{"id":176113,"date":"2017-04-11T00:54:06","date_gmt":"2017-04-10T19:24:06","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=176113"},"modified":"2017-04-18T12:26:42","modified_gmt":"2017-04-18T06:56:42","slug":"sri-lanka-must-now-begin-the-task-of-filing-charges-establishing-a-hybrid-court","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/sri-lanka-must-now-begin-the-task-of-filing-charges-establishing-a-hybrid-court\/","title":{"rendered":"Sri Lanka Must NOW Begin The Task Of Filing Charges & Establishing A Hybrid Court"},"content":{"rendered":"

By Usha S Sri-Skanda Rajah<\/a> \u2013<\/strong><\/p>\n

\"\"<\/a>

Usha S Sri-Skanda-Rajah<\/p><\/div>\n

Come March 2017 UN Must Act On Sri Lanka – Part 3<\/b><\/span><\/em><\/p>\n

In the wake of a hybrid judicial mechanism being rejected outright by Sri Lanka, this article digs in, regardless of its unconscionable behavior, to examining what Sri Lanka must do NOW, the obligations the country promised to deliver and its blatant duplicity, the Council\u2019s missed opportunity in Geneva and what should have been the outcome of the 34<\/b><\/span>th<\/sup><\/b><\/span> session as a result of Sri Lanka\u2019s wilful\u00a0non-compliance and to exploring the avenues for justice available for Tamils.. \u00a0 \u00a0 \u00a0<\/b><\/span><\/p>\n

What Sri Lanka Must Do NOW<\/b><\/span><\/p>\n

On the 23<\/span>rd<\/sup><\/span> of March 2017 Sri Lanka co-sponsored Resolution hrc34\/L1 (hrc34\/L1) on Accountability, Reconciliation and Human Rights in Sri Lanka, incorporating hrc30\/1 (hrc30\/1) it previously co-sponsored on 1<\/span>st<\/sup><\/span> October 2015 but failed to comply, giving new impetus to hrc30\/1 in the form of hrc34\/L1 – which was adopted by the UN Human Rights Council (Council) again without a vote. It is now incumbent upon Sri Lanka, as per its undertaking, to BEGIN the task of delivering the commitments it agreed under both resolutions \u2013 immediately. That would mean getting down to the important business of enacting legislation,<\/span> <\/b>appointing a special counsel, opening a special counsel\u2019s office, establishing a hybrid court and filing war crimes charges, beginning – NOW.<\/span><\/p>\n

The Obligations Sri Lanka Promised to Deliver and HC\u2019s Call for Hybrid Court Same<\/b><\/span><\/p>\n

The place to look, to have a better insight into what Sri Lanka\u2019s obligations entail, is to read both, Operative Paragraphs 6 and 7 found in hrc30\/1<\/a>\u00a0and Operative Paragraph 4 found in hrc34\/L1<\/a>\u00a0<\/span>in CONJUNTION with the High Commissioner for Human Rights, Prince Zeid bin Ra\u2019ad al-Hussein\u2019s \u2018Conclusions and Recommendations\u2019 under Paragraph 67 (a-j) captioned \u2018Legislation and Justice\u2019 in his February 2017 Report – the one he submitted to the Council on Sri Lanka – the obligations\u00a0 <\/span>in question cover the core provisions relating to both, for one, the creation of legislation to, \u201ccriminalize war crimes, crimes against humanity, genocide and enforced disappearances,\u201d and the other, the investigation, prosecution, trial and punishment of those responsible for such \u2018Mass Atrocity Crimes\u2019.\u00a0<\/span><\/p>\n

Not only has the Council under hrc34\/L1 – Operative Paragraph 4 requested the High Commissioner to assess the progress of Sri Lanka\u2019s implementation of his recommendations, it must be noted, the recommendations itself got the full endorsement of Member States – those that gave Sri Lanka a two year extension of the timeline for fulfillment of commitments under the resolutions, given with the expectation that the recommendations would be acted upon \u2013 with Member State after Member State, in their statements, during discussions at the Council, urging Sri Lanka to heed the High Commissioner\u2019s recommendations.<\/span><\/p>\n

This being the case, quite apart from the fact that the High Commissioner\u2019s comprehensive 2017 report, based on proper assessment of all factors, gives form and meaning to hrc30\/L1.<\/span><\/p>\n

It\u2019s worth mentioning at this point, notwithstanding hrc34\/L1 \u2013 Operative paragraph 4 and the call by Member States for Sri Lanka to heed the High Commissioner\u2019s recommendations, Deputy Foreign Affairs Minister of Sri Lanka, Harsha de Silva, backing away from a hybrid mechanism and finding somehow some ambiguity in the words in hrc30\/1, when none exists \u2013 is now insisting, undoubtedly in error, that Sri Lanka did not sign up to a hybrid court.\u00a0 <\/span>Reading the requisite sections, there is no denying the High Commissioner\u2019s recommendations are the right interpretation of Operative Paragraph 6 (and 7).\u00a0<\/span><\/p>\n

Looking at hrc30\/1 – Operative Paragraph 6, it becomes clear, the drafters undeniably were providing for a hybrid court: The Council, \u201cnotes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel\u2026 affirms that a credible justice process should include independent judicial and prosecutorial institutions.. and also affirms in this regard the IMPORTANCE<\/b> of PARTICIPATION<\/b> in a Sri Lankan judicial mechanism, including the special counsel\u2019s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators.\u201d<\/span><\/p>\n

And then reading that Operative Paragraph 6 in CONJUNCTION with the High Commissioner\u2019s core recommendations, paragraph 67 (a-j) given in full here below, it becomes even more abundantly clear that the Council and the High Commissioner were on the same page with the High Commissioner\u2019s Recommendations calling for Sri Lanka to:\u00a0<\/span><\/p>\n

    \n
  1. Implement the recommendations of the Special Rapporteur on the independence of judges and lawyers following the country visit in April-May 2016; <\/b><\/span><\/li>\n
  2. Review the Victim and Witness Protection Act with a view to incorporating strong safeguards for the independence and effectiveness of the victim and witness protection programme, in accordance with international standards;<\/b><\/span><\/li>\n
  3. Accede to the additional protocols to the Geneva Conventions, and to the Rome Statute of the International Criminal Court;<\/b><\/span><\/li>\n
  4. Enact legislation to criminalize war crimes, crimes against humanity, genocide and enforced disappearances without statutes of limitation, and enact modes of criminal liability, in particular command or superior responsibility;<\/b><\/span><\/li>\n
  5. Consider, as part of the constitutional reform process, the inclusion of a transitional clause to facilitate the establishment of transitional justice mechanisms and offer guarantees of redress to all those whose rights have been violated;<\/b><\/span><\/li>\n
  6. Adopt legislation establishing a hybrid court, which should include international judges, defence lawyers, prosecutors and investigators, to investigate allegations of violations and abuses of international human rights law and violations of international humanitarian law, and provide it with the resources necessary to enable it to try those responsible promptly and effectively;<\/b><\/span><\/li>\n
  7. Strengthen the forensic capacity of the police and judiciary and ensure that it is adequately resourced, including for DNA testing, forensic anthropology and archaeology; <\/b><\/span><\/li>\n
  8. Replace the Prevention of Terrorism Act by legislation that adheres to the best international practices;<\/b><\/span><\/li>\n
  9. Review all cases of detainees held under the Prevention of Terrorism Act with the aim of either releasing them or bringing them immediately to trial; establish a moratorium for the use of the Act for new arrests until it is replaced by legislation that adheres to international best practices; and review the cases of those convicted under the Act and are serving long sentences, particularly where convictions were based solely on confessions;<\/b><\/span><\/li>\n
  10. Promptly investigate and prosecute all allegations of torture and other gross human rights violations, and give the highest priority to long-standing emblematic cases so as to regain public confidence in the justice system; and implement fully the recommendations of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment and of the Committee against Torture.<\/b><\/span><\/li>\n<\/ol>\n

    It must be borne in mind, a, c and e of paragraph 67 above, are additional recommendations, among other, the High Commissioner made in his February 2017 report under the caption, Legislation and justice. <\/span><\/p>\n

    High Commissioner Recommends Sri Lanka Accede to Rome Statute, TGTE\u2019s Call <\/b><\/span><\/p>\n

    It is noteworthy the High Commissioner has recommended that Sri Lanka sign up to both the Additional Protocols to the Geneva Conventions – relating to victims of armed conflicts, and the Rome Statute of the International Criminal Court (ICC) – where war crimes, crimes against humanity and genocide are prosecuted (67 c). Sri Lanka has neither acceded nor ratified either of these UN enactments. Could this be a subtle hint coming from the High Commissioner that an ICC referral is imminent if Sri Lanka backtracks on delivering on a hybrid mechanism?<\/span><\/p>\n

    In fact the TGTE (Transnational Government of Tamil Eelam) secured more than 1.6 million signatures<\/a>, long advocating for Sri Lanka to be referred<\/a> to the ICC, by either making a call to the\u00a0 <\/span>UN General Assembly with recommendation to establish a special tribunal under Article 22 of the UN Charter or under Article 13 (b) of the Rome Statute, through the UN Security Council, regardless of Sri Lanka\u2019s refusal to ratify. Many Tamil politicians – some from the TNA, provincial councilors, lawyers, academics, professionals, activists, organizations and civil society members, seeking justice for victims of genocide are united in their call for an ICC referral as was seen<\/a> at these sessions<\/span>\u00a0<\/span><\/span>and by the joint appeal made by civil society organisations. It is to be noted, the calls for Sri Lanka to be referred is growing – apart from the High Commissioner, Estonia was one of those Member States that specifically asked Sri Lanka to ratify the Rome Statute. <\/span><\/p>\n

    The International Educational Development raised the issue<\/a> of ICC referral at the general debate on \u2018technical assistance and capacity building\u2019 that the Council held, expressing disappointment at the Council\u2019s failure to \u201cexplicitly require a hybrid court\u201d and for \u201cnot even having a debate in a transparent manner\u201d, urging\u00a0 <\/span>it to, \u201ccomply with the 1.6 million signatures the Tamil victims had collected in a call for the referral of the situation in Sri Lanka to the United Nations General Assembly with recommendations to establish a Special Tribunal or to refer the situation to the United Nations Security Council for referral to the International Criminal Court.\u201d<\/span>\u00a0<\/span><\/p>\n

    The High Commissioner\u2019s additional recommendations got Sri Lanka so worried that prompted Harsha de Silva to clarify<\/a>, \u201cno new commitments arose from hrc34\/L1\u00a0 <\/span>and that \u201cthere is a big difference,\u201d\u00a0between the resolution and the High Commissioners report.<\/span><\/p>\n

    Council\u2019s Missed Opportunity<\/b><\/span><\/p>\n

    It must be said, examining High Commissioner\u2019s damning reports<\/a> of February 2017\u00a0<\/span>and September 2015 <\/a>\u00a0<\/span>and Sri Lanka\u2019s brazen non-compliance of hrc30\/1, one would have thought the Council would act decisively on Sri Lanka<\/a> than give it a two year extension. Worse still, Sri Lanka\u2019s outright refusal, to neither, \u201caffirm foreign participation in its judicial mechanism,\u201d nor \u201callow for the trial and punishment of those responsible,\u201d including showing little or no propensity for a comprehensive plan for the reform of domestic law, made explicit, outside of the Council, by its leaders – but within hearing distance, should definitely have induced the Council to put Sri Lanka on notice, but it was not to be. <\/span><\/p>\n

    It was a crying shame the outcome at the end of the session was the adoption of another resolution that came with a two year extension in timeline for its implementation, with no strict, time bound bench marks, and no requisite element in place for any eventual non-compliance \u2013 an outcome that failed victims and failed them badly. <\/span><\/p>\n

    Flouting the Vetting Procedure <\/b><\/span><\/p>\n

    Sri Lanka has yet again managed to buck the United Nations System, and has returned from Geneva feeling smug and victorious – the Sirisena regime pretty chaffed at having told barefaced lies to the Council, while telling entirely a different story to its people back home, openly placating those allegedly implicated in \u2018Mass Atrocity Crimes\u2019; President Maithripala Sirisena , showing utter contempt by appointing, \u201conly days after\u201d the 34<\/span>th<\/sup><\/span> session, \u201can alleged war criminal\u201d, Major General Shavendra Silva, as Adjutant General of the Sri Lankan Army – Shavendra Silva, who, \u201ccommanded the notorious 58 Division during the final phase of Sri Lanka\u2019s civil war.\u201d President Sirisena\u00a0 <\/span>was \u201cflouting the vetting procedures pertaining to the security sector\u201d; one which Sri Lanka undertook to abide by, reiterated in both the resolutions Sri Lanka signed up to, and additionally by the High Commissioner in his reports, a procedure used to vet members of the armed forces, for example, before being selected to serve in \u2018peace keeping\u2019 missions; the appointment condemned by International Truth and Justice Project as, \u201ca slap in the face to tens of thousands of victims still waiting for justice eight years after the war ended.\u201d Shavendra Silva, according<\/a> to ITJP\u2019s Executive Director, Yasmin Sooka, \u201ca man the former High Commissioner for Human Rights, Navi Pillai, said had, at the very, least a case to answer regarding international crimes.\u201d\u00a0<\/span><\/p>\n

    Despite its unashamedly two faced persona, Sri Lanka has emerged totally unscathed with a gift of a two year extension in its pocket, achieved with effortless ease, with no consequences whatsoever for non-compliance; the only redeeming feature for Tamil victims being the Council\u2019s and the OHCHR\u2019s continued engagement with Sri Lanka that the new resolution continues to provide for. <\/span><\/p>\n

    Council\u2019s Failure to Set Strict Benchmarks a Serious Omission <\/b><\/span><\/p>\n

    In adopting hrc34\/L1, the Member States\u2019 woeful lack of commonsense and sound judgment, and its failure to hold Sri Lanka to account, amounting to a serious and glaring omission in its text, has now become apparent, which experts in the\u00a0 <\/span>Sri Lanka \u2018Monitoring and Accountability Panel\u2019 \u2013 MAP, have \u201cnoted with concern\u201d, as falling short of the desired, \u201cstrict benchmarks <\/span>and deadlines (that needed to be set by the Council) for implementing transitional justice mechanisms established<\/a> in hrc30\/1.\u201d<\/span><\/p>\n

    MAP which is a TGTE appointed, independently functioning panel of legal experts, specialised in war crimes tribunals, in its response to the final draft, had identified this omission as a failing in the text of hrc34\/L1 considering, \u201cbased on the lack of significant progress seen thus far, simply providing time frames for the GSL and the Office of the High Commissioner for Human Rights to report on the implementation of Resolution 30\/1 at the 37<\/span>th<\/sup><\/span>\u00a0and 40<\/span>th<\/sup><\/span>HRC Sessions is not enough to ensure that the GSL abides by its commitments and obligations.\u201d<\/span><\/p>\n

    Then the fault must lie with the Member States surely, handing Sri Lanka a further two year extension on a platter with no conditions attached – States who didn\u2019t seem to have the prudence or good sense to see through the sham, or, who simply refused to admit to Sri Lanka\u2019s shenanigans and act on it – overlooking the need for strict bench marks and an ICC referral – in the event of any future conceivable non-compliance; the ICC referral \u2013 a critical requirement that should have been incorporated in the new resolution, in the face of Sri Lanka\u2019s flagrant disregard for the hrc30\/1 it had co-sponsored earlier, and of its open declaration to flout hrc34\/L1, the – that which, its leaders, without exception, openly vow they would contravene and wouldn\u2019t comply with. <\/span><\/p>\n

    Sri Lanka\u2019s blatant Duplicity and Unconscionable Behavior<\/b><\/span><\/p>\n

    It sure is illogical, otherwise could only be attributed to willful indifference or to some sinister self interest on the part of Member States, to offer Sri Lanka a two year extension simply do what it says it won\u2019t do; In other words, while President Sirisena and his regime\u2019s leading figures, back in Sri Lanka, were claiming – like Prime Minister Ranil Wickremesinghe saying no to \u201cforeign judges<\/a>\u201d and categorically stating, \u201cSri Lanka would not join the ICC,\u201d<\/span>\u00a0– with <\/span>Chandrika Kumaratunga declaring<\/a>, \u201cno war hero who killed terrorists will be punished,\u201d\u00a0– and the president asserting, that they as a \u201csovereign nation<\/a>\u201d are not beholden to anyone<\/span>\u00a0and<\/span> \u201care not ready to make any war hero a suspect,\u201d<\/span> – <\/span>dismissing any foreign involvement in Sri Lanka\u2019s judicial process, two of his Ministers, holding the fort in Geneva – had made and were making hollow promises; with, Harsha de Silva, going as far to, \u201creiterate.. resolve and reaffirm (Sri Lanka\u2019s) commitment to the reconciliation process and commitments articulated in hrc30\/1.\u201d This despite the President mindfully aware of the pronouncements his Ministers were making at the Council, even boldly telling his armed forces that, \u201cthe <\/span>most powerful world leaders have assured him that they would stand by Sri Lanka\u2019s independence and democracy as well as on issues pertaining to the members of the armed forces.\u201d <\/span><\/p>\n

    Sri Lanka\u2019s shameless duplicity has made a mockery of the Council just like it did the Norway brokered peace process between Sri Lanka and the LTTE (Liberation Tigers of Tamil Eelam), right from its inception – the blame for the failure of which Sri Lanka deviously and unjustly try to lay on the LTTE, when Sri Lanka was the worst offender. It\u2019s unfortunate that Member States have chosen to ignore Sri Lanka\u2019s charade.\u00a0<\/span><\/p>\n

    The seemingly iron clad guarantees, Mangala Samaraweera gave earlier at the start of the sessions <\/span>and Harsha de Silva gave to the Council when making his submissions during the \u2018Interactive Dialogue<\/a>\u2019 – have been proven to be outrageous lies \u2013 amounting to a shameless display of duplicity that Sri Lankan governments are famous for. A true Sri Lankan would have cringed to hear the Minister inform the Council of Sri Lanka\u2019s request, \u201cfor a two-year extension of the timeline for fulfillment of commitments<\/a> made in hrc30\/1 <\/span>, boldly stating with unabashed conviction, his own and that of his leaders\u2019 \u201cdetermination to stay the course, \u201d when adding insult to injury the two ministers who vowed to fulfill Sri Lanka\u2019s commitments under hrc30\/1 in Geneva have now recanted on the issue of a hybrid judicial mechanism. <\/span><\/p>\n

    What\u2019s more important are Mangala Samaraweera\u2019s words<\/a> returning from Geneva, explaining Sri Lanka\u2019s road map and alluding to foreign judges and asking \u201cwhy the obsession\u201d with it. This in addition to dropping another bombshell, as he tells Sri Lanka\u2019s Sunday Observer news paper, they (the government) were, \u201cnot going to touch the judicial mechanism straightaway.\u201d In truth, in his telling interview given to Sri Lanka\u2019s Sunday Observer, Mangala Samaraweera should have essentially first talked about opening a special counsel\u2019s office, more specifically about appointing a \u201cspecial counsel\u201d, to get on with the nitty-gritties of a judicial process – One that, the former US Ambassador-at-large for war crimes, now attached<\/a> to The Hague Institute For Global Justice, Steven Rapp, told TGTE, he expects Sri Lanka would do – \u201cNow\u201d, meaning right away\u00a0<\/span>. Instead the Minister was mentioning a \u201ctruth seeking mechanism (that too its own unique one not unlike the South African TRC), and a Missing Persons office\u201d, that would he said, \u201cgain the confidence of all concerned,\u201d believing if these were in place, \u201cthe demand by the people, for such a judicial mechanism may also drift away,\u201d happily mentioning in the same breath that he had, \u201cwon the trust and confidence of people like Father Emmanuel,\u201d of the Global Tamil Forum. <\/span><\/p>\n

    Harsha de Silva on the other hand wrote out his little thesis on face book harping on the word \u201cparticipation\u201cand ripping it apart to explain it did not mean \u201chybrid court\u201d:\u2019<\/span><\/p>\n

    And I quote:<\/span><\/p>\n

    \u201cParticipation has multiple definitions. What certain sections are trying to say is that ‘participation’ means a ‘hybrid court’ that consists<\/i><\/span>\u00a0of foreign judges sitting on the bench hearing cases. By misleading the public in to equating ‘participation’ to ‘hybrid’ some Sinhala groups claim Government sold out and some Tamil groups claim the Government gave in.<\/i><\/span><\/p>\n

    What the President and PM and also FM have said is that is NOT the case. There won’t be any hybrid court for several reasons but, from a legal and technical perspective, because Sri Lanka constitution does not allow foreign judges to sit in judgment; in other words ‘participation’ cannot mean ‘hybrid’.\u201d<\/i><\/span>\u00a0<\/i><\/span><\/p>\n

    End quote.<\/i><\/span><\/p>\n

    Sri Lankan government Ministers, like they did his predecessor, have repeatedly rejected the High Commissioner\u2019s reports and even the report<\/a> submitted by its own, \u2018Consultation Task Force on Reconciliation Mechanism\u2019 (CTFRM) that the Sirisena regime commissioned, which called for \u201cforeign judges in a war crimes court.\u201d<\/span>\u00a0The curt dismissal of foreign judges, the ICC and a hybrid court has been the ploy of all of Sri Lankan Sinhala politicians, who blame \u201cextremists on both sides\u201d or the Tamil Diaspora\u201d for misleading the ignorant \u201cpublic\u201d..to suit their narrow political agendas,\u201d little acknowledging it was High Commissioner Zeid, who both in his September 2015 and February 2017 reports<\/a> undeniably suggested a hybrid court.\u00a0<\/span><\/p>\n

    High Commissioner\u2019s Call for UN Country Presence<\/b><\/span><\/p>\n

    On the positive side, in addition to calling for Sri Lanka to accede to the Rome Statute, a welcome feature in the High Commissioner\u2019s wide ranging report is the call for a, \u201cUN Country Presence\u201d – something that TGTE has always said<\/a> was needed: The report recommends<\/a> that, \u201cOHCHR be invited to establish a full-fledged country presence to monitor the situation of human rights, to advise on the implementation of the recommendations made by the High Commissioner and the Human Rights Council in its resolutions including complying with Sri Lanka\u2019s transitional justice obligations, and to provide technical assistance.\u201d Hope a permanent UN presence in the NorthEast would be pursued with vigor even as the OHCHR plans to send six missions in the two years, intended to assess Sri Lanka\u2019s progress – significantly Sri Lanka is still a, \u201ca country of concern\u201d requiring close scrutiny under item 2. <\/span><\/p>\n

    TGTE\u2019s Strong Presence in Geneva <\/b><\/span><\/p>\n

    The TGTE (Transnational Government of Tamil Eelam), for its part, had a strong presence in Geneva with Minister for International Affairs, Manicka Vasagar<\/a>, Minister for Human Rights, Mani Vannan<\/a> and the TGTE Secretariat headed by Suginthan Murugiah engaging member states for an ICC referral<\/a>, believing strongly there should be, \u201cconsequences for non-compliance,\u201d<\/span> urging <\/span> the Council for a debate on an ad-hoc tribunal\u00a0and sending out a draft proposal<\/a> for the consideration of Member States.<\/span><\/p>\n

    TGTE\u2019s MAP appointed to monitor and \u201cshine a light\u201d on Sri Lanka\u2019s implementation of 30\/1, mentioned earlier at the beginning of this article, commenting on hrc34\/L1 as falling short also released its 2<\/span>nd<\/sup><\/span> spot report<\/a>\u00a0<\/span>which recommended that, \u201cshould the GSL continue to act in bad faith and\/or fail to take significant steps towards implementing the word and spirit of HRC Resolution 30\/1, the United Nations Security Council should, within one year, refer the Sri Lanka situation to the International Criminal Court<\/a>. These steps must include meaningful progress towards establishing a hybrid war crimes court with the participation of international judges and prosecutors.\u201d\u00a0<\/span><\/p>\n

    Decoding Sri Lanka\u2019s True intentions<\/b><\/span><\/p>\n

    Going by its \u201croad map to reconciliation\u201d, all signs point to the fact that Sri Lanka is not in a hurry to proceed with a hybrid court; the subtle clues it\u2019s giving means it won\u2019t be following the letter and spirit of both resolutions, picking and choosing what it wants. Decoding the pronouncements of Harsha de Silva and Mangala Samaraweera, it becomes clear, Sri Lanka\u2019s interpretation of the provisions are very different from what the drafters of the resolutions envisaged. When Mangala Samaraweera says<\/a>, \u201cwe are setting are own domestic mechanism\u201d, he means no foreign judges, lawyers, prosecutors and investigators; and when he says, \u201cwe call our reconciliation road map, \u201cFestina Lente\u201d, it means, \u2018making haste slowly\u2019 in Latin, because this is a problem that had been there for decades and one cannot expect the issues to be resolved overnight,\u201d it actually means, be prepared for a long wait; it\u2019s not going to happen, not in the foreseeable future. <\/span><\/p>\n

    The Minister\u2019s press conferences<\/a>\u00a0upon his return from Geneva, was evasive and dismissive on the subject of a war crimes probe, of foreign judges and a hybrid court, blaming the Rajapaksas, \u201cwho totally trampled on a free judicial process, for the world and the people of Sri Lanka to lose faith in the judiciary.\u201d On the question of war crimes, the Minister doubted whether the \u201callegations\u201d would amount to \u201dwar crimes\u201d, because Sri Lanka, \u201chad one of the most disciplined armies\u201d except for \u201csome miscreants\u201d he said.\u00a0 <\/span>Furthermore, the Minister seemed to think, \u201cThe resolution itself is not carved in stone,\u201d stating, \u201cwe will have to decide what we can do and cannot do… as the High Commissioner himself said the UN Human Rights can propose but the final decision is ours, although we have to consider all the stakeholders.\u201d\u00a0 <\/span>Annoyed at the media\u2019s obsession for foreign judges, \u201chaving foreign judges was not their sole obsession, it\u2019s neither the obsession of the international community, nor is it the obsession of the government,\u201d he said. \u201cFinally we want to make sure there is a fair, independent, credible process.\u201d <\/span><\/p>\n

    To a question on the High Commissioner\u2019s recommendations, the Minister quoted the High Commissioner himself whom he reminded had said,\u201dIt does not mean there\u2019s not going to be variations on how they\u2019re going to be done.\u201d<\/span><\/p>\n

    Hiding Behind Sovereignty<\/b><\/span><\/p>\n

    Trust is definitely a big problem with Sri Lanka; all throughout the 34<\/span>th<\/sup><\/span> session of the Council Sri Lanka has been disingenuous. Sadly the session ended, predictably, marred by Sri Lanka\u2019s monumental lies and duplicitous conduct. The final straw was when of all the excuses Sri Lanka could muster it found one that virtually closed the chapter on establishing a hybrid judicial mechanism in a domestic setting: Harsha de Silva having the gall to announce<\/a> that, \u201cUN resolutions were not binding on a sovereign nation,\u201d and that the, \u201cHigh Commissioner\u2019s report had no relevance whatsoever to what the government was doing at the ongoing 34<\/span>th<\/sup><\/span> UN Human Rights Council sessions.\u201d\u00a0<\/span><\/p>\n

    Prime Minister Rudrakumaran Sets out TGTE\u2019s Immediate Plans <\/b><\/span><\/p>\n

    Reflecting upon the two year extension granted to Sri Lanka, Prime Minister Rudrakumaran setting out TGTE\u2019s immediate plans, slammed<\/a> the Council for becoming complicit, providing impunity to the perpetrators. Not prepared for Tamil victims to remain, \u201cidle as passive observers of the transitional justice process for the next two years,\u201d but rather to \u201ctake ownership\u201d by not relying entirely on the Council, believing, \u201cto date it has proved ineffective,\u201d pointing to the High Commissioner\u2019s call for, \u201cMember States individually to investigate and prosecute the perpetrators of international crimes, giving the impression the Commissioner himself is losing faith in State based institutions,\u201d Rudrakumaran\u2019s strategy involves, \u201cextending MAP\u2019s mandate for monitoring Sri Lanka\u2019s compliance,\u201d and, \u201cestablishing a panel of lawyers to build case files against Sri Lanka.\u201d <\/span><\/p>\n

    Compelling Case Made for ICC Referral <\/b><\/span><\/p>\n

    Sadly Sri Lanka can no longer be trusted to deliver on its commitments on a domestic judicial mechanism; on the contrary a compelling case has been made here-in for referring Sri Lanka to the ICC or to establishing an ad-hoc independent international tribunal. <\/span><\/p>\n

    Sri Lanka\u2019s duplicity cannot triumph at the UN HRC. <\/span><\/p>\n

    If it wishes to keep to its undertaking at the UN Human Rights Council, Sri Lanka must NOW begin the task of enacting legislation,<\/span> <\/b>appointing a special counsel, opening a special counsel\u2019s office, establishing a hybrid court and filing charges.<\/span><\/p>\n

    Otherwise Sri Lanka must be told an ICC referral is imminent if it backtracks on delivering on a hybrid mechanism – when the High Commissioner presents a written update to the UN Human Rights Council at its thirty-seventh session.<\/span><\/p>\n

    *Read also Part 1<\/a> and Part 2<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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