Colombo Telegraph

Sri Lanka’s Failure To Establish Hybrid Court Must Lead To ICC Referral

By Usha S Sri-Skanda Rajah

Usha S Sri-Skanda-Rajah

Come March 2017 UN Must Act on Sri Lanka – Part 2

“When humans understand fully they have rights, it is next to impossible to make them un-know it.” – High Commissioner Zeid Ra’ad Al Hussein

The 34th Session of the UN Human Rights Council (UNHRC) has begun and all eyes are turned to Geneva. What struck me most in the High Commissioner’s opening remarks was this line, a line so true and profound: “When humans understand fully they have rights, it is next to impossible to make them un-know it.”

And for the Tamil people seeking justice, truth, reparations and guarantees of non-recurrence – the so called four pillars of transitional justice, the High Commissioner’s words couldn’t have been more true and profound.

So it seems words can be true and profound, but they can also hold empty promises and half truths. And that’s what we heard from Sri Lanka’s foreign Minister Mangala Samaraweera, as he addressed the UNHRC, a speech full of empty promises, half truths, innuendos and glaring omissions – it would seem the Minister managed to con his way out of the rather thorny issue of noncompliance, exactly as predicted – but did he convince his audience? Hopefully not. It was quite apparent to anyone in the human rights business that his country had done nothing, virtually zero towards implementing Resolution HRC30 it had co-sponsored, on the 1st of October 2015 on, “Promoting Accountability, Human Rights and Reconciliation”. As always the Minister does a pretty good job in giving hollow assurances to the international community, but for how much longer. There will come a day when words would have to be put into action. words such as these that are repeated over and over again and have sadly lost its meaning in Srilanka:

I quote:

“The Srilanka that we seek to build here onward, should be one where justice reigns; where human rights are valued; where every individual’s dignity is upheld; where civil society and the media play their due role; a society that believes in the importance of the independence of the judiciary and the rule of law; and where everyone has equal rights.”

End quote.

More contemptuous was the Minister’s long list of steps taken by Srilanka, since he last addressed the UNHRC in June 2016. Almost everyone of those items listed hadn’t come to fruition, seemingly bordering on half truths; a list that appeared to be more a ‘to do list’ than a completed list.

It was as I wrote in my article: ‘Come March 2017 UN Must Act On Srilanka‘, and the question on everyone’s mind:

I quote:

“How far has Sri Lanka gone towards fulfilling its obligations under Resolution HRC 30, i.e. towards delivering transitional justice to victims of Mullivaiikal? Sri Lanka seems to be inching its way to nowhere as many still ponder over the question that’s been asked again and again: In the search for justice, will Sri Lanka match up to the task? Transitional Justice meaning, criminal Justice, reparations, truth and memory, institutional reform, gender issues, matters pertaining to children and youth etc..

As regards even the new regime the answer still seems to be a resounding no!”

End quote:

The Minister also found people to blame for the delays, insinuating that: “extremists forces were creating road blocks.” As if the Minister didn’t know, if he wont, someone else must tell the High Commissioner and the UNHRC and the member states, (if they don’t know yet), its the extremist forces from the Minister’s community and their bigotry that was the root cause for the conflict and for its perpetuation; it is they who would be the final authority and the ones who would decide how far this Resolution HRC30 would go – in Srilanka politicians play the race card all the time – a compelling reason to tarry no more but opt for an independent international judicial mechanism and move on.

More than what the Minister said, what the Minister didn’t say was important; especially his marked silence on the failure to establish a hybrid judicial mechanism consisting of foreign judges, prosecutors, counsels and investigators. Obviously the Minister had nothing to say, because Srilanka had done nothing to crow about. It now seems clear that Srilanka would be asking for that extension of possibly 18 months or a complete withdrawal of resolution HRC30 in the comprehensive written report it would be submitting that would be opened for debate, as set out in para 18 of Resolution HRC30.

It’s these glaring omissions that were taken up soon after the Minister spoke by the Independent, Monitoring and Accountability Panel (MAP) commissioned by the Transnational Government of Tamil Eelam (TGTE). MAP had been working from the time Resolution HRC30 was adopted, monitoring Sri Lanka’s compliance of it; and while Srilanka would come to the 34th session as expected with empty promises, this team of distinguished, internationally known legal luminaries, specialised in transitional justice, and ‘Mass Atrocity Crimes’ was busy putting Srilanka under intense scrutiny.

MAP tasked to monitor & “shine a light” on Srilanka’s implementation or lack thereof of Resolution HRC30 released the findings and recommendations of its 2nd spot report to coincide with the 34th Session and after the Minister made his address to the UNHRC. The report, in short, called for an ICC (International Criminal Court) referral by the UN Security Council built into a brand new resolution, if Srilanka failed, among other, to establish a hybrid judicial mechanism within one year:

I quote:

“If Sri Lanka continues in bad faith and/or fails to take significant steps towards implementing the word and spirit of the UN Human Rights Council Resolution 30/1, including establishing a hybrid war crimes court with the participation of international judges and prosecutors.”

End quote.

In a press conference, both international criminal law experts, Richard Rogers and Andrew Januzzi made their presentations, streamed LIVE, https://youtu.be/TFwZAcItEfE where they expressed disappointment at Srilanka’s abject failure to implement Resolution HRC30 at the same time heaping praise on some of the work done by the Consultation Task Force (CTF) on reconciliation. Criticising Srilanka’s “initial reaction” to CTF’s “final report as a cynical and reckless repudiation of the stated aspirations of Sri Lanka’s citizens.”

Since the report is a PDF document, I quote here TGTE’s statement on MAP’s conclusions:

1) The Government of Sri Lanka is not acting in good faith with respect to its commitments under the UN Human Rights Council Resolution 30/1;

2) Human Rights violations and abuses amounting to crimes under international law continue to be committed in Sri Lanka with impunity;

3) Key reforms to the country’s justice and security sectors have failed to materialize; and

4) The initial reaction of the Government of Sri Lanka to the Final Report of the Consultation Task Force on Reconciliation (CTF) appointed by the Sri Lankan Government itself amounts to a cynical and reckless repudiation of the stated aspirations of Sri Lanka’s citizens.

End quote.

The recommendations of these experts are certainly not in keeping with TGTE’s own parliament’s resolution which called for Srilanka to be referred to the ICC, when UNHRC meets in March.
TGTE also conducted a signature campaign to refer Sri Lanka to the ICC securing more than 1.6 million signatures.

TGTE’s Minister for International Relations, Manicka Vasagar, writing to the 37 co-sponsors of Resolution HRC30, reiterated the need for the matter to be referred to the UN General Assembly and for the consideration of “an immediate action plan to resolve these long drawn ethnic issues.”

This slight variance in approaches between MAP and the TGTE, only illustrates the independence and impartiality with which MAP operates, all credit due to both MAP and TGTE.

Srilanka’s noncompliance must have consequences; and compliance must have a definite deadline. And sure enough both elements should be built into a new resolution, a rollover not meeting this criteria. And MAP’s recommendations I am pleased fits very well with this structure.

I have always been vehemently opposed to any concessions by way of extension of time to Srilanka, considering SriLanka has out-rightly rejected foreign judges and has consistently ignored the recommendations of UN mandate-holders. An offer of 18 more months would be altogether a criminal waste of time and money, a body blow to Tamils seeking justice and an exercise in futility. That’s why I have been highly critical of TNA MP Sumanthiran’s decision to support a postponement, even if its conditional upon “robust monitoring” and the adherence to a “strict time table”. Conditions he attached to resolution HRC30, in my view, which the government did not comply with and therefore a condition that is past due and has lapsed.

Sumanthiran being a spokesman for the TNA has many doors open to him and can influence the international community in more ways than one. It is a rare honour and privilege to represent one’s people; and I am sure he knows it and appreciates it. All that he should do is to build a consensus in moving forward, considering the aspirations of all the Tamil people, through a consultation process; with him lies the destiny of the Tamil people and their progeny at this very critical time when that freedom and justice they hold dear is at stake. There are many who hold a different view, than Sumanthiran’s, like some TNA MP’s and Councillors including the Chief Minister who are concerned that with more postponements, the Tamil issue would go off the radar and be forgotten.

I stand firm to the view that failure to establish a hybrid court and get it up and running must have consequences. A provision to refer Srilanka to the ICC or a special court, must be incorporated in a new resolution. A rollover is not preferred because new stricter measures of compliance must be included, considering the old resolution is out of date and does not have “failure to comply provisions.”

Sri Lanka cannot anymore hide behind the smokescreen of national sovereignty. Let’s remember here the words of Kofi Anan:

“No government has the right to hide behind national sovereignty in order to violate human rights.”

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