By Bandu de Silva –

Bandu de Silva

The “Hot Potato” Which Came Wrapped Up From Geneva Which Had To Be Spewed Out

“It’s not as hot as we anticipated, not a hot potato. It is not blood curdling and the report has not mentioned any names,” Samaraweera declared. He opined the OISL report was more “a narrative” and as declared therein, was a “human rights investigation and not a criminal one.”

That is how The Sunday Times (September 20th) Political editor put across External Affairs Minister Mangala Samaraweera’s response immediately after a cursory glance at the UNHRC report which he received on September 11, 2015 through UNHRC High Commissioner’s special envoy. So, for the Minister, it was not the ‘hot potato’ that many people expected. Going on to details, he had said there was no naming of any people. Even later addressing the media in Colombo he repeated that the UNHRC report was only a “human rights investigation and not a criminal one.” That is what the Sri Lankan Government also informed the High Commissioner through the Note Verbale sent by the Foreign Ministry in Colombo on 15th September, complying with the five-day time – frame allowed to the government to reply.

The unfolding events, nevertheless, point to what came wrapped up from Geneva was a hot potato indeed, which, as Dr. Samuel Johnson did, had to be spewed out. What External Affairs Minister, Mangala Samaraweera who seemed to be all upbeat over the report, and reportedly became outspoken to the extent of discussing with the media on Friday 18th September, even the modeling of the Hybrid Special Court which the UNHRC report was insisting on, has within three days found the potato too hot and thought of spewing it out to the amusement of onlookers. As Dr. Johnson said, he could tell those who are amused that “only a fool would have swallowed it”.

Now the question is “Will the UNHRC report then remain a virtual ‘Sweet-potato’ that the government wishfully made out to be at the outset? One doubts? If it is going to be the ‘sweet-potato’ or even a worm-infested ‘kunu-batala,’ familiar in the Sri Lankan market, can one think that the UNHRC and the investigating trio appointed by UNHRC following the US sponsored resolution at the Council session in 2014, had wasted their time and public funds on this account. That is the main question now in the face of the understanding reached a few weeks back by the governments of US and Sri Lanka which was laid bare during the most recent visit of the US State Department’s two Assistant Secretaries to Sri Lanka.

The two visitors from US were not the decision makers. They were only the mouth pieces for the US government. The decisions were made earlier from the time of change of government (Wenasa) in Colombo starting from January 8, 2015 with the formation of the Sirisena-Wickremesinghe government. State Secretary Kerry laid down the parameters and the Biswal-Malinowski team which followed after the August 17 General Election which further confirmed the electorate’s decision for the change of government, confirmed the US decision on the future action in Geneva supporting an independent local investigation into alleged human rights abuses and criminal acts against civilians. The US decision announced in Colombo constituted a complete course-change from her previous stand calling for nothing less than an international inquiry which was demonstrated by her strong sponsorship of the Geneva Resolution on Sri Lanka which was carried out by majority vote resulting in the present UNHRC report.

What has then brought out the volte face on the part of US seems to nothing but the regime change itself in Sri Lanka and the mere belief that the new government would carry through the democratizing process and other anticipated reforms and investigations into war time events which had been the subject of discussion in Geneva and globally, to the satisfaction of all “stake-holders”. The US, however, will be facing a dilemma now about supporting the ‘independent local inquiry’ as it projected a few weeks back. That is in view of the strong findings in the UNHRC report which was published in Geneva and globally last week, and the strong support lent to the findings by Prince Zeid, the new High Commissioner of Human Right’s Commission. Can the US completely disown the findings of the Report which was, by and large, the result of her own persuasive efforts at the Geneva sessions 2014 and earlier? She cannot do that without loosing credibility.

Bridging the contradiction

How would the contradictions between the declared stance of supporting the new Sri Lanka government to conduct an independent local investigation and the one arising from UNHRC report requiring the Sri Lankan government to establish a Hybrid Special court be bridged? To be more precise, the UNHRC report requires the Sri Lankan government to, inter alia

(a)“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, defense office and witness and victims protection program, and resource it so that it can promptly and effectively try those responsible;

(b) Carry out a comprehensive mapping of all criminal investigations, habeas corpus and fundamental rights petitions related to serious human rights violations, as well as the findings of all Commissions of Inquiries where they have identified specific cases, and refer these cases to the special court upon its establishment;

(c) Reinforce the forensic capacity of the judiciary and ensure that it is adequately resourced, including for DNA testing, forensic anthropology and archaeology;

(d) Review all cases of detainees held under the PTA and either release them or immediately bring them to trial; Review the cases of those convicted under the PTA and serving long sentences, particularly where convictions were based on confessions extracted under torture;

Truth/right to know

(e) Dispense with the current Presidential Commission on Missing Persons and transfer its cases to a credible and independent institution developed in consultation with families of the disappeared;

(f) Develop a central database of all detainees, with independent verification, where relatives can obtain information of the whereabouts of family members detained, and publish a list of all detention centres;

(g) Publish all unpublished reports of the many human rights-related commissions of inquiry, the Presidential Commission on the Missing, and the Army Court of Inquiry into civilian casualties;

(h) Develop a comprehensive plan/mechanism for preserving all existing records and documentation relating to human rights violations, whether held by public or private institutions;

The Background

The above recommendations are made amongst others, against the following background:

1. The view that designing of any truth-seeking and accountability mechanisms must be through a process of genuine, informed and participatory consultation, especially with victims and their families; and any new mechanisms should not be appointed under the Commissions of Inquiry Act, which “has systematically failed to deliver results”, but require new, purpose-specific legislation.

2. The degree to which Sri Lanka’s security sector and justice system having been distorted and corrupted by decades of emergency, conflict and impunity, for years, political interference by the Executive with the judiciary having become routine, as demonstrated in many of the cases investigated in this report; and the independence and integrity of key institutions such as the Attorney General’s Office and Human Rights Commission remaining compromised.

Against this backdrop, the High Commissioner’s belief that the Government will need to embark on fundamental reforms of the security sector and justice system, including a fully-fledged vetting process to remove from office security forces personnel and public officials suspected of involvement in human rights violations, before it can hope to achieve a credible domestic accountability process and hope to achieve reconciliation, has been taken into account.

In brief, the Investigating team cites the High Commissioner of being convinced of the view that for accountability to be achieved in Sri Lanka, it will require more than a domestic mechanism; and that Sri Lanka should draw on the lessons learnt and good practices of other countries that have succeeded with hybrid special courts, integrating international judges, prosecutors, lawyers and investigators, such a mechanism becoming essential to give confidence to all Sri Lankans, in particular the victims, in the independence and impartiality of the process, particularly given the politicization and highly polarized environment in Sri Lanka. OHCHR stands ready to continue providing its advice and technical assistance in the design of such a mechanism.

The High Commissioner is also cited as being of the view that the Human Rights Council has – and should continue to play – a critically important role in encouraging progress on accountability and reconciliation in Sri Lanka. As the process now moves into a new stage, he urges Council members to sustain their monitoring of developments in Sri Lanka with a view to further actions that may be required at the international level should there not be concrete results.

In my short article published in The Island of Friday 18 September 2015, I observed that in view of the most recent developments in Geneva, the US might try to persuade the Sri Lankan government to accept a comprise formula on the Draft Resolution to be jointly submitted. The Sri Lankan government’s spokespersons, notably, External Affairs Minister has been rather vocal on the subject, or the printed media which has reported his responses has misreported his reactions. The most vocal scenario was reported by the Divayina correspondent in his headline report of 18th September where he stated Minister Samaraweera as saying that the “Hybrid Court would be appointed by the government of Sri Lanka and that there will be no role for the UN in it.”

“(යුද්ධය පැවැති කාලයේ ශ්‍රී ලංකාවේ සිදුවී ඇතැයි කියන මානව හිමිකම් උල්ලංඝනය කිරීම් පිළිබඳ පරීක්‍ෂණ පැවැත්වීම සඳහා එක්‌සත් ජාතීන්ගේ මානව හිමිකම් කවුන්සිලයේ මහ ලේකම්වරයාගේ වාර්තාව මගින් යෝජනා කොට ඇති ජාත්‍යන්තර විනිසුරු වරුන්ගෙන් ද සමන්විත මිශ්‍ර අධිකරණය (හයිබ්‍රිඩ්) පත්කරනු ලබන්නේ ශ්‍රී ලංකා රජය විසින් බව විදේශ කටයුතු ඇමැති මංගල සමරවීර මහතා ‘දිවයින’ට පැවැසීය.

ඒ සඳහා ජාත්‍යන්තර පිළිගැනීමක්‌ ඇති විනිසුරුවරුන් පත්කරන බව ද ඇමැතිවරයා කීය. එම අධිකරණය පත්කිරීමේදී එක්‌සත් ජාතීන්ගේ කිසිදු මැදිහත්වීමක්‌ සිදු නොවන බව ද ඒ මහතා අවධාරණය කළේය”).

That means the Minister had already conceded the principle of appointing a Hybrid Special Court suggested in the UNHRC report.

The same correspondent reporting in more detail on an interview held with the Minister Samarweera, had raised the issue again (published in Sunday Divayina of 20th September) but the Minister’s response this time was not so forthcoming as was reported by the correspondent on Friday 18th in Divayina (daily). Now the Minister is seen avoiding reference to a Hybrid Court but to a judicial mechanism (අධිකරණ පද්ධතිය) and that a final decision would be taken after a broad national consultation (පුළුල් ජාතික කතිකාවතකින් පසුව), and even if we (Government ?) presented a preliminary draft, it could be transformed into a definitive programme only after discussions with all stake holders. (මේ අපි මූලික සැලැස්‌ම ඉදිරිපත් කළත් මේ සැලැස්‌ම නිශ්චිත වැඩපිළිවෙළක්‌ බවට පත් කර ගන්න පුළුවන් වෙන්නේ මෙහි මේ සියලුම කොටස්‌කරුවන් සමග සාකච්ඡා කළාට පසුවයි).

In an interview given to Ceylon Today (published in Sunday 20 September), Justice Minister, Wijedasa Rajapakshe had reportedly said “that in order to accommodate a domestic mechanism they would hold discussions with political party leaders and discuss the issue in Parliament. “It is a matter for Parliament to decide,” he said.
The UNHRC report said Sri Lanka should draw on the lessons learnt and good practices of other countries that have succeeded with hybrid special Courts, integrating international Judges, prosecutors, lawyers and investigators. The High Commissioner for Human Rights last week said such a mechanism will be essential to give confidence to all Sri Lankans, in particular the victims, in terms of the independence and impartiality of the process.

They have recommended the special hybrid Court, the modality and the mechanism at the entire discretion of Sri Lanka. “Therefore we will have to think about this modality. And the first thing I must mention is this domestic mechanism is what the previous regime was asking throughout. And the international community wanted to set up an international mechanism. But, in view of the regime change and our change in policies only we were able to get the domestic mechanism,” he noted.

He also said “We have on behalf of Sri Lanka made a representation to relevant stakeholders and the United Nations High Commissioner to allow us to have our own Judges. Simply because we have Sri Lankan Judges with international exposure. So far they have not informed us their decision.”

From these reports appearing in Sunday newspapers it would appear that more caution is being expressed now on commenting on the UNHRC proposed “Hybrid Special Court” after External Affairs Minister’s earlier outburst reported in Divayina correspondent’s first report. In a note I circulated among a Googles discussion group I said I would verify the Divayina report with the Ministry of Foreign Affairs but which was delayed by the week-end intervening. Now there is no need for that as the Minister Samaraweera’s non- reference to the Hybrid Court but to a “Judicial mechanism” and the need for broad national consultation before working out a programme, and Minister Rajapakshe’s more precise statement that it needs Parliamentary approval, seem to show the introduction of caution in discussing the issue on the part of the government. That is if it is not a retraction by Minister Samaraweera from his earlier expressed position indicating willingness to be forthcoming on the UNHRC proposaal. Is this then the result of dissenting views expressed by many to which the Minister himself has since drew attention. It is also revealed that the subject when discussed in the Cabinet met with reservation/opposition from some members. The government may also not want to see a division caused in Parliament when the subject of a hybrid mechanism is brought up there.

Has the Minister of External Affairs been cautioned then by the Prime Minister not to express over-enthusiasm and create confusion, for which the media is always ready to play ball?

Information emerging from Geneva points to a Draft of the Resolution doing the circles already. That type of kite-flying is usual. Indications are that so far the draft favours a reference to a hybrid mechanism. The government of Sri Lanka would purpose try its best to avoid binding to such a formation which could have costly electoral repercussions on the new government. As Minister Wijedasa Rajapakshe told Ceylon Today, “We (the government) have on behalf of Sri Lanka made a representation to relevant stakeholders and the United Nations High Commissioner to allow us to have our own Judges. Simply because we have Sri Lankan Judges with international exposure. So far they have not informed us their decision.”

The final outcome which would emerge this week in Geneva in the form of the Draft Resolution to be tabled would indicate if the potato is still hot or not. It is more likely that Sri Lanka would have no alternative but to swallow it, nevertheless. That is the price she has to pay for going along with US. The earlier question I raised in my last article in The Island if Sri Lanka would get trapped in Geneva is still food for thought.