Features

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

Published

2 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

BRICS’ pushback against dollar domination sparks global economic standoff

Published

14 hours ago

2025/07/10

Sahan Weerasooriya

BRICS leaders at the recent Summit in Brazil. /United Nations

If one were to look for a ‘rationale’ for the Trump administration’s current decision to significantly raise its tariffs on goods and services entering its shores from virtually the rest of the world, then, it is a recent statement by US Treasury Secretary Scott Bessent that one needs to scrutinize. He is quoted as saying that tariffs could return ‘to April levels, if countries fail to strike a deal with the US.’

In other words, countries are urged to negotiate better tariff rates with the US without further delay if they are not to be at the receiving end of the threatened new tariff regime and its disquieting conditions. An unemotional approach to the questions at hand is best.

It would be foolish on the part of the rest of the world to dismiss the Trump administration’s pronouncements on the tariff question as empty rhetoric. In this crisis there is what may be called a not so veiled invitation to the world to enter into discussions with the US urgently to iron out what the US sees as unfair trade terms. In the process perhaps mutually acceptable terms could be arrived at between the US and those countries with which it is presumably having costly trade deficits. The tariff crisis, therefore, should be approached as a situation that necessitates earnest, rational negotiations between the US and its trading partners for the resolving of outstanding issues.

Meanwhile, the crisis has brought more into the open simmering antagonisms between the US and predominantly Southern groupings, such as the BRICS. While the tariff matter figured with some urgency in the recent BRICS Summit in Brazil, it was all too clear that the biggest powers in the grouping were in an effort ‘to take the fight back to the US’ on trade, investment and connected issues that go to the heart of the struggle for global predominance between the East and the US. In this connection the term ‘West’ would need to be avoided currently because the US is no longer in complete agreement with its Western partners on issues of the first magnitude, such as the Middle East, trade tariffs and Ukraine.

Russian President Putin is in the forefront of the BRICS pushback against US dominance in the world economy. For instance, he is on record that intra-BRICS economic interactions should take place in national currencies increasingly. This applies in particular to trade and investment. Speaking up also for an ‘independent settlement and depository system’ within BRICS, Putin said that the creation of such a system would make ‘currency transactions faster, more efficient and safer’ among BRICS countries.

If the above and other intra-BRICS arrangements come to be implemented, the world’s dependence on the dollar would steadily shrink with a corresponding decrease in the power and influence of the US in world affairs.

The US’ current hurry to bring the world to the negotiating table on economic issues, such as the tariff question, is evidence that the US has been fully cognizant of emergent threats to its predominance. While it is in an effort to impress that it is ‘talking’ from a position of strength, it could very well be that it is fearful for its seemingly number one position on the world stage. Its present moves on the economic front suggest that it is in an all-out effort to keep its global dominance intact.

At this juncture it may be apt to observe that since ‘economics drives politics’, a less dollar dependent world could very well mark the beginning of the decline of the US as the world’s sole super power. One would not be exaggerating by stating that the tariff issue is a ‘pre-emptive’, strategic move of sorts by the US to remain in contention.

However, the ‘writing on the wall’ had been very manifest for the US and the West for quite a while. It is no longer revelatory that the global economic centre of gravity has been shifting from the West to the East.

Asian scholarship, in particular, has been profoundly cognizant of the trends. Just a few statistics on the Asian economic resurgence would prove the point. Parag Khanna in his notable work, ‘The Future is Asian’, for example, discloses the following: ‘Asia represents 50 percent of global GDP…It accounts for half of global economic growth. Asia produces and exports as well as imports and consumes more goods than any region.’

However, the US continues to be number one in the international power system currently and non-Western powers in particular would be erring badly if they presume that the economic health of the world and connected matters could be determined by them alone. Talks with the US would not only have to continue but would need to be conducted with the insight that neither the East nor the West would stand to gain by ignoring or glossing over the US presence.

To be sure, any US efforts to have only its way in the affairs of the world would need to be checked but as matters stand, the East and the South would need to enter into judicious negotiations with the US to meet their legitimate ends.

From the above viewpoint, it could be said that Indian Prime Minister Narendra Modi was one of the most perceptive of Southern leaders at the BRICS Summit. On assuming chairmanship of the BRICS grouping, Modi said, among other things: ‘…During our chairmanship of BRICS, we will take this forum forward in the spirit of people-centricity and humanity first.’

People-centricity should indeed be the focus of BRICS and other such formations of predominantly the South, that have taken upon themselves to usher the wellbeing of people, as opposed to that of power elites and ruling classes.

East and West need to balance each other’s power but it all should be geared towards the wellbeing of ordinary people everywhere. The Cold War years continue to be instructive for the sole reason that the so-called ordinary people in the Western and Soviet camps gained nothing almost from the power jousts of the big powers involved. It is hoped that BRICS would grow steadily but not at the cost of democratic development.

Features

Familian Night of Elegance …

Published

14 hours ago

2025/07/10

Sahan Weerasooriya

The UK branch of the Past Pupils Association of Holy Family Convent Bambalapitiya went into action last month with their third grand event … ‘Familian Night of Elegance.’ And, according to reports coming my way, it was nothing short of a spectacular success.

This dazzling evening brought together over 350 guests who came to celebrate sisterhood, tradition, and the deep-rooted bonds shared by Familians around the world.

Describing the event to us, Inoka De Sliva, who was very much a part of the scene, said:

Inoka De Silva: With one of the exciting prizes – air ticket to Canada and back to the UK

“The highlight of the night was the performance by the legendary Corrine Almeida, specially flown in from Sri Lanka. Her soulful voice lit up the room, creating unforgettable memories for all who attended. She was backed by the sensational UK-based band Frontline, whose energy and musical excellence kept the crowd on their feet throughout the evening.”

Corrine
Almeida:
Created
unforgettable
memories

Inoka, who now resides in the UK, went on to say that the hosting duties were flawlessly handled by the ever popular DJ and compere Vasi Sachi, who brought his trademark style and charisma to the stage, while his curated DJ sets, during the breaks, added fun and a modern vibe to the atmosphere.

Mrs. Rajika Jesuthasan: President of the UK
branch of the Past Pupils Association of
Holy Family Convent Bambalapitiya
(Pix by Mishtré Photography’s Trevon Simon

The event also featured stunning dance performances that captivated the audience and elevated the celebration with vibrant cultural flair and energy.

One of the most appreciated gestures of the evening was the beautiful satin saree given to every lady upon arrival … a thoughtful and elegant gift that made all feel special.

Guests were also treated to an impressive raffle draw with 20 fantastic prizes, including air tickets.

The Past Pupils Association of Holy Family Convent Bambalapitiya, UK branch, was founded by Mrs. Rajika Jesuthasan née Rajakarier four years ago, with a clear mission: to bring Familians in the UK together under one roof, and to give back to their beloved alma mater.

As the curtain closed on another successful Familian celebration, guests left with hearts full, and spirits high, and already counting down the days until the next gathering.

Features

The perfect tone …

Published

15 hours ago

2025/07/10

Sahan Weerasooriya

We all want to have flawless skin, yet most people believe that the only way to achieve that aesthetic is by using costly skin care products.

Getting that perfect skin is not that difficult, even for the busiest of us, with the help of simple face beauty tips at home.

Well, here are some essential ways that will give you the perfect tone without having to go anywhere.

* Ice Cubes to Tighten Skin:

Applying ice cubes to your skin is a fast and easy effective method that helps to reduce eye bags and pores, and makes the skin look fresh and beautiful. Using an ice cube on your face, as a remedy in the morning, helps to “revive” and prepare the skin.

* Oil Cleansing for Skin:

Use natural oils, like coconut oil or olive oil, to cleanse your skin. Oils can clean the face thoroughly, yet moisturise its surface, for they remove dirt and excess oil without destroying the skin’s natural barriers. All one has to do is pick a specific oil, rub it softly over their face, and then wipe it off, using a warm soak (cloth soaked in warm water). It is a very simple method for cleaning the face.

* Sugar Scrub:

Mix a tablespoon of sugar with honey, or olive oil, to make a gentle scrub. Apply it in soft, circular motions, on your face and wash it off after a minute. This helps hydrate your skin by eliminating dead skin cells, which is the primary purpose of the scrub.

* Rose Water Toner:

One natural toner that will soothe and hydrate your skin is rose water. Tightening pores, this water improves the general texture of your skin. This water may be applied gently to the face post-cleansing to provide a soothing and hydrating effect to your face.

* Aloe Vera:

It is well known that aloe vera does wonders for the skin. It will provide alleviation for the skin, because of its calming and moisturising effects. The application of aloe vera gel, in its pure form, to one’s skin is beneficial as it aids in moisturising each layer, prevents slight skin deformity, and also imparts a fresh and healthy look to the face. Before going to bed is the best time to apply aloe vera.

* Water:

Staying hydrated, by drinking plenty of water (06 to 08 cups or glasses a day), helps to flush toxins and its functions in detoxification of the body, and maintenance the youthfulness of the skin in one’s appearance.