Recent statement in Dublin by United Nations High Commissioner for Human Rights, Navaneetham Pillai, that national investigations in Sri Lanka “have not worked so far,” and Sri Lanka’s Defense Secretary Gotabhaya Rajapakse’s interview to the BBC, where Mr Rajapakse said that “he would not allow any war crimes investigation in Sri Lanka,” are two forceful statements with enough legal weight to satisfy the basic requirement of international law mandating “complementarity,” legal sources in Washington said. International law permits International bodies to step-in to conduct investigations on war-crimes in Sri Lanka, as the opportunities given to Sri Lanka to investigate and prosecute war crimes committed by its armed forces have been exhausted, legal sources added.
The principle of complementarity, as outlined in the preamble and 3 articles of the Rome Statute (1, 17, 19), becomes a relevant factor in litigation premised on extraterritorial or universal jurisdiction.
The principle of complementarity holds that whenever there exists a hierarchy of courts (international, regional, national) that can exercise jurisdiction over a legal issue, including core international crimes, higher courts can only investigate and prosecute when lower courts are unable or unwilling to do so genuinely.
Therefore, an international or regional court may serve as the proper venue for the adjudication of an alleged core international crime in scenarios where the relevant national court is either unwilling or unable to to investigate or prosecute.
The Rajapakse administration’s policy of obstructing justice and general failure to acknowledge and genuinely investigate core international crimes the Sri Lankan Army may have committed in the last phases of Eelam IV, under the principle of complementarity, strengthens the case for litigating these alleged crimes directly at the regional or international level.
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