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)
