World-leading expert in international rights and humanitarian law Wayne Jordash QC is calling on the International Criminal Court (ICC) and the UK to investigate crimes perpetrated against Sri Lankan Tamils.
“It’s crystal clear that the [Sri Lankan] government has been involved in a policy of persecuting the Tamils,” he told the Tamil Guardian in an interview this week. “The evidence is quite overwhelming that these crimes are occurring, and it is quite crystal clear from the 200 victims that we represent, that there are thousands, if not tens of thousands more.”
Wayne is the co-founder and managing partner of Global Rights Compliance (GLC) which, earlier this week, filed a submission under Article 15 of the Rome Statute, requesting the ICC Prosecutor to exercise territorial jurisdiction to initiate investigations into crimes committed in Sri Lanka.
The Communication to the international tribunal names several senior Sri Lankan officials, including President Gotabaya Rajapaksa, defence secretary Kamal Gunaratne, former army commander Jagath Jayasuriya and others as individuals “responsible for crimes against humanity of deportation (through underlying acts of abductions, unlawful detention and torture), deprivation of right to return and persecution”.
The submission was made ahead of next week's UN Climate Change Conference 2021 in Glasgow and was also forwarded to the UK Metropolitan Police for action against President Rajapaksa and members of the Sri Lankan delegation attending the Conference.
Wayne has also worked as a legal representative to 400 Rohingya women, who are victims of crimes committed in Myanmar and Bangladesh. In 2018, he filed a submission to the ICC, on behalf of the victims, requesting the ICC pre-trial chamber to provide clarification of the ICC’s jurisdiction over the crimes of deportation, persecution, apartheid and genocide committed against the Rohingyas.
Representing 400 women in Myanmar “was an inspiration for this”. “There are not many places where you can go and find accountability for them [Rohingya]and so, the ICC opened up a very narrow possibility,” he said. “When I look at the situation of the Sri Lankan Tamils and the way in which they are treated by the [Sri Lankan] government and the way in which they leave the country, having been forced out through persecution and torture, it struck me looking at those facts, looking at those crimes and looking at the very narrow possibilities for justice for the Sri Lankan Tamils that we should try”.
When questioned on what he believed are the prospects of success of the ICC permitting an investigation into the crimes committed in Sri Lanka, Wayne answered that “this is the strongest communication I have submitted to the ICC”. “There is overwhelming evidence of the range of acts of abduction, unlawful detention, torture, deportation, deprivation of the right to return, persecution in the UK, persecution where the Tamils end up in another country seeking refugee status. There is no doubt that these crimes occurred, there is no doubt that they are continuing to occur. The question will be whether these men we allege are responsible, ..., are responsible and to what extent.” “I would say the evidence against them is really looking pretty strong,” he added.
Wayne explained the biggest challenge to the ICC and UK investigation being approved is twofold. Firstly, the UK will be “reluctant” to arrest one of the alleged perpetrators, Gotabaya Rajapaksa, due to his presidency.“On the basis of this evidence, ...the challenge will not be the evidence. The challenge will be whether we can get hold of the President.”
On a positive note, he then said that Gotabaya Rajapaksa “won’t be president forever”. “If we can encourage the UK to fulfil its obligations which is to investigate these types of crimes, whether they occur on the UK soil or not and when we can encourage the ICC to investigate crimes which occur in the Rome Statute signatory states, like the UK, then we can inch forward.”
As the second challenge, Wayne mentioned that ICC processes are “very slow”. They “take a very long time and tend to, because of a lack of resources, take even longer,” he said. “Justice is a long game.”
If the request to investigate is successful, what can the victims expect to happen next?
The ICC Prosecutor would open up a full investigation which would include sending investigators to Sri Lanka and/or to the UK to start the investigation. “That’s what happens if the prosecutor is satisfied that there is a reasonable basis for believing that these crimes, crimes of deportation, persecution and deprivation of the right to return, have been committed,” said Wayne.
“On the basis of the communication we filed, there is plenty of evidence. In my view, the prosecutor could move quite swiftly or should be able to move quite swiftly to a full investigation.”