By Sanja De Silva Jayatilleka –

Sanja De Silva Jayatilleka

“They are commitments that Sri Lanka voluntarily undertook in the light of 70 years of experience of Transitional Justice since the Nuremberg trials…” – Ben Emmerson QC, UN Special Rapporteur

One of the 2 resolutions adopted at the 5th regular session of the UN Human Rights Council on the 18^th of June 2007 is Resolution A/HRC/RES/5/2 namely, the “Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council”. This resolution was adopted without a vote. Article 12 of the text says that Special Procedure should “In implementing their mandate, therefore, show restraint, moderation and discretion…”

In invoking the loaded “N” word –Nuremberg–to ascribe a motivation to the GoSL in co-signing the last two resolutions, I hardly think that UN Special Rapporteur Ben Emmerson QC was exercising any of those recommended qualities. The danger is that when pronounced from the position of authority he holds as a Special Rapporteur of UNHRC, it won’t be long before Sri Lanka will, at least in global public opinion, be associated with the heinous crimes against humanity committed by the Nazis in 1939-1945. It was irresponsible on Emmerson’s part, to say the least. Making careless and extravagant statements also discredits the dignity of the UN Human Rights Council itself and brings into question the impartiality of the Report and its recommendations to be presented to the Council.

In addition, Emmerson’s remarks contain false information. Transitional Justice, according to the relevant UN Background Note, emerged in the 1980s and 1990s “mainly in response to political transitions that took place in Latin America and Eastern Europe…” and has nothing whatsoever to do with the Nuremberg Trials! Nuremberg tried the leaders of a war of aggression in which the crime of genocide was committed, better known as the “Holocaust”.

Sri Lanka’s war against the LTTE couldn’t be more different since it was waged to secure for the people, the sovereignty and territorial integrity of the legitimate state, two aspects affirmed by the UN Charter, as well as to liberate, in the final phase, over two hundred thousand ethnic Tamils held as human shields.  One can be forgiven for suspecting that the reference to Nuremberg was a deliberate attempt to conflate in the minds of the world’s public opinion, Sri Lanka’s war of self-defense and liberation waged by a legitimate democratic state, and the invasive war of territorial conquest and extermination waged by Nazi Germany.

As for Transitional Justice itself, repeated like a mantra by INGOs, NGOs and UN officials alike, it was a response not to transitions within electoral democracies, but “transitions to democracy” in Latin America. Today, everything and the kitchen sink is thrown into the concept, and used in every conceivable situation whether it is relevant, appropriate or not. The UN note says that “As transitional contexts have shifted geographically from Latin America and Eastern Europe to Africa and Asia, transitional justice practitioners have also engaged with local –sometimes called ‘traditional’ –justice measures, which can offer an important complement to transitional justice.”  What on earth is it exactly, now that Asian and African ‘traditional measures’ have also been added on, and why is it applied to Sri Lanka? It seems to be a handy cure-all for all the world’s ills.

It is said in the UN Background Note that for Transitional Justice to work, it has to be done holistically, with criminal prosecutions, truth commissions, reparation programs, security sector reform and memorialization efforts. Sounds familiar? Naturally. These are the efforts that are being funded in Sri Lanka. It’s a formula. Let’s not forget the “gender-mainstreaming” approach. This is also a part of the growing body of Transitional Justice initiatives. It is open any other suggestions one might have.

Certainly these reforms, taken individually, make sense for a country like Sri Lanka or any country, especially reforms to do with gender. But as part of a body of law taken together, a package as it were, applied as a whole to Sri Lanka’s post conflict situation, it distorts beyond recognition the problems that Sri Lanka needs to address. It makes us look like a failed state, where massive abuses of a minority took place, the reason for the war was aggression against an ethnic minority, and women were abused routinely, perhaps with genocide –in Nuremberg terms –committed by an undisciplined military. It is ridiculous.

And yet, as Special Rapporteur Emmerson says, the commitment to Transitional Justice was not externally imposed. We committed to this ourselves in co-sponsoring the twin UNHRC resolutions of 2015 and 2017. And this seems to give him the excuse to say that “those members of the armed forces who committed gross human rights violations…” rather than “alleged violations” or “allegedly committed”. Does Transitional Justice allow indictment before the facts have been established beyond a reasonable doubt? I wouldn’t be at all surprised! The first thing a self-respecting nation would do is to ask for a debate on this concept at the UN Human Rights Council so that its scope and its limits can be established clearly and applied more effectively, preventing it bloating like a balloon just before it bursts.

Mr. Emmerson also said he will not speculate as to what could happen to Sri Lanka if it didn’t abide by its commitments, right after he speculated that it could result in revocation of Sri Lanka’s EU status (by which he means GSP Plus), censure by the Human Rights Council and “indeed reference to the Security Council”. I wish he hadn’t said that. The Security Council is a serious place that deals with on-going situations threatening peace and security in the world. It shouldn’t be used to scare errant governments into compliance with Transitional Justice. As for the EU status, as a UN Special Rapporteur, he has no right to speak for the EU. The Human Rights Council has no authority to change “Sri Lanka’s EU status”.

Censure at the UNHRC is also decided on by sovereign member states of the Council. The Special Rapporteur can only present his report and recommendations. He exceeds his mandate, (a violation of the Code of Conduct) when he ventures beyond that. All this undermines the credibility and faith in the independence of the Special Procedures and that is why, together with the Institution Building Package, the Council adopted the Code of Conduct, to safeguard the credibility of the Council, the successor to the discredited Human Rights Commission. 

Having said that, Mr. Emmerson revealed something shocking. He said that torture is endemic and routine in Sri Lanka. He said that no one from the government, police, or any other sector denied that this. He also said that it is built in to the Criminal Justice structure. He said torture was systematic in Sri Lanka and that it was one of the worst in the world. This is an intolerable situation for any country. Why has it gone on, even under the new regime of ‘good governance’? Why has it been allowed to go on? It is shameful. According to Mr. Emmerson, it goes on even today, when there is peace in the island. (Although Mr. Emmerson thinks that unless we accept accountability and Transitional Justice we will have no peace. After a 30 year war was fought to a finish, it sure looks to me like we have peace and have had it since the war ended in 2009.)

Justice Minister Wijeyadasa Rajapakshe PC, was the only person who was alert enough to challenge at least some of the assumptions of the UN Special Rapporteur. Mr. Mangala Samaraweera was not interested or was incapable of it, during his time as Foreign Minister. Wijeyadasa Rajapakshe obviously didn’t see himself sleep-walking into endorsement like Minister Samaraweera.

At a time when international relations, especially in the area of human rights, is closely linked to international law, and vies to supersede it amidst stiff resistance by a majority of states at the UN, it is only wise to allocate the responsibility of dealing with the UN Human Rights Council to someone who is thoroughly familiar with the subject of Law. If, as in the previous administration, a Ministry of Human Rights is created and brought under the Minister of Justice, the challenges involved would be more knowledgeably and ably undertaken, while safeguarding the sovereignty of our country. Mr. Rajapakshe will certainly be alert enough not to co-sponsor a resolution on Sri Lanka at the Human Rights Council that may start its Preamble with “Recalling the Nuremberg trials…”