Alleged war crimes: PM announces probe will be domestic, no foreign judges

  • Decision conveyed to senior Army  officers, details soon, but TNA unhappy Geneva Resolution watered down
  • Armed services to return more private lands to civilians, high-powered Office of Missing Persons to be set up
  • Government to raise funds through international bonds, under interest-free Islamic banking system

The United National Front Government’s final position on the UN mandated probe on allegations of war crimes in Sri Lanka was spelt out on Thursday by Prime Minister Ranil Wickremesinghe.

He told senior Army officers that the judicial mechanism would be made up entirely of Sri Lankan judges, putting to rest months of speculation if foreign judges were to be part of the tribunal. He met some hundred officers including senior Colonels, Brigadiers and Majors General at ‘Temple Trees,’ the Premier’s official residence. These officers serve in different parts of the country, most in military installations in the North and East.

The Premier’s speech came ahead of the 32nd sessions of the United Nations Human Rights Council (UNHRC) from June 13 to July 1. On June 14 Human Rights High Commissioner Zeid Ra’ad al Hussein is expected to refer to Sri Lanka in his opening remarks. Foreign Minister Mangala Samaraweera is to make a statement on the high level segment on Sri Lanka’s own performance record on the same day. On June 29, Zeid, in accordance with the mandate given to him by the Council, will present an oral update on the implementation of the US-backed resolution which was co-sponsored by Sri Lanka on “promoting reconciliation, accountability and human rights.”

Premier Wickremesinghe said in a brief speech that more details of what was ahead would be told to them at another meeting. This was when Foreign Minister Mangala Samaraweera, who is now accompanying President Maithripala Sirisena to Japan, returns to the country. He said that particularly in the North, there was a continuing need to return more private lands which the military had taken over. Army officers were in fact drawing out plans for the return of these lands. According to statistics available with them, some 58.73 acres of private land in the Jaffna area (outside the High Security Zone) are still being occupied. This is besides an extent of 86.22 acres of state land that is over and above the extent where military installations existed. Whilst some of the land area has served as a buffer, new cantonments have been established in others.

Army Commander Lieut. Gen. Chrisanthe de Silva asked the Prime Minister whether members of the security forces would be tried individually or collectively. The modalities of such a course of action are still not clear. Hence, the Premier did not respond direct to that question. Wickremesinghe also briefed them on the proposed Truth and Reconciliation Commission (TRC) that is being established on the lines of the one in South Africa. Here again, he said, they would be briefed in detail by Foreign Minister Samaraweera.

The first to declare that there would be no foreign judges in the probe on alleged war crimes was President Maithripala Sirisena. He told BBC’s Sinhala service Sandeshaya in January last year, “This investigation should be internal and indigenous, without violating the laws of the country, and I believe in the judicial system and other relevant authorities in this regard. The international community need not worry about matters of state interest.”

The very next month UN Human Rights Commissioner Zaid Ra’ad al Hussein visited Sri Lanka. In a prepared statement dated February 9 last year issued in Colombo, he said he was “reassured this morning to hear both the President and the Prime Minister state their firm conviction in this regard.” (Meaning an ‘international probe.’) He said in that statement that “Sri Lanka has many excellent judges, lawyers, and law enforcement officials. But over the years the system they depended on, and which depends on them, became highly politicised, unbalanced, unreliable. The country’s history over the past few decades is littered with judicial failures. Virtually all Sri Lankans recognise this……”

Was United States briefed?
It is immediately not clear whether the Government informally sounded out the United States or other key players in the Human Rights Council and obtained their nod in any form before choosing to go ahead with a domestic inquiry. A source familiar with matters related to the UNHRC said, “They know and appreciate our (the Government’s) position. They are mindful that we are genuinely focusing on all the issues raised in the resolution including those related to accountability. They are also conscious about our constraints too.”

The move for a domestic inquiry appears to have displeased the Tamil National Alliance (TNA) and diaspora groups. TNA leader Rajavarothayam Sampanthan told the Sunday Times, “The resolution was considerably watered down because the Government showed a positive attitude. We would request that the UNHRC resolution be implemented. There is no room for misunderstanding.” A spokesperson for GTF (Global Tamil Forum) that claims to speak on behalf of Sri Lankan Tamils overseas, said the Government should stick to the contents of the resolution and not mislead the international community.

Prime Minister Ranil Wickremesinghe meeting senior Army officers to assure them that the alleged war crimes probe will be a domestic process.

In more than one sense, it appears that a proverbial time bomb is ticking away for Foreign Minister Samaraweera when the UNHRC sessions get under way. The debate now is not only over whether a probe into alleged war crimes should be international or domestic in character. It is compounded by a more serious factor. That is Sri Lanka’s unhesitant, voluntary offer to jointly sponsor the United States initiated resolution. Thus, Sri Lanka has forfeited the right to any credible reasoning for insisting on an entirely domestic inquiry. The reality is that the Government cannot in the present local political environment carry through an ‘international’ probe. Strong opposition has built up within the armed forces and outside it to such a move. Since the adoption of the resolution, little or nothing has been done to constructively educate the armed services personnel about the ramifications or to hear their views. In that vacuum, there is strong apprehension in the minds of troops. Contrary to belief in certain sections, their dissatisfaction is by no means anti-Government in character though some senior military leaders are unable to discipline less than a handful amongst them. The best example was how troops were at the forefront in rescue efforts after the recent rains led to floods and landslides. The troops deserve all the kudos for they prevented a big loss of face for the UNF Government if they had dragged their boots. It took days for the UNF leaders to react to the floods causing much public discontent. Once more what begs an immediate answer to the all-important question – Who was responsible for jointly sponsoring the US resolution? Through the joint sponsorship, the Government has bound itself diplomatically and legally to every clause in the resolution. The move may have been to ‘soften’ the blows, but as a result every line in it has been accepted.

Here is what the resolution said with regard to probing alleged war crimes: ”Welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system, notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of commonwealth and other foreign judges, defence lawyers and authorised prosecutors and investigators;“

In the light of the joint sponsorship, criticism against Sri Lanka over the shift to a domestic inquiry raises questions of international credibility for the UNF Government. The metamorphosis to the current position is just within a one year period. During this time, the Government, overtaken by other issues, showed less concern. Criticism would naturally be on grounds of making a commitment before a community of nations and reneging on it thereafter. Obviously there has been a lack of foresight on the part of the Government in assuming earlier that the idea of an ‘international probe’ could be marketed locally. It has dawned on the Government only now that it is a gigantic if not an impossible task.

New PTA
Yet, in the backdrop of accusations from Tamil groups, both in Sri Lanka and abroad, over inordinate delays, the Government has been moving towards implementing some provisions in the resolution. A senior private lawyer close to the Foreign Minister has come up with a new draft Prevention of Terrorism Act. Government leaders want to retain the same title for the new law but its provisions, they say, will keep to the resolution’s requirement that it is in “accordance with contemporary international best practices.” Another source, however, said some provisions that deal with terrorist threats will not be watered down. To the contrary, the source said, they will be tightened in keeping with the practices in other parts of the world where terrorism has now become a scourge. Whilst there would be checks and balances in the new law, the source asked; “how can we not have measures to prevent the re-emergence of any terrorist activity?”

Another step towards implementing the UNHRC resolution was taken by Prime Minister Wickremesinghe last Tuesday. He obtained ministerial approval for a two-page cabinet memorandum for “the Establishment of Office on Missing Persons (OMP).” His memorandum was accompanied by an 18- page draft law for the setting up of this office. That will be to: Provide assistance to relatives of missing persons; set up a database of missing persons; and set out procedures and guidelines applicable to the powers and functions assigned to the said office,

The draft legislation is based on the resolution which welcomed “the commitment of the Government of Sri Lanka to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance without delay, to criminalise enforced disappearances and to begin to issue certificates of absence to the families of missing persons as a temporary measure of relief.”

Premier Wickremesinghe’s memorandum said “the proposed OMP should have sufficient administrative and investigative powers, including those granted to Commissions of Inquiry, which powers should extend to the power to compel the co-operation of persons, and State institutions and officers in the course of its investigations. The OMP should also draw on the work of other Commissions which have looked into allegations of disappearances/missing persons.”

It adds: “While the OMP will not engage in prosecutions, it should be vested with investigative powers to be exercised for the purpose of clarifying the fate of the missing person and the circumstances related to the disappearance, and communicating such to the relatives of the missing persons. It should also create public awareness with regard to the incidence of missing persons, and make appropriate recommendations, including recommendations with regard to necessary institutional, structural, administrative and legal reform. The findings of OMP will not give rise to civil or criminal liability.”

TNA leader Sampanthan responded cautiously to the OMP proposal. He said, “We don’t know the full contents. I believe the Bill will come before Parliament soon. We will study it. We are happy the Office of Missing Persons is being set up. We hope they can bring the matter of missing persons to a closure. Normalcy must be restored.” Tamil groups have also expressed dissatisfaction alleging that the Government had gone ahead formulating new legislation without consultation with families of those who disappeared. However, Foreign Minister Samaraweera dismissed the accusations saying they had sufficient time to make representations.

The draft OMP law makes provision for the setting up of a Tracing Unit that will be responsible for tracing, searching for missing persons, assisting in clarifying the circumstances of such disappearance, and the whereabouts and fate of such missing persons. The OMP is being empowered to raise funds to achieve its mandate, including but not limited to obtaining grants, gifts or endowments from the national or international community. Those who fail to appear before the OMP when summons is issued, refuse to answer any question or hinder its work shall be guilty of an offence of contempt. The draft law defines a “missing person” as a person “whose whereabouts are reasonably believed to be unknown to persons who would naturally have heard of him had he been present, unless and until there is reliable evidence of death, due to the following circumstances:

  • In the course of, consequent to, or in connection with the conflict which took place in the North & East or its aftermath, or is a member of the armed forces or police who is identified as “missing in action”; or
  • In connection with political unrest or civil disturbances or
  • As an enforced disappearance as defined in the “International Convention on Protection of All Persons from Enforced Disappearances.”

The draft law has given a six-point mandate to the OMP. They are:

(a) To search for and trace missing persons and identify appropriate mechanisms for the same, and to clarify the circumstances in which such persons went missing;
(b) To make recommendations to the appropriate authorities towards addressing the incidence of missing persons;
(c) To protect the rights and interests of missing persons and their relatives as provided for.
(d) To identify avenues of redress to which missing persons and relatives of missing persons are entitled and to inform the missing person or relative of such missing person of same;
(e) To collate data related to missing persons obtained by processes presently being carried out, or which were previously carried out, by other institutions, organisations, government departments and commissions of inquiry and centralise all available database established under this Act.
(f) To do all such other necessary things that may become necessary to achieve the mandate under the Act.

The OMP will be vested with powers to receive, from any relative of a missing person, or any other person or organisation, complaints relating to missing persons, irrespective of when such person may have become a missing person. It will also be empowered to initiate an inquiry pursuant to complaints or on the basis of information received from previously established Commissions of Inquiry, Commissions on missing persons or Commissions which have inquired into allegations relating to disappearances or missing persons. Powers are also being provided for the OMP to apply to the appropriate Magistrate’s Court having territorial jurisdiction, for an order to carry out an excavation and/or exhumation. It could also make an application to the Magistrate for the issuance of a search warrant, to enable Police or specified officers of the OMP, to search any premises suspected to contain evidence. Upon completion of investigations the Commission is to issue a report to the Registrar General for the issue of a Certificate of Absence or a Certificate of Death. The OMP will also have its own Witness Protection Division to “protect the rights and address the needs and concerns of victims, witnesses and relatives of missing persons.”

The President shall appoint, within 14 days of receipt of the recommendation by the Constitutional Council the Chairman and members of the OMP. They will serve a term of three years.

Economic issues
Other than the move to set up the OMP, approved by ministers last Tuesday, ministers are also devoting considerable time over matters related to the economy. The previous Tuesday’s meeting of the Cabinet of Ministers (May 17) saw Premier Wickremesinghe submitting a memorandum to raise funds through International Sovereign Bonds on concessionary terms instead of at commercial interest rates. It is from banks through the Islamic banking system in this regard known as Sukuk. The Cabinet of Ministers have approved Premier Wickremesinghe’s proposal. Now the Attorney General’s Department has been asked to study the matter and give its opinion on the legal aspects.

According to the Saudi-based Islamic Development Bank, an international financial institution established by Finance Ministers of Muslim countries, Sukuk commonly refers to the Islamic equivalent of bonds. However, as opposed to conventional bonds, which merely confer ownership of a debt. Sukuk grants the investor a share of an asset, along with the commensurate cash flows and risk. As such, Sukuk securities adhere to Islamic laws sometimes referred to as Shariah pinciples, which prohibit the charging or payment of interest. The Islamic Development Bank says the emergence of Sukuk has been one of the most significant developments in Islamic capital markets in recent years. Put simply, they say, Sukuk instruments act as a bridge. They link their issuers, primarily sovereigns and corporations in West Asia and Southeast Asia, with a wide pool of investors, many of whom are seeking to diversify their holding beyond traditional asset classes. According to the Bank, Sukuk issuance increased from US$ 14.9 billion in 2008 to US $ 23.3 billion in 2009, with Asia showing particular strength.

At that meeting the ministers also examined the establishment of a Colombo International Financial Centre (CIFC) following a recommendation by Finance Minister Ravi Karunanayake. The matter has been referred to the Cabinet Sub Committee on Economic Management.

Interesting enough, it was at this ministerial meeting that four ministers – Rajitha Senaratne, Patali Champika Ranawaka, Field Marshal Sarath Fonseka and Arjuna Ranatunga – submitted a cabinet memorandum. They wanted to discuss the lack of action over corruption by those in the previous administrations. The full text of the memorandum and the discussions were reported exclusively in these columns last week. President Sirisena was to rule that the ministerial meeting was not the appropriate forum to discuss such matters.

When this meeting was nearing its end, the Sunday Times learnt, President Sirisena made an appeal to all ministers present. The President who had attended an anti-corruption conference in London declared that a similar summit should be held in Sri Lanka. He directed Law and Order Minister Sagala Ratnayake to make the necessary arrangements for this event. The idea, as the ministers decided, was “making politicians, higher officials in both public and private sectors, other relevant parties and the general public aware of the importance of a corruption-free society in Sri Lanka.”

On the one hand, diplomatic woes for the Government would increase with the UNHRC sessions in Geneva next month. Even if there was a tacit arrangement for the western countries that moved the resolution to take no notice of a domestic inquiry, Tamil groups in Sri Lanka and abroad are certain to raise issue. As noted before, the VAT increase is continuing to hit low and middle income earners heavily. Doubling up ongoing investigations into bribery, corruption and other malpractices, despite severe criticism that the process is too slow, many believe it is also too little and too late. And now an Anti-Corruption summit with foreign participation in that backdrop. There seems a mix up in Government’s priorities.