Features

Universal jurisdiction and Sri Lanka: Does govt. have coherent policy?

Published

3 years ago

2023/01/16

By Dharshan Weerasekera

In March 2021, the U.N. High Commissioner for Human Rights recommended that actions under universal jurisdiction be pursued against Sri Lankan military officers and civilian leaders who led the war against the LTTE. (A/HRC/46/20). The recommendation was repeated in March 2022 and September 2022. (A/HRC/49/9 and A/HRC/51/5). Meanwhile, in March 2021, by resolution 46/1, the Human Rights Council established a mechanism to collect evidence of war crimes purportedly committed during the war to be forwarded to countries interested in prosecuting individuals for the crimes in question.

Unfortunately, there is little or no discussion in local newspapers and academic journals about whether the drive to pursue Sri Lankans under universal jurisdiction is legitimate. It is in the public interest to start such a discussion. I argue that, firstly, universal jurisdiction as currently understood in international law cannot be applied to Sri Lankan officers and civilian leaders who oversaw the war. Secondly, there is a danger that acts of commission or omission by the government could lead to the relevant law being changed in regard to the said matter, with grave consequences not just for Sri Lanka but for other countries as well.

In this article, I shall briefly explain: i) what universal jurisdiction is and its benefits as well as drawbacks, ii) the unique attribute about universal jurisdiction and the danger of Sri Lanka setting a precedent, iii) the sources of the allegations of war crimes against Sri Lanka, iv) the flaw in the government’s response so far.

i) Definition, benefits and drawbacks of universal jurisdiction

Universal jurisdiction is the capacity of States to prosecute non-citizens for international crimes such as genocide, crimes against humanity, war crimes and others. The benefit of the procedure is that it provides a way to hold accountable persons who may have committed certain heinous crimes who might otherwise avoid answering for such deeds by hiding behind domestic laws. The drawback is that this process can be exploited. Anthony J. Colangelo, a scholar at Columbia University, says:

“Universal jurisdiction has been hailed as a catalyst for the global struggle to bring to justice elusive international criminals like tyrants and terrorists, while on the other hand decried as a dangerously pliable tool for hostile states to damage international relations by initiating unfounded proceedings against each other’s officials and citizens.” (Anthony J. Colangelo, ‘The Legal Limits of Universal Jurisdiction,’ Virginal Journal of International Law (2006), Vol. 47, 20, p. 151.)

ii) The unique attribute of Universal Jurisdiction

According to Colangelo, the unique feature of universal jurisdiction is that in regard to its exercise adjudicative jurisdiction (the authority to subject a person to judicial process) and prescriptive jurisdiction (the authority to apply a country’s laws to persons and things) are both determined by international law.

Adjudicative jurisdiction is determined by the relevant treaties. Colangelo says, “The treaties proscribing the various universal crimes represent a relatively longstanding consensus not only as to the prohibition of these crimes but also—necessarily—as to their substance” (p. 155.)

Prescriptive jurisdiction, meanwhile, is determined by customary international law. Colangelo says, “Evolution in custom likewise may alter and even expand the capacity of states to allow procedurally for universal adjudicative jurisdiction over perpetrators of international crimes” (p. 174). In my view, this is where the problem arises. Customary international law can evolve or change through state practice, which naturally includes acquiescence.

To turn to the current position of customary international law in regard to universal jurisdiction, Roger O’Keefe, a well-known lecturer at Cambridge University, contends that there must be some link between the impugned conduct and the interest of the prescribing State. (See Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concepts,’ Journal of International Criminal Justice 2 (2004), pp. 5-6) For instance, he discusses a number of ‘heads of jurisdiction,’ namely—territoriality, nationality of the offender, nationality of the victim, or offender’s service in the armed forces of the prescribing State—one or more of which are required for the exercise of universal jurisdiction.

It is difficult to imagine circumstances where other countries could claim such links in regard to acts purportedly committed during the conflict in Sri Lanka. Therefore, as matters stand, attempts at invoking universal jurisdiction against Sri Lankans who led the war-effort would most likely fail at the initial stage. However, if the government acquiesces when attempts are made to invoke universal jurisdiction based on material submitted by the impugned mechanism pursuant to a call for such action by the U.N. High Commissioner for Human Rights, a judge might interpret his or her role as facilitating the UNHRC’s human rights mandate and issue summons on the accused.

iii) The sources of the allegations of war crimes against Sri Lanka

To the best of my knowledge, there are three sources: first, reports by private organizations and NGO’s, second, reports associated the U.N. or the UNHRC and finally, the impugned mechanism. Of these, the findings of private organizations and NGO’s usually do not carry much weight unless they are supplemented by official reports of the U.N. or other recognized bodies.

To turn to the latter, there are two reports that are relevant to Sri Lanka: a) the Report of the Secretary General’s Panel of Experts (March 2011) also called ‘Darusman Report,’ and b) the Report of the Office of the High Commissioner’s Investigation on Sri Lanka (OISL report) of September 2015. The Darusman Report was commissioned by then U.N. Secretary General Ban Ki Moon for his personal use and not the result of a collective decision by a UN body. It suffers from this infirmity. However, the OISL report was authorised by resolution 25/1 of March 2014 and is the only official report of the UNHRC on the subject of war crimes in Sri Lanka.

Unfortunately, the findings of this report are of dubious value. To give just one example, consider perhaps the most famous allegation, the so-called ‘White Flag’ incident. The allegation is that, LTTE Political Wing leaders Nadesan, Pullidevan along with Nadesan’s wife and a number of others surrendered to the army and were subsequently killed.

The OISL panel analyzed photos and videos of the dead bodies, and also considered witness testimonies and open sources. They then conclude: “[Nadesan and the others] may have been executed by the Sri Lankan security forces sometime after 6.000 am on 18th May. However, further investigation is required to determine the full facts as to what happened and who was responsible for the killings” (OISL report, para 305).

The point is that, after analyzing all of the evidence in its possession, the best that the OISL panel could do is conclude that it does not know exactly what happened and recommend further investigations in order to find out what happened. It is difficult to see how a judge would issue summons based on such findings. (For a detailed analysis of all of the OISL’s charges, see Dharshan Weerasekera, ‘A Factual Appraisal of the OISL Report,’ Sarasavi Publishers, 2020)

That leaves the evidence-gathering mechanism established under resolution 46/1. The problem with this mechanism is that the material purportedly collected by it is accessible only to a handful of officials at the High Commissioner’s office. It is reported that, the unit has amassed over a hundred thousand pieces of evidence. However, it is a fundamental principal of the law of evidence that, ‘Evidence is weighed, not counted.’

No one knows what would happen if the material in question was subjected to even a rudimentary assessment considering such factors as delay, exculpatory evidence, conflict of interest (for instance, whether the witnesses were paid or granted other benefits). It is also reported that, the unit is funded entirely though voluntary contributions, which raises the spectre of politicization.

iv) The Flaw in the Government’s policy

The government has rejected the impugned mechanism. However, to the best of my knowledge, it has never yet objected to the High Commissioner’s call for countries to exercise universal jurisdiction against Sri Lankans. In my opinion, this leaves an opening for the UNHRC to continue to use the material purportedly collected by the unit regardless the government’s putative objections to it.

Conclusion

The government has an obligation to put an end to attempts at sullying the war-victory if, as it now appears to be the case, the available sources of evidence of purported war crimes are either demonstrably weak, or worse, the evidence is being funneled in secret directly to the prosecuting agencies without the accused persons or the government ever getting a chance to respond.

The government also has a responsibility not to permit alterations in customary international law in ways adverse to the interests of Sri Lanka as well as other countries. Concerned citizens should demand of the government whether it has a policy on the universal jurisdiction issue separate from that towards the evidence-gathering mechanism, and if so to explain exactly what that policy is.

(The writer is an Attorney-at-law.)

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Features

US’ drastic aid cut to UN poses moral challenge to world

Published

20 hours ago

2026/01/1

Thilina Walpola

An UN humanitarian mission in the Gaza. [File: Ashraf Amra/Anadolu Agency]

‘Adapt, shrink or die’ – thus runs the warning issued by the Trump administration to UN humanitarian agencies with brute insensitivity in the wake of its recent decision to drastically reduce to $2bn its humanitarian aid to the UN system. This is a substantial climb down from the $17bn the US usually provided to the UN for its humanitarian operations.

Considering that the US has hitherto been the UN’s biggest aid provider, it need hardly be said that the US decision would pose a daunting challenge to the UN’s humanitarian operations around the world. This would indeed mean that, among other things, people living in poverty and stifling material hardships, in particularly the Southern hemisphere, could dramatically increase. Coming on top of the US decision to bring to an end USAID operations, the poor of the world could be said to have been left to their devices as a consequence of these morally insensitive policy rethinks of the Trump administration.

Earlier, the UN had warned that it would be compelled to reduce its aid programs in the face of ‘the deepest funding cuts ever.’ In fact the UN is on record as requesting the world for $23bn for its 2026 aid operations.

If this UN appeal happens to go unheeded, the possibilities are that the UN would not be in a position to uphold the status it has hitherto held as the world’s foremost humanitarian aid provider. It would not be incorrect to state that a substantial part of the rationale for the UN’s existence could come in for questioning if its humanitarian identity is thus eroded.

Inherent in these developments is a challenge for those sections of the international community that wish to stand up and be counted as humanists and the ‘Conscience of the World.’ A responsibility is cast on them to not only keep the UN system going but to also ensure its increased efficiency as a humanitarian aid provider to particularly the poorest of the poor.

It is unfortunate that the US is increasingly opting for a position of international isolation. Such a policy position was adopted by it in the decades leading to World War Two and the consequences for the world as a result for this policy posture were most disquieting. For instance, it opened the door to the flourishing of dictatorial regimes in the West, such as that led by Adolph Hitler in Germany, which nearly paved the way for the subjugation of a good part of Europe by the Nazis.

If the US had not intervened militarily in the war on the side of the Allies, the West would have faced the distressing prospect of coming under the sway of the Nazis and as a result earned indefinite political and military repression. By entering World War Two the US helped to ward off these bleak outcomes and indeed helped the major democracies of Western Europe to hold their own and thrive against fascism and dictatorial rule.

Republican administrations in the US in particular have not proved the greatest defenders of democratic rule the world over, but by helping to keep the international power balance in favour of democracy and fundamental human rights they could keep under a tight leash fascism and linked anti-democratic forces even in contemporary times. Russia’s invasion and continued occupation of parts of Ukraine reminds us starkly that the democracy versus fascism battle is far from over.

Right now, the US needs to remain on the side of the rest of the West very firmly, lest fascism enjoys another unfettered lease of life through the absence of countervailing and substantial military and political power.

However, by reducing its financial support for the UN and backing away from sustaining its humanitarian programs the world over the US could be laying the ground work for an aggravation of poverty in the South in particular and its accompaniments, such as, political repression, runaway social discontent and anarchy.

What should not go unnoticed by the US is the fact that peace and social stability in the South and the flourishing of the same conditions in the global North are symbiotically linked, although not so apparent at first blush. For instance, if illegal migration from the South to the US is a major problem for the US today, it is because poor countries are not receiving development assistance from the UN system to the required degree. Such deprivation on the part of the South leads to aggravating social discontent in the latter and consequences such as illegal migratory movements from South to North.

Accordingly, it will be in the North’s best interests to ensure that the South is not deprived of sustained development assistance since the latter is an essential condition for social contentment and stable governance, which factors in turn would guard against the emergence of phenomena such as illegal migration.

Meanwhile, democratic sections of the rest of the world in particular need to consider it a matter of conscience to ensure the sustenance and flourishing of the UN system. To be sure, the UN system is considerably flawed but at present it could be called the most equitable and fair among international development organizations and the most far-flung one. Without it world poverty would have proved unmanageable along with the ills that come along with it.

Dehumanizing poverty is an indictment on humanity. It stands to reason that the world community should rally round the UN and ensure its survival lest the abomination which is poverty flourishes. In this undertaking the world needs to stand united. Ambiguities on this score could be self-defeating for the world community.

For example, all groupings of countries that could demonstrate economic muscle need to figure prominently in this initiative. One such grouping is BRICS. Inasmuch as the US and the West should shrug aside Realpolitik considerations in this enterprise, the same goes for organizations such as BRICS.

The arrival at the above international consensus would be greatly facilitated by stepped up dialogue among states on the continued importance of the UN system. Fresh efforts to speed-up UN reform would prove major catalysts in bringing about these positive changes as well. Also requiring to be shunned is the blind pursuit of narrow national interests.

Features

Egg white scene …

Published

20 hours ago

2026/01/1

Thilina Walpola

Hi! Great to be back after my Christmas break.

Thought of starting this week with egg white.

Yes, eggs are brimming with nutrients beneficial for your overall health and wellness, but did you know that eggs, especially the whites, are excellent for your complexion?

OK, if you have no idea about how to use egg whites for your face, read on.

Egg White, Lemon, Honey:

Separate the yolk from the egg white and add about a teaspoon of freshly squeezed lemon juice and about one and a half teaspoons of organic honey. Whisk all the ingredients together until they are mixed well.

Apply this mixture to your face and allow it to rest for about 15 minutes before cleansing your face with a gentle face wash.

Don’t forget to apply your favourite moisturiser, after using this face mask, to help seal in all the goodness.

Egg White, Avocado:

In a clean mixing bowl, start by mashing the avocado, until it turns into a soft, lump-free paste, and then add the whites of one egg, a teaspoon of yoghurt and mix everything together until it looks like a creamy paste.

Apply this mixture all over your face and neck area, and leave it on for about 20 to 30 minutes before washing it off with cold water and a gentle face wash.

Egg White, Cucumber, Yoghurt:

In a bowl, add one egg white, one teaspoon each of yoghurt, fresh cucumber juice and organic honey. Mix all the ingredients together until it forms a thick paste.

Apply this paste all over your face and neck area and leave it on for at least 20 minutes and then gently rinse off this face mask with lukewarm water and immediately follow it up with a gentle and nourishing moisturiser.

Egg White, Aloe Vera, Castor Oil:

To the egg white, add about a teaspoon each of aloe vera gel and castor oil and then mix all the ingredients together and apply it all over your face and neck area in a thin, even layer.

Leave it on for about 20 minutes and wash it off with a gentle face wash and some cold water. Follow it up with your favourite moisturiser.

Features

Confusion cropping up with Ne-Yo in the spotlight

Published

20 hours ago

2026/01/1

Thilina Walpola

Ne-Yo: His management should clarify the last-minute cancellation

Superlatives galore were used, especially on social media, to highlight R&B singer Ne-Yo’s trip to Sri Lanka: Global superstar Ne-Yo to perform live in Colombo this December; Ne-Yo concert puts Sri Lanka back on the global entertainment map; A global music sensation is coming to Sri Lanka … and there were lots more!

At an official press conference, held at a five-star venue, in Colombo, it was indicated that the gathering marked a defining moment for Sri Lanka’s entertainment industry as international R&B powerhouse and three-time Grammy Award winner Ne-Yo prepares to take the stage in Colombo this December.

What’s more, the occasion was graced by the presence of Sunil Kumara Gamage, Minister of Sports & Youth Affairs of Sri Lanka, and Professor Ruwan Ranasinghe, Deputy Minister of Tourism, alongside distinguished dignitaries, sponsors, and members of the media.

Shah Rukh Khan: Disappointed his fans in Sri Lanka

According to reports, the concert had received the official endorsement of the Sri Lanka Tourism Promotion Bureau, recognising it as a flagship initiative in developing the country’s concert economy by attracting fans, and media, from all over South Asia.

Nick Carter: His concert, too, was cancelled due to “Unforeseen circumstances

However, I had that strange feeling that this concert would not become a reality, keeping in mind what happened to Nick Carter’s Colombo concert – cancelled at the very last moment.

Carter issued a video message announcing he had to return to the USA due to “unforeseen circumstances” and a “family emergency”.

Though “unforeseen circumstances” was the official reason provided by Carter and the local organisers, there was speculation that low ticket sales may also have been a factor in the cancellation.

Well, “Unforeseen Circumstances” has cropped up again!

In a brief statement, via social media, the organisers of the Ne-Yo concert said the decision was taken due to “unforeseen circumstances and factors beyond their control.”

Ne-Yo, too, subsequently made an announcement, citing “Unforeseen circumstances.”

The public has a right to know what these “unforeseen circumstances” are, and who is to be blamed – the organisers or Ne-Yo!

Ne-Yo’s management certainly need to come out with the truth.

However, those who are aware of some of the happenings in the setup here put it down to poor ticket sales, mentioning that the tickets for the concert, and a meet-and-greet event, were exorbitantly high, considering that Ne-Yo is not a current mega star.

We also had a cancellation coming our way from Shah Rukh Khan, who was scheduled to visit Sri Lanka for the City of Dreams resort launch, and then this was received: “Unfortunately due to unforeseen personal reasons beyond his control, Mr. Khan is no longer able to attend.”

Referring to this kind of mess up, a leading showbiz personality said that it will only make people reluctant to buy their tickets, online.

“Tickets will go mostly at the gate and it will be very bad for the industry,” he added.