20 October, 2020

Blog

International Participation To Deal With The Past

By Jehan Perera

Jehan Perera

Jehan Perera

The visit by Foreign Minister Mangala Samaraweera to the United States last month, and his assurance that the Sri Lankan government is contemplating international participation in the post-war acccountability process is an indicator of the pressure that the government is being subjected to on this issue. Neither the improvement in relations between Sri Lanka and the Western-led international community, nor the improvement in the human rights situation on the ground, is getting the international community to relent on the issue of international participation. However, there appears to be a willingness to give the government more time. The UN Human Rights Council resolution, which was co-sponsored by the Sri Lankan government last October, had highlighted “the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defense lawyers and authorised prosecutors and investigators.”

On the one hand, there are technical and credibility-centred reasons for having international participation in an accountability process that concerns the war. The first is that crimes associated with war are not part of Sri Lanka’s present legal framework. War crimes are a well developed part of international law but not of Sri Lankan law. Therefore the Sri Lankan legal community has little or no experience of dealing with the laws relevant to war, such as principle of proportionality and command responsibility in military action. This gives rise to a need for international legal expertise to be brought in, at least for an initial period of time. On the other hand, the credibility centred reason for international participation stems from the lack of confidence of the Tamil polity in the Sri Lankan judiciary at the present time.

The main problem with a national accountability mechanism, from the Tamil perspective, is the apprehension that its findings and conclusions would be subservient to the interests of the Sri Lankan state. Sri Lanka has yet to find the solution where the ethnic minorities have confidence that the Sri Lankan state will be fair and impartial to them on controversial matters. To its credit the new government is taking the country in this direction, as borne out by its willingness to have the national anthem sung in Tamil at the Independence Day celebration. But this is still only a token of goodwill. There is a need for more substantial actions to take place. Although the Chief Justice of the Supreme Court is Tamil the other 10 judges are Sinhala. There is no Muslim Supreme Court judge at this time. It is in these circumstances that there is disquiet amongst the Tamil polity about placing its faith on a Sinhala-dominated court and legal system on a matter as controversial as war crimes, on which there is a clear divide between the ethnic communities.

Not Alone

Sri Lanka is not alone in having to face the issue of international participation in judicial mechanisms aimed at ensuring justice after internal conflicts that have polarised the people living within those countries. Cambodia, Bosnia and East Timor are examples of countries that have set up judicial mechanisms, or special courts, which have included foreign judges and other legal personnel in them. Some of these judicial processes have proven to be very expensive. They have also been very slow moving due to factors such as internal resistance to them and the difficulty in finding financing for them. The Cambodian special courts cost over USD 200 million over a ten year period, but yielded only five indictments and two convictions. In Bosnia the war crimes trials by international tribunals have not brought healing and the hatreds have not gone away merely because the war criminals have been convicted and imprisoned by those international tribunals.Justice-Upali-Abeyrathne-Justice-Anil-Gunaratne-CJ-Sripavan.

There are several arguments that can be made against having fully fledged international participation in the judicial processes of a country. Foreigners will not understand the local context nor will they live with the consequences of their decisions. Their analysis will be technical and they will not see the political implications of what they are doing, and whether it will serve the interests of both justice and political stability in the longer term. If foreign judges and legal personnel such as foreign prosecutors and investigators are to be on the court, they will need to be provided with the translations of the material that is placed before them. In the case of Sri Lanka, the force of this latter argument gets reduced because the same problem of translations will arise where the judges are Sinhala-speaking and the complainants are Tamil-speaking. Most of the Sri Lankan judges are not Tamil-speaking and so, in the case of Tamil complainants, will need to be provided with translators and translation facilities.

In the case of foreign judges and lawyers there is also the question of fees. The previous government obtained the services of foreign experts to serve as a panel of advisors to the Missing Persons Commission, who were paid very large fees. The question is who will bear the financial burden if the legal process gets protracted as it did in the case of Cambodia. There were times in the Cambodian process when the special courts stopped functioning because the government had no money to pay for the salaries of staff involved in the process. It should be noted that the legal process can stretch for a considerable period of time and so assured sources of funding need to be obtained for the long haul. In the case of Cambodia questions were raised whether the money spent on the special courts was worth the benefit of obtaining two convictions, and whether the money could have been spent better on the victims of the Khmer Rouge atrocities.

Strengthen Capacity

The third argument against foreign judges would be based on the need to strengthen rather than undermine the capacity of the Sri Lankan judiciary. The nationalist opposition would argue that foreigners should not sit in judgment over Sri Lankans especially on issues that concerned national security and decisions relating to it. The power of nationalist sentiment within the Sri Lankan polity cannot be underestimated. There is also another argument that bringing in foreign judges and legal personnel would undermine the morale of Sri Lanka’s own judges and legal personnel. After the passage of the 19th Amendment to the Constitution, the judiciary’s independence has been strengthened. The present Chief Justice K. Sripavan has maintained his distance from the political decisionmakers and the new government leaders do not interfere with the decisions of the Supreme Court.

The most useful area of involvement for the international community would be in building up the capacity of the Sri Lankan judicial and legal system to cope with the issue of international humanitarian law and war crimes. This could come in the form of training programmes, held both internationally and within Sri Lanka, that would transfer knowledge to Sri Lankans, to judges, lawyers, academics and journalists, so that that they may understand international standards and be able to apply them in their professional lives. This should also be part of an integrated strategy that includes truth seeking through a truth commission, reparations and constitutional reforms.

It must be remembered when former Chief Justice Shirani Bandaranayake was unjustly sacked by the previous government, both the Appeal and Supreme Courts ruled against the government. There was integrity within the judicial system, as there is in all public systems which people join because they wish to serve other people. The problem in the past was that the previous government used its executive and legislative powers to steamroll over the judiciary as it did other public institutions. The present government is not so and is honouring the 19th Amendment that secures institutional independence. Given the financial and political costs of having foreign judges and legal personnel getting fully involved in controversial processes that might last many years, a more appropriate solution to the problem of a trustworthy process can be obtained by the government, opposition and Tamil and Muslim parties sitting together and finding a nationally-driven solution to a national problem.

Print Friendly, PDF & Email

Latest comments

  • 3
    0

    And Rajapaksa trial for paying tigers to stop vote for Ranil?

    • 2
      2

      Jehan Perera

      RE: International Participation To Deal With The Past

      “The visit by Foreign Minister Mangala Samaraweera to the United States last month, and his assurance that the Sri Lankan government is contemplating international participation in the post-war acccountability process is an indicator of the pressure that the government is being subjected to on this issue.”

      This is Sri Lanka Paying homage to the Great Satan and the Minor Satan, to white wash the Satanic activities of the sru Lankan armed Forces to discipline the small Satan, Velupillai Prabakaran.

      The Great Satan and his cronies are still busy wrecking havoc in the Middle East destroying countries with the aid of the minor sat ans and additional cronies and traitors.

  • 4
    11

    NGO Jehan after travelling around Sri Lanka and feeling the heat of peasantry has realized what a bad idea this foreign involvement going to be. Those who know the history of Cambodia with Pol Pot should know it is no comparison to Sri Lanka. Sri Lankan forces fought with a group of people classified by the US, EU and India as a terrorist organization and still they are classified as such. This organization has wreaked havoc in the Sri Lankan society killing and maiming thousands of innocent civilians in towns, villages, trains, busses, temples, mosques. They have killed dissidents, forcibly recruited children. It is the LTTE financial backers who are pouring money in buying cheap politicians in the west to push for accountability by prosecuting Sri Lankan soldiers. The Yahapalana Government has learnt the lesson the hard way. They jumped before the cart hoping the west will come with billions of dollars of aid pledges for signing into Bedouin Princes Agenda. Sadly no money it is only hot air and stick. Now they have to praise the Chinese including the one eye madam hinting that she could be the bridge. At least NGO Jehan has come to his sense quickly may be due to his Harvard influence.

    • 9
      3

      Patriot:

      Why people like you are so dumb? The accountability process is to determine the possible war crimes against the civilian victims. Why then are you blabbering with a stuck-up head on the LTTE. Don’t you know that the LTTE is also one of the accused parties in the UNHRC report for their share of atrocities? Get you brain checked.

    • 4
      5

      Yes, we certainly need international help to find out what happened to billions of rupees worth of foreign grants to NGOs like Jehan Perera’s own antinational outfit over the last 15 or so years.

      I bet he will not be too keen on that!

      • 3
        0

        Rear Admiral

        “Yes, we certainly need international help to find out what happened to billions of rupees worth of foreign grants to NGOs”

        I hate to agree with you.

        However, we also need international investigation into how the commissions earned were laundered and transferred to foreign banks, invested by benami internally or externally, in banks, properties, movable, immovable, …. including the cash and gold looted in Vanni.

        Benami:

        Made, held, done, or transacted in the name of (another person) —used in Hindu law to designate a transaction, contract, or property that is made or held under a name that is fictitious or is that of a third party who holds as ostensible owner for the principal or beneficial owner.

        • 2
          1

          I can only comment on your pseudonym and not the stupit ‘reply’ to my comment.

          With your pseudonym, you are insulting both the natives of our land and the veddhas.

          Pick anothey name like “Subverting Hymie”.

    • 2
      1

      Patriot the pathetic

      “NGO Jehan after travelling around Sri Lanka and feeling the heat of peasantry has realized what a bad idea this foreign involvement going to be.”

      Has the smart ass patriot NGO Dayan (according to MR) made the same journey across the island learnt what ordinary people demand?

      He should pull his head out of wherever it is now and see what is happening in and around the island.

  • 9
    2

    Jehan Perera,

    An objective analysis dissecting the pros and cons of the issue, in fair depth. The truth regarding the last war in all its dimensions has to be however established. It has to be part of the history we have to know and judge, and leave for future generations to learn. From my perspective this aspect is more important than finding persons involved guilty. They should be named and shamed, but not subject to prosecution. This will enable many who participated to come forward to relate facts. This will also expedite the process. Once the sting of prosecutions is taken away, many will not object to foreign participation.

    Time is of the essence to unravel the truth, as human memories are fallible and many who know may not live very long.

    Dr.Rajasingham Narendran

    • 3
      3

      To Dr RN,

      I agree that a truth seeking mechanism without a witch hunt is what is needed for all Sri Lankans to know what truly took place and where, including the 1988-1990 period. What is forced on Sri Lanka (by UNHRC) is quite different in that there are to be foreign judges and foreign prosecutors (and witnesses who cannot be cross examined). Is Dr RN suggesting that the foreigners are to be a bunch of spectators/observers from Arsenal or Manchester United football clubs? The writer JP has lost the plot and he is now ready to concede that there is no room to manufacture a case to include foreign participation be they judges, prosecutors or cheer squads. Perhaps, he should convey that message to Mangala and RW.

      • 3
        0

        lal

        “I agree that a truth seeking mechanism without a witch hunt is what is needed for all Sri Lankans to know what truly took place and where, including the 1988-1990 period.”

        Any truth-seeking mechanism, worthy of the name, should cover the period from 5th April 1971 to Jan 2015.

        ” What is forced on Sri Lanka (by UNHRC) is quite different in that there are to be foreign judges and foreign prosecutors (and witnesses who cannot be cross examined).”

        The foreign judges clause was added to the resolution at a later date than, only after MR, Armed forces, Dayan tried being smart ass patriotic clever dicks.

        It would have been a simple process, had the smart ass patriots really wanted to bring the process to closure .. tell the truth, own up, say sorry, beg mercy, … move on.

    • 2
      1

      Doc:

      Isn’t it rather amusing that you find amity with Jehan in what should be rightly consigned to the bin. That finding persons guilty and should be named and shamed but should not be prosecuted sounds like a deep sham to me. Surely you are still in your sense to remember the LLRC, the army’s own investigation and the Paranagama report all but absolving the regime and the army of any wrongdoings. When they had this opportunity right at their doorstep, it was derided and dismissed and now the saint in you wants us to believe that there is this sudden change of hearts that would melt the hearts of murderers.

      In essence, the LLRC could be cited as something close to a TRC (although not really one) where all this should have happened but it was nothing but a sham insofar as the war crimes were alleged against the army. The South African team was literally taken on a wild goose chase when it forwarded a proposal to take this forward on a similar model as that of their TRC. The SL history is littered with deceit and lies and the long list and the long suffering Tamils under successive SL regimes which cared more for Tamil votes rater than their well-being is still running around the bushes to trap the rabbit.

      When the UNHRC SG proposed that it should be an external investigation, it was based on the ground reality. The long history of a tattered judiciary that has worked hand-in-glove with the regimes to undermine Tamil rights is very much intact even now. Jehan in his glorious wisdom cites nationalism as one of the impeding factors. This is what it will amount to if the SL regime is to be allowed to conduct the investigation on its own. On hindsight, the current govt should have left it to the UNHRC instead of burdening itself with the current sort-of impasse and now have to plead for a balancing act.

      These dos and donts have been hurting SL. Instead of governing and taking care of the economics, it has become mired in unnecessary and unwarranted controversy, or may be that is the plan all long.

      • 2
        3

        Jansee,

        Rajasinghams thrive on banal pontification!

        Now, all of a sudden Rajasingham is for impartial investigation – but, qualifying that as just for history and not to seek justice in any way!

        I am not sure how long you have followed his writings. In the aftermath of the war Rajasingham was in the forefront with Dayan et al, denouncing any Diaspora efforts seeking international intervention for independent investigation, pontificating that Tamils should forget the past and move on and support MR regime with their plans. Rajasingham in fact proposed explicitly that the Diaspora should redirect their remittances away from “family and friends” to MR’s coffers.

        When the wives, mothers and daughters on Missing persons pleaded with the visiting British parliamentarians in Jaffna recently, Rajsingham dismissed those initiatives for investigation as misguided and as of false priority.

        Subsequently however, he would expose his bigotry on that “forget on move on” notion, when the issue of the murder (by IPKF) of his own family members came up.

        Most recently, the Rajasinghams feigned disgust, faulting Gajan as failing in his duty in not pursuing justice for the murder of his father, Kumar Ponnampalam. When asked what the Rajasinghams did to bring to justice the murderers (identified by Rajasingham asIPKF) of theRajasinhams parents, then the Rajasinghams choose to go deafeningly mum. They had nothing to show! It became obvious that the Rajasinghams were deceptively using that accusation, not because of conviction, but rather to leverage a convenient issue to down-size Gajan, and through him the CM against whom Rajasinghams seem to have an axe to grind.

        Shameless charlatans: nothing forth right, nothing sincere!

  • 1
    2

    “Neither the improvement in relations between Sri Lanka and the Western-led international community, nor the improvement in the human rights situation on the ground, is getting the international community to relent on the issue of international participation. However, there appears to be a willingness to give the government more time.”

    Does the writer serioiuly expect the “International Community” (a slightly enlarged version of US imperialist interests) to let go of its trump card until it is sure that a subservient government is there to stay, for the foreseeable future?
    It too early to let go, as the prospect of the return of MR is still lingering.

    The GoSL will be on indefinite parole to prolong the anxiety of Sinhala nationalists and the frustration of their equally daft Tamil counterparts.

    Nobody wins this game but imperialism, unless the Tamil and Sinhala public get their priorities right and address the national question in earnest, extending its scope beyond a mere Sinhalese v Tamils contest.

    • 4
      0

      SJ

      “Does the writer serioiuly expect the “International Community” (a slightly enlarged version of US imperialist interests) to let go of its trump card until it is sure that a subservient government is there to stay, for the foreseeable future?”

      I am not an educated person, in fact, bit thick.

      Could you define and clarify what you mean by “a subservient government”. What are the implications for this island being subservient?

      When did this island have total freedom from outside forces?

  • 6
    1

    Jehan,
    You have made a convincing argument as to why the War Crimes and Crimes against Humanity committed in Sri Lanka by all sides to the war should be sent to the ICC by the UNHRC. All the problems you have raised will be solved. A team of judges and lawyers and parliamentarians can attend the ICC proceeding and enact laws to cover war crimes. The present government will be left off the hook. The country can avoid the catharsis it is going to face when and if the war crimes trials really start. If it starts that is the end of the little democracy Sri Lanka has.

  • 2
    2

    Mylai massacre was a massive war crime committed by white christian American soldiers. No international tribunal. Why?christian soldiers raoe, bayoneted, burnt alive and killed over 500 innocent Vietnamese women children and old people. Jehan, study that please. You’re afraid to ever discuss history of war crimes by people who are christian like you n why? US PAYS for your business class travel and expenses .

  • 2
    2

    Jehan as usual voicing nationalist ideals in liberal garb. The main reason for foreign judges is to ensure justice is done. That after all is the purpose of the courts, well everywhere except Sri Lanka it would seem.

  • 3
    1

    The West has developed its knowledge so much within the last 700 years. Therefore, it will continue to use its knowledge to impose its interests on others to secure its dominant power. Tamils and Sinhalese can’t comprehend the West as much as they would like to, therefore we can’t expect tyhem to fight as Russians. In fact the Russians were superpower, but they are even struggling now days. Recently New Zealand Prime Minister visited Sri Lanka. But the Taj Samudra hotel billed the visitors for their stay. Eventually Sri Lankan Primer Minister got involved and made sure that the Sri Lankan foreign Ministry takes the bill. Because this is the normal practice, the host country bear the cost. The current Foreign Minister doesn’t even know what is normal within the foreign ministry, do you think that he has the ability to understand the legal implications by having the international players on Sri Lankan war crimes inquiry?

  • 1
    1

    Poor Mangalan must have a sore back by now..

    I mean he is not young anymore,, And bending over for the 3rd time now to accept foreign judges and hybrid courts is not easy.

    But the fascinating outcome of this bending over is 33 % reduction in DFI .

    Total FDI in 2014 was over 1.1 Billion.

    It has dwindled down to just 700 Million in the Yahapalana first year..

    What is going on here?.

    Are they trying to screw both Batalanada PM and his FM?.

    Are they holding it back until Bodhi Sira bend over and accept White Judges and Hybrid courts?.

    I thought all the Judges, Courts and even Logistics are all complimentary, courtesy of the Diaspora & the West channeled through the Bedouin Prince of course.

    Where this dude come up with this idea of our Yahapalana bosses finding money to pay them?

    But then Dr Jehan’s day job in working for an NGO..Am I right..

  • 2
    1

    Sinhalese – from the rural illiterate to the most educated elite, would look for excuses to avoid the true justice that the Tamil victims deserve. After all, they were successful in refusing to give the Tamils their political rights for the last 60 years!

    Perara takes much pain in coming up with the recommendation of colluding with political Parties and avoid the accountability mechanism that was called for by the UNHRC. I am sure he can find lots of Tamil and Muslim elites that will accommodate his brilliant wishes, but not the Tamil victims that languish for any iota of justice!

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 7 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.