by Sriyan de Silva

 The article by Mr. Neville Ladduwahetty in The Island of 07 November 2017 on Transitional Justice is a complete exposure of the hollowness of the idea that Transitional Justice applies to Sri Lanka as claimed. Further and crucially, he has pointed out [as he has done in many of his previous articles which have been published in The Island from time to time] that it is International Humanitarian Law [IHL] and not Human Rights Law that applies to Sri Lanka’s armed conflict. This position has also been confirmed by other sources he has referred to. He has further pointed out that nevertheless the Geneva Resolution requires Sri Lanka … to investigate allegations of violations and abuses of human rights and violations of humanitarian law as applicable.”

There is a good case for arguing that the introduction of alleged violation of human rights law into the Resolution renders the Resolution unlawful. I will not develop this argument here because it would be too lengthy. In any event, this Government [other than the President] is hardly likely to even want to dilute its own, or co-sponsored, Resolution.

A second reason which would affect the legality of the Resolution is due to the following circumstances. During the first 100 days of the new President’s tenure, he specifically ruled out the involvement of foreign judges in any inquiry into alleged war crimes. Subsequent to the Geneva Resolution the Prime Minister made a similar statement. It was made clear that such involvement of foreign judges was contrary to our Constitution. This suggests that the Foreign Minister at the time who went to Geneva and committed Sri Lanka to the contents of the Resolution which included the participation of foreign judges, did so without a Cabinet decision authorizing him to do so. Moreover, he committed Sri Lanka to provisions which were in violation of Sri Lanka’s Constitution. Therefore the Resolution is not binding on Sri Lanka because it contains provisions contrary to our Constitution, and in any event was co-sponsored without the imperative procedures that should have been followed before any Resolution could have been agreed to, let alone co-sponsored.

10 November 2017.