Prosecuting International Crimes in Australia: The Case of the Sri Lankan President

Article excerpt

In October 2011 an Australian citizen filed an indictment for war crimes and crimes against humanity against President Mahinda Rajapaksa in the Melbourne Magistrates' Court. Within a day of the indictment being filed, the Commonwealth Attorney-General, Robert McClelland, had intervened and quashed the case claiming that it could not proceed because President Rajapaksa was entitled to head of state immunity. This article examines two issues that arose from this case. The first is whether the Attorney-General should have the broad discretion he or she currently does to determine whether international criminal cases can proceed. The second is whether the Attorney-General was correct to assert that President Rajapaksa was entitled to head of state immunity. It argues that the Attorney-General's broad discretion in international criminal cases should be significantly curtailed and that although it is likely that head of state immunity would have applied to President Rajapaksa, an Australian court should have been given the opportunity to deliberate on the parameters of a customary international exemption to head of state immunity for international crimes.

CONTENTS

I   Introduction
II  Role of the Attorney-General in Prosecuting International Crimes in
    Australia
      A Problems with the Attorney-General's Role in Prosecuting
        International Crimes in Australia
         1  Breadth of the Attorney-General's Discretion
         2  Lack of Accountability Measures Surrounding the
            Attorney-General's Discretion
      B Recommendations for Reform of Attorney-General's Role in the
        Prosecution of International Crimes
         1  Narrowing the Ambit of the Attorney-General's Discretion
         2  Enhancing the Forms of Accountability to which the
            Attorney-General's Decision is Subject
      C Conclusion
III Head of State Immunity
      A Head of State Immunity in Australian Law
      B Head of State Immunity in Customary International Law
         1  Rationale for Head of State Immunity
         2  Immunity Ratione Personae and Immunity Ratione Materiae
      C Exceptions to Head of State Immunity in Customary International
        Law.
         1  Evidence of a Customary International Law Exemption to
            Head of State Immunity
         2  Uncertainty of the Scope of the Exemption to Immunity
            Ratione Materiae
         3  Does the Practice of International Tribunals also Signify
            the Possible Erosion of Immunity Ratione Personae in
            National Courts?
      D What This Means for Australia and Rajapaksa
IV  Conclusion

I INTRODUCTION

On 24 October 2011, an Australian citizen, Arunachalam Jegatheeswaran, filed an indictment against the President of Sri Lanka, (1) Mahinda Rajapaksa, for his actions during the Sri Lankan civil war. (2) Jegatheeswaran alleged that Rajapaksa had deliberately targeted civilians and civilian infrastructure (including hospitals, schools and community centres) in 2007 and 2008 (3) and that this conduct amounted to war crimes and crimes against humanity. (4) The charges were laid in the Melbourne Magistrates' Court on the eve of Rajapaksa's arrival in Australia for the Commonwealth Heads of Government Meeting ('CHOGM'). (5)

The commencement of proceedings against Rajapaksa was a potentially significant moment for Australia and its domestic engagement with international criminal law. Historically, Australia has had a poor record of prosecuting persons for international crimes. (6) With the exception of the trial of 807 Japanese troops at the conclusion of World War II (7) and the (unsuccessful) trial of three ex-Nazis in the early 1990s, (8) Australia has failed to prosecute individuals suspected of committing international crimes. (9) In 2002, the Commonwealth Parliament passed the International Criminal Court (Consequential Amendments) Act 2002 (Cth) to amend the Criminal Code Act 1995 (Cth) ('Criminal Code') in order to incorporate international crimes recognised by the International Criminal Court ('ICC') into Australian law (namely war crimes, crimes against humanity and genocide). …