By Jehan Perera –

Jehan Perera

The long anticipated UN investigation report into alleged war crimes committed during the last phase of Sri Lanka’s war was released last week by the Office of the UN High Commissioner for Human Rights. The investigation team has made strong indictments against both the government and LTTE forces for war crimes. The most contentious aspect of the report is likely to be its recommendation that the government should “adopt a specific legislation establishing an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try war crimes and crimes against humanity, with its own independent investigative and prosecuting organ.”

The Sri Lankan government is reported to have requested the UN and members of the UN Human Rights Council to allow it to carry out a domestic judicial probe rather without setting up a hybrid court with international personnel. Public opinion in Sri Lanka amongst the Sinhalese majority is decidedly against any international investigation into the past. The UN investigation is seen as instigated by those who wish to reverse the outcome of Sri Lanka’s three decade old civil war that came to an end with the defeat of the Tamil rebellion by government forces. Last year, the United States which sponsored the resolution that established the investigation called for an international investigation. The draft resolution that is now being circulated amongst the member countries of the UN Human Rights Council refers to the need “to involve international investigators, prosecutors and judges in Sri Lanka’s justice processes.”

The release of the UN Report on alleged war crimes and human rights violations in Sri Lanka’s war is an important step in the country’s transition to reconciliation as it requires the government and people to give their attention to the unhealed wounds of the past that continue to fester in the body politic. It is to be noted that even prior to its release, the government had developed a complex and well thought out mechanism to be led by Sri Lankans. Last week the government announced a mechanism to deal with the past that will be based on a four tier system which will include a Commission for Truth, Justice, Reconciliation, an Office of Missing Persons, a judicial mechanism with special counsel to be set up by statute and an Office of Reparations.

Sober Approach 

The initial public reaction to the UN war crimes report has been muted. When the government asked for a postponement of the release of the report, which was originally scheduled to be released in March of this year, it was because it feared that the political storm it might kick up would be injurious to its electoral prospects at the general elections held in August. The response within the country to the publication of the predecessor UN report on war crimes published in 2011 (the Darusman Report) was highly nationalist. It was attacked by the then government and its leaders from the day it appeared. The former government and media made it appear that the publication of the Darusman report was a national catastrophe and the people needed to unite behind the government to tackle this threat from the international community.

By way of contrast, the media coverage of the latest UN report has been largely factual and without an overt display of nationalist passion that might have been expected. There has been a description of the contents of the report to inform the general public rather than mobilize them to political action. Initial comments by government leaders and political commentators indicate that a sense that the report is not as bad or one-sided as was expected. President Maithripala Sirisena has said that the UN report is a thousand times less damaging than was expected. He has also claimed the political credit for this saying it is due to the improved international image of the country, and the confidence that the international community has in the government.

Likewise Prime Minister Ranil Wickremesinghe has pointed out that the much anticipated naming and shaming of Sri Lanka’s political and military leaders did not happen due to the new government’s effort. Previously there was a strong rumour that over 48 such persons would be named and shamed. Instead several LTTE leaders have been named, but most of them are not alive. Due to the former government’s refusal to permit the UN team to visit Sri Lanka, most of the information they could collect came from outside Sri Lanka, and from the Tamil Diaspora and international organizations. If the former government had permitted the UN investigative team to visit Sri Lanka, they would have been able to get a more rounded view of what had happened in the country.

Transition Process 

The government’s sober approach to the release of the UN report appears to have induced a similar sober approach on the part of the general population to the issue of possible war crimes of the past. As a result the space has opened up for rational dialogue within the country as to what needs to be done to heal the past wounds and unite to face the challenges of the future. There is agreement that the past needs to be investigated, and the only question is by whom should it be investigated. There is today a convergence of mind on the part of most people that the truth of the past being ascertained is necessary for the wellbeing of the country. Accordingly the Sinhalese opposition to the government has been unable to generate immediate resistance to the government’s proposals for the dealing with the past.

However, the Tamil polity in Sri Lanka and in the Diaspora is virtually unanimous that the follow up to the report of the UN investigative team should be an international mechanism. They have expressed their rejection of a domestic or Sri Lankan mechanism. Their experience is that the latter mechanisms have never yielded a positive result. Therefore winning the acceptance of the Tamil polity for the Sri Lankan-led mechanisms envisaged by the government is going to prove to be very difficult. The need is for the government to discuss its plans with the Tamil people and their representatives and get their consent to it. The UN Secretary General Ban ki-Moon has welcomed the commitment of the Sri Lankan government to consult all stakeholders in designing the mechanisms to address the issues of the past.

Justice Minister Wijeyadasa Rajapaksa on behalf of the government has said that the new government has restored the independence of Sri Lanka’s judiciary and changed the method of appointing judges through the 19th Amendment to ensure their freedom to decide impartially. It will not be politically possible for the government to accept the recommendation to have international judges, lawyers, prosecutors and investigators involved in a hybrid court to be specially established. Such a change will need to be approved by Parliament and be ratified by the Supreme Court. The task of any national government is to ensure that its systems are strong enough to look after governance in the country and not to abdicate its responsibility to the international community. Getting international personnel to be decision makers within its structures of governance will expose the government to potentially destabilising criticism that it is abdicating its responsibilities.

Way Out 

The hybrid mechanism urged by the UN gives an appearance of imposition that can generate resistance on the grounds that it is externally imposed. Another danger of the hybrid mechanism is that the international judges will be seen by the international community as being the truly impartial decisionmakers and therefore they may take over the leadership of the judicial process. Such a situation will not be seen as credible by the Sinhalese, even if it is seen as credible by others. The government will get undermined in the eyes of all the people, as it will be seen as having failed institutions and dependent on the international community. Therefore, as a first step the UN and international community could seek to strengthen the capacity of the Sri Lankan government’s proposed domestic mechanism by providing it with the necessary international support and advice rather than by insisting on a hybrid mechanism.

For its part, to gain the confidence of the Tamil people, the government can seek to appoint the members of its proposed domestic mechanism via the multi-partisan Constitutional Council. This high level body includes the Leader of the Opposition R Sampanthan, who is also the leader of the main Tamil political party in Parliament. The Constitutional Council will also have three eminent civil society representatives – former UN special rapporteur Dr Radhika Coomaraswamy, former Attorney General Shibley Azeez, and Sarvodaya leader Dr A T Ariyaratne. In addition, the selection of the judges and investigators could be consensual, so that the Tamil representatives are satisfied about the choices made. There could also be a public vetting process in parliament, where those selected are subjected to examination by Tamil parliamentarians among others.

The previous decade saw the power of ethnic nationalism demonstrated time and again at elections. Now that it is on the wane, it would be politically unwise to permit the defeated ethno-populist politicians to stage a comeback using the UN report and its threat to national sovereignty. The government should be given the opportunity to prove its commitment to addressing the issues of the past. The change of government needs to be protected by the people of Sri Lanka and by the international community by strengthening the capacity of the government to perform its tasks of ensuring truth, justice and accountability to the required standards and, in the longer term, to work towards a political solution in which the ethnic minorities see themselves as equal and empowered citizens of a united country.