Can foreign judges et al be avoided? Debate over Geneva Resolution 30/1

By Shamindra Ferdinando

Amidst mounting pressure, on the political front, with the Joint Opposition (JO) relentlessly undermining his authority, President Maithripala Sirisena has apparently ended his ‘honeymoon’ with those who had brought him to power, just over two years ago.

President Sirisena has thrown a coalition that had helped him to defeat war-winning President Mahinda Rajapaksa, at the January 2015, presidential polls, into disarray.

The President made his move at the onset of the 34th sessions of the Geneva-based United Nations Human Rights Council (UNHRC). Obviously, the change of the President’s stance was meant to consolidate his position, both in and outside parliament.

The Commander-in-Chief of the armed forces assured loyalists that foreign participation in war crimes probe wouldn’t be allowed, under any circumstances. President Sirisena told an executive committee meeting, of the Sri Lanka Freedom Party (SLFP), on Thursday (March 2), that he had the ‘backbone’ to reject foreign judicial investigation.

A robust foreign participation, in the proposed judicial process, is the cornerstone of the Geneva Resolution 30/1, co-sponsored by the Sirisena-Wickremesinghe government, in Oct 2015. The government-appointed Consultation Task Force for Reconciliation Mechanism (CTFRM), in January this year, strongly endorsed foreign participation. President Sirisena was certainly having CTFRM recommendation, on his mind, when he rejected foreign judges’ participation. It was the President’s first reaction to the CTFRM report since former President Chandrika Bandaranaike Kumaratunga accepted it on behalf of the government at the Presidential Secretariat on January 3, 2017.

“Two weeks ago, the UN Human Rights High Commissioner, in his report on Sri Lanka, called for a probe by foreign judges. Within 24 hours, I rejected it saying I am not ready to bring in foreign judges here,” said President Sirisena.

The President declared that those who had been tasked to represent the country should have the backbone to do the right thing. Although, President Sirisena refrained from naming Foreign Minister Mangala Samaraweera, it was obvious whom he referred to in his speech. The writer is of the opinion that Foreign Minister Samaraweera had discussed Geneva matters, candidly, even at his expense, and the cabinet of ministers has been fully aware of the ground situation.

In fact, Samaraweera, in July last year, expressed confidence that a consensus could be reached on accountability mechanism acceptable to the majority of stakeholders, by January-Feb, 2017.

Samaraweera was briefing the media as regards accountability issues taken up at the 32 session of the UNHRC.

When the media pointed out that both President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe had ruled out the participation of foreign judges, Samaraweera said that they could express their opinion. There could be a difference of opinion on this matter though the final decision, acceptable to the majority of stakeholders, would be taken after having examined all options, he asserted. Samaraweera stressed that there couldn’t be a dispute regarding international participation in the proposed mechanisms. So, the issue has been discussed though some acted as if the President and the Premier hadn’t ruled out foreign participation before.

On the day after President Sirisena’s talk at the SLFI, Premier Ranil Wickremesinghe, too, ruled out foreign judges’ participation in the proposed judicial process. Unlike President Sirisena, Premier Wickremesinghe asserted that foreign judges’ participation (in hybrid courts) weren’t politically feasible as such a move was subjected to approval at a referendum. Premier Wickremesinghe made his position public at an event held at the Bar Association of Sri Lanka (BASL) auditorium. New Chief Justice, Priyasath Dep was present on the occasion.

Wickremesinghe declared that the proposal to set up a hybrid court was not practical. The UNP leader said the international community called for a hybrid court at a time they had no faith in local judiciary.

President Sirisena stepped up his offensive on the following day (March 4). The former General Secretary of the SLFP couldn’t have chosen a better place to reassure the military against the backdrop of mounting criticism of the Sirisena-Wickremesinghe administration in respect of accountability issues.

Prez flays NGOs

Addressing the armed forces, at Palaly air base, President reiterated that foreign judges wouldn’t be allowed to come in. Assuring his commitment to the safeguard of the interests of the military, President Sirisena flayed the civil society for working against the national interest. President Sirisena lambasted civil society activists for pursuing foreign judges participation in domestic judicial process and seeking a role in the decision making process.

Those who had taken advantage of the then SLFP General Secretary Sirisena’s animosity towards the Rajapaksas wanted constitutional reforms an integral part of the Geneva process. They sought a brand new Constitution at the expense of Sri Lanka’s unitary status. Under heavy pressure, on the political front, against the backdrop of the devastating Central Bank bond scam, and foreign debt crisis, President Sirisena seems to be making a desperate bid to stabilize the situation. The President’s much publicized claim that his predecessor Rajapaksa had called presidential poll two years ahead of schedule as the former SLFP leader couldn’t counter Geneva allegations seemed frivolous in the wake of the on-going confusion over foreign judges.

A clueless parliamentary reforms and mass media minister who is also the Chief Government Whip Gayantha Karunatilleke declared that President Sirisena and Premier Wickremesinghe had settled the Geneva issue. In spite of being the minister in charge of the media portfolio and co-cabinet spokesperson, Karunatilleke hadn’t received a proper briefing from those handling the issue. Karunatilleke declared that the Geneva issue no longer existed, soon after President Sirisena ruled out foreign judges’ in proposed judicial mechanism.

Fresh TNA demands

The yahapalana government is in turmoil over the Geneva issue with Opposition Leader R. Sampanthan demanding the full implementation of the Geneva Resolution. Having met in Vavuniya, over the weekend, the TNA issued the following statement, headlined TNA decision concerning impending UNHRC Resolution: “The following decision was arrived at, following a meeting of TNA Members, of Parliament and Provincial Council Members, held in Vavuniya today (11th March 2017).

All Sri Lanka’s obligations in terms of UN Human Rights Council Resolution 30/1 of 1st October 2015, co-sponsored by the Sri Lankan Government, must be fully implemented. These obligations must be fulfilled under strict conditions, under the monitoring of an office of the UN High Commissioner for Human rights, which must be established in Sri Lanka.

The UN Human Rights Council must ensure that, in the event that the Sri Lankan Government fails to fulfill the abovementioned obligations by way of an appropriate mechanism, victims will receive the intended benefits of the fulfillment of such obligations, by way of international mechanisms.

MP Nadesu Sivasakthi stated that the EPRLF did not agree to the above mentioned decisions.”The TNA statement is evidence that the government is not in a position to dismiss the Geneva Resolution. Sampanthan cannot compromise TNA’s stand on Geneva without jeopardizing his authority in the face of Northern Province Chief Minister C.V. Wigneswaran’s challenge. Having co-sponsored Geneva Resolution 30/1, the government cannot go back on its word for want of consensus on the accountability issue.

Colonne on Geneva

Resolution 30/1

The following front-page news report on Feb 4, 2016 edition of The Island applies to the current situation.

Geneva Resolution encapsulates pledge in 100-day programme – FM spokesperson

The Foreign Ministry says them Oct 1, 2015 Geneva Resolution encapsulates what was promised by the new administration during its 100-day programme and subsequently stated at the Geneva-based United Nations Human Rights Council (UNHRC) on Sept. 14, 2015.

Foreign Ministry spokesperson Mahishini Colonne was responding to a query by The Island whether UNHRC or some members of the Geneva-based body, had sought clarification from the Foreign Ministry as regards recent contradictory statement pertaining to Geneva Resolution made by President Maithripala Sirisena. The Island also asked whether the Foreign Ministry had briefed or reassured UNHRC regarding Sri Lanka’s commitment to the Oct 1, 2015 Geneva Resolution.

Spokesperson Colonne said: “No to both. What the government of Sri Lanka has committed to her people already in the 100-Day Work Programme and set out in the UNHRC on 14 September was what was encapsulated in the resolution.”

Colonne was referring to a Foreign Minister Mangala Samaraweera’s statement in Geneva.

President Maithripala Sirisena, in recent interviews with the BBC, and Al Jazeera, had ruled out the possibility of having foreign judges in the proposed court to inquire into accountability issues as envisaged in the Oct. 1 Resolution.

The issue is expected to be taken up during a four-day visit undertaken by United Nations High Commissioner for Human Rights Zeid Ra’ad Al Hussein. The Geneva delegation is scheduled to arrive on February 6.

High Commissioner’s spokesperson Rupert Colville said he couldn’t respond to several queries raised by The Island as he had been unable to contact their ‘main Sri Lanka expert’ as well as the High Commissioner who was travelling. The Island: “Recently, Sri Lankan President Maithripala Sirisena issued a statement contrary to Oct 1, 2015 Geneva Resolution. However, Prime Minister Ranil Wickremesinghe, subsequently, clarified Sri Lanka’s position. Premier assured Sri Lanka’s commitment to the Oct. 1 resolution.

My queries

(1) Did UNHRC seek a clarification from the government regarding its stand?

(2) Will UNHRC Chief take up this issue during his visit to Colombo?

(3) Did UNHRC receive representations from members of the UN body as well as other interested parties such as the GTF regarding the Sri Lankan President’s statement?”

Although, the yahapalana government has repeatedly asserted that Geneva Resolution 30/1 is meant for a domestic inquiry, various individuals pushed Sri Lanka to accept robust international participation in the proposed judicial mechanism.

Leahy on hybrid mechanism

Influential U.S. Senator Patrick Leahy, Ranking Member, Senate Judiciary Committee, speaking on Sri Lanka at the U.S. Senate, in June 9, 2015 strongly recommended hybrid mechanism to address post-war accountability issues here. Leahy said: “It is essential that the justice process is not only about truth telling, but is a credible, independent mechanism with authority to investigate, prosecute, and appropriately punish those responsible for war crimes and crimes against humanity, on both sides. It is also important to the development of a credible accountability mechanism and to the success of this endeavour that Sri Lankan officials consult with local civil society organizations, including the families of the war’s victims. They should also invite international bodies, such as the Office of the U.N. High Commissioner for Human Rights, to take part in this process, to provide technical assistance as well as substantive input and help with prosecutorial work, evidence-gathering, and judicial decision-making. A hybrid mechanism, with international experts involved at the prosecutorial and judicial level, will help ensure that the failings and cynicism associated with past domestic accountability mechanisms are not repeated.”

Sumanthiran reveals tripartite understanding

TNA heavyweight M.A. Sumanthiran, in June last year, revealed the existence of an understanding. Let me reproduce the relevant section of MP Sumanthiran’s speech which he made at Congressional meeting in June 2016. Sri Lanka’s Ambassador in Washington, Prasad Kariyawasam, was seated next to the Jaffna District MP (The TNA) made available the full text of Sumanthiran’s speech to the writer requesting coverage.

Commenting on the international involvement in the accountability process, Sumanthiran said: “…as far as I know the Government has not said ‘no’ to international involvement. All the multiple voices that you talk about say ‘international involvement – yes, but not judges’. Now I take great exception to that, because as I said at the beginning, the text of the 2015 Resolution is a negotiated text. We asked for an international inquiry, and we settled for a hybrid model. So that was negotiated with the Government of Sri Lanka. And having compromised and settled to a model which in the Resolution doesn’t merely say hybrid but explains in detail judges, prosecutors, defence attorneys and investigators, it obviously means judge qua judges, prosecutors qua prosecutors, so on and so forth. So it does not mean (for) judges to be advisors or judges to be involved in some other capacity. And that was well understood.

I was personally involved in the negotiations, with the United States of America also participating in that particular process. There were some doubts created, as to whether the Constitution of Sri Lanka would allow for foreign nationals to function as judges and we went into that question, clarified it, and said yes they can and that is how that phraseology was agreed upon. And so, to us having negotiated and compromised and agreed that there would be a hybrid tribunal to try these mass atrocities, it is not open for the Government now to shift its stance and say ‘well, international involvement yes, but it’s in a different form, now…’. That is not acceptable to us at all. And we have said this. Quite openly I have spoken in Parliament at least two or three times and the Government has not contested me on that.

We have said it to the President when he called for an all party conference on the implementation of the UN resolution, and he has not contested us on that. But, as you say, in the public there are different voices that we hear. So we are concerned as much as people are, with regard to this particular issue, wondering if the Government is shifting its stance. However, such a mechanism has not been brought about as yet. So we will wait until we reach that particular point of setting up a court of the Special Counsel’s office and so on and so forth and insist that every word, and spirit, in that resolution will be complied with.

Aryasinha in failed bid

Now that there is absolutely no question as regards Sri Lanka accepting the Geneva Resolution 30/1, it would be pertinent to closely examine the disputed intervention made by Sri Lanka’s Permanent Representative to the UN in Geneva, Ambassador Ravinatha Aryasinha, at the first informal session that dealt with the draft resolution on Sept 21, 2015. Among those present, on that occasion, were US Permanent Representative to the UNHRC Ambassador Keith Harper and current US Ambassador Atul Keshap as well as other representatives of the ‘Core Group’ pursuing the matter. Ambassador Aryasinha, in no uncertain terms, rejected several sections in the draft resolution.

Ambassador Aryasinha said: “At a time when we have a new Government that is adopting a calmly different path to that which was followed in the era, before 8 January, the expectation is, naturally, that there would be a similar change in tone, tenor, and even strategy on the part of the Council as well.”

“In this context, my delegation is of the view that a lengthy resolution of the nature of the current draft before us which contains 24 preambular paras and 26 operative paras, which is repetitive, judgmental and prescriptive is not in keeping with the spirit of the process of reconciliation and reform that is underway in my country under the National Unity Government. Neither is it helpful in adopting a collaborative approach to reaching consensus. Many paragraphs in the current draft are in fact counter-productive to the reconciliation efforts of the government, and have the tendency to polarize communities, vitiate the atmosphere on the ground that is being carefully nurtured towards reconciliation and peace building and restrict the space required for consultations. There is a real danger that the current approach will leave room for negative interpretation, thus, only helping ‘spoilers’ in this process.”

“We also remain concerned regarding the formulations provided in several of the Operative paragraphs. Certain terminology used such as ‘verification’, is new and intrusive language to be presented in a human rights resolution, especially when the country concerned is engaging with the international community including with the OHCHR.”

“I therefore urge, that in order to enable consensus, this resolution be sensitive to the constitutional and institutional difficulties that will have to be overcome in implementing its recommendations as well as political realities. It must also observe clear, cogent language that the people of Sri Lanka find respectful.”

The government simply overruled the Ambassador’s objections and ordered the Geneva mission to accept the draft resolution.

In the wake of Sri Lanka’s strong objections, the ‘Core Group’, on the draft resolution, submitted an amended resolution, on September 24, 2015. Sri Lanka accepted the amended resolution though it was essentially the same. That is the undeniable truth.

(To be continued on March 22)

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