26 September, 2020

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International Participation Is Necessary Where State Is Part Of The Problem

By Jehan Perera

Jehan Perera

As anticipated, the latest UN Human Rights Council Resolution on Sri Lanka, 40/1 of March 2019, was a rollover of Resolution 30/1 of 2015. Sri Lanka was given its second two year extension, the previous extension having been given in March 2017. The latest extension contains appreciation for what Sri Lanka has achieved since it committed itself to implementing the pledges made in October 2015. The resolution recognizes and welcomes “the strong role played by democratic institutions in Sri Lanka in the peaceful resolution of the political situation that arose in Sri Lanka from October to December 2018…the establishment of the Office on Missing Persons in September 2017 and the appointment of its commissioners in February 2018, and the assumption of its work to fully implement its mandate” and notes other steps taken “including the progress made towards establishing an office on reparations and the submission to cabinet of a concept paper on a bill to establish a truth and reconciliation commission.”

The new element that has come into this UNHRC led process of reform is the UN High Commissioner’s report which has made three particularly strong recommendations to the government. These are in addition to Sri Lanka’s obligations contained in the co-sponsored resolution. This report calls for the establishing of a fully-fledged office of the UN Human Rights High Commissioner to be set up in Sri Lanka to monitor and support the implementation of the government’s commitments to the UNHRC in terms of Resolution No 40/1. It also calls for the setting up of a hybrid court to look into war crimes allegations and for the international community to apply the principle of universal jurisdiction to Sri Lankans accused of crimes such as torture, enforced disappearance and war crimes.

Most of the other recommendations also focus on issues of accountability and justice. These include publicly issuing instructions to the security forces that torture, sexual violence and other human rights violations are prohibited, and will be investigated and punished; and order all security forces to immediately end all forms of surveillance and harassment of human rights defenders, social actors and victims of human rights violations; and to develop a full-fledged vetting process, respecting due process, in order to remove from office security personnel and other public officials involved in human rights violations; apply stringent screening procedures for units and individuals applying to serve in United Nations peace operations; and support the Human Rights Commission, including by ensuring that it receives adequate resources to fulfil its mandate effectively and support the independent commissions, fully respect their independence, and take into account their recommendations.

Strong Response 

In his strong response to the UN Human Rights Commissioner’s report, Foreign Minister Tilak Marapana, has used his legal expertise to challenge the UN claim that 40,000 civilians were killed on the Vanni east front in the final phase of the war between January and May 2009. He used the disclosure made by Lord Naseby in the House of Lords, on Oct 12, 2017 to dispute the UN claim. He said “the considerable unevenness in the standards of proof applied to the Government of Sri Lanka, compared to those applied to the unsubstantiated allegations made by Sri Lanka’s detractors is problematic and confounding. In this context, the Mannar graves referred to in para 23 of the High Commissioner’s Report and elaborated earlier is a case in point. While this report may have been compiled over several months ago, at the time of its release, a determination on the dating of the remains had already been made based on forensic evidence. We do not see this important detail included in the report. Moreover, the report presupposes “other mass graves might be expected to be found in the future”.

The Foreign Minister added that an assumption of this nature in a public report, on a matter of this magnitude and seriousness, is not acceptable, and may even cast a doubt as regards other assertions in the report. In addition, in explaining the relatively slow progress of the Sri Lankan judicial system and in a bid to counter the demand for new laws and foreign judges in a hybrid court he said, “On the contrary, the judicial system in Sri Lanka is adequately equipped to deal with complex crimes. Criminal investigations pertaining to cases referred have been taken congnizance by the investigating agencies to be conducted under established legal procedures and are periodically being monitored in terms of the judicial process. Any complex criminal investigation is time consuming. The acknowledgement in paragraph 20 of the report that ‘victim tracing procedures’ require thorough assessments in multiple areas and takes time, is an indicator that establishes the said assertion. It also negates the alleged inability of the Sri Lankan criminal justice system to deal with the nature of allegations and complexity of crimes.”

However, this response appears to have set off a similar legally proper response on the other side of the divide. TNA parliamentarian M A Sumanthiran said in parliament that “it is only through the participation of foreign judges can independence be assured. In a matter where the contesting parties or the warring parties include on one side the state of Sri Lanka and on the other side a militant group that had the objective of dividing the country, the state of Sri Lanka cannot be an independent arbiter and it is because of an independent judicial mechanism that nobody can complain about, that we have asked for participation of foreign judges.” He said that the TNA prefers a hybrid judicial mechanism, “but if the government, despite all of these written commitments, and the fact that it is possible under the constitution to do so, does not do it, then I think it is important that I today announce to the government and to the country, that we will take steps to move Sri Lanka to the ICC or some other entirely international judicial mechanism.”

Unbiased Mechanism 

The importance institutions such as the UN Human Rights Council is that they are international and multi-state institutions to which appeals can be made by those who are being victimized by their own governments and state institutions and have only limited recourse domestically to justice because the problem is with their own state. When a government is involved in conflict with groups within the country it becomes a part of the problem. It is difficult for anyone or any institution that is part of the problem to find a just solution to that problem. It is particularly difficult for a state to take action to ensure accountability for human rights violations that may have taken place by its own agents, especially where the legal principle of command responsibility may apply and reach the higher levels of the state. In those circumstances those who are being victimized will need to seek recourse from those who are outside of the state and governmental structures.

It is not only with regard to the Tamil conflict that those who are fighting for the rights of victims have felt it necessary to take the fight to Geneva and to the UN Human Rights Council which has been specially set up by the international community, including Sri Lanka, to deal with these issues. When the judicial and legal system within a country are not working as they should due to resistance from within the country by state and governmental authorities, the only alternative left is to look to the international community and to its human rights protectors. During the JVP insurrection in the latter part of the 1980s the present Leader of the Opposition and former President Mahinda Rajapaksa, who at that time was a spirited young MP, went on more than one occasion to the human rights forums of the UNHRC in Geneva to make an appeal before them for redress to ease the sufferings of the victims of the terror of that period.

Instead of an engagement based on legal polemics it would be better for the outstanding issues to be settled by all national parties and national institutions who become part of the solution. We have to find a mechanism in which those who take the decisions are widely and generally acknowledged by all parties to be ethnically and politically unbiased. The applicable principle would be that those who have to live with the consequences of the decision should be the ones who make the decisions, which is the strongest case for the national ownership of the transitional justice process. International members could point to the best answers drawing from international experience. The government needs to act with integrity and performs its duty through strengthened national institutions which are supported by the participation in them of international experts who may be judges, prosecutors and investigators who act as advisers rather than as decisionmakers which seems to be the sticking point.

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Latest comments

  • 4
    2

    Srilankan mindset or thinking is highly warped. It has absolutely no sense of justice nor righteousness. What is to their advantage is right (prone to gratification) if not it is wrong. There should not be any question about the participation of foreign judges. Just look at our President, PM, Ministers, AG, IG, conduct of sitting judges, an unending list; should make one puke.

    • 5
      7

      hancho pancha,
      “There should not be any question about the participation of foreign judges.”
      ————
      Foreign judges selected by white hypocrites and probably paid by ‘Koti Diaspora. Go to hell.

  • 5
    2

    The state is the problem nearly everywhere. Foreign interference creates more problems than it resolves.
    Foreign powers have other interests that all should be mindful of.
    Why have not we been working on a credible internal inquiry process which will be free, open and adequately representative of the parties concerned. This is a matter for the public to get interested in.
    *
    Most importantly, what have we done for the war affected?
    No matter who was responsible for their plight, their problems need to be resolved independently of any inquiry.

    • 2
      0

      SJ!
      Yes, “Foreign interference creates more problems than it resolves” you are right. The foreign interference/intervention in the civil war has created all these problems. If not, the government could never have over powered the LTTE and committed murder and mayhem. To day with the LTTE in power Sinhales and Tamils would have known to live amicably, without selling parts of Srilanka to China, India and America.

    • 1
      0

      ” Foreign interference creates more problems than it resolves.”
      Could Sirimavo have thought about this before brining Mrs. Gandhi to control JVP. Couldn’t Sirimavo have thought about this before allowing Pakistani war planes to land in Katunayake? Could JR have thought about this before he asked Britain and US for war help? Couldn’t Chandrika thought about this before she used Kathirgamar to ban LTTE by 28 countries? What about Old King not had used 32 countries to help him on the war?

      Why this kind of “Gnanam is getting enlightened” only when Tamils seeks some IC help?

  • 1
    1

    The UN accepted 40,000 civilian deaths during the last few weeks of the civil war which ended in May 2009.
    In 2017, Lord Naseby cast doubts on this number and suggested, without good reasons, 10,000. Lord Naseby was not able to convince his fellow MPs, for example Liam Fox, in the Conservative Government.
    .
    SL has been on the UNHRHC radar for quite a while. Looks as if some of our political leaders do not want the war to end. The war has taken the inevitable turn into ‘Lankan Elites’ against ‘others’.
    .
    UN has to note the recusals of judges in cases involving certain Lankan Elites.
    On 23 March 2018, CT carried “Army Commander Brags About Brutality, President Gives Silent Consent”.
    More recently there was this ‘throat-slitting’ gesture.
    .
    UN has its own weaknesses but we must get out of the UN radar.
    Dr Jehan Perera has been saying this for a long time.

    • 0
      2

      This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

    • 1
      0

      If the UN has accepted a figure of 40,000 dead Tamils without any trial or even valid evidence what so ever, based on a highly dubious report co-authoured by the likes of Yasmin Suka, where NO EVIDENCE is given, then it says all what we need to know about the UN and also what we can expect if we allow for so called international judges here. If they i.e the UN or the western countries want international judges without the consent of our government then they will have to do it by force, like in the form of an invasion and occupation, like they are doing in so many other places. Then we can have one more thing to thank the Tamils for.
      I don’t think we can get out of the UN radar whatever we do, since it is not justice for the victims they are after – its something else in the geo-political agenda of the west. Its something like Iraq and Weapons of Mass Destruction – in 2003 everybody knew that Iraq didn’t have WMD, just as much as everybody knows that “tens of thousands of Tamil civilians” were not targeted and killed by the army. Tamils must not fool yourselves that the UN cares for Tamils or anybody else. As the Tamil activist Arun Siddharata said – can we complain against the UN? What do you think? Can we actually complain against the UN or IMF or the World Bank or the World Food Program or any of those organisations? The UN did a lousy job here – they didn’t care for the Tamils in 2009 and they don’t care now. That Darusman report is an insult to human intelligence.

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

  • 2
    1

    What warped minds do the Tamil racists are equipped with?
    They are happy that the numbers are above 40,000 than being below 5,000!!!. They are not talking about the enemy mind you.

    Soma

    • 0
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      Soma!
      IT IS zero not 5000. May Lord Buddha forgive.

  • 0
    1

    Two comments on this matter were made. One by Dilan Perera threatening of a repeat July 24th if Tamils keep insisting on international judges .Knowing him as a person and politician it is not at all surprising any thing else to come out of his gutter mouth. But what was surprising to me is the statement made by MS appointe Northern Governor. When people were expressing their scepticism about Suren Raghavan I decided to give some time before making any judgement. But never the less today his comments pretty much verify his credentials. He not only proved he is just another political lackey but went one step ahead stating “anyone who request for international judges are unpatriotic?????” and anti national ???? The same shit we heard for more than ten years, it is “you against us”, What a shit head with a ” potty mouth”. Do you really need doctorate to utter this shit. I may bear the politicians but not hypocrites like you. Now it make sense how you were assigned for the Indian propaganda and in turn how you recruited the sitting judge. So long for western education.

  • 0
    1

    “The government needs to act with integrity and performs its duty through strengthened national institutions which are supported by the participation in them of international experts who may be judges, prosecutors and investigators who act as advisers rather than as decision makers which seems to be the sticking point.”

    The author must be describing another country if he thinks this is the only ‘sticking point’. Sri Lanka is showing a total disregard for its international and domestic legal obligations.

    Total impunity for those accused of some of the worst crimes of this century.

    It is quite disheartening, when these are meant to be the ‘liberal’ voices in Sri Lanka. Alas, that is why we need Internationally led justice and intervention.

  • 1
    0

    A Tamil should be relieved to hear that. Satisfaction derived from imagining the suffering of greater and greater numbers of your own people is a gory perversion. Of all people it is the Tamils who should be happy over the end result of Mannar mass grave investigation.

    Soma

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