Ticking time bomb beneath seat of power

In the wake of a recent OHCHR report, Neville de Silva examines the challenging situation faced by Sri Lanka’s newly elected government over the investigation into purported human rights abuses.

Sri Lanka has been trapped, to use a current cliché, between a rock and a hard place. It might still squeeze its way out thanks to its one-time virulent Western critics turning more benevolent at the Geneva-based UN Human Rights Council after the change of political guard in the island earlier this year.

Still it will not escape unscathed, even though the new government in Colombo is more pro-Western than its China-leaning predecessor and has been assiduously cultivating Washington and the West since Maithripala Sirisena ousted Mahinda Rajapaksa as president last January and Ranil Wickremesinghe enhanced his position as prime minister following parliamentary elections in August after seven months in a caretaker role.

At the heart of Sri Lanka’s current troubles is a report from the Office of the UN High Commissioner for Human Rights that investigated allegations of war crimes and violations of international law and other abuses that occurred during the military conflict between the Sri Lankan state and the secessionist Tamil minority rebels, the Tamil Tigers.

This report, released during last month’s 30th Session of the UN Human Rights Council, is consequent to a US-led resolution in 2014 calling for an independent investigation into widespread allegations of abuse by both the Sri Lanka security forces and the Tamil Tigers, particularly during the last stages of the war, which ended with the military defeat of the rebels in mid-May 2009.

In a stinging indictment of the actions of the security forces and the Tamil rebels, High Commissioner for Human Rights Zeid Ra’ad al-Hussein told a Geneva press conference that their ‘investigation has laid bare the horrific level of violations and abuses that occurred in Sri Lanka’. He recommended that Sri Lanka establish a special court to try the ‘horrific’ abuses through specific legislation by integrating international judges, prosecutors, lawyers and investigators. This court will have an injection of international expertise at different levels—hence the term ‘hybrid’ used to describe it.

CONDEMNATION: UN High Commissioner for Human Rights Zeid Ra'ad al-Hussein spoke of the 'horrific level of violations' exposed by the UNHRC investigation
CONDEMNATION: UN High Commissioner for Human Rights Zeid Ra’ad al-Hussein spoke of the ‘horrific level of violations’ exposed by the UNHRC investigation

Even before the Geneva drama could reach its denouement on 30 September, President Sirisena, his prime minister and foreign minister were already patting themselves on the back for having salvaged the country from what would have been a highly critical report by the High Commissioner for Human Rights and an antagonistic international community (read ‘Western’).

President Sirisena told a media conference that the report was ‘a thousand times’ less harmful than it would have been had he had not come to power in January and had the government not begun addressing human rights and governance issues, and initiated moves towards reconciliation with the Tamil community.

Both the president and Prime Minister Wickremesinghe stressed that it was their government that prevented the names of several persons-presumably those suspected of committing human rights violations-appearing in the report, though they did not say how this was achieved.

What seems to have been overlooked or consciously avoided is that this report was initially to be presented to the UN Human Rights Council at its March sessions. So it would have been ready some time earlier. It was Sri Lanka, with the help of Washington, that sought a delay in the presentation of the report until the September meeting of the Council. Is the government claiming that persons had been named in the original report but their names were dropped after Sri Lanka interceded?

That does not square with the observation of High Commissioner al-Hussein, who asserted that the report was an investigation into human rights issues and not a criminal investigation, and that it has tried to identify the patterns of violations of international human rights and humanitarian laws not only during the last phase of the armed conflict but in the whole ten-year period covered by the investigation and even before. It was not a judicial process intended to identify the guilty.

Given this seeming contradiction or, at best, difference of opinion, it is incumbent on the government to say how and at what point of time it managed to persuade the High Commissioner’s office to drop the naming of names.

While Sri Lanka’s leaders were in a self-congratulatory mood, in Geneva the US, which had been responsible for three resolutions critical of Sri Lanka, was still engaged in putting the final touches to a resolution that is expected to win the universal approval of the Council’s member-states that might or might not leave sufficient space for Sri Lanka to extricate itself with a bloodied nose.

If it is going to free itself and is depending on Washington, which had placed Sri Lanka in this position to begin with by internationalising the issue as never before, the optimism of the Sri Lankan leaders might well be misplaced.

At the time of writing, I have seen the first draft of the resolution that the US has said it will move at the butt end of the Council’s session after consultations with core Council members and Sri Lanka itself.

Although the resolution as it now stands avoids mention of the contentious ‘hybrid’ court urged by High Commissioner al-Hussein, the operative paragraphs cited below do retain key elements of that recommendation. The last clause in operative Para 4 calls upon the Sri Lankan government to ‘involve international investigators, prosecutors and judges in Sri Lanka’s justice processes’.

  1. Takes note of the new Government of Sri Lanka’s commitment to undertaking a comprehensive approach to transitional justice incorporating the full range of judicial and non-judicial measures, including, inter alia, criminal prosecutions, truth-seeking, reparations, institutional reforms and other guarantees of non-repetition;
  2. Encourages the new Government of Sri Lanka to respect its positive commitment to bolster and safeguard the credibility of these justice processes by engaging in broad national consultations with the inclusion of victims and civil society, including non-governmental organizations, from all affected communities that will inform the design and implementation of these processes, as well as assistance from international experts and the international community throughout the process, and to ensuring strong and effective witness and victim protection measures are in place;
  3. Welcomes the government’s recognition that accountability is essential to uphold the rule of law and build confidence in the people of all communities of Sri Lanka in the justice system, takes note with appreciation of the Government of Sri Lanka’s proposal 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; and affirms that credible transitional justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and calls upon the Government of Sri Lanka to involve international investigators, prosecutors and judges in Sri Lanka’s justice processes;
  4. Encourages the Government of Sri Lanka to review and, where required, reform domestic law to ensure that it allows for prosecution of the full range of crimes under domestic and international law involving violations and abuses of human rights and violations of international humanitarian law;
CRITICAL SITUATION: The Supreme Court (l), zenith of Sri Lanka's judicial structure, has been declared 'unfit for purpose' in a report by the OHCHR in Geneva (r)
CRITICAL SITUATION: The Supreme Court (l), zenith of Sri Lanka’s judicial structure, has been declared ‘unfit for purpose’ in a report by the OHCHR in Geneva (r)

Therein lies the rub. What precisely is meant by ‘involve’? A clear definition of what it entails is crucial to what will soon turn into an intense debate within and outside Sri Lanka.

There are those who would argue that the resolution, if it retains the current wording when eventually presented to the Council, does not go far enough and that a domestic mechanism even with some international input would not suffice to obtain justice for the victims and for punitive action against those who might be guilty of gross violations of law. They would want either a full-fledged international inquiry or at least the international component of the judicial process to be the dominant player.

John Fisher, Geneva Director of Human Rights Watch, articulated this latter position when he argued that the proposed hybrid court ‘should contain a majority of international judges and have an international prosecutor to best insulate the court from improper political and other influences’.

The International Crisis Group reacting to the recommendation to set up a hybrid special court said: ‘This recommendation merits particular endorsement by the Human Rights Council, given that the government’s resistance to international participation in investigations, witness protection or trials invites doubts about its ability to achieve its own stated goals of justice, accountability and reconciliation and undermines the trust of survivors and witnesses whose testimony will be crucial.’

HEROES OR VILLAINS?: Despite claims of human rights abuses, some see the Sri Lankan military as war heroes for defeating the LTTE
HEROES OR VILLAINS?: Despite claims of human rights abuses, some see the Sri Lankan military as war heroes for defeating the LTTE

Closer to home, the Tamil Nadu State Assembly passed a resolution urging the New Delhi government to back a call for an international investigation. ‘The Tamil Nadu assembly requests the Government of India that if the US takes a stand supportive of Sri Lanka (at the UNHRC), then India must take diplomatic efforts to change that,’ the resolution stated, underscoring the continuing support of the southern Indian state for their ethnic brethren in Sri Lanka.

In Sri Lanka’s Tamil-speaking north and east, 19 civil society organisations called for an international investigation in which international jurists were predominant, while the Tamil diaspora, resident particularly in the west, also supported the al-Hussein recommendation for international participation.

The London-based Global Tamil Forum said in a media statement: ‘GTF is in full agreement with the report, which stated, “A purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises”, and supports the establishment of a “hybrid” Special Court, integrating international judges, prosecutors, lawyers and investigators.

‘Member states must ensure that the forthcoming resolution at the UNHRC clearly articulates the need to include substantial participation of international personnel at each stage of the investigation and trial process.’

Hardly had the High Commissioner’s report reached the public domain when the battle lines began to be drawn in Sri Lanka. The first to fire a shot across the bows was Namal Rajapaksa, son of the former president Mahinda Rajapaksa and parliamentarian who castigated the UN official for ‘insulting’ Sri Lanka’s judicial system, which he had described as unfit and too politicised to undertake the tasks ahead.

Sri Lanka’s former ambassador to the UN in Geneva, Dr Dayan Jayatilleke, who steered a resolution at the Council sessions in 2009 that defeated Western attempts to castigate Sri Lanka and win majority support from the then council, described the on-going efforts as being offered a ‘poisoned chalice’.

Former president Rajapaksa, who would be centre-stage in any possible criminal investigation as he was defence minister and commander-in-chief of the defence forces during the crucial period, joined the battle, saying he would not help any hybrid court, while one of his strong allies and leader of the National Freedom Front called for a parliamentary debate on the UN report within a week.

The real battle would begin only after the Sri Lanka issue is discussed at the Council on 30 September and a resolution adopted unanimously or by vote.

If the resolution calls on Sri Lanka to inject a foreign judicial element into what was intended to be a purely domestic inquiry with international advice and assistance, then the Sirisena-Wickremesinghe government will have a real battle on its hands.

Whether the opposition to a hybrid judicial process will remain essentially vocal and not be played out on the streets of Colombo will depend largely on what role international jurists and investigators are assigned in the process.

There are several factors to be considered. Firstly, the government must learn to speak in a single voice. Prime Minister Wickremesinghe has said that no decision has been taken with regard to the hybrid court recommended. Foreign Minister Mangala Samaraweera says all options are on the table, suggesting that the game has not ended in Geneva, but the words suggest that Colombo might throw in the towel.

But even before the decision has been made, cabinet spokesman Rajitha Senaratne told a media briefing that massive frauds and corruption that had been perpetrated under the guise of prosecuting a war would also receive the due attention of the Hybrid Special Court to be established.

Either Senaratne was jumping the gun, which as cabinet spokesman he has been prone to do on occasion, or the government has already decided to capitulate and go along with its new-found friends in the West who are preparing their Trojan horse.

This, however, is to go back on manifesto pledges made by Maithripala Sirisena when he threw his hat into the ring to contest his one-time leader Rajapaksa in the January presidential election. Sirisena’s manifesto expressed the intention to address issues of accountability through a national independent judicial process.

Shortly after Sirisena came to power the Tamil Guardian wrote: ‘Mr Sirisena made it clear during his election campaign and in his manifesto that he would not allow any Sri Lankan citizen who fought against the LTTE to be handed over to face international justice. Instead, vowing to clean up Sri Lanka’s image on the international stage, Mr Sirisena promised a domestic inquiry into any allegations of war crimes.’

President Sirisena’s position and insistence on a domestic inquiry is clear enough or was when trying to cajole and entice the voting public. It might be mentioned that he was a cabinet minister under Mahinda Rajapaksa during the bitter years of the anti-separatist war, as were several others who are now holding cabinet or deputy minister positions in the Sirisena government.

To safeguard their political future as most of them come from the majority Sinhala south, they are likely to be distressed, to say the least, with any internationalised judicial process that is going to try Sri Lankan political leaders or its soldiers. The latter are treated and greeted as war heroes for defeating, after almost 30 years, a ruthless and implacable enemy that was responsible for hundreds of terrorist attacks that killed many thousands and destroyed property.

While there might be some support in the Sinhala majority south for a domestic inquiry, it will strongly resist any international role in such a judicial process, particularly because of the double standards adopted by powerful western nations and multilateral institutions maintained with western funds.

A local English- language newspaper, The Island, expressed the valid concerns of the Sri Lankan people: ‘The UNHRC extols the virtues of reconciliation which, it says, it wants to promote. Regrettably, the manner in which it has chosen to handle Sri Lanka’s post-war issues does not help foster reconciliation. For it has, owing to its prejudices, failed to act impartially. It is seen to be a handmaiden of some meddlesome world powers notorious for using human rights as a political weapon to force smaller countries like Sri Lanka to toe their line. Ironically, while being putty in the hands of some world powers, it laments political interference with Sri Lanka’s state institutions like the judiciary! Its decision to defer the war crimes report on Sri Lanka at the behest of some member states sympathetic to the new government here is a case in point.’

The prestigious Sunday Times newspaper, in a hard-hitting editorial on 20 September, sent a warning to both the government and the international community (the West), even as the major Western powers were engaged in an exercise to infiltrate international expertise into Sri Lanka’s internal affairs. It said:

‘The US, the West and the so-called International Community that spearheaded this hot potato in the first place, are now finding it on their own laps. Holding a Government accountable to a “domestic mechanism” with a time-table is one thing, but once you expand it to a quasi-international investigation you are going to open up old wounds. This was not Cambodia. If they think North-South reconciliation is possible while valiant commanding officers who risked their lives for the unity and sovereignty of this country are going to be thrown to ravenous wolves, that is a serious error of judgement on their part.

‘The UNHRC says it speaks for the victims. There are more than 20 million victims of that bloody insurgency living in this country today reaping the benefits of peace. Neither the UN experts nor Prince Zaid lived through those harrowing times here. For those Governments that support the present Government, the under-currents are not to be underestimated. They are paying for short-sighted policies in West Asia. If they are interested in this Government’s longevity what they have done is placed a time-bomb under its seat.’

There are concerns both legal and political. Some legal experts contend that Sri Lanka’s constitution does not allow the creation of such special courts as recommended which allow the involvement of foreign elements in the judicial process.

Article 4 of the Constitution states that the judicial power of the people shall be exercised by Parliament through the courts, tribunals and institutions created and established or recognised by the constitution or created and established by law.

If the judicial power of the people, which is an intrinsic element of sovereignty, is to be eroded by the intrusion of foreign elements into its judicial process, it would be perceived as an assault on the country’s sovereignty, even though Foreign Minister Samaraweera might argue that the concept of sovereignty is being twisted by some to serve selfish ends.

If those who hold this legal opinion are correct, then the setting up of the envisaged hybrid court would require a constitutional amendment that has to be approved by the Supreme Court.

The Supreme Court, the apex body in the country’s judicial structure which the UN report has castigated as politicised, corrupted and unfit for purpose, might well declare that such a critical constitutional amendment requires not only a two-third majority in parliament but approval by the people at a referendum.

If indeed a constitutional change is required and the Supreme Court rules in favour of a referendum as well, it is hardly likely to receive the approval of the people, who will be extremely wary of supporting any meddling with the judicial process that could lead to international players dominating the court or even be seen to be domineering.

Equally, a majority of the public is unlikely to support a court consisting of international players that will try unnamed political and military figures who the people hold in high esteem for defending the sovereignty and territorial integrity of the country.

The government will not dare test the popular will on an issue such as this, which it is hardly likely to survive.

If, by enticing Mahinda Rajapaksa loyalists in the United Peoples Freedom Alliance-in which the main constituent is the Sri Lanka Freedom Party- away from him with ministerial posts and other perks and privileges, the Sirisena-Wickremesinghe duo thought that Rajapaksa would quietly fade into the sunset, they are now preparing, unwittingly perhaps, to hand over a dangerous weapon that will reinvigorate a dispirited opposition and frame Rajapaksa once more in the popular mind.

Moreover, many of those who crossed over to Sirisena’s side did not do so on principle but due to political expediency and personal gain. Would they continue to remain where they are if called upon to vote for a court that is essentially being put together to try some of those who are considered war heroes?

As the Sunday Times editorial rightly said, the so-called Western friends are putting a time bomb under the seat of this government, except that it seems more like a minor nuclear weapon for its repercussions will spread beyond Sri Lanka’s frontiers.

There was an old American pop song titled ‘September Song’. Could Geneva turn out to be a September swansong?

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