ERASING THE EELAM VICTORY Part 12A
Posted on January 17th, 2020

KAMALIKA PIERIS

Sri Lanka co sponsored with USA in September 2015 a UNHRC resolution, 30/1 which said that the Government of Sri Lanka has undertaken to establish (1) a judicial mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international human rights law (2) A Commission for truth, justice, reconciliation and non-recurrence (3) An Office for Missing Persons (OMP) and (4) An Office for Reparations.

(1) HYBRID COURT OF JUSTICE

Resolution 30/1 called for a judicial mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international human rights law. What they meant was foreign judges not local ones. This was introduced by the Tamil Separatist Movement.

TNA MP Sumanthiran told   the Congressional Caucus for Ethnic and Religious freedom in Sri Lanka in Washington in 2016   that  the Geneva resolution 30/1 was a negotiated text   and TNA had been personally involved in the negotiations. There was a tripartite understanding among the GOSL, the US and TNA that foreign judges, attorneys, and investigators  be accommodated in the Sri Lanka’s courts for judging war crimes in the Eelam war. TNA had had originally asked for an international inquiry but settled for a hybrid model.

There was a doubt as to whether the Constitution of Sri Lanka would allow for foreign nationals to function as judges. We went into that question, clarified it, and said yes they can and that is how that phraseology was agreed upon” said Sumanthiran.  The Resolution explains in detail that it included judges, prosecutors, defense attorneys and investigators  and that they have to directly examine the cases, not be advisors or   observers.

Global Tamil Forum spokesperson, Suren Surendiran also said agreement on the text of the resolution has been reached following negotiations among what he called ‘Core group members at the UNHRC’ the government of Sri Lanka, and representative of the Tamils. The agreement on foreign judges was not negotiable.

 In Sri Lanka, the Consultation Task Force on Reconciliation Mechanisms (CTFRM)   called for full participation of foreign judges, and other foreign personnel, including defense lawyers, prosecutors and investigators, in transitional justice mechanism to address accountability issues. Critics observed that CTFRM endorsed the Oct 2015 Geneva Resolution recommendation in respect of foreign judges, ignoring the fact that it violates the Constitution.

J.C. Weliamuna former head of Transparency International said   the Sri Lanka judiciary lacked the capacity to investigate system crimes. The International community could not be expected to have faith in our judiciary since we ourselves have no faith in it.

S. Coomaraswamy said I know that most people living outside the Northern and Eastern Provinces will not agree with having international involvement in the courts, but I think that is the only way to ensure justice for those who suffered unjustly during the war,” she said.  The Tamils want to know what really happened at the end of the Eelam war IV. They wish to know the truth.  That is why they are asking for an independent international inquiry, said others.

Human Rights Watch, an NGO closely linked to the US foreign policy elite, is already campaigning that the proposed hybrid court for Sri Lanka contain a majority of international judges and an international chief prosecutor “to best insulate the court from improper political and other interference.

The call for a hybrid court has been heavily criticized and opposed in Sri Lanka. Foreign Minister Tilak Marapana ruled out including foreign judges in any judicial mechanism probing alleged human rights violations saying it was against the Constitution of Sri Lanka.

Hybrid courts are a parallel system of justice composed of a mix of international and local staff, applying both international and national law, with foreign judges and domestic judges trying cases prosecuted and defended by teams of both local and foreign lawyers, said Tamara Kunanayagam.

Hybrid courts, with the enormous investments they require, are generally funded, managed and run by Western countries and cater to Western interests, as, for example, in Sierra Leone, Cambodia and Iraq.

Today, hybrid courts like the ad hoc international tribunals before them and the principle of universal jurisdiction, have lost credibility, not only because of their selective application to developing countries, but also because they have undermined the domestic judicial system, wherever they have been established,  concluded  Tamara.

Failure to establish a judicial mechanism and special courts in Sri Lanka may result in Universal Jurisdiction” said Eelamists. The former UN High Commissioner of Human Rights Prince Zeid   openly suggested the extension of Universal Jurisdiction to Sri Lanka. This, said critics, is a very extreme suggestion.

Universal Jurisdiction allows a State to try a person for alleged mass atrocities even if it did not happen within its own territory and the perpetrator or victim are not citizens of that State. This is on the grounds that the crime is so serious that it becomes an international issue. This is invoked for crimes which are so bad (heinous) that they impact on all countries. War crimes, such as using child soldiers, and crimes against humanity, such as apartheid and genocide, qualify for universal jurisdiction.

Universal Jurisdiction can be applicable to crimes committed anywhere, and tried anywhere, at any time. Moreover, extradition requests can remain valid for decades, and the person cannot ever be certain of being free of prosecution even if he or she has been granted safe haven in another country.

Universal jurisdiction is based on the Princeton Principles on Universal Jurisdiction, developed at the initiative of the International Commission of Jurists (ICJ), an organization initially partially funded by the CIA through a front organization, the American Fund for Free Jurists, said Tamara Kunanayagam.

In  2011, the Kuala Lumpur War Crimes Commission of Malaysia  exercised universal jurisdiction to try and convict in absentia former US President George W. Bush and former British Prime Minister Tony Blair for the invasion of Iraq. In May 2012, the tribunal took testimony from victims of torture at Abu Ghraib and Guantanamo, and convicted in absentia former President Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, former Deputy Assistant Attorneys General John Yoo and Jay Bybee, former Attorney General Alberto Gonzales, and former counselors David Addington and William Haynes II for conspiracy to commit war crimes. The tribunal referred their findings to the chief prosecutor at the International Court of Justice in The Hague. The legitimacy of the tribunal and its findings have been questioned. (Wikipedia)

(2) TRANSITIONAL JUSTICE

The UN describes Transitional justice as the full range of processes and mechanism associated with a society attempt to come to terms with a legacy of large scale past abuses.  In practice, Transitional Justice concentrates on four activities. Truth and Reconciliation Commission,   prosecutions, reparations and Reform of police, judiciary, military and military intelligence. Transitional Justice says it is victim oriented.  

The concept of transitional justice was evolved to help countries in Latin America and Eastern Europe that were moving from repressive regimes to democracy. It was used in the case of military dictatorship or totalitarian regimes  which had experienced human rights violations. Human rights activists wanted to address systematic abuses by former regimes but without endangering the transitions to democracy”, that were underway. Therefore this new multidisciplinary field was called transitional justice”. It was first used in Latin America (Argentina, Chile El Salvador, and Brazil) and later in Iraq, East Timor and many African countries.

If Transitional Justice is an attempt by a country to transition from systematic and widespread violations of human rights, or societies transforming themselves after a period of pervasive human rights abuses as in Latin America and Eastern Europe to one of “peace, reconciliation and democracy”, how relevant is it to a country such as Sri Lanka that has experienced uninterrupted representative democracy even before it became a sovereign independent state, asked Ladduwahetty.

Such concepts have NO relevance to a country such as Sri Lanka that has experienced representative democracy even before it became a sovereign independent State. From what to what is Sri Lanka supposed to transition.

Transitional justice is a response to systematic or widespread violations of human rights victims said International Center for Transitional Justice.  It is the application of human rights. Transitional Justice is seen as an offshoot of the Human Rights movement. The HR movement is a Neo-con” tool for meddling in the third world, said Kamal Wickremasinghe. Transitional Justice, like its parent HR movement, focuses exclusively on violence against the individual ignoring the   political causes behind such events.

And that is where the danger lies, continued Kamal. A country’s agreement to participate in the Transitional Justice processes presupposes human rights abuses by it, and it is an admission that the country’s judicial system is deficient in one way or the other. Transitional Justice is recommended for Sri Lanka on the argument that human rights were violated during and after the armed conflict,   said Ladduwahetty.

Over the last two decades, Transitional Justice has grown in to an ‘industry’   with a tendency to repeat mantras ,  rather than critical thinking. NGOs currently offer a full Transitional Justice  ‘package’ comprising assumptions , teams of experts, consultants, and even standardized software packages for data management.

A Transitional justice workshop was held in Jaffna in 2016, organized by the National Peace Council . Bandaranaike Centre for International Studies  advertised in 2019 that it was having an advanced diploma in Transitional Justice.

 (3) TRUTH COMMISSION.

UN Resolution 30/1 called for a Commission for truth, justice, reconciliation and non-recurrence”. This is usually shortened to  Truth Commission. Truth Commissions are official  bodies  set up to investigate a past history of violations of human rights in a particular country. The violations could be by the military or by armed opposition forces.  Truth Commissions look at abuses over a period of time, rather than a specific event. Truth Commissions   are temporary bodies functioning for six months to two years, ending with the submission of a report. Most Truth Commissions released their reports, but Zimbabwe’s report  was kept confidential.

Truth Commissions are not legal bodies, they do not have the power to summon witnesses , to prosecute offenders or bring cases  to trial. Since they are not courts of law, they  can use a lesser standard of proof as well.Therefore, in most cases   the Truth Commission is not followed by a trial. 

Truth Commissions  are  free to listen to  whatever the victims  say.  Victims’ testimonies   are  the primary source of evidence  in Truth Commissions .  In the ongoing Truth Commissions of Colombia, every victim would be believed, initially. it was up to the  Commission to verify  statements. Their grievances are heard in good faith The principle of good faith does not allow victims to be rejected and humiliated, said the  Commission.

Truth Commissions are considered suspect on three counts. Firstly what is   ‘Truth’? Secondly, the word ‘truth’ features prominently in Christian thinking, together with confession, healing, pain, witnessing” it therefore has a Christian flavor.   Thirdly TRCs are a highly political tool  that can be cleverly used  to  ‘determine the story of a traumatic period in a nation’s history’, observed Kamal Wickremesinghe.  

There were 15 Truth Commissions between 1974 and 1993.  They are Uganda 1974, Bolivia 1982, Argentina 1983, Uruguay 1985, Zimbabwe 1985, Uganda 1986, Philippians 1986, Chile 1990, Chad 1991, South Africa 1992, Germany 1992, El Salvador 1992,     Rwanda 1993, South Africa 1993, and Ethiopia 1993. Truth Commissions continued after 1993 as well, but I was unable to find a definitive list.  A Truth Commission is in place in Colombia at present.

Sierra Leone Truth and Reconciliation Commission  was  set up after the  end of the Sierra Leone civil war in 199. It said that both sides had targeted civilians, including children.   The  Truth Commission of Chile investigated deaths and disappearances under Augusto Pinochet‘s rule.  

El Salvador Truth Commission investigated murders and executions committed during the Salvadoran Civil War.  This Truth Commission was the first Truth Commission paid for, sponsored and staffed by UN. The UN appointed the commissioners    and saw to it that the Commission’s staff did not contain any El Salvadorians. When the work of the Truth Commissions was done, a general amnesty was passed by Parliament and this ended the matter.

Rwanda’s Truth Commission was created, funded, and fully sposored by international  NGOs. Its  report gained a high level of credibility and wide  international  support and attention, said Hayner. Rwanda  said they simply wanted to be heard. Until Rwanda no Truth Commissions had  named names,  since any individual who is named must be allowed to defense themselves.  Rwanda Commission named dozens of names. 

The Truth Commission of Argentina investigated disappearances carried out by the military.     This Truth Commission was considered the most successful. Its  report documented the cases of 9000 disappeared. The report    was published as a   book titled  Nunca Mas”. The book  became a best seller   and the term ‘Nunca Mas’ ( ‘never again’) was adopted by several countries in Latin America as a promise to never again allow such campaigns of widespread and systematic human rights violations take place.

In Sri Lanka , three groups have urged a Truth Commission. JVP wanted a Truth commission . Consultation Task Force on Transitional Justice and Reconciliation’ (chaired by Manori Muttetuwegama) recommended that Truth Commission should be created, to find the truth of what happened in the conflict in Sri Lanka. The time frame should be the time period covered by the LLRC – February 22, 2002 to May 19, 2009. That was not all. CTF wanted the offenders prosecuted in a formal court of law. The Truth Commission should share information relating to criminal conduct with a prosecutorial body”, CTF said.

ICES held a meeting on Truth seeking and prosecutions in  2016. ICES invited six foreign experts, two from Colombia, one from ICJ Rwanda, two from International Centre for Transitional Justice.  ICES discussed the proposed Sri Lanka Truth commission, and compared it to those had had been held elsewhere.  ICES wanted Sri Lanka‘s Truth Commission   to run parallel to criminal prosecutions.

Yahapalana government was planning to model the Sri Lankan Truth Commission on South Africa’s high profile Truth Commission established in 1996, said critics. South African Truth Commission was appointed by the African National Congress to investigate Human Rights abuses by the Africans. It was set up to accuse the Africans, not the whites, though it was the whites, who were responsible for apartheid.

 The scale of resources allocated to the South African TRC, with 300 staff members and an annual budget of 18 million dollars, was unprecedented in the history of truth commissions. During its course, the commission took testimony from more than 22,000 victims and witnesses. The  hearings were  conducted  in a theatrical set up,    using a stage with floodlights.

Witnesses were briefed and trained beforehand.  They were rehearsed before appearing as they had never appeared in such a stage before. White South Africans  provided lawyers for their accused, told witnesses what to say and made sure that   evidence was  destroyed. White South Africans said that Black victims were exaggerating their account of terror.

The report   attracted international  attention  and ANC   was forced to respond publicly to accusations. ANC later questioned  the accuracy  of the report and refused to distribute it further. 

The South African Truth Commission easily tops the list of failed TRCs in the world. It has been criticized for its failure to make any material difference on the plight of the Black people, or on reconciliation, miserably failing to deliver the ‘rainbow nation’ dream promised as the purpose behind its creation, said Kamal Wickremasinghe.

But the main reason behind the failure of the South African TRC was the  decision not  to treat crimes of Apartheid   harshly. South Africa  refused to be too ‘harsh’ on the crimes committed by perpetrators of Apartheid. Nelson Mandela insisted that individuals should not be named  and they should not be held personally accountable.  African National Congress  on the other hand wanted apartheid officials tried before war crimes tribunals.

The opportunity afforded to perpetrators of grave human rights abuses to walk away from prosecution enraged many black South Africans. The Truth Commission allowed some of apartheid’s worst offenders, including security force operatives responsible for torture and cold-blooded murder , to ‘get away with murder’ in exchange for a bit of ‘truth telling’. Victims and their families were denied access to the courts.

The South African TRC has been blamed for underplaying the gross human rights abuses of Apartheid as well as the day-to-day suffering experienced by Blacks. Whites continue to enjoy  the old privileges. The Whites took more than 80% of the land in the country for mining and agriculture. Less than 10 % of the land has been redistributed from white to black ownership since 1994. Black people are still economically marginalized, with 61% living in poverty, compared to just 1% of Whites. The Whites, as beneficiaries, were never made accountable. Two decades after the TRC, South Africa has failed to become the ‘rainbow nation’ the designers of the TRC promised, concluded Kamal Wickremasinghe. (Continued)

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