- Monday 12 July 2010
- Edward Mortimer: Local journalists who speak out against human rights abuses fear for their lives and the world press turns a blind eye Continue reading...
Lasantha Wickrematunge lies in state during his funeral ceremony in Colombo. Photograph: Lakruwan Wanniarachchi/AFP/Getty Images
Posted by Edward Mortimer
Non-derogable rights under international law
18.07.10 Non-derogable rights under international law[TamilNet, Sunday, 18 July 2010, 14:25 GMT]
While the United Nations charter guarantees "the sovereign equality of all its Members," evolving legal doctrines dealing with genocide, war crimes, and crimes against humanity are leading to the theory that the national sovereignty is not absolute, but is qualified by peremptory norms determined by jus cogens or "compelling law." Despite Sril Lanka's persistent opposition, based on sovereignty claims, to international attempts to investigate alleged killing of more than 40,000 of Tamil civilians, the egregious nature of these crimes is unlikely to disappear from the consciousness of the world community and the Tamils affected by war. Until the issue is taken up at the world courts, expatriate Tamils should seek to assert jus cogens based cause of action in the courts of Europe and elsewhere to bring Sri Lanka officials complicit in war-crimes to justice.
| The hidden massacre Sri Lanka's final offensive against Tamil Tigers: Times Online |
Customary international law are those aspects of international law that derive from custom, and laws of war were long a matter of customary law before they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties.
While a pragmatic view of the international law dictates that "state consent plays an important role in maintaining an international legal order," the body of jus cogens, which does not permit derogation, represents a dramatic limitation to sovereign authority, according to legal scholars.
Jus cogens refers to the legal status that certain international crimes reach, whereas obligato erga omnes pertains to the legal implications arising out of a crime characterized as jus cogens. With respect to the consequences of recognizing an international crime as jus cogens, the threshold question is whether such as a status places obligations erga omnes upon states or merely gives a right to prosecute perpetrators of such crimes. While debate still exists on which norms fall within the category of jus cogens norms, there is broad agreement on the following:
- War crimes, genocide, crimes against humanity, and prohibitions on slavery are considered jus cogens norms; and
- Implications of jus cogens are those of duty and not of optional rights; otherwise jus cogens would not constitute a peremptory norm.
B/W picture of victim referred in story (TamilNet has information that the youth is Chandraseanan Vinothan from Mallaavi. Born in 9-5-1988)
The concept of complementarity, however, allows for ICC jurisdiction in situations when the state is unable or unwilling to proceed with an investigation or where the state investigation is conducted in bad faith such as when it is used to shield the person from criminal responsibility.
While for political expediency the UN (and US) appear willing to wait until Sri Lanka's dud commission exposes the inevitable failure of its investigations, individual European nations, such as Switzerland, which have incorporated jus cogens norms into their own jurisprudence, can allow concurrent legal action against Sri Lankan nationals, as Sri Lanka satisfies both of the two requisite elements that can negate the complementarity requirement:
- Unwillingness: Despite the establishment of a "lesson learnt" commission, high level officials in Sri Lanka have made statements that Sri Lanka will never investigate war crimes; and
- Inability: High level military and political officials including Sri Lanka's President have been accused of complicity in war-crimes providing validity to the presumption that commission will not be able to carry out an objective investigation against Rajapaksa brothers.
Legal challenges might appear complex and difficult, but the challenges are not insurmountable. Resources and legal capacity of diaspora Tamils should be effectively used to hold Sri Lanka accountable for the crimes committed against Tamils.
Chronology:
Related Articles:
20.05.10 Citing photo evidence, HRW calls for UN war crimes probes
