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Why Singapore is likely to dismiss ITJP’s action against Gotabaya Rajapaksa

28 Jul 2022

BY Faizer Shaheid The International Truth and Justice Project (ITJP) this week submitted a document to the Attorney General of Singapore seeking to invoke the principle of universal jurisdiction under customary international law to arrest former Sri Lankan President Gotabaya Rajapaksa for war crimes. The ITJP is an organisation that was established in 2013 and administered by the Foundation for Human Rights in South Africa. The project has specifically focused on allegations of war crimes and crimes against humanity committed in the final phase of the Sri Lankan war and thereafter. As such, it is to be presumed that the organisation has dealt with Sri Lanka with an attitude of bias and one-sidedness. It is to be noted that the organisation has carried out no form of investigation and has accumulated partial evidence without authenticating the veracity of such evidence gathered. The purported evidence is collected from outside Sri Lanka from Liberation Tigers of Tamil Eelam (LTTE) sympathisers who hold a grudge against the Government of Sri Lanka (GoSL) and its security forces for the defeat of the LTTE. As the threat of an LTTE revival has been forewarned, the GoSL is aware that LTTE sympathisers have once again launched a global campaign to tarnish the image of Sri Lanka. Whilst the revivalists have introduced action against a former Sri Lankan Head of State through the ITJP to discredit Sri Lanka through frivolous legislative practices, Sri Lanka denies the allegations that the security forces acting under the instructions of then-Defence Secretary Gotabaya Rajapaksa committed any war crimes or any other type of peremptory norm (jus cogens). Whilst many preposterous allegations had been levelled in the hope of holding Rajapaksa accountable under the doctrine of command responsibility, it is easily deduced that many of the allegations are neither provable nor substantiated with evidence. Therefore, Sri Lanka must reiterate its position that Sri Lanka had always complied with the laws of war as specified in the Geneva Conventions and only acted in the best interests of national security during and in the aftermath of the war. Furthermore, the ITJP had sought to invoke the principle of universal jurisdiction. First and foremost, the ITJP has to come to terms with the fact that Singapore is a dualist country, just as Sri Lanka is. It means that any application of international law can only be contested in a domestic court or tribunal if there is ratification by legislation to that effect. Singapore is also not a Party to the Rome Statute, which means that Singapore has no obligation to produce Rajapaksa before the International Criminal Court. It is also to be noted that the said allegations are of no concern to the honourable people of Singapore or the sovereignty of Singapore. In such circumstances, in compliance with Article 2 of the United Nations (UN) Charter, if any charges are to be brought, it must be proven that the said actions have some connection with the prosecuting State. The ITJP has drawn no such connection. However, customary international law is a set of laws that is common to all nations. Rule 157 of Customary International Humanitarian Law specifies that each State has the right to vest universal jurisdiction in its national courts. Universal jurisdiction serves as an exception to the general norms under Article 2 of the UN Charter where it is alleged that there is any breach of a peremptory norm. Therefore, the Singapore courts would have discretion on whether or not to try the case. Despite the discretion, Singapore delegate at the 75th session of the UN General Assembly on 3 November 2020 Diane Tan addressed the scope of the application of the principle of universal jurisdiction by stating key factors. Her statement identified that universal jurisdiction was the right of a State and that it is a last resort where all other mechanisms have been exhausted. She also stated that prior to invoking universal jurisdiction, there must have been a robust analysis of the State practice and must seek the opinions of experts. The prosecuting State must also consider the immunity of State officials, sovereignty, and other factors. She also stated that customary international law must be distinguished from other treaty obligations. In view of Singapore’s stand on universal jurisdiction, as stated by Tan, it is perceivable that it is Singapore that must decide whether universal jurisdiction is to be invoked. Furthermore, it is to be noted that the filing of action is not a last resort by the ITJP, but rather a desperate attempt at seeking revenge for the defeat of the LTTE. A variety of other mechanisms still remain. Singapore and Sri Lanka have shared strong bilateral ties over a long period of time, and therefore, it is unlikely that any attempt would be made to threaten the bond between the nations. And lastly, the Geneva Conventions are written conventions where States have agreed to comply with certain rules, while customary international law is general practices adopted by states. Therefore, universal jurisdiction is unlikely to be invoked if Singapore’s position on universal jurisdiction as stated by Tan is indeed correct. Furthermore, in respect of the extraterritorial application of common law in Singapore, the Court of Appeal of Singapore in the case of Public Prosecutor vs. Taw Cheng Kong made the following statement: “The territorial principle in criminal law was developed by the courts to respond to two practical considerations; first, that a country has generally little direct concern for the actions of malefactors abroad, and secondly, that other states may legitimately take umbrage if a country attempts to regulate matters taking place wholly or substantially within their territories. For these reasons, the courts adopted a presumption against the application of laws beyond a realm…..” By this statement, it is fairly clear that the Singapore courts are going to express reluctance in accepting any consideration of this case. In any event, the frivolous litigious practices of the ITJP to hold Rajapaksa accountable for war crimes under domestic mechanisms are unlikely to bear fruit. (The writer is a legal researcher) ……………………………………………………………………. The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.  


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