An Internal War Crimes Inquiry Will Be A Farce

By Rajasingham Jayadevan

Rajasingham Jayadevan

Sri Lanka is on the international agenda on war crimes and serious post war human rights violations. Until the election of the new President Maithiripala Sirisena, the Government of Sri Lanka was on a head on coalition with the United Nation and the west to cover-up its conduct and was hell-bent to undermine the UN efforts on war crimes investigations.

Sri Lanka is a party to the international law and treaties and as a legally constituted state, is answerable to the atrocities it committed during the internal war. The outgoing government was uncooperative and wilfully absconded by its intemperate behaviour leaving the UNHRC to proceed with an investigation on its own without the co-operation of the Sri Lanka government.

Sri Lanka failed to implement its own post war Lesson Learnt and Reconciliation Committee report on crucial issues and fragrantly extended a democratic dictatorship that emboldened the anti-minority hatred in a calculated and systematic manner. The entire security mechanism and the propping up of right wing Sinhala Buddhist hatred kept the outgoing government live and kicking until its demise. With the hyphened paranoia of war victory, Mahinda Rajapakse thought he is indispensable and could extend his regime indefinitely and his decision to call the Presidential election back fired on him.

With the defeat in the election, Mahinda Rajapaksa and his brother Gotabaya Rajapaksa have even lost their diplomatic immunity and have become ordinary citizens without absolute legal safeguards. Both are now in the hell holes, unless the new government bestow them with the protection against international efforts. The present government’s stance on the internal inquiry is a big respite for the former President and those who discharged war crimes under his military hierarchy.

The new government’s decision on the internal inquiry on war crimes with the help of the UN is not without any constraints. A matter that needs international process, though encouraged to be carried out locally (thus abiding by local laws) will not deliver fair justice when local laws are impediment to any justice being delivered against the perpetrators of war crimes and serious human rights violations.

War Crime sri lanka-Unfortunately, the very statute i.e., the constitution of Sri Lanka, gives absolute immunity for the president over his conduct in office. Mahinda will play a hero’s game by taking all the responsibility for the conduct of the war, thus absolving his brother Gota and operational military mechanism for honouring his orders to end the war in a manner he thought appropriate. The unhindered immunity enjoyed by the President gives him absolute legal protection and even those who exercised war crimes can claim immunity by justifying they only exercised their delegated responsibilities from the President.

The Supreme Court or any commission appointed to investigate the war crimes will stall, thus citing the immunity clauses in the constitution in favour of the President. The whole internal excise will be a farce and will be a time wasting exercise. The internal investigations will only make Mahinda a hero and help him bring about regime change in his favour once the internal process starts.

Will the local investigation be the panacea for due international justice for crimes committed by a state in an internal war behind the iron curtain?

gotabhaya_mahindaWith the new friendly government in Colombo, the UNHRC may postpose its investigative report to be released in March 2015. Encouraged by the new governments offer of unrestricted engagement, the UN investigative panel may work in parallel with any internal investigations initiated by Sri Lanka and must visit the island to gather direct war crimes evidence to revise and strengthen its own report.

Alternatively, UNHRC must help strengthen the internal investigations and when the internal judgement will be the forgone one as stated above, the finding must be to proceed through the international process for justice. UNHRC must agree a deadline with Sri Lanka over its investigation process.

The Foreign Minister of Sri Lanka Mangala Samaraweera has already stated: ‘Since Sri Lanka is not a signatory to the Rome Statute regarding international jurisdiction with regard to war crimes, ensuring justice with regard to such matters will be the business of national independent judicial mechanisms.’ Alas, the Foreign Minister must go further and confirm how an internal investigation could deliver justice to an issue that gives absolute constitutional safeguards to the President as the Commander of Chief of the armed forces. The constitution (35-1) states that: ‘no proceedings shall he instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity’. Greater transparency by spelling out the entire investigative process and way in which the perpetrators of war crimes and human rights violation will be brought justice will help strengthen the credibility of the government.

Though Sri Lanka is not a signatory to the Rome Statute there are provisions in the UN process, though cumbersome, to deal with countries that are non-signatories. Sri Lanka’s obligations under international law makes it culpable to meet justice and UN process is the only way such justice will be forthcoming.

As claimed by Sri Lanka, if it can enter the Malaysian territory to kidnap the LTTE arms procurer KP, the very same right can be reciprocated to produce the head of the war crimes machinery for international justice.