Diplomatic Immunity could be tested for war crimes: expert

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Moves to bring war crimes charges in Australia against the Sri Lankan President and High Commissioner face the significant challenge of proving to an Australian Court that serious war crimes can overrule diplomatic immunity, according to an ANU International Law expert.

Professor Donald Rothwell of the ANU College of Law says that suggestions that Sri Lankan High Commissioner Thisara Samarasinghe and the visiting Sri Lankan President Mahinda Rajapaksa may be subject to war crimes charges under Australian law highlight the growing reach of Australian criminal law in war crimes cases, consistent with Australia’s obligations under international law.

"The Commonwealth Criminal Code 1995 allows for war crimes prosecutions committed during the course of a non-international armed conflict such as the Sri Lankan civil war," said Professor Rothwell.

"Relevant war crimes charges include those dealing with attacking civilians (s.268.77) and attacking protected objects including hospitals (s. 268.80). Australian law also confirms the key international criminal law principle of ’command responsibility’ with respect to the obligations of commanders in the field and their criminal liability for the actions of their subordinates. This also extends to political leaders who may have had oversight of the general conduct of military operations."

The challenge, added Professor Rothwell, will be to overcome the significant protections offered by diplomatic immunity.

"While there may be sufficient grounds upon which to launch a war crimes prosecution, both High Commissioner Samarasinghe and President Rajapaksa would be able to claim immunity from prosecution which would bar the matter from proceeding in an Australian court," he said.

"As a diplomat, High Commissioner Samarasinghe enjoys immunities under the Diplomatic Privileges and Immunities Act 1967, which gives effect to the Vienna Convention on Diplomatic Relations, and as such he is immune from all criminal prosecutions while serving as High Commissioner in Australia.

"The Sri Lankan President, while visiting Australia for CHOGM, would also enjoy immunity from prosecution under the Foreign States Immunities Act 1985.

"Nevertheless, whether these immunities extend to serious war crimes is a matter that has yet to be fully tested in an Australian court. The 1999 English decision that the former Chilean President, Augusto Pinochet, did not enjoy immunity from charges relating to torture, would be an important precedent Australian courts need to consider," said Professor Rothwell.