‘Local Mechanism’ to probe war crimes to begin this month? Unearthing of war crimes Who? How?, What?

BY SULOCHANA RAMIAH MOHAN

War Crime sri lanka-The clock is ticking for the Maithri Government to keep to its promises, made to the UNHRC, especially on the implementation of the ‘Local Mechanism’ (LM). which the UN body is ‘waiting’ to see some detailed and vital steps that the GoSL has taken towards a credible LM which they undertook to implement with regard to the alleged war crimes issue.

However, several parties, mainly the civil society and the Tamil politicians who are vital part in assisting in the probe are as yet ‘kept in the dark’ to this date on what the LM is all about. Although there is an understanding that the United Nation’s Technical input and the support of the International Committee of the Red Cross (ICRC) would be ‘used’ for the LM, the idea of a LM is unclear, certainly not to the parties who ‘could’ be involved in it.

Ceylon Today contacted several persons who were ‘thought’ to be either involved in the LM or advising the GoSL based on the announcement made by President Sirisena who said last month that the LM would be launched early July 2015.

Sir Desmond de Silva

DelegationtLLRC_0021When questioned, Sir Desmond de Silva, one of the main persons assisting the Paranagama Report (Presidential Commission of Missing Persons) on how to apply the international law in probing war crimes, as to what this, the LM that the government is launching this month, he said: I work for the Paranagama Commission which I advise in relation to specific questions that were posed in the Gazette that appointed me as Chairman of the Advisory Council.

The advice I give the Commission is confidential and will remain so until the Paranagama Report is published. Please remember it was Justice Paranagama himself who sought assistance on complex issues of international humanitarian law, international human rights law and customary international law that is based on the way other States conduct warfare and thus forms part of what is commonly called State practice. It was because of these issues that we were appointed to assist the Commission in arriving at the appropriate legal answers to the questions posed in the second mandate of July 2014.

As Sir de Silva said, it is apparent that the interim Paranagama Report submitted to the President will play a lead role in assisting further in the LM. Missing Persons Commission Chairman Dr. Parangama told Ceylon Today last week that his report calls for more investigation based on the witnesses’ statements and his Commission has to continue to work in this regard (commission contract ends in August) and must hold more sittings ascertain the ‘truth’.

Some have already criticised the interim report by the Missing Persons Commission stating that there are ‘flaws’ in the findings.
Besides the ongoing Missing Persons Commission, the completed Lessons Learnt and Reconciliation (LLRC) report will also be used, when the local probe is launched Ceylon Today learns.

It must be said that the LLRC released publicly in November 2011 and commissioned its own domestic commission, the LLRC, from 2010, worked on gathering testimony from victims and their families also examining what had happened during the last phase of the war. Yet, the UN and the international human rights organizations dismissed the report and the efforts taken by the GoSL stating that the report only focused on the reconciliation and not the accountability. UN stated the GoSL report had been ‘deeply flawed.’
Dr. Jehan Perera
images (1)Executive Director of the National Peace Council Dr. Jehan Perera when asked if he knows or saw a ‘draft’ on how the LM would be implemented his answer was ‘it is best answered by the government itself’.
“As a member of civil society, I am not a part of the government process that is setting up the domestic mechanism.”

He explained that the domestic mechanism will necessarily have to deal with two crucial issues.

  • The first is the truth of what happened during the last phase of the war.
  • The second is accountability, the punishment of those who were guilty of war crimes.

“The international standard dictates that there should be punishment for those who committed crimes, however, this can be very divisive in the Sri Lankan context. The concept of transitional justice provides the best way forward. Its main pillars are truth, accountability, reparations, and institutional reform. The most difficult for us will be accountability. The prospect of punishment of those deemed to be war heroes will divide us.”

He also added that the civil societies should be involved because they are looking for a collective answer. “A collective answer must necessarily contain the thinking of all. If not, the government mechanism may fail to be reconciliatory. The answer of one may not be reflective of the thinking of many. This can make it divisive and fail to address the concerns of civil society.
The domestic mechanism should be designed to bring us together, not divide our communities further. The truth can unite us. Punishment will divide us. I am in favour of a domestic mechanism that is primarily a Truth and Reconciliation Commission on South African lines” Dr. Perera added.
Dr. Nimalka Fernando
Attorney-at-law and women’s rights activist Dr. Nimalka Fernando said that the civil society’s stance is to have the international experts and standards to be followed and a joint operation to be established.
She said that the alleged crimes assumed international dimension and cannot be dealt by local laws and domestic mechanisms. “We are here talking about war crimes and crimes against humanity. We have legal experts but lack the expertise required in dealing with such crimes.”

It is disappointing that human rights violations have received only a minimalist approach by the advisors of President Sirisena, she added.
“I am also wondering why the President has still not established a special investigation into Rathupaswela, death of Roshan Chanaka and the leader from the fisheries sector during the Rajapaksa era. At least if he has done that the victims and families will have some trust in the present leadership she stressed.

Further stating that the government has informed the world that it will establish a domestic mechanism and they are aware of the tremendous challenge the present political leaders are facing from a military-intelligence political combination led by the supporters of the former President and those insiders of the present regime in relation to developing an effective mechanism, Nimalka added, “We have only heard about this mechanism from the media. The Foreign Minister has informed us of a meeting to be convened with the civil society to deliberate on this matter. All domestic mechanisms by way of several commissions appointed have failed to command the respect of the victims. If we see what happened to Vithya’s gang rape and murder, the background for domestic mechanism becomes bleak. It has exposed the vulnerability of witnesses
in Sri Lanka.”
Jeewan Thiagarajah of CHA
Executive Director of the Consortium of Humanitarian Agencies, Jeewan Thiagarajah while explaining what the LM is all about and how it would be implemented, he stated that currently a local mechanism exists which he sees in two parts. i.e., the ongoing LLRC implementation processes as well as the Commission of inquiry into disappearances and alleged war crimes.
He viewed that a local mechanism what ‘may’ need to do is to separate the missing from disappearances and any other alleged war crimes. “This exemplified by where on the missing and dead due to conflict ICRC shows 16,137 in their Annual Report 2013. This shows the need to separate into different categories.”

He also added that:
(a) A policy of positive indiscrimination for all those who have suffered losses over time should be there;
(b) Where there is a threshold to hear arguments in a Magistrate Court it should be supported as should the families.
(c) Legal processes should be stringent on standards of proof used.
Chief Minister of Northern Province C. V. Wigneswaran
Wigneswaran-1Chief Minister of Northern Province C. V. Wigneswaran when contacted to ask whether the Tamil politicians or he knows what the LM is all about he answered, “Frankly I am unaware about such local mechanism. I am on record that Tamils can never accept a LM. It must have a credible and strong International input”

He went on to say that the government is under pressure – internationally, as well as from the Sinhala diehards and from the Tamils. “Those from the Tamil side are not diehards. They are the affected and the victims. They want the truth to come out. That is why a Resolution on Genocide was unanimously passed. They want truth, accountability and justice. War Crimes need to be investigated into. The International community despite their geopolitical concerns and commitments are generally of the same view.

The government fears that the Sinhala diehards with an election coming round the corner would paint the government black saying they are trying to send their Sinhala brethren to gallows and so on. Any open discussion about any such mechanism would bring comments. Especially the comments from the Sinhala diehards led by an erstwhile head of State could be very disadvantageous to the government. That I think is the reason for such hide and seek attitude, if what you say is true. My observation is that our Sinhala brethren must be educated to appreciate the difference between prosecuting a war and purposefully and deliberately killing innocent civilians only because they belong to the same community as those who opposed them in the war.

He added: It is our duty to bring our people to the side of sanity, humanity and goodwill. If for the sake of their votes we want to tell them one thing before the election and attempt to do a different thing after the election the consequences would be quite unpleasant. SWRD came into power promising Sinhala only in 24 hours. When he tried to give Tamil also some legal position by his Reasonable Use of Tamil Bill the Buddhist Priests asked a pertinent question. The Pancha Maha Balavegaya went out of their way to bring you to power because you promised Sinhala Only. How dare you now speak of Tamil also!

Therefore we must be honest in what we say and do right from the beginning and not take our people to be fools. It might be difficult but if you are convinced that there should be reconciliation among our people you must start talking reconciliation and sense right from the beginning, not pander to the baser instincts of our people. All politicians think they are cleverer than the people. But they are not. At least now let us understand the perennial truth in our Sinhala saying – kerler kerler dey pala pala dey! (You reap what you sow).
Although the Foreign Ministry yesterday reiterated that Sri Lanka is not a signatory to the Rome Statute regarding international jurisdiction with regard to war crimes, a strange ‘Tweet’ from former peace envoy Erik Solheim who recently tweeted “UN High Commissioner Zeid bin Ra’ad assures me he will release the SriLanka report in September. It will contain surprises.” We, the Sri Lankans who have been seeing ‘surprises’ all along in the past, however are not surprised over the ‘surprise’ Solheim is talking about, and are looking forward to it.