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?

Southasia - - CONTENTS - By K. A. Naqsh­bandi

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.

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