24 October, 2017

Who Is To Be Extradited?

By Sanja De Silva Jayatilleka –

Sanja De Silva Jayatilleka

Who Is To Be Extradited? – Convention on Enforced Disappearance clears way for extradition

The International Convention for the Protection of All Persons from Enforced Disappearance is to be voted on in Parliament on the 21st of this month. Just 6 days away.

The Convention came into force on the 23rd December 2010. So far, of the 193 member states of the United Nations, only 57 countries have become State Parties by ratifying it. State Parties have voluntarily undertaken to be bound by its provisions.  Sri Lanka became a State Party on the 26th of May 2016. Just over a year ago.

Of cardinal significance is that the UK and the US have not become State Parties. When Lord Lester of Herne Hill asked Her Majesty’s Government whether it intends to sign the bill, Lord Triesman, Parliamentary Under-Secretary (Foreign and Commonwealth Office) had this to say:

“The Government needs to conduct a detailed analysis of the provisions of the treaty and their implications for implementation in order to determine the UK’s position towards ratification, including whether we would need to make any reservations. The UK did not sign the convention at the signing ceremony in Paris on 6 February because the UK does not sign international treaties unless it has a firm intention to ratify within a reasonable time frame. We understand that 57 states, including 10 member states of the European Union, have so far signed the convention…”

As for the US, this is how it went at the Daily Press Briefings, with Sean McCormack, saying on 7th February 2007 in Washington DC:  

“QUESTION: Did you notice that 57 countries signed a treaty today that would basically bar governments from holding secret detainees and the U.S. did not join?

MR. MCCORMACK: Yeah. This is — I understand that there is a Convention for the Protection of All Persons and Enforced Disappearances. And I know — I have some information on it here, George. I confess I don’t have all the details. I do know that we participated in all the meetings that produced the draft. Beyond that, I can’t give you specific reasons here from the podium as to why we didn’t sign on to it. We’ve put out a public document that I can give you the citation for afterwards and it explains our reasons for not participating in the draft. But I think just as a general comment, clearly the draft that was put up for a vote or put for signature was not one that met our needs and expectations.”

And yet, Sri Lanka’s Yahapalana government which looks to those two countries for guidance, signed up for it. Some of the other countries which signed up, declared certain reservations at the time of signing which are included with their signature. For instance, Cuba has the following declaration:

“Declaration:  The Republic of Cuba hereby declares, in accordance with article 42, paragraph 2, that it does not consider itself obliged to refer its disputes to the International Court of Justice, as provided for in paragraph 1 of the same article.”

Morocco, Ukraine and Venezuela did the same. Sri Lanka, however, did not.

Consider the following in Article 13.4:

“If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the necessary legal basis for extradition in respect of the offence of enforced disappearance.”

From what I understand, this means that in the case of Sri Lanka, even if we don’t have an extradition treaty with another State Party, if they request the extradition of, say, General Jagath Jayasuriya to Brazil (which by the way is a State Party), we have to oblige!

Isn’t that why this government is gagging to ratify this treaty? If it wasn’t, wouldn’t it have made a declaration that gave it a way out?

The only declaration Sri Lanka did make at the time of signing is to strengthen the role of the committee:

“Declaration under article 32: “… the Government [of the Democratic Socialist Republic of Sri Lanka] wishes to declare as per Article 32 of the Convention that it recognizes the competence of the Committee to receive and consider communications in which a State Party claims that another State Party is not fulfilling its obligations under this Convention”.

This was despite the fact that article 32 goes on to say:

“The Committee shall not receive communications concerning a State Party which has not made such a declaration, nor communications from a State Party which has not made such a declaration.”

This makes it seem like Sri Lanka, in May 2016, wanted very much to avail itself of every opportunity to use this convention fully!

Even if it claims good faith, it is incumbent on a government to ensure that the country’s security as a state is not jeopardized when it signs international treaties. One has only to recall the Darusman report with its extravagant claims, to be alerted to the dangers of a distorted narrative skillfully mainstreamed by a separatist Diaspora which was able to co-opt even eminent international lawyers to underwrite its claims.

The claims in Brazil by a civil society group which calls for the extradition of General Jagath Jayasuriya is only the canary in the mineshaft. 

The inordinate hurry to bring this Convention for a vote in parliament at this time, when most members are seized with the far more important work of the Constitution, only exposes this government’s bad faith in trying to slip it in without due consideration of the national interest, and without granting adequate time for the parliament (i.e. the people’s elected representatives) to study it and make the necessary amendments to it.

Reading Sir Desmond de Silva QC’s riveting book, ‘Madam Where Are Your Mangoes?’ where he recounts his experiences as the Chief Prosecutor of the Special Court for Sierra Leone which indicted Charles Taylor, the President of Liberia, an evil character by all accounts, it is clear that the international criminal justice system has many ways to bring wrong doers to justice. Sir Desmond’s Diary record for the 10th of March 2003 reads: “HMS Iron Duke is at anchor off Lumley Beach. Her 4.5 inch guns with a range of twenty two kilometers are trained on Freetown…”  Freetown is where the Special Court was located.  It continues: “C company of the Royal Gurkhas is conducting a set piece firepower demonstration…They will use antitank guided missile and medium range mortars… The projection of power is…a signal that any attempt to interfere with arrests to be carried out, or any attempt to come to the aid of the indicted War criminals will be met with force.”

In President Charles Taylor’s case, despite the African continent’s reluctance to hand him over, ways were found to persuade Nigeria to do the deed. The Appeals Chamber gave a judgment in this case that read: “The principle seems now established that the sovereign equality of states does not prevent the head of state from being prosecuted before an international tribunal or court.”

People such as Charles Taylor needed to be stopped since he sounds like he’d lost his mind– the crimes ascribed to him are utterly heinous. However Sri Lanka at this moment in history is facing a false narrative about its war against an ethnic separatist militia employing terrorism, including suicide bombing, as its weapon of choice. The anti-war, anti-Sri Lanka lobby has been able to win the sympathy of the powerful Western countries, even though this narrative conspicuously failed to win a vote at the UN Human Rights Council in 2009. Before the goodwill gained by that effort could be consolidated to firmly establish a fair account of the war against the LTTE, Sri Lanka’s Ambassador was recalled by the government of the day. Since then, the approach of that Sri Lankan government saw many resolutions censoring it, urging it to prosecute those alleged of War Crimes. It is during this time that we saw the Darusman report present a biased view, which the government of the day never countered! It is now like the gold standard of accounts against Sri Lanka and is quoted in every book and article on the subject. 

Just as one thought it couldn’t get worse, the successor government was only too eager to co-sponsor resolutions of similar or worse claims.  And now we have this Convention on Disappearances about to be presented in parliament.  

As the book Travesty by John Laughland shows, in the case of the International Court of Justice for Former Yugoslavia, in the West’s eagerness to prosecute, this court was illegally constituted and its judgments found wanting. Some who have been prosecuted have been exonerated, but too late, for they died while incarcerated.

In this context, it seems unethical and a crass political expediency for the government to bring this bill to parliament on the 21st of this month, sandwiched between the 20th amendment (Sept 20th) and the tabling of the consolidated Steering Committee report on the Constitution (Sept 22nd). 

If the really existing Opposition is unable to successfully appeal for postponement, they should at least attempt to include reservations by way of amendments. It may be unusual procedure since we have already signed the convention. But since the convention itself allows amendments to it with the support of two thirds of the state parties, I don’t see why a parliament which was not consulted when the convention was signed by the Sri Lankan Foreign Ministry, should meekly accede to it without proper consideration of our national interest. It is for this purpose that we have sent our representatives to parliament. The least they can do is to declare its opposition and enter its reservations into the ratification to properly reflect the position of the people of this country.  

At least some of us citizens don’t want this government to use this convention to eliminate the competition that it clearly cannot overcome at an election.

*The writer is author of ‘MISSION IMPOSSIBLE-GENEVA: Sri Lanka’s Counter-Hegemonic Asymmetric Diplomacy at the UN Human Rights Council’, published by Vijitha Yapa and now available at the International Book Fair, BMICH. 

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Latest comments

  • 7
    2

    “Who Is To Be Extradited?”
    The question should have been: “Who should be extradited?”
    Most if not all Sri Lankans who lived in Sri Lanka during the last regime should know the answer. If you don’t know I will understand as you most probably gallivanting around the globe on the public dime.

    “If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the necessary legal basis for extradition in respect of the offence of enforced disappearance.”

    A state “may consider” this as a sufficient legal basis but its NOT compelled to.

    “From what I understand, this means that in the case of Sri Lanka, even if we don’t have an extradition treaty with another State Party, if they request the extradition of, say, General Jagath Jayasuriya to Brazil (which by the way is a State Party), we have to oblige!”

    I do think you understood it right but you like all MR cronies are fear mongering.

    • 7
      1

      Burt you are dead right.

      This lady I dont think would have a free opinion without being biased by her husband most known Mr SelfProclaimed Political Scientists to lanken some portions.

      I just believe there is no proper EXTRADITION TREATY between developed countries and such as ours.

      Had the kind of treaties been there, Udayanga Wijetunga should long have been sent to SRILANKEN soil.

      Or there are other bunch of RAJAPAKSHE kakka men, that then had been sent to aborad to protect through diplomatic immunity … remember ?=
      Most of them should have made high crimes, Rajapakse to send theim out, even none of them would have any kind of FIT proifles for becoming an Ambassdor to a country whose majority can read and write ( over 93% of lankens are literate and the levels are comparable to that of the west).

  • 2
    8

    Someday, I hope, someone will charge Mangala Samaraweera with treason. Was RW & MS aware of this(no reason to believe they did not)? In that case, they need to face the guillotine too.

    US/UK/EU making laws for everyone else but don’t want to sign up for those same laws themselves.

    • 5
      2

      Why ? He has been someone who has settled the dramatic situation shortly after this govt came in or not ?

      Mr Rajapakshe s donkey behaviours isolated us in the international arena. They were about to impose trade and embargo to lanka at the begining of 2015. But MS could get all the countries collectively supported to srilanka.. to turn out to be what we are today.

  • 2
    6

    Someday, I hope, someone will charge Mangala Samaraweera with treason. Was RW & MS aware of this(no reason to believe they did not)? In that case, they need to face the guillotine too.

    US/UK/EU making laws for everyone else but don’t want to sign up for those same laws themselves.

    ..

    • 3
      0

      “Someday, I hope, someone will charge Mangala Samaraweera with treason.”

      Keep dreaming: there is no law against it.

  • 6
    2

    we have had enough of dayans nonsense
    now you have taken his place
    it is time both of you took a break

  • 4
    1

    Poets, priests and politicians
    Have words to thank for their positions
    Words that scream for your submission
    And no one’s jamming their transmission
    ‘Cos when their eloquence escapes you
    Their logic ties you up and rapes you

    De do do do, de da da da
    Is all I want to say to you
    De do do do, de da da da
    Their innocence will pull me through
    De do do do, de da da da
    Is all I want to say to you
    De do do do, de da da da
    They’re meaningless and all that’s true — G Sumner

  • 2
    2

    Why these Scumb..ags are the voice of SL … This husband and wife are determine to brag down the country more towards the hell…..
    If our f…. g leadership do really care & respect of our own brothers & sisters, citizens, do we need UN or any other world Org come & make fine tune how we improve our care & respect of our own bros&sis.. Do people in UK and US have doubts about whether their elected leaders respect their core human values???

    • 2
      2

      Have some compassion. The couple is hurting after they were taken off the public dime.
      Only hope is if they create enough noise in Sri Lanka some fool might decide to give them another foreign posting just to get rid of.
      It’s just a dream: Not going to happen.

  • 8
    3

    Who Is To Be Extradited?
    Your husband for lying about war crimes.

    • 5
      1

      I can assure you that Dayan Jayatilleke never committed any war crime, How can you accuse a person who was hiding under the bed to have done so. But I can say for sure that Srilanka will benefit immensely if he is extradited to Angoda.

  • 4
    1

    There certainly is a pattern here. US & UK are not party to ICPAPED. US is not party to the ICC and even though the UK is, it is showing impunity over war crimes committed in Iraq unlike African countries during their conflicts. ICC has detailed reports of alleged crimes by UK forces running in the hundreds of pages. US is not party to the anti-personal mine convention as well. Remember we are a tiny country that does not have the economic & military power of the US & UK. Yes, there definitely is a colossal level of hypocrisy but we as Sri Lankans SHOULD NOT make the crimes committed by others an excuse. Might is not right. A civilized nation has a responsibility to it citizens to protect their rights. The rights of the Tamils have gravely abused, robbed and destroyed since 1956.

  • 2
    4

    I wonder what that idiot Ben Hurley is saying now, YOUR UNP government is doing exactly what LTTE wants

    • 5
      1

      “UNP government”

      Both UNP and SLFP are responsible for all the troubles.

      “The LTTE did not come into being or grow into a world-class terror outfit in a vacuum. Without the Sinhala Only, the Tiger may have remained unborn. Without the Black July, the Tiger may not have grown exponentially. If the B-C Pact and the D-C Pact did not miscarry (thanks to the midwifery of Sinhala extremism), the LTTE, even if it was born, would have remained a fringe group.”

    • 7
      1

      “Who Is To Be Extradited?”

      The question should have been who should be deported?
      Obviously the racists, if they are still living in this island, if not South Indians should be forced to request extradition of their long lost racist cousins from down under, Europe, Americas, ….. I am happy to provide them with a long list of potential deportees.

      Rest assured HLD M and his padikkam carriers are included in the first page of the list.

  • 3
    2

    Mrs Brown Tan aka Sanja de Silva Jayatilleke,
    you were born in SL so was Prof Jeyamini de Silva . But what a difference when it comes to morals and principles. She ran an exhibition at the university of Newcastle in the UK. Its about colour prejudice.
    But you have both Colour prejudice and racial prejudice.
    Shame on you Sanja de Silva, for denying enforced disappearences with out either local or international investigations.

  • 2
    0

    Sanja De Silva Jayatilleka asks ~ “Who Is To Be Extradited?”
    Unfortunately right now the No-one-under-any-circumstance lobby will win hands down. This will be considered patriotic.
    Why not allow prosecution in local courts by overseas activists. Local impediments like visa denial etc must be addressed.

  • 2
    0

    Correct me if I am wrong. Although any law in Sri Lanka can provide for extradition, the methodology to be adopted in an extradition in Sri Lanka, including Sri Lankans is provided in a law passed way back in the decade od 1970. In fact even without the legislation that is to be enacted, a Sri Lankan could be extradited as per that law. I understand that a Sri Lankan in the US was wanted for some crime, I believe about something like child abuse and he was finally extradited from Sri Lanka as per provisions of that law prescribing the procedure of extradition..

    • 2
      0

      Extradition is not an easy procedure. There must be an extradition treaty between the two countries. Our courts must decide whether an extraditable offense has been committed and whether the the offense is similar in both countries. There are defenses to extradition, like eg. that the act was lawful in the country. So, was what big thug Jagath did lawful in Sri Lanka. So many hurdles have to be jumped. It is unlikely that the local courts will permit such extradition. This woman uses the strategy of creating fear through playing on ignorance and constructing an imaginary law of her own through her own ignorance of the law. I wonder how many errors there are in the book that she has written. The reputation of Vijitha Yapa as a publisher will suffer.

  • 1
    0

    Madam Sanja…….

    Relax! All this is boru show. NO one of the 2000 probables (you know and I know, nudge nudge, wink, wink, everyone a Ranaviru, will ever be extradited.

    I will stand at Thunmulla junction and eat the banana leaf that comes with my weekly Thursday Lamprais if anybody ever is……….

  • 3
    0

    This is hitting closer home .The fear of extradition is real .Even apologists for the crimes committed against humanity by the Mahinda Rajapaksa junta will be hauled away in the fullness of time.
    Dayan Jayatilleke Silva ( a.k.a. Geneva Dayan)hope u are seriously taking note of what dear Sanja is saying.You can run my friend but you can’t hide.Not even Tamara or Rajeeva can prevent it.

  • 2
    0

    Old Spring Koha,Now too much of that Lamprais will surely make you eligible for extradition to the other side of the great divide! Your age only increases that chance!Please don’t hold the Dutch Burgher Union responsible for your fate, old man!

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