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More work needed to address issues of internal armed conflicts

2011-11-08 22:57:18
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Speech by Minister of Justice Rauff Hakeem, on the Report of the International Law Commission at its sixty-third session.
Immunity of State
Officials from Foreign
Criminal Jurisdiction
The delegation of Sri Lanka extends its sincere appreciation to the Special Rapporteur on the topic “Immunity of State officials from Foreign Criminal Jurisdiction”, Mr. Roman Kolodkin for his comprehensive Second and Third Reports on the topic, containing a wealth of relevant material which would facilitate future work.
The topic is a difficult and challenging one, involving obvious political sensitivities. Nevertheless, it is a topic of extreme contemporary relevance. Given the complexities involved, there is a clear need to agree on matters of principle and on the general orientation of the topic, before proceeding to formulate draft Articles.
The principle of sovereign immunity is well established in customary international law and continues to play a vital role in assuring the stability of international relations and in the effective discharge of the functions of the State.
In addition, the Vienna Convention on Diplomatic Relations and related Conventions in this field guarantees the immunity of DPL agents and other representatives of States such as those on special Missions so that they could discharge their functions on bhalf of the State they represent, unhindered by the jurisdiction of the host State.
In addressing the issue of sovereign and diplomatic immunity we must bear in mind the fact that the risk of politically motivated criminal prosecutions could very well lead to serious frictions in inter-state relations. There is therefore a clear need to strike a careful balance between the contending policy considerations involved - (i) of preserving the well-established principle of sovereign and diplomatic immunity and (ii) of addressing the issue of impunity.
The challenge before the Commission is to preserve such balance, without tilting too much one way or the other.
On the scope of persons covered by Sovereign Immunity, we feel that Heads of State, Heads of Government and Ministers of Foreign Affairs, the well-known “Troika” enjoy by virtue of their office, full immunity ratione personae. This position is well entrenched in customary International Law and clearly recognized by the International Court of Justice.
We also need to take into account in this regard, the current realities in the conduct of international relations and the fact that the nature of representation in international relations has changed. Consequently, there is a need to examine other possible categories of state officials beyond the ‘Troika’ who by virtue of their functions may be entitled to immunity ratione personae.
We would therefore agree with the Special Rapporteur that there might be a need to establish criteria to determine such categories. The close involvement of an official in the conduct of international relations could be one such criteria.
These issues require deeper analysis bearing in mind, inter-alia, earlier work of the Commission, such as the Code of Offences against Peace and Security and established state practice, having regard to the distinction between Lex Lata and possible developments, de legeferenda.
My delegation therefore is in favour of the proposal that has been made to constitute a Working Group at the next session of the Commission, to further consider and analyze these difficult issues, before proceeding to the stage of preparing draft articles.
The Obligation to Extradite
or Prosecute
The delegation of Sri Lanka agrees that the topic of “Extradite or Prosecute” obligation presents considerable difficulties, particularly as it has implications for other aspects of the law such as universal jurisdiction. Nevertheless we believe that the topic remains a viable one and need to be pursued with a deeper study of contemporary State practice. During the debate in the Commission, it had been noted that the methodology adopted in treating customary law and treaties as sources of the obligation to extradite or prosecute separately in two draft articles was problematic. We agree that the focus should be on the obligation to extradite or prosecute and how treaties and custom evidenced the rule.
Concerning draft Article 4, international custom as a source of the obligation to extradite or prosecute, we would encourage the Special Rapporteur to undertake a detailed study of State practice and opinio juris and determine which serious crimes of concern to the international community as a whole, gave rise to a customary law obligation to extradite or prosecute.
Among the key issues that must be addressed is whether the accumulation of treaties containing an obligation to extradite or prosecute meant that the State accepted that there was a customary rule in existence with regard to the obligation to extradite or prosecute. Extensive State practice in becoming parties to treaties containing the obligation to Extradite or Prosecute could be a strong indicator of the existence of a developing rule of customary law.
We agree that the views that have been expressed that while the topic remains viable, the work must proceed with a greater sense of urgency in the new quinuennium.
MFN Clause
We welcome the progress made in the Study Group on the Most Favoured Nation (MFN) Clause under the Co-chairmanship of Mr. Donald Mc Rae and Mr. Rohan Perera. We note that useful discussions had taken place in the Study Group in an attempt to identify further, the normative content of the MFN Clause in the field of investment, taking into account current arbitral jurisprudence.
My delegation is confident that the outcome of the work of the Study Group would make a positive contribution towards ensuring greater certainty and stability in the field of investment law.
The study Group’s efforts must result in an outcome that would be of practical utility to Members States and Judicial Tribunals alike. The undertaking of the preparation of general guidelines and model clauses to assist States when negotiating Investment Promotion and Protection Treaties, would be a positive step in this direction and we look forward to the completion of this work during the term of the next Commission.
 Treaties over Time
We also welcome the work accomplished in the Study Group on Treaties over Time under the Chairmanship of Mr. Giorg Nolte.
Taking into account the subsequent practice in the interpretation of treaties would not only ensure that the Treaty remains relevant in contemporary times, but also encourages and facilitates its practical application. We take note of the preliminary conclusions by the Chairman on the work so far accomplished and hope that the work on this topic would be concluded in the next Quinquennium.
New Topics
Sri Lanka welcomes the inclusion on the long term programme of work of five new topics referred to in paragraphs 365 to 367 of the Report on the basis of the criteria agreed upon by the Commission in 1998. We believe that the selection of these topics meet the relevant criteria. However, there is a need for prioritizing among them.
In response to the request contained in Chapter III of the Report, calling for Proposals by States, I wish to recall the suggestion made by the President of Sri Lanka during the 65 Session of the UNGA, H.E. Mahinda Rajapaksa to address the issues of Intenational Humanitarian Law and their application to Non-State Armed Groups in contemporary conflicts. He stated “.... it is worth examining the capacity of current international humanitarian law to meet contemporary needs. It must be remembered that such law evolved essentially in response to conflicts waged by the forces of legally constituted States, and not terrorist groups. The asymmetrical nature of conflicts initiated by non-state actors gives rise to serious problems which need to be considered in earnest by the international community.”
Sri Lanka, in its intervention at the Security Council Debate on Protection of Civilians in Armed Conflict on 11th November 2009 stated “. . . .Much of the rules of war are based on the presumption that the parties to the conflict are conventional armies of responsible states engaging other state parties. But terrorists totally disregard these laws and principles as they wage asymmetric warfare. They mingle with and use civilians to achieve their goals. Once again, the practical realities based on the experiences of Member States must be seriously looked at instead of a theoretical application of humanitarian norms to all situations.”
This was also referred to by the delegation of Sri Lanka, during its intervention on the ILC Report last year. The existing IHL framework addressing this issue is of a rudimentary nature. While the ICRC has in recent times been engaged in addressing some of the gray areas that have arisen, such as the notion of “direct participation in hostilities” in internal armed conflicts, by way of providing an Interpretative Guidance, more work needs to be done to address effectively the complex issues that have arisen in the context of internal armed conflicts. We believe this is an area which should engage the attention of the ILC in its consideration of future topics, so that an authoritative contribution could be made to this area of the law.


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