A Question of Foreign Judges
How will Sri Lanka justify its rejection of foreign participation in the accountability process after co-sponsoring the UNHRC resolution?
The country finds itself between a rock and a hard place.
Massive killings, kidnappings, rape, sexual violence, forced recruitment of children and other violations of international law by the Sri Lankan forces as well as the Liberation Tigers of Tamil Eelam (LTTE) was a matter of serious concern for the international human rights organizations. As such, in August 2015, the United Nations Office of the High Commissioner for Human Rights (OHCHR) issued a scathing report on abuses committed by both sides during Sri Lanka’s 1983-2009 armed conflict with the secessionists (LTTE). Following the report, HRC member states endorsed a resolution calling on the Sri Lankan government to implement the report’s recommendations, including establishment of a special tribunal with foreign judges and prosecutors to investigate and prosecute alleged wartime criminals.
Though the United Nations and the Human Rights Council reluctantly applauded the Sri Lankan government for its success in 2009, the international community and the United Nations woke up after independent western media and television channels exposed the horrifying crimes committed by the Sri Lankan security forces, including graphic live scenes of captured prisoners being summarily executed at point blank range. The situation worsened with worldwide agitation by the Tamil Diaspora and condemnation by various countries and human rights groups which forced the United Nations Human Rights Council ( UNHRC) to appoint several Commissioners and internal panels to undertake comprehensive investigation into the war crimes. This process commenced in 2010 at the UNHRC and resulted in a historic resolution sponsored by the United States of America and co-sponsored by Sri Lanka on October 01, 2015.
While the Sri Lankan government accepted many recommendations to improve the country’s human rights violations, it refused to accept inclusion of foreign judges and prosecutors in the tribunal, because it recommended across the board trial of the Sri Lankan Security Forces also. The recommendations accepted include repeal of Prevention of Terrorism Act (PTA) and reforms to the Witness and Victim Protection Law. The government also agreed to accelerate the return of land to its rightful civilian owners; to end military involvement in civilian activities in the country’s north and east; to investigate allegations of attacks on members of civil society, media and religious minorities and to reach a settlement on the devolution of authority to the provinces. The
refusal to accept the most important item of the resolution was termed by the international organizations as time-buying tactics of Sri Lanka. Even international scholars from various countries started labelling this attitude as a deceiving tactic and called for the implementation of the resolution without further delay.
It was feared that the Sri Lankan government’s denial to accept the inclusion of foreign judges in the tribunal might adversely affect the country’s future relationship with the international community compelling Sri Lanka towards complete isolation. As expected, the relationship between the international community and the Sri Lankan government turned bitter during President Mahinda Rajapaksa’s rule as the government went back on its words on the accountability issue. Keeping in view the uncompromising attitude of the Human Rights Commission, the debate on the participation of foreign judges surfaced again as the international bodies started questioning as to how Sri Lanka was going to justify its rejection of foreign contribution in the accountability process after cosponsoring the UNHRC resolution.
There seems no chance of Sri Lanka succumbing to the pressure of international agencies as President Maithripala Sirisena has very categorically said that as long as he was the President of this country, he would not allow any international court, judge or organisations to interfere with the internal affairs of Sri Lanka and its judiciary. He also added that he would not allow any national or international activity to take place which would prove dangerous to the country’s integrity and independence.
As the debate restarted, former President Mahinda Rajapaksa issued a statement clarifying his stand. He said, “My government did not cooperate with this investigation for many reasons, foremost of which was that it was instituted outside the established procedure of the UNHRC. The usual procedure was for the President of the UNHRC to appoint a three-member independent panel to carry out the investigation after the relevant resolution is passed in the Council. However, the investigation on Sri Lanka was not carried out by an independent Commission of Inquiry but for the very first time, by the OHCHR. The OHCHR’s independence is questionable because it is funded for the most part not through the regular budget of the UN but through ‘voluntary contributions’ from the very western states that sponsored the resolution against Sri Lanka. Furthermore, all the important staff positions in this body are held by westerners who make up half the cadre of the OHCHR. Resolutions are passed with overwhelming majorities at virtually every session of the UNHRC calling for an ‘equitable regional distribution’ in staffing at the OHCHR to no avail. Given the composition of the OHCHR, it would not be possible to expect an impartial inquiry from them.”
The Pakistani Ambassador to the UNHRC, Zamir Akram observed during the debate on the resolution that set up this OHCHR investigation on Sri Lanka that no self-respecting country would agree to the intrusive measures advocated in this resolution. He also wanted to know how the investigation was going to be funded and stated that if the ‘donors’ providing the funding were also the sponsors of this resolution, the whole process would be seen to be tainted. Despite persistent questioning, he did not receive a satisfactory answer to his query from the UNHRC.
On the other hand, the Indian Ambassador Dilip Sinha warned that an intrusive approach that might undermine national sovereignty would be counterproductive. Therefore, there was a need for a constructive approach for dialogue and cooperation. India too refused to support the setting up of an OHCHR investigation. The final resolution had the support of only 23 members of the 47 member UNHRC despite all the pressure that the powerful sponsors brought to bear on the member states. That in brief, was the background to the OHCHR investigation that led to this Report.
Many are of the view that establishing a mixed special court to try war crimes involving foreign judges, lawyers, investigators, and prosecutors is not feasible. If there are allegations of wrongdoing against any member of the armed forces, they strongly believe that they should be tried under the existing Sri Lankan law under the present court system and by local judges and the Attorney-General’s department. The Lankan armed forces risked everything and made enormous sacrifices to save the country from the scourge of terrorism, they say.
In a statement Mahinda Rajapaksa says, “I wish to request the government to study the legal opinions on the law of armed conflict and humanitarian law given to the Commission of Inquiry on Disappearances by Sir Desmond De Silva QC, Sir Geoffrey Nice QC, Rodney Dixon, David Crane and Paul Newton and consider circulating these to UNHRC member states – in particular the detailed report on the law of armed conflict in relation to the allegations made against Sri Lanka which was submitted to the Commission on Disappearances by Sir Desmond De Silva recently. The views of these international lawyers should, in my view, be incorporated in any detailed response to the OHCHR report.” But then will circulation of such a report satisfy the members of the OHCHR? The questions may not get any answers and the pressure from the international agencies may continue.
Some appear to believe that refusal to accept the inclusion of foreign judges may lead to economic sanctions on Sri Lanka. But then experts argue that neither the UNHRC nor the OHCHR can impose economic sanctions on a country. Only the UN Security Council has that authority and they will not impose economic sanctions except in the most serious situations related to a threat to global security and this certainly does not affect the world in any way.
Though a civil society panel appointed by Sri Lankan Prime Minister Ranil Wickremesinghe has endorsed the UNHRC call for including international judges to probe war crimes allegations in sharp variance with the government’s stand, the Sri Lankan people and the government seem to be firm on their stand. The task force appointed by the prime minister has recommended setting up of a special court and office of special counsel with a majority of national judges and at least one international judge on every bench.
S. Ratnajeevan H. Hoole, a noted Sri Lankan journalist, recently wrote an article in Colombo Telegraph which says, “Every crime needs to be punished as a deterrent. No probe means, a free hunting season on Tamils. Your government cosponsored a resolution calling for foreign judges. Why the sudden change? Did you lie then? If you persist in this, you will be giving proof to the claim of the separatists that the Sinhalese are always lying and that we Tamils must go our own way. Sensible people do not want that. We want justice, not more words, empty promises and constitutions and laws that are never taken seriously. We want the rule of law, to return us to which your government was elected. Killers need to be punished and not celebrated as heroes.”
All said and done in a third world country like Sri Lanka where armed forces have a big say, such agreements which also find the involvement of the armed forces in human rights violations, it is pretty difficult if not impossible matter to honour.