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

Abstract

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.