25 July, 2021

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Hybrid Mechanism Not A First Option With New Government 

By Jehan Perera

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.

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Latest comments

  • 4
    5

    I think the issue is a lack of will in Sri Lanka to do the right think.
    A few months ago there was a case where 14 soldiers had massacred 4 children and 4 adults, after hideously torturing them.
    This is under the new government. It sent one soldier to jail for 16 years (not even life) and released 13 others, who were clearly complicit.
    Normal courts won’t believe that just one person was responsible, and even if he was a normal court would send that person to jail for life. Not in Sri Lanka.
    Sri Lanka is not capable of delivering justice to Tamil victims of Sinhala soldiers. Its been proven time and again. Jehan continues to destroy his credibility as a liberal – he is just a chauvinist in liberal clothing.

    • 2
      6

      alex,

      They all carry the same DNA of their Sinha (lion) ancestor: They are true to their ancestry and irrational beliefs.

      Lions won’t eat grass, would they?

  • 6
    2

    Jehan Perera,
    1. Why should the Supreme Court object?

    2. If Sir. desmond de Silv and his team could have been appointed to assist ans advice the Maxwell Paranagama Commission, why cannot a similar mechanism be established to marry an international component to the internal one?

    3. Are there any constraints on the composition of Commissions Inquiry imposed by our consitution.

    4. Judge Maxwell Paranagama has said today the deaths during the last stages of the war were much less than the 40,000 previously touted. I had the same impressions after visiting the Vanni, during the last stages of the war and soon thereafter. Qhy not put this likely fact to the acid test?

    5. Why should some people (not the public opinion that they claim to represent) lose sight of the fact that the LTTE and the Tamil Paramilitary groups also stand to be investigated by the Hybrid mechanism?

    Why dont we bite the bullet and put this whole affair behind us?

    Only a highly moral people- which we claim to be- can have the courage to face the truth!

    Dr.Rajasingham Narendran

  • 5
    1

    A good analysis from Jehan. A way out of an impasse has been suggested.
    Our Judicial System has been maligned by Leaders Past.
    Remember Impeachment ( MR ) and before that the stoning of the Homes of Supreme Court Judges ( JRJ ). In the eyes of the IC the Judicial System can be subjugated by ruling powers. This Govt has restored it’s credibility.
    As president Rajapaksa claimed, we know how to set up cases and fix cases.
    A new Govt will dump any Hybrid options and do nothing.
    The next steps is already lined up, SL will be investigated by an external court. Then even further, SL will reset to it’s pre-colonial boundaries.
    Prabhaharn dead, far more dangerous than alive.
    The all or nothing war that both sides engaged in is having it’s unintended consequences.
    What to do now ?

  • 4
    4

    Jehan works for A T Ariyaratne of Sarvodaya which was a Buddhist racist organisation in 1970s. I do not know their current position. In 1970s Late Mr Thirunavukarasu was the representative of Sarvodaya in the Northern Province and he resigned and severed his connection owing to Mr Ariyaratne’s refusal to allocate the foreign funds given for the usage of Northern Province . Ariyaratne was very anti Tamil those days and he used the money for his own choice in South. Anyone who has access to the Srilankan Tamil news papers of 1970s could read his racist views.. Thirunavukarasu formed his own Sarvodaya organisation later in Jaffna which is still functioning.

    Alex is correct in saying that Jehan is just a chauvinist in liberal clothing.

    • 5
      2

      Anyone who knows Jehan knows that he is a Roman Catholic and has never worked for Sarvodaya. Sarvodaya itself helped over a thousand Tamil villages in the North and East during the war. In fact Dr Ariyaratne received death threats from Premadasa’s goons because he would not support the war effort. Racist Tamils like yourself do the Tamil people a great disservice by your lying diatribes.

  • 3
    1

    Definitely he sounds reasonable for the majority Sri Lankans. But if the majority Sri Lankans were really reasonable won’t they have empathy for the Tamils. For the last 60 years the trend has been to oppress and steel all Tamil civilians properties from the South. Now after LTTE was crushed, all the Tamil areas are occupied by Sinhalese military and civilians. Do you want the world to believe Sri Lankan courts will deliver justice for Tamils? The whole world feel sympathetic for the victims of war. There is very little sympathy in Sri Lanka. Jehan himself will know there is no will for Sri Lanka to do justice, but he does not want justice served for Tamils. He as a Journalist contributed in part for the pathetic situation for Tamils today writing in support of the extremist politicians in the recent past!

  • 2
    1

    Mr.Jehan Perera

    Your cock and bull reason a for a way out from Hybrid mechanism to a Domestic mechanism is far fetched and is a laughable. You suggest that a domestic mechanism to investigate the brutalities committed against Tamils by the Sinhalese during the war would be credible and the Sinhalese would prefer it.

    What do you think about the Tamils who suffered at the hands of Sinhalese who prefer a Hybrid mechanism seeking justice. As far as I could assess you, your motivation for a Domestic mechanism and the reasons given is due to racial bias. How could the Tamils agree for a reconciliation with the Sinhalese. The only way forward for both races is to separate, then there will be peace. Your suggestion to include Mr.Sambanthan and Dr.Radhika Cumaraswamy in the Domestic panel is again far fetched. In order to probe into the brutal crimes committed 7 years back against the Tamils needs experience and expertise. There is none in Sri Lanka and Sri Lanka doesn’t have the facilities to probe. It is a surprise that you have forgotten to suggest that Gothabaya who ordered the murder of Balachandran , the 12 year old child should lead the team of investigators.

  • 1
    1

    It is a nightmare with this guy. He has no limits on justifying the Shinhala Intellectualism.

    Just Ranil said he may not excuse old regime in prosecuting the crimes, he was not specific of the OISL report or war crimes. Ranil has stopped ICC accord and has not intention of bringing it back because his stand of the war criminal military is it is a pious Buddha force. The new King is an accused war criminal, he does not like an investigation.

    This guy doesn’t want a sincere inquiry because that will be against the Sinhalese. What a logic.

    He not a just lion covered with cow skin, he is an axe handle too. He one time tried to market that Brother Prince claiming that lion like to work with NGOs. That is how he tried to kill all NGOs.

  • 0
    0

    ” 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.” “

    As a Parliamentarian said elsewhere this is an attempt to establish by the backdoor a branch of the ICC in a country, which has not agreed to it.

  • 0
    0

    This article mentions “Darusman Report” and states that it was “attacked by the then Government”. How surprising you have forgotten what the then Government did? Are you refuting the fact that a delegation led by the then Minister of Foreign Affairs, Prof. G.L.Peiris visited and met UNO Secretary General “Secretively” and later admitted to that meeting and discussed the report? It was after that Mr. Ban Key Moon visited Sri Lanka and various statements were issued. That was the “Mr. Jack and Jill” and “Hide and Seek” games were played by the then Government. Then do you refute the fact that the Canadian Delegates tried to bring that “Daursman Report” through back door very secretively to the UNHRC which attempt was foiled by the then High Commissioner Ms.Kunanayagam for which work she paid the “High Price” of losing her job? I appeal to you not to HIDE that history from the political arena.

    In another web site I read a another presentation by a “Lawyer”; “DOMICILED” in an affluent country who stated that Sri Lanka must “SCOFF OFF” this resolution of UNHRC and NOTHING could be done to Sri Lanka on a punitive measure. But he suggested it to be brought before the UN Security Council and Russia and China will do the “Needful”. But these “PUNDITS” enjoying heaven compared to us in Sri Lanka advise us to do all the “HEROIC Acts” and hit our heads against the rock and suffer all the consequences. Where were all these “PUNDITS” when the GSP+; “Import Ban” on our fish products etc. were imposed on us? Did they cry for us when 200 plus Garment Factories were closed and export earnings were lost as a result of those punitive measures thousands of bread winners of families lost their daily survival? These are the so called self styled PATRIOTS living abroad advise us to do. What a set of joker PATRIOTS we have domiciled abroad? Fist let us identify them and protect ourselves from these enemies.

    • 2
      1

      Douglas

      “These are the so called self styled PATRIOTS living abroad advise us to do. What a set of joker PATRIOTS we have domiciled abroad? “

      Those patriots you mentioned are no different to their Tamil brethren living comfortably outside the conflict zone who were actively promoting Tamil Eelam patriotism come what may. They too justified every heinous crimes one could think of in the name of patriotism.

      Both Sinhalese and Tamils are driven by irrationality and blind loyalty.

      One suspects that it is to do with defective genetic which is commonly shared by South Asians?

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