On Proposed Law To Enable Foreign Countries & International Criminal Tribunals To Prosecute Sri Lankans
A Bill has been gazetted to incorporate into the law of Sri Lanka, the provisions of the ‘International Convention for the Protection of All Persons from Enforced Disappearances’ which was hurriedly signed and ratified by the present government. Clause 8 of this Bill enables foreign countries to seek the extradition of a Sri Lankan who is suspected, accused or convicted of having caused enforced disappearances in Sri Lanka. When such a request is made, the government of Sri Lanka is obliged to inform the foreign country of the measures it intends taking to prosecute or extradite that person. Clause 21 empowers the executive arm of the State to oversee the full implementation of this international convention in Sri Lanka and Clause 23 states that this new law is to override all other written law.
Articles 10 and 11 of the International Convention against Enforced Disappearances empowers any member State to arrest anybody, even a foreigner present within its jurisdiction on suspicion of having been involved in enforced disappearances in any other country. The State that carries out such an arrest can prosecute the suspect without extraditing him to his own country. Most significantly, a suspect arrested in that manner, can be handed over to an international criminal tribunal even if the suspect’s own country does not come under the jurisdiction of that international tribunal.
Article 32 of the international Convention (which the Sri Lankan government has accepted by a separate declaration) enables any member State to complain to the ten-member ‘Committee on Enforced Disappearances’ in Geneva that Sri Lanka is not fulfilling her obligations under this Convention and the Committee can investigate such complaints. Countries like the United States, Britain, Australia and Canada, never even signed this Convention. Denmark, Finland, Norway, Sweden, Ireland and India signed it ten years ago in 2007, but never ratified it. Many countries have kept away from this Convention altogether for the obvious reason that its provisions have the potential to violate the individual rights of citizens of the States that join it.
No one who is prosecuted in the courts of a foreign country or by an international criminal tribunal which is funded and maintained by interested foreign governments in relation to a crime allegedly committed in that person’s home country, can really expect justice. Such prosecutions are always politically motivated. All the elements that relate to an enforced disappearance – abduction, illegal confinement, murder and the illegal disposal of dead bodies etc are more than adequately covered by the Penal Code and the existing criminal law in Sri Lanka. The only real purpose of this proposed law will be to give interested foreign parties an opportunity to interfere in the justice system in Sri Lanka. Fortunately, according to our legal system and the judgement given by the Supreme Court in Nallaratnam Singarasa v. The Attorney General (2006), even an international convention that is signed and ratified does not become law in this country unless it is expressly incorporated into local law by Parliament.
Even though the government in its folly has signed and ratified an international convention that wiser nations have steered clear of, Parliament can reduce the damage to some extent by not passing the legislation to incorporate it into local law. The proposed law is an attempt to subject our armed forces to international war crimes prosecutions without using the term ‘war crimes’ and rephrasing it as ‘disappearances’. The use of the word ‘disappearances’ makes this look like an innocuous attempt to trace missing persons. However the purpose of this proposed legislation is not to trace missing persons but to hunt down and prosecute those who won the war against terrorism.