Hue and cry over Hybrid non-starter
Posted on March 13th, 2017

BY Sugeeswara Senadhira Courtesy Ceylon Today

Another March Session of the United Nations Human Rights Council (UNHRC) is coming to an end in few days and the wide expectation is Sri Lanka will get a reprieve for two years; despite the official rejection of the proposal for Hybrid Courts, with participation of foreign Judges, to inquire into the alleged violations of human rights during the final phase of the fight against the Liberation Tigers of Tamil Eelam (LTTE) in 2009.

President Maithripala Sirisena consistently held the view that Sri Lanka will not need foreign judges. Although, there were indications that the two partners in the consensual government had divergent views on this issue, Prime Minister Ranil Wickremesinghe clarified the position of his party last week when he categorically stated that the Sri Lankan Constitution did not have provisions for Hybrid Courts.

The issue of internationalization of the ethnic conflict, purely an internal issue, has a long history. The LTTE first succeeded in dragging in India to be an interested party and finally it resulted in the signing of the Indo-Sri Lanka Agreement in 1987 and the deployment of Indian troops in the North and East.

After wiping out the LTTE in May 2009, the international community shifted its focus to alleged ‘war crimes’ and insisted on an international or multilateral inquiry into the issue. The United Nations got involved in a big way and the then Secretary General Ban Ki-moon appointed the controversial Darusman Advisory Panel ‘to advice him’ on the Sri Lanka issue. However, the Darusman Report went beyond its mandate and proposed an international court for probing ‘war crimes’.

The Government of Mahinda Rajapaksa, while acknowledging its commitment to cooperate with the UN, tried a dual strategy. In 2011, President Rajapaksa held discussions with UN Secretary General Ban Ki-moon and the official press release stated:

“The government was taking every action to prevent terrorism from raising its head again,” said President Mahinda Rajapaksa to UN Secretary General Ban Ki-moon, who was reminded of his assurance about the actual purpose of the Darusman Advisory Panel. UN Secretary General Ban Ki-moon was reminded of the assurance he gave President Rajapaksa almost one year ago, that the Darusman Panel had been appointed solely to advice the UN Secretary General on developments in Sri Lanka in the final stages of the operation to defeat the LTTE and the immediate post-conflict situation, and would in no way be engaged in carrying out any inquiry or investigation into the relevant situation in Sri Lanka. This recall of the assurance by Mr. Ban Ki-moon given on 27 September, 2010 when he met with the Sri Lankan President took place at the first meeting between them, since then, which took place at the United Nations on 24 September, 2011. The UNSG was informed of the minutes of the meeting in September last year, clearly recording his assurance.”

Paranagama Commission

However, in the meantime, the Maxwell Paranagama Commission, appointed by President Rajapaksa, also suggested obtaining assistance of foreign Judges for probing into the conflict, without limiting it to the last phase of fighting in 2009. Furthermore, President Rajapaksa appointed three foreign experts as the Advisory Council to the second Mandate of the Paranagama Commission. They are Hon Sir Desmond de Silva, QC, a world authority on the law of armed conflict who was the Chief Prosecutor of a UN sponsored international Criminal Court at a level of an Under Secretary General of the UN, Professor Sir Geoffrey Nice, QC, Gresham Professor of International Law in London, who was also the lead Prosecutor in the case of the late President Milosovic of Serbia at The Hague and Professor David Crane, Chief Prosecutor of the Special Court for Sierra Leone.

The Paranagama Commission’s recommendation is made at Section E – Paragraph 625 of the Second Mandate Report. In addition, the Paranagama Commission made a comprehensive analysis, with the assistance of its international experts, of various different judicial mechanisms that may be acceptable to the Government of Sri Lanka, such as in the Gambia, however, the Commission’s recommendation was for a domestic mechanism. The review of the different mechanisms should not be confused with the recommendation for either a Hybrid or an international Gambian style mechanism. One of the reasons this was done was that it had been suggested by the Darusman Report that prosecution was the only mechanism opened for the Government of Sri Lanka to consider.

The Paranagama Report recommends “a domestic process” for accountability. The OISL Report supports this concept in principle, and at Paragraph 1278 of p.244, says; “The commitment by the new government to pursue accountability through a domestic process is commendable, particularly in a context where some political parties and sections of the military and society remain deeply opposed.”

However, the OISL Report at paragraph 1278 at p.244, states that the Sri Lankan justice system is not yet fully equipped to promptly conduct an independent and credible investigation. It goes on to assert that there should be “a hybrid court” which will integrate international Judges, prosecutors, and investigators.

President Rajapaksa appointed the Lessons Learnt & Reconciliation Commission (LLRC) to study the allegations and recommend measures. The LLRC recommended that, “based on the available material and taking into account the above considerations, the Commission wishes to recommend that the Government initiate an independent investigation into this matter to establish the truth or otherwise of the allegations.”

“The Commission therefore recommends that the Government of Sri Lanka institute an independent investigation into this issue with a view to establishing the truth or otherwise of these allegations and take action in accordance with the laws of the land.

Equally, the Commission feels that arrangements should be made to ensure and facilitate the confidentiality and protection of information and informants. The Commission strongly urges all those concerned, especially the organizations that provided the original images and the broadcasting organization, to extend fullest cooperation by providing the necessary information to facilitate this work,” the LLRC recommended.

The Indo-Sri Lanka Joint Statement issued on 9 June 2010 states that the devolution process would go beyond the 13th Amendment to the Constitution. The Statement says, “The Prime Minister (Manmohan Singh) emphasized that a meaningful devolution package, building upon the 13th Amendment, would create the necessary conditions for a lasting political settlement.

The President (Mahinda Rajapaksa) of Sri Lanka reiterated his determination to evolve a political settlement acceptable to all communities that would act as a catalyst to create the necessary conditions in which all the people of Sri Lanka could lead their lives in an atmosphere of peace, justice and dignity, consistent with democracy, pluralism, equal opportunity and respect for human rights”.

The Government of President Rajapaksa, at various meetings abroad and in Sri Lanka has acknowledged the role of the UN and given assurances to many leaders including the Indian Prime Minister and UNSG Ban Ki-moon.

UN High Commissioner for Human Rights, Prince Zeid Al Hussein, who visited Sri Lanka last year held a media briefing after his meeting with President Sirisena. He praised the steps taken by the government during the last 12 months. In his media briefing he refrained from insisting on the involvement of foreign Judges in Sri Lanka’s accountability process. “There was no invocation of an international investigation, and the process is going to be a Sri Lankan one,” he said.

Now that the proposal for Hybrid Courts has been totally rejected and the UNHRC has given Sri Lanka a respite, the political spectrum must refrain from undue jubilations and wild allegations and ensure that a consensual solution is found to the satisfaction of the all the communities and safeguard the interests and the respect of the nation.

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