Those accused of war crimes must be brought to justice – Ex-AI Chief

By Sulochana Ramiah Mohan

Secretary General of Amnesty International (AI) Salil Shetty who stepped down from his post, recently, in the belief that leaders should not hang onto their posts, whether in Government, Corporations or NGOs, tells Ceylon Today, “While the war has ended, many feel the conflict has not.”

The Amnesty has been using UN expert panel statistics which estimated that up to 40,000 Sri Lankan civilians were killed in the final, bloody months of the war. How do you defend this estimation as being correct compared to the Government’s stance that between 7,000 to 8,000 would have been killed according to Lord Naseby’s endorsement? Is the UNHRC still standing by those figures?
A: This is a much-rehearsed question.  Let us remind ourselves that Sri Lanka, just like every other member State of the UN, has international obligations to protect, promote and fulfil respect for human rights and freedoms. In the last stages of the armed conflict in Sri Lanka in 2009, several thousand civilians were allegedly killed.
The UN Secretary General subsequently appointed a panel of three experts to investigate these allegations; their report estimates that the number of civilians killed may be as high as 40,000. Sri Lanka is a member of the UN and is obliged therefore to assist the UN in actions that it takes in accordance with the Charter.

The Government of Sri Lanka at the time, repudiated the findings of the UN expert body, and Amnesty considers this a rejection of Sri Lanka’s international obligations. The fact that some people are still doubting the number of civilian deaths close to a decade after the war underscores the need for swift, impartial, effective investigation of these allegations by an independent accountability mechanism.
This investigation should lead to prosecutions of those who bear criminal responsibility for the credible allegations of crimes against humanity and war crimes, that the UN expert body has highlighted; in civilian courts with guarantees of fair trial and without recourse to the death penalty
What is your take on the US quitting calling the UNHRC a ‘cesspool of political bias’- The very organization that Amnesty relies on to tackle human rights issues globally. Isn’t this undermining the efforts put in by HR activists?
A: The fact is that the Human Rights Council (HRC) remains an important forum for justice and accountability for human rights violations globally. Even in the best of times, the US has not ratified many key UN treaties and conventions, US exceptionalism is not new.  Successive US Governments have been more interested in protecting Israel from its shocking treatment of Palestinians, particularly in Gaza.

That the UNHRC has exercised some degree of independence on the rights of Palestinians and holding Israel to account has always been a thorn on the side of the US flesh, so to speak. But the Trump Administration has taken it to a new level.
The HRC has many deficits, and we are the first to point those out.  On the issue of its composition, its representatives are not determined by the UN Secretariat or the Human Rights High Commissioner, but by countries in each region, who choose their own representatives. If the US is so concerned about the purity of the company it keeps in the various UN bodies, I would suggest they quit the Security Council first.
By leaving the HRC, President Trump’s administration has demonstrated its complete disregard for human rights and fundamental freedoms, the very rights and freedoms that the US claims to uphold. The Amnesty has urged the US to reverse this decision, which will undermine human rights of all people everywhere.

That the US decided to walk out of the HRC at the same time that they were forcibly separating migrant children from their families, something which virtually no country in the world does, is at best a sad coincidence.
Do you find the UNHRC’s actions  sometimes being ‘questionable’ and losing credibility because during your visit to Sri Lanka you told the Press that the Resolution adopted in 2015 was questionable?
A: I did not say that the resolution adopted in 2015 was questionable; in fact the Sri Lankan Government itself co-sponsored it. What I said was that the piecemeal implementation of the commitments in the resolution is deeply worrying.

The UNHRC remains an important force for accountability and justice. Within the global human rights framework, it has an important role to play; and for Sri Lanka, the UNHRC can and does play a vital role in holding the government to account in terms of guaranteeing justice and accountability.
The repeal of the Prevention of Terrorism Act (PTA), the creation of a durable mechanism for reparations and the setting up of the court system necessary to hold those who committed war crimes are the unfinished agenda from the resolution.
Has the Amnesty done its own research and findings on enforced disappearances and other alleged atrocities and what are those findings?
A: The Amnesty has carried out extensive and independent investigations on emblematic cases of enforced disappearances, extra-judicial executions, torture and other serious human rights violations in Sri Lanka. Our findings have been consistent with studies carried out by credible experts and are publicly available. The documentation by Amnesty, especially on the Enforced Disappearances, and the atrocities during and after the war are on the public domain.
While the Government is accused of all those mentioned allegations, how do you think LTTE atrocities should be dealt with?
A: The Amnesty has consistently held that all those accused of war crimes, irrespective of the side they were in, need to be brought to justice. This is as much true for those surviving members of the LTTE as it is for the Sri Lankan armed forces.
How has Amnesty contributed to Sri Lanka’s peace efforts so far?
A: The numerous calls that Amnesty has made over the years, on truth, justice, accountability and reparations and guarantees of non-recurrence, if implemented will contribute to lasting peace in Sri Lanka. We cannot hope for reconciliation efforts to succeed in the long run till those accountable for the war crimes are brought to justice. There cannot be peace without closure for families of those who have been disappeared or killed. That is the lesson for transitional justice efforts from across the world.
The Amnesty on its visit, tabled several recommendations to the Government. What happened to them?
A: There has been some progress on many of the recommendations but overall the implementation has been unacceptably slow. Since, I last visited the North, in April 2017, there has been progress on a few fronts.

Most notably, the Office of Missing Persons (OMP) is now fully functional; the Reparations Bill is being considered by Parliament; there was a progressive cabinet decision recently seeking to support women with the debts incurred through micro financing loans.
The pace of change is still frustratingly slow for the families of those who have lost their loved ones, years – And in some cases decades. They have waited long enough and every single day of delay should weigh on our conscience.
The deadline for human rights commitments, the Government undertook to enact, ends in March 2019. Do you think we can implement these by then?
A: The answer to this is that it is not going to happen through some form of divine intervention.  At the speed we are seeing now, I am very worried that we will not be able to achieve what was set out.  But to accelerate the pace and deliver against the commitments is still entirely possible if the Government swings into action.

This is exactly what they should now do. I remain hopeful that Sri Lanka will comply with the international commitments it has made – this is what the victims expect and this is the right thing to do. There is still a lot the Government can do- repeal the PTA, set up the remaining transitional justice mechanisms are to name a few. Coming up with a timeline to implement all the remaining commitments therefore is key.
How do you look at the then Sri Lanka plagued with a war, to the current situation especially in the North and the East?
A:  While the war has ended many feel the conflict has not. While there are discernible improvements, especially over the four years, the long road to peace still remains untraversed. I had personally hoped to see a faster pace of change. Don’t forget that coming from India and that too Bangalore, many of us had always looked up to Sri Lanka as a more developed and sophisticated country with greater respect for rule of law and justice. Sri Lanka needs to regain its place in the international community as the country which will deliver justice to all Lankans.
The Amnesty has always voiced against Capital Punishment and condemned the Government’s move to implement it. What have you to say?
A: There are fewer and fewer countries using the Death Penalty, as there is now overwhelming and hard evidence that it is not just inhumane and violating the most fundamental human right – the right to life – but it is also completely ineffective as a deterrent.

It is a cruel and irreversible punishment, a medieval practice that has no place in today’s society. The reputational risk for Sri Lanka to resume executions after more than 40 years is immense. Sri Lanka has voted for the UN General Assembly moratorium on the death penalty almost repeatedly, and even as recently as in December 2016, under this same government.

Under international law, the death penalty can only be imposed in countries that are yet to abolish it for the most serious crimes, like murder. Drug-related crime doesn’t meet this threshold; therefore, resuming the death penalty under these circumstances is a violation of international law.
If the Death Penalty is implemented what would be the repercussions?
A: If Sri Lanka decides to introduce the Death Penalty, I think there will be huge concern and consternation internationally. The delegation of the EU, together with several European Ambassadors and the High Commissioner of Canada, issued a public statement opposing the re-imposition of the death penalty in Sri Lanka already, and there are bound to be explicit and implicit consequences.
I truly find it quite baffling that Sri Lanka would want to go in the opposite direction and risk the enormous goodwill that it has enjoyed globally for retaining the moratorium. There is clearly little to gain and a lot to lose.
Some human rights activists are of the view of  the four pillars of peacebuilding, that the setting up of the Special Court with Special Counsel will be far from reality. What is your take?
A: I have unfortunately not seen any significant progress in the setting up of Special Courts in the past two years. The concern is therefore very valid.  This is such a key part of re-establishing trust with the people of Sri Lanka and the International community that it simply can’t be delayed any further.
Mothers of missing persons are protesting but politicians tell them that many of the missing are living overseas having escaped from Menik Farm and reaching India by boat. How do think this issue should be addressed by the Government?
A: No mother can ever rest without knowing the whereabouts of their children and what happened to them. This will have to be dealt with by the OMP which is an independent mechanism established to find the fate of persons who went missing during the war as well as other conflicts. But then, this has to be followed by an independent accountability mechanism as well. The Government, as a main duty bearer must assist investigations, be it by the OMP or a judicial body.
The call to abolish PTA has been ignored saying that only hardcore LTTE terrorists are arrested under the PTA. How do you compensate this argument?
A: We have always held that as long as the PTA is in force, the Police retain broad powers to arrest and detain suspects without effective human rights safeguards. Under the Act, suspects can also be subjected to secret and incommunicado detention – practices that heighten the risk of torture and enforced disappearance’.

Despite commitments made by the Sri Lanka in the recent Universal Periodic Review, detentions under PTA are still underway. This is clearly unacceptable, particularly given what we all know of how these powers have been abused.
The Amnesty has opened a regional office in Colombo. What’s the agenda for it?
A: The South Asia Regional Office, while located in Sri Lanka works in all the countries of the region. Sri Lanka is one of the countries, albeit an important one, that their work will focus on. Other than continuing the work on accountability, the office will also work on reparations. The regional office is also initiating work on economic, social and cultural rights with a focus on discrimination and women’s rights as key priorities.

My former colleagues in the office will continue therefore to work on the accountability questions with the same determination that their predecessors had. Being closer to the ground, they will be able to contribute much more on campaigning – both online and offline – on these issues. In addition, we will also be able to support the Government more closely on meeting their human rights obligations.

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