed during the last phase of the Eelam War.
What the Sri Lankan government is trying to do now is to convince the OHCHR to accept an internal inquiry conducted by the SL government. With the support of United States,it may succeed despite all the protests of the Tamils. If the Tamils do not want to accept Sri Lanka’s internal inquiry, then the only way open to them is to convince the ICC Prosecutor to initiate investigation proprio motu under Article 15 of the Rome Statute. However, success is not assured.
In the case of the situation in Kenya, the Pre-Trial Chamber was satisfied with the materials submitted to it by the Prosecutor and authorised him to conduct formal investigation.
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BBS Rep / September 15, 2015
Naga,
Any investigation is better than no investigation.
Even if nothing comes out at the end of all this hullabaloo, at least the issue is kept alive. Some form of closure is needed for all those suffering souls.
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R. Somefunthen / September 14, 2015
Gota must be already wetting his pants.
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Pacs / September 15, 2015
The victim says the Judge and the police is the offender together and the accused. How in Hell the accused can be a Judge. Is that a normal, routine. accepted and fair process in UN justice system.
In SA the truth and reconciliation came after abolition of apartheid ,after granting if independence, after the power transfer.
In Sri Lanka still the oppressive police and army are operating in full swing. Taken over the civilian administration in full swing. The spies are all over the Tamil land, The military admin promote death and accidents, suicides in Tamil areas. The continuation of 2009 still happening in same rate but in different form.
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Naga / September 15, 2015
In my previous comments I discussed the jurisdiction of the International Criminal Court and mentioned that under Article 15 of the Rome Statute, the ICC Prosecutor can start the investigation process on his own initiative. I also mentioned that the Tamils may take up the war crimes issue with the ICC Prosecutor.
However, the Prosecutor cannot initiate the investigation process unless the state where the war crimes were committed is a state party to the Rome Statute. Even in relation to states that have acceded to the Rome Statute, ICC can take up war crimes only when that state is unable or unwilling to prosecute those responsible.
Since Sri Lanka has not signed or acceded to the Rome Statute there is no question of the ICC Prosecutor starting the process of investigation.
Sri Lanka is among the 42 countries that have not signed or acceded to the Rome Statute. India is another. United States is the only western nation that has not acceded to the Rome Statute. President Clinton signed it but it was never ratified. Later George Bush completely withdrew from it. US also took other measures to prevent any US soldier from being sued for war crimes or crimes against humanity.
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Siva Sankaran Sarma / September 15, 2015
To hell with what the Rome Statute says, Burus Pain, John Dowd and Gallum Mgrae annas will deliver We Thamizh Eelam, just keep funnelling cash in their direction :D
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Native Vedda / September 15, 2015
Naga
You had it man.
OTC is going to bombard you with recycled copy paste articles(?) that he believes is the best defense that the Sri Lankan war criminals should rely on. Remember he has a sidekick Ramuuuuuuuuuuuuuuuu.
Run for cover. Live today to fight your next battle tomorrow.
Run if you want to keep your sanity intact.
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Vetmahadeva / September 15, 2015
Why Sri Lankan Prime Minster has to visit India at the crucial juncture, though we do believe pre-arranged one? Is it a ploy of not substantiating the Foreign Minister Promises?
CEAPA is a CURSE of Karma Yoga on Sri Lanka befallen by Indian Traders
Do not replace the Chinese Colony by an Indian Colony, for job seekers
Do not open available jobs markets to China, India or any other
Do not create 10, million job less, of Doctors, Engineers, Citizen of the land
Do not back stab the voters voted for a change
Do not seek cheap filling of treasury, to cover the high interest bonds issued
Do not kneel down to India to cover up the heinous crimes, of the Vanni
Do not fall on legs of India to continue the hegemonic politics
Do not fall prey to CEAPA, of Indian traders, for the Sri Lankans voted in you!
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Native Vedda / September 15, 2015
Vetmahadeva
“Why Sri Lankan Prime Minster has to visit India at the crucial juncture”
Because Sri Lanka is the Sinhala state of Hindia.
Why shouldn’t Prime Minister of Akand Bharath meet his Chief minister of Sinhala state.
I do not see you protest against Jayalalitha’s visit to New Delhi.
Could I remind you that the Sinhalese and Tamils are the best examples of naysayers. Both stupid people have this habit of missing every opportunity and making it into disaster.
I suggest you read up on history of MITI (Ministry of International Trade and Industry) of Japan played a crucial proactive role in identifying and helping industries to grow.
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Charlie / September 15, 2015
Dear Naga,
Appreciates the details outlined on your comments but I am confused with both comments as they appears to be contradicting. On the 1st comment , you state as follows;
In my opinion,the only possibility open to the Tamils is to resort to Article 15 of the Rome Statute. They can submit the OHCHR report to be released on Wednesday to the Prosecutor of ICC and urge him to use his proprio motu initiative under Article 15 to initiate action.
But then 2nd comments states;
Since Sri Lanka has not signed or acceded to the Rome Statute there is no question of the ICC Prosecutor starting the process of investigation.
So which comment is right? 1st or the 2nd? Please describe.
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Naga / September 16, 2015
Charlie
Thanks for pointing this out.
On a cursory reading of the Rome Statute, I initially thought that the ICC Prosecutor can be asked to use his proprio motu initiative under Article 15 to initiate action in relation to war crimes committed in Sri Lanka.
After further research I realised that ICC Prosecutor can resort to Article 15 only in relation to war crimes committed in states that have acceded to the Rome Statute. Since Sri Lanka has not acceded to the Rome Statute ICC Prosecutor cannot initiate any action under Article 15.
ICC Prosecutor has clearly explained this when he was criticized for not opening an investigation into alleged war crimes in Gaza in Palestine. I copy below the ICC Prosecutor’s statement made on 2 September 2014:
“As Prosecutor, I can only investigate and prosecute crimes committed on the territory or by the nationals of states that have joined the ICC Statute or which have otherwise accepted the jurisdiction of the ICC through an ad hoc declaration to that effect pursuant to article 12-3 of the Statute.”
That is the reason I made a correction in my second comments.
As things stand, since Sri Lanka is not a signatory to the Rome statute only a resolution by the UN Security Council under Chapter VII of the UN Charter referring the matter to the ICC Prosecutor would trigger an ICC investigation.
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Native Vedda / September 16, 2015
Naga
“As things stand, since Sri Lanka is not a signatory to the Rome statute only a resolution by the UN Security Council under Chapter VII of the UN Charter referring the matter to the ICC Prosecutor would trigger an ICC investigation.”
You are right however if and when the International Community decides, Sri Lanka could be persuaded through variety of sanctions to accept International Investigation.
If and when are the biggest questions.
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Dr.Rajasingham Narendran / September 16, 2015
Three elements of the report have been identified so far:
1. There was no genocide
2. Both protogonists are guilty pf gross human rights violations
e. Need for a HYBRID COURT with local and international prosecutors and judges
for the follow up actions.
I am unable to yet access the full report.
Dr.RN
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Native Vedda / September 16, 2015
Dr.Rajasingham Narendran
Somewhere in the report I read UNHRC mentioning the previous commissions especially the three or four appointed by CBK, which were not acted upon and it also mentions armed forces enjoying impunity for 25 years, etc.
As far as I am concerned 1 & 2 are irrelevant to me.
I have always campaigned for independent commission. This will do for the time being.
Are you ready for protest march starting from all corners the the island?
Lets see the reaction from Hindians.
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