The battle in Geneva

By Sulochana Ramiah Mohan

Against the backdrop of a statement made by former Secretary of Defence Gotabaya Rajapaksa that there’s no Tamil problem for a political solution, the Tamil National Alliance (TNA), a democratically elected political party called as the ‘mirror of Tamil Tigers’, and some others seeking a ‘balanced’ justice for all Sri Lankans killed either by the LTTE or the security forces, the government is in the process of ‘narrowing’ the ‘outsized’ United Nations Human Rights Resolution (UNHRR) passed on Sri Lanka.

The list of proposals in the reconciliation mechanism are under microscopic attention despite some of them are at the infant stage requiring parliamentary approval.
The sudden release of 65 hectares of State lands in Point Pedro near the KKS cement factory for the Tamils last week was the latest addition towards reconciliation.
Among the other measures for reconciliation are the new draft Constitution, a Constituent Assembly, issuance of ‘Certificate of Absence’ for those who fled the country seeking asylum, the report of the Public Representations Committee on Constitutional Reform for Transitional Justice comprising the Office of Missing Persons, the Truth and Reconciliation Commission, a Special Court on Accountability and an Office of Reparations were presented to Zaid at the last meeting.
Mechanisms
Although many of the mechanisms are unclear at the early stages of implementation, the core issue of the entire resolution has led to one major point – the judicial mechanism to probe war crimes.
Who will be the judges who would hear the cases of alleged perpetrators of war crimes, the manner in which they were conducted, what kind of technical assistance the government would provide to them have drawn public interest, the government claims.
The government has kept the mechanism under wraps as it would also attract the Joint Opposition to ‘cry foul’ on the mechanisms, Ceylon Today learns.
The transitional justice process has started. A peace building process has also begun. On the constitutional reforms the government has received all the submissions from the public despite none was telecast or aired calling the people to submit their proposals.
Reconciliation Task Force
The Office of the Missing Persons (OMP) is in progress after visiting various places in Vavuniya. Submissions on the Reconciliation Task Force have also been received by the government.
Under the Transitional Justice Mechanism, a ‘Compassionate Council’ has been proposed that could overlap with the mechanism of the Reconciliation Task Force.
Whether the ‘Compassionate Council’ proposed by Prime Minister Ranil Wickremesinghe will undermine the judicial procedure has also been discussed.
The government intends to use the ‘Compassionate Court’ to see whether the Court once it convicts the perpetrators, could pardon them undermining the conviction.
No concrete decision to have foreign experts on the special Courts as suggested by the UNHRC has been taken.
The letters of submissions were sent to the following organizations by the Chairperson of Consultation of the Tasks Force on Reconciliation Mechanisms Manouri Muttetuwegama: All Ceylon Buddhist Congress Saiva Mangaiyar Kazhaham Jama’ath -e- Islam, National Christian Evangelical Alliance of Sri Lanka, National Shoora Council, All Ceylon Women’s Buddhist Congress, All Ceylon Young Men’s Muslim Association, Centre for Islamic Studies, Young Men’s Buddhist Association, National Christian Council, Young Women’s Christians Association, Ecumenical Institute, Jamath -us- Salama, All Ceylon Hindu Congress and the Ramakrishna Mission.
Manouri Muttetuwegama works with a team comprising Mirak Rahim, Dr. P. Saravanamuttu, Dr. Farah Hanifa, Dr. Gamini Viyangoda, Visaka Dharmadasa and Prof. Gamila Samarasinghe.
Repealing of PTA
The draconian Prevention of Terrorism Act (PTA) which the government intends to repeal as proposed in the mandate, has been placed under three new security laws.
While the government has revealed that a local judiciary system will probe human rights violation, till late, there has been a series of backlashes on how the cases are to be handled.
Beginning the session last week in Geneva, the Human Rights High Commissioner Zeid Ra’ad Al Hussein urged the government to prepare a comprehensive strategy on transitional justice with “inclusive and meaningful engagement from all Sri Lankans.” On 29 June, the High Commissioner is expected to make a presentation on Sri Lanka after listening to the review.
As part of the government’s engagement in the peace and reconciliation process the President said it is a must for Sri Lankans and there is no need to please the international community. A forum in this regard was held on 13 June titled ‘Sri Lanka in Global Affairs: The Journey since January 2015’ at the BMICH.
International affairs
The forum was addressed by several experts on international affairs, policy-makers and human rights activists. They spoke on the journey of reconciliation since January 2015. The keynote address was delivered by Prof. Ram Manikkalingam. It was followed by a panel discussion moderated by Ambassador H.M.G.S. Palihakkara. The panellists included Prof. Jayadeva Uyangoda, Dr. Dayan Jayatilleka and Governor of the Eastern Province Austin Fernando.
They shed light on what is being done, need to be done and what should be dropped off the agenda.
Eastern Province Governor Austin Fernando said the MOP is in its early stages and nothing has been done with regard to gazetting it or getting the Parliamentary approval. It would take some months, he added.
He also said the South African TRC model will not be favourable to the local mechanism. Therefore, they are consulting the law makers to seek other alternatives. “We want to know whether the victims and the perpetrators want to meet and ask for forgiveness or give them conditional amnesty. All these are on the card. On seeking justice we have suggestions and are looking for alternatives.”
Foreign policy
Former Permanent Representative to the United Nations Dr. Dayan Jayathillake said Sri Lanka’s foreign policy at all times should be a realist and be guided by national interest.
He pointed out that it is controversial while the foreign policy as initiated by President Sirisena who is a realist, the very nature of the new administration, has lent itself to a certain dualism in foreign policy. President Sirisena’s policy also sees another aspect which deviates from the foreign policy initiated by him.
He recalled, however, the fault of the previous government was that while in its first term it practised under the direct guidance of President Rajapaksa. At that time the resolution of the UNHRC in May 2009 was not extended for the second term of the post war period. Dr. Jayatilleka said the previous administration did not fully implement the resolution and, if it did, there is a probability that we would not have to face the present situation.
On BBC Sandeshaya he recalled that President Sirisena had said he had full confidence in the Sri Lankan Courts especially after the 19th Amendment and that he also has full confidence in Sri Lankan lawyers and local laws. “That is the correct position in line with the national interest,” he said.
Terrorists
He queried why there should be a special mechanism. “Which country in the world has tried its armed forces fighting a war within its own boundaries against terrorists? Which country has set up special Courts and special prosecutors to hear such cases?” he queried.
Dr. Jayatilleka was questioned by a journalist on the effectiveness of such a Court as the affected parties should be satisfied with the local proceedings. If they aren’t satisfied, the whole exercise of the local or international special Court has no meaning, the journalist said.
The journalist also stressed that no one has faith in the local judicial system and there is enough evidence to prove it. He said a South African Truth and Reconciliation Commission model is ideal, but the public would want to know the truth.
Dr. Jayatilleka responded that a war similar to what Sri Lanka experienced was fought world over and need to take the look at the universal experience. “No country when its forces fighting a war within its territory under a democratic system would be tried by international or local judges in special Courts because it’s treacherous and those countries which call for such a Court are already questioned for war crimes and lack of democracy.
TRC model
On the South Africa’s TRC model, the former UN envoy pointed out that South Africa the majority was dominated by the minority and they had the TRC but there was no special Court. He also pointed out that not only the Tamils but the Sinhalese too need justice. “There are military men who are left with no limbs after the 30 years of war. They will also need justice. The entire Sinhala people who lost their lives will also seek justice. We must get their approval too. Ask them if they want a special Court for them too and then bring judges and prosecutors,” he added.
Dr. Jayadeva Uyangoda former JVPer, on the other hand, pointed out that Geneva in March and in October 2015 symbolized the process of re-configuring Sri Lanka’s global relations and strategies. For the first time since 2009, we could see the Sri Lankan Government, the UN, the EU and Western governments – the West-led managers of the global political system – sitting and talking to each other as friends, committed to a shared goal of post-war peace-building and development in Sri Lanka.
The new government has also come to realize that its newly found Western allies were not really ready to assist Sri Lanka to manage the emerging economic crisis in any substantive way. Understandably, for the Sirisena-Wickremesinghe unity government, there was no free lunch coming from Europe or America! Whatever little that came had political conditions attached. Faced with potentially disastrous economic downturn, the government seems to have decided to re-recalibrate its external relations. This is the only way to explain the government’s perusal, of late, of a policy of closer and robust economic relations with China, despite continuing domestic criticism, coming from allies, as well as opponents. There is no free lunch from Beijing too, though!
The evidence so far suggests that the government might try to defend its poor performance record, or the weak report card, because it has to do it any way in Geneva by citing domestic difficulties. To defend it internationally, the government might also need to recalibrate its external relations and seek new domestic, as well as global allies who are sceptical of, and even opposed to, the Geneva process. Now it is time for them to take some serious steps towards course correction. Revisiting the January 2015 reform agenda will certainly be helpful, he added.
points to ponder
Never forget that the former President’s ‘failure’ to implement the resolution is why we are in this position and had he implemented, it would be on the same line, the stance the present government has taken. The Paranagama Report was also formulated by the former President that will be ‘used’ by the government to find out what happened to the missing persons.
Also the fact is that since 2002 there’s been the call from the ICC and all signatories to it (over 130 countries) recognize the existence of international norms, conventions and in particular the Rome Statute regulating their behaviour in the event of armed conflict. Sri Lanka of course, isn’t a signatory (nor is USA, for example) but the point is: recognizing jurisdiction of supra-national laws, Courts, judges etc. is perfectly a well-established norm.
It’s just not true that Special/Hybrid Courts have never been established anywhere else: Cambodia, Sierra Leone, ICTR (Rwanda), ICTY (Ex-Yugoslavia) are to name a few.
It’s simply a false claim about US bombings, atrocities etc. in Afghanistan and Iraq effectively render null and void their calls for accountability. The fact that country ‘X’ behaves appallingly doesn’t mean it’s perfectly OK for country ‘Y’ to do the same. Both have broken international humanitarian laws and both should be held to account for it – not either for goodness sake!
It’s rather really important to emphasize that the world does have a body of international law – Geneva conventions etc – among other things aimed at regulating the conduct of war. Which implies that those who break those norms are accountable under them, with no exceptions and irrespective of whether those violations have been committed in the course of liberation, defeating terrorism.
It’s true of course, that not everyone is held accountable in practice (the US in particular). But that’s not an argument in favour of excluding the Sri Lankan military from accountability under International Humanitarian Law. It’s an argument precisely for including it – along with everyone else, including the US.
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