Lawyer, public activist, academic, and political scientist Chrishmal Warnasuriya has been admitted as Counsel of the world’s first permanent International Criminal Court (ICC).
The Court was set up under the Rome Statute International Treaty to investigate and prosecute crimes committed by nationals or by anyone on their territory.
The seat of the Court is at The Hague in the Netherlands, which is its host state. The ICC investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression. As a court of last resort, it seeks to complement, not replace, national Courts.
Its establishment in 2002 showed many nations’ commitment to end impunity for the worst global crimes. Sri Lanka is not a member of the ICC. Neither is America.
The Rome Statute of the International Criminal Court is a treaty signed by 123 nations.
Of those, 25 are from Western European and other States, 28 are from Latin American and the Caribbean States, 33 African States, 19 Asia-Pacific, and 18 from Eastern Europe.
In adversarial litigation, attorney Chrishmal Warnasuriya has been a ‘fighter’ who won’t stop until justice is served.
Warnasuriya who holds degrees from the University of Colombo and of London has been recognised as an expert in international law by the UK’s Law Society.
He received the 2014 International Visitor Leadership Program (IVLP) Award from the US State Department in recognition of his potential as a future leader.
Warnasuriya has testified in Court in several high-profile cases, including the case of Major General Sarath Fonseka’s alleged violation of fundamental human rights.
He received two nominations for Parliament in 2015 and 2020.
The following is an interview with Chrishmal Warnasuriya.
Q: Your admission as Counsel for the International Criminal Court comes at a time when the Federation of Global Tamil Forum has urged the United Nations Security Council to refer alleged war crimes committed by Sri Lanka to the International Criminal Court. A large part of the Tami diaspora has been continuously pressing the international community and the UN Human Rights Council to refer Sri Lanka personnel to the ICC over their allegations of crimes of genocide, as they put it, war, and crimes against humanity. Please tell me about that.
A: I will be honest with you. I returned from London about fifteen or sixteen days ago. I was unaware that a Tamil Diaspora organisation or organisations were asking that Sri Lanka be prosecuted at the International Criminal Court.
However, I had spoken to the press about two years ago when such allegations were first raised. I have clearly stated that I stand with the republic and that if there are any allegations at the ICC, we are certainly willing to defend them. I still stand on that footing.
If allegations are related to this effect, the situation will be much more beneficial having a Sri Lankan as Counsel if any such defence is needed.
However, irrespective of that, I do not know whether the ICC will look into the charges or not.
The parties who have ratified the Rome Statute can ordinarily be brought before the tribunal as they have agreed to abide by the convention. Now Sri Lanka has not ratified the Rome Convention, and America is the other. Several countries, including England and European countries have ratified it.
That is the defence that continues to be raised frequently, saying that we cannot be taken before the ICC because we have not ratified the Rome Convention.
However, there could be exceptions to this. When a citizen of a non-member country commits war crimes, crimes against humanity, genocide, or crimes that are considered to attract universal jurisdiction on the territory of an ICC member country, or if that member country has some connections with those bringing the allegations, some argue that the ICC may be involved on that basis.
For example, the UK is an ICC member state. Some organisations argue that because the UK has connections with the ex-Sri Lankans who currently live in the UK, the UK can involve ICC jurisdiction in Sri Lanka. On this basis, they are trying to bring their allegations to the ICC.
But the ICC requires a country to ratify the Roman Statute to exercise its jurisdiction.
I can’t comment directly on the Diaspora because I don’t know what charges they’ve levelled or their statements.
If any charges are brought before the ICC, there will be arguments that Sri Lanka is not a party to the Rome Convention and thus cannot be subject to its jurisdiction.
Even if the charges are levelled, I believe the situation is much better with a Sri Lankan present who can appear in their defence now that a Sri Lankan counsel is admitted to the ICC.
Q: Do you mean that it would be your responsibility as well?
A: Absolutely.
Q: Can you elaborate?
A: When you become a Counsel of the ICC, they can call upon you to defend and prosecute. That is a difference in this Court. When I am admitted as a lawyer of the Supreme Court of Sri Lanka, I can pick or select my client. I select whether to defend or prosecute. However, when you are admitted as Counsel at the ICC, the appointment letter clearly says that the Registrar can call upon you to prosecute or defend.
Q: You were once a political activist in some ways. You were the National Organiser of the Rata Surakimu organisation and now an ICC Counsel. How did this transition occur?
A: According to its procedural requirements, the ICC double-checks everything before admitting someone as Counsel. I had to give the ICC the local police report, the interpol police report, and reports from my practice in England, Sri Lanka, and the Bar Council here.
They have asked me about the lawsuits I appeared in for over twenty years, from Sarath Fonseka’s Court Martial case and related evidence, and also about principle issues involved in the country, among other things. I had to report the cases in which I appeared. I am confident that they have thoroughly reviewed all of these reports. I received the appointment letter from the ICC on the evening of September 19.
Q: Are you the only ICC Counsel from Sri Lanka?
A: I checked an internet list of Counsels at the ICC. A cursory glance revealed no other Sri Lankan.
Q: When will you attend the International Criminal Court in The Hague, Netherlands?
A: According to protocol, I have to go there when they assign me to a case. I don’t think I need to move to the Netherlands.
Q: Does this imply that your Colombo law practice will continue?
A: Yes. This is my country, and I am here to serve my people. However, I must conduct my practice in London.
I put in a paper there the last time I went to restart my practice there. I may be required to travel to the ICC from London if they summon me to defend or prosecute a case or to participate in an ICC convention.
Q: How did members of the Government, the Parliament, and others react to your appointment as Counsel to the ICC?
A: Many have congratulated me, including the former Justice Minister, former Foreign Minister, and present Foreign Affairs Minister. They have all been very complimentary, I must say.
The Prime Minister’s office too has sent me compliments, as have many members of the Opposition and the ruling party.
Q: Can the recent arrests of Galle Face Aragalaya protesters be categorised under crimes against humanity?
A: I must say that I have some sentiments about it. You cannot use anti-terror legislation to punish domestic offenders who violate the laws of the country. I must say I have sympathy for that.
Anti-terror laws are specific, and they can only be applied to specific offences, such as collecting firearms, ammunition, and explosives aimed at specific people. Anti-terror laws, in my opinion, have no bearing on Aragalaya.
It would be best if you comprehended the feelings of the youth of Aragalaya.I also became involved in Aragalaya when peaceful protests began in Moratuwa. I took about 150 people from Moratuwa to the Galle face protest grounds.
I visited Galle Face three times and spoke with young people who participated in protests. In light of the people’s grievances, I feel sympathy.
I was a part of that. People didn’t have electricity, people didn’t have gas, and the people were saying that this country was being mismanaged. We have freedom under the Constitution to say that. In my opinion, that can’t be visited by anti-terror laws.
Legal action should be taken if there has been a violation of laws. I am fully on board with that.
As much as I sympathise with the Aragalaya, as soon as it turned violent, I told them, “you can’t do it,” because you can’t break the law.
The whole idea of the Aragalaya was to have a peaceful protest. So people like me supported the peaceful uprising for people’s rights and against violence unleashed on protests that were held peacefully. I was with the Aragalaya until it turned violent. Yes, I am with the Government if it says that action must be taken against those who violate the laws of the land. Of course, I am a lawyer and have given my oath to support the Constitution and uphold the law.
You cannot throw away the Constitution or disregard it while you engage in protests. I will not support such actions. You have to do it through the process of law.
Q: Since Sri Lanka has not ratified the Rome Statute, does that mean that ICC’s jurisdiction is zero or minimal concerning Sri Lanka? And how would you have exercised your role on the part of ICC’s mandate?
A: The ICC would not require me to second what they are doing. As Counsel of the ICC, I do not think I should play such a role.
However, if the ICC’s opinion is that a Sri Lankan should be tried for offences, they must first justify that Sri Lanka can be brought under the jurisdiction of the ICC as we have not ratified the Rome Statute.
Q: How can a country such as Sri Lanka, under such circumstances, find justice against those responsible for the country’s bankruptcy?
A: We cannot find countries that can exercise their jurisdiction over our citizens. The country must have institutions recognised by our Constitution to hear the cases concerning our citizens - our Courts and the tribunals in our Constitution. We can’t go overseas and recognise institutions not recognised by our Constitution. It must be created by Parliament and recognised by articles four, ‘B’ and ‘C’ of our Constitution. As for bankruptcy, someone must be held accountable.