By Usha S Sri-Skanda Rajah –

Usha S Sri-Skanda-Rajah

As the search for justice for victims of the Tamil genocide continues.

– While the application of ‘universal jurisdiction’ by individual states to prosecute war criminals must be pursued rigorously, the way forward for member states of the UN Human Rights Council is to lobby the UN Security Council for an ICC referral or for the  establishment of an international special criminal tribunal for Sri Lanka.

Part 1 of this article showed the UN Human Rights Council’s prolonged reliance on the Sri Lankan government to prosecute members of its armed forces and senior political leaders, cannot be sustained any longer – those responsible for “some of the worst crimes in the 21^st century.” And it was obvious a hybrid court is definitely not in Sri Lanka’s agenda.

Part 2 herein makes crystal clear UNHRC’s prolonged reliance on Sri Lanka to prosecute its armed forces is unsustainable, examining the role played by Sri Lanka’s current president, the plethora of Sri Lanka’s lies, the phenomena of double talk, its sworn loyalty to its armed forces as well as its ‘war on terror’ narrative, the never ending triumphalism mentality, the volatile political situation in Sri Lanka and more – that does not bode well, going forward in the search for justice for the victims of the Tamil genocide.

Sri Lanka agreed to a hybrid judicial mechanism:

Sri Lanka’s underlying approach to fulfilling its criminal justice commitments is based upon cunning, deception, untruths and unsubstantiated claims as will be seen in the parts to this article yet to follow. In the context of criminal justice, one of four pillars of transitional justice, it is necessary to look at the commitments Sri Lanka signed up to – as a co-sponsor no less of the two resolutions on ‘Promoting Reconciliation, Accountability and Human Rights’, which requires it, in good faith; under 30/1 para 6: “to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and international humanitarian law, with the participation in that judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators; and under para 7: to reform its domestic law (creating enabling legislation) to ensure it can implement effectively its own commitments.”

Gota and Maithri : File photo

President Sirisena has openly said he wouldn’t prosecute his army:

President Sirisena, (including the coalition and the opposition) has rejected wholesale the idea of “foreign participation” and has said he won’t allow his armed forces to be prosecuted. Both of which, as per his public declaration, is but the stark reality on the ground in Sri Lanka, which the UNHRC must face up to and come to terms with; first it’s important to comprehend president Sirisena is not going to put himself in jeopardy as part of the regime that committed the offence, some taking place, under his watch, at a critical time when he served as defense minister at the last stages of the war, when some of the mass atrocities committed against civilians happened; the time when surrendering LTTE leaders and the rank and file were executed and instances of enforced disappearances took place; His name could be in the list of perpetrators, possibly in the OISL report (OHCHR Investigation on Sri Lanka), the president once boasting he stopped the publication of that list.

Prosecuting the army and ‘foreign participation’ are politically damaging:

Both prosecuting the army and ‘foreign participation’ are politically explosive propositions. If considered, would spell doom for Sirisena’s governing coalition (or for whosoever is in power) which is now hanging by a thread – the use of the race card is a malady found to be normal in Sri Lanka, where its politicians use it against each other for their political survival and one-upmanship as they vie for the affections and acceptance of their Sinhala Buddhist base.

UNHRC was lied to:

UNHRC was a victim of a hoax. Coming from the horse’s mouth, it’s now been revealed that Sri Lanka is seemingly regretting its co-sponsorship of the October 2015 Resolution. The president has refuted that he had agreed to “foreign participation”, claiming he removed former Foreign Affairs Minister from his portfolio for that reason, impressing upon the voting Sinhala public that Mangala Samaraweera acted on his own. This statement made by Sirisena while campaigning at the Local Government elections is a game changer – makes the hybrid mechanism dead in the water.

Sri Lanka wasn’t prepared to walk the talk:

Sri Lanka wasn’t prepared to walk the talk when it co-signed the October 2015 resolution initiated by the US during Obama’s time: The Obama government and the International community were lied to: Sri Lanka’s lies to the UNHRC are on record. You would recall how I laid out in my article under the subheading ‘Sri Lanka’s Blatant Duplicity And Unconscionable Lies’ that, “Sri Lanka wasn’t prepared to walk the talk..that while Sirisena was dismissing the idea of any foreign participation in Sri Lanka’s judicial process and categorically stating he would not allow any of his army men to be prosecuted, both Mangala Samaraweera and Harsha de Silva were making hollow promises at the 34^th session of the UN Human Rights Council, in full agreement to all the conditions laid out in resolution hrc34/Li incorporating hrc30/1 on ‘Accountability Reconciliation and Human Rights in Sri Lanka’ – and ready and willing to clinch a deal for Sri Lanka based on lies – and had indeed signed on as co-sponsor  – which gave Sri Lanka a grace period of 2 years with no consequences for non-compliance, without setting any benchmarks or timelines in which to implement all the obligations mentioned there in.

International Community was hoodwinked:

None of the assurances and guarantees Mangala Samaraweera on behalf of Sri Lanka during the passage of the October 2015 resolution at the time of Barack Obama’s presidency, when he was hobnobbing with John Kerry, Nisha Biswal and Samantha Power, have come to fruition, and now been proven to be bare faced lies!

War Criminals treated as heroes:

Keep in mind the alleged perpetrators of the Tamil genocide are those same high ranking officers in the army who are looked upon as heroes; those who led the genocidal war still hold senior positions in the army; there is no separating the army from the Sri Lankan state; military officers (even retirees) have been rewarded with diplomatic postings – Jagath Dias, Shavendra De Silva, Jagath Jayasuriya and many more; just as we saw in Brigadier Fernando’s case, the defense attaché who repeatedly made threatening throat slitting gestures at Tamil protesters on UK soil, did no wrong in the eyes of the government. The Brigadier belonged to the 59^th division, “the closest fighting force to Mullaitivu where the UN confirmed the hospital there came under repeated shell attacks by government forces.” The Brigadier was never reprimanded, suspended for a few hours, but re-instated on the orders of president Sirisena, and was recalled (before he was apprehended for a hate crime?), to avoid losing his diplomatic immunity and being declared ‘persona non grata’ in the UK; on his return to Sri Lanka, reports say, he was sent to China.

How the security forces tried to pin Lasantha’s murder on the LTTE:

The police were no better. DIG Sisira Mendis and DIG Nandana Munasinhe were known for their involvement in torture, and now DIG Nanayakara’ role in the cover-up of Lasantha Wickrematunga’s murder is becoming apparent as evidence unfolds in that case: Worse still, it’s been revealed men in a jeep stopped two Tamil youth in Vavuniya, took away their motor cycle and abducted them; their charred bodies were found a day after the abduction – the JMO found gunshot wounds on them – all this because the men had a similar motor cycle to Lasantha’s killers and the intention was to try to pin Lasantha’s murder on the LTTE.

War on terror a convenient excuse both not to address impunity and to conceal state terror:

The ‘war on terror’ narrative is Sri Lanka’s convenient escape route to conceal its crimes; an illustration of this can be found in the manner in which Marapana, Sri Lanka’s foreign minister in his statement to the UNHRC at the outset laid bare his prejudices and manifest bias to all concerned that, “the actions of the Sri Lankan security forces was against a terrorist group, not against a community..the operations of the terrorist group who for the first time in recent history have deliberately targeted innocent civilians.. all communities were united against terrorism.. and now that terrorism has been defeated, all communities today work in unison towards reconciliation and economic progress of the country.” Even as Marapana’s statement smacks of bias, typical of the whole Sri Lankan establishment, it also lacks honesty when only a couple of weeks before his statement, the Muslim community was targeted and hammered and a number of their mosques, businesses and properties were destroyed by Sinhala thugs instigated by Buddhist monks, reminiscent of what the Tamils had to endure for decades. 

The ‘war on terror’ narrative is the only way Sri Lanka thinks it can avoid accountability for allegations of heinous crimes it committed including genocide. That’s the narrative it would want to advance and does so vigorously also to obtain concessions and to avoid sanctions imposed by the international community; for example to obtain GSP+ trade concessions to enable reduced duties for it export products – from the European Union (EU) despite there being definitive evidence it committed genocide on a people and, “its continued unwillingness to address impunity,” for its horrendous actions. To say it’s disappointing is an understatement that the EU cowed to incredible pressure applied by Sri Lanka to relist the Liberation Tigers of Tamil Eelam (LTTE) despite the European Court of Justice (ECJ) directing the EU to remove the LTTE from the EU list of terrorist organizations.  

Prevailing power struggle and Mahinda’s comeback:

The governing coalition is in disarray, holding to power by the skin of its teeth. Any move to start proceedings (hypothetically speaking – a trial will never happen) is not feasible. Major developments in Sri Lanka’s political landscape triggered by the recent local government elections, completely and absolutely eliminate any chances that Sri Lanka would start trying its soldiers

Sri Lankan politicians are vying for positions, and undercutting each other – there is a power struggle going on as this is written. Sirisena’s political party, the SLFP has been trounced and the ruling coalition he formed with the UNP is showing signs of breaking up; prime minister Ranil Wickremaeinghe’s position is shaky with a no confidence motion against him is to be debated on the 4^th of April; while Mahinda Rajapaksa, against whose family and armed forces and against whom under command responsibility, war crimes allegations are pinned, has made a right royal comeback in the political scene with his new political party gaining ground.

Possible team up of Gotabaya architect of the genocidal war and Sirisena:   

There’s going to be endless chaos in Sri Lanka’s political scene until the 2020 presidential election and thereafter, as Mahinda plans to run despite that not being possible having completed two terms under the 19^th Amendment. There are other scenarios bandied about: It seems according to sources revealed to Colombo Telegraph, President Sirisena is hoping the no-confidence motion against the Prime Minister will be supported by a majority of Parliament and is currently plotting to replace Wickremesinghe with Speaker Karu Jayasuriya, as he plans to bring Gotabaya through the National List and thereafter seek a second term as President with Gotabaya as the Prime Minister”. Furthermore speculation is rife that Gotabaya has gone to China on the invitation of the Chinese government, “to meet with a team of top advisors to Sirisena,” to discuss their game plan. It seems Mahinda has been invited separately. 

Such a prospect – of Gotabaya the architect of the genocidal war and war time mass atrocities, gaining power in Sri Lanka and teaming up with Sirisena, underscores exactly the main thrust of these series of articles; that a hybrid mechanism or the probability of any prosecutions of the Sri Lankan army or any of its senior political leaders, ever materializing is zero, resulting in resolutions 30/1 and 34/L1 being consigned to the dustbin of history.     

A hybrid mechanism dead in the water, it would be insane for UNHRC to rely anymore on Sri Lanka to prosecute members of its armed forces and senior political leaders.

To continued..

Usha S Sri-Skanda-Rajah – Senator, TGTE