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 21^st of this month. Just 6 days away.

The Convention came into force on the 23^rd 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 26^th 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 10^th 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 21^st of this month, sandwiched between the 20^th amendment (Sept 20^th) and the tabling of the consolidated Steering Committee report on the Constitution (Sept 22^nd). 

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.