THE trend for private citizens in Western nations to launch prosecutions against international government figures for alleged human rights abuses or war crimes is a bad trend. It does not serve the cause of justice and it militates against effective international relations, on which peace, stability and prosperity ultimately depend. There is little doubt that both sides in the Sri Lankan civil war committed atrocities at different times. This is not remotely a matter on which Australian courts can or should adjudicate. Nor should it remotely be up to private citizens to initiate such prosecutions.
However, the increasing role of loosely worded UN conventions in Australian law, as in the recent High Court decision outlawing the Gillard government’s proposed Malaysian people swap, suggests our law is heading broadly in that direction. It is a direction the Liberals under Tony Abbott have foolishly reinforced, both by their refusal to pass government legislation overcoming the High Court’s ruling, and by their attempt to include the UN refugee convention as an element of Australian law. This is an extremely bad trend that is anti-democratic, by usurping the normal role of parliament, and does not serve justice.
The quest to “universalise” human rights and war crimes prosecutions and sanctions equally does not serve justice or international relations. Such prosecutions are never brought against the powerful. No Chinese leader will ever suffer such a prosecution for actions in Xinjiang or Tibet, nor will any Russian leader be arraigned for events in Chechnya.
However, such prosecutions can be mobilised as effective tools of political campaigning against unpopular governments and individuals. Thus in recent years it has been difficult for Israeli ministers to visitLondon, for fear of prosecution for alleged war crimes, even though in all that time it was not difficult for the late Muammar Gaddafi and his family ofLibya, or for ministers in the Syrian government, to visitLondon. Prosecutions are best undertaken within the countries concerned when they finally become democracies. On particular occasions it can be legitimate to establish a special tribunal, as the allies did after World War II. Similarly, though this process is also shot through with politics, a prosecution can be brought at the International Criminal Court.
Suburban activists bringing actions before Australian courts garner publicity but are totally illegitimate. They also have the potential to poison the workings of the Commonwealth. The law is and should be subject to democracy and to parliament. When parliaments cede authority for political matters to courts, they weaken democracy. Any international action byAustralia against Sri Lanka is and ought to be up to the Australian government. The attempted prosecution was a publicity stunt a very successful one. It’s a good thing the Attorney-General ruled it out.
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TWO: War crimes charges against Sri Lankan leader quashed, by Paul Maley,in The Australian,
ATTORNEY-GENERAL Robert McClelland has moved to head off an embarrassing diplomatic incident with Sri Lankan President Mahinda Rajapaksa, quashing war crimes charges issued by a Melbourne magistrate on behalf of a retired Australian engineer. runachalam Jegatheeswaran, or Jegan Waran, filed two charges of war crimes and one charge of crimes against humanity against Mr Rajapaksa, who arrived on Monday night for CHOGM.
The private prosecution — which requires the consent of the Attorney-General before it can proceed — came just a week after the Australian arm of International Commission of Jurists sent a brief detailing alleged war crimes committed by the Sri Lankan government to the Australian Federal Police.
Last night, Mr McClelland categorically ruled out any action against the Sri Lankan head of state, saying Mr Rajapaksa is entitled to diplomatic immunity. “Continuation of the proceedings would be in breach of domestic law andAustralia’s obligations under international law,” a spokesman said.
Mr Waran, an Australian citizen, worked in northernSri Lankaas a “freelance volunteer” from February 2007 to May 2009, when the war ended. Mr Waran, a Tamil, said he escaped from a camp for internally displaced persons run by the Sri Lankan government. He then made his way toAustralia, although he would not say how he managed to leaveSri Lanka. Mr Waran said he was “living testimony” of massacres committed against Tamil civilians by the Sri Lankan military.
“I witnessed attacks on hospitals, makeshift hospitals, schools, makeshift schools, orphanages, camps and innocent people through shellings,” he said. “The person who was responsible as commander-in-chief, Mahinda Rajapaksa, I want him to be answerable.”
The charges were an awkward diversion forCanberra, which depends on co-operation fromColomboto stop asylum-seekers leavingSri Lanka.
Julia Gillard saidCanberrahad consistently askedSri Lankato address reports of human rights violations, particularly those from the final stages of the civil war. “We will continue to call onSri Lankato address those claims of human rights violations,” the Prime Minister said inPerth. “AsSri Lankaaddresses those issue through its own processes . . . it needs to have regard to the work that has already been done by the United Nations in this area.”
Numerous independent reports, including the UN Panel of Experts commissioned by UN Secretary-General Ban Ki-moon, have found there is credible evidence the Sri Lankan government and the Liberation Tigers of Tamil Elam committed war crimes.
Mr Waran’s lawyer, Lucien Richter, denied that the charges were a publicity stunt. “The attendance of Mr Rajapaksa at CHOGM certainly provides an opportunity for the AFP to pursue investigations, which we urge them to undertake,” he said.