{"id":116424,"date":"2021-07-23T15:59:12","date_gmt":"2021-07-23T22:59:12","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=116424"},"modified":"2021-07-23T15:59:12","modified_gmt":"2021-07-23T22:59:12","slug":"erasing-the-eelam-victory-part-20-c10","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2021\/07\/23\/erasing-the-eelam-victory-part-20-c10\/","title":{"rendered":"ERASING THE EELAM VICTORY Part 20 C10"},"content":{"rendered":"

KAMALIKA PIERIS<\/em><\/span><\/h2>\n\n\n

The war cry\u201d\nfor war crimes came from the west which is smarting from the defeat of the LTTE\nin Eelam war IV. This   essay looks at\nthe various measures used to bring the Sri Lanka army before a war crimes\ntribunal. <\/p>\n\n\n\n

The\nInternational Criminal Court  is the   sole \ninternational tribune for war crimes but it is not possible to shoot Sri\nLanka straight in, because Sri Lanka  \nhas not signed the Rome Statute. So the west turned to the UNHRC.                                                         \n<\/p>\n\n\n\n

UN\nHuman Rights Commission (UNHRC) and the Office of the High Commissioner for\nHuman Rights (OHCHR) charged that war crimes had been committed in the Eelam\nwar and that war tribunals were needed. \nHowever, the UNHRC and OHCHR   do\nnot have the authority to set up war tribunals. The only UN body that can send\nSri Lanka   to an international war crimes\ntribunal is the UN Security Council. Security Council refused to do so when\napproached by USA in 2015.  <\/p>\n\n\n\n

The\nonly other way for the west to get   war\ncrimes charges through, against Sri Lanka was to get it done internally. West\nhas no way of instituting such an inquiry except by getting it done internally,\nsaid analysts, by getting the\nSri Lanka government to set up a war crimes inquiry   as in Sierra Leone, Cambodia and Lebanon. Sri\nLanka however, said bluntly that no war crimes were committed during the Eelam War\nand they were not going to hold a war crimes inquiry. <\/p>\n\n\n\n

HYBRID COURTS<\/strong><\/p>\n\n\n\n

UNHRC\nthen recommended that Sri Lanka cooperate voluntarily with the UN to set up a\nhybrid war crimes tribunal.  Hybrid\ncourts are composed of both foreign and domestic judges, and the cases are\nconducted by local and foreign lawyers using both international and national\nlaw.  <\/p>\n\n\n\n

Hybrid courts\nhave functioned in Kosovo, Timor Leste, Bosnia and Herzegovina, Sierra Leone,\nCambodia, Burundi, and Lebanon. Sri Lanka is not comparable to any of these\ncountries, observed critics, contemptuously. The local judiciary could handle\nthis matter, outside judges were not needed.  In any case, what is the significance of\nhaving foreign investigators and judges. Are the judgments pronounced by such\nforeign judges more valid\u201d, than those pronounced by Sri Lankan judges,\ncritics asked. <\/p>\n\n\n\n

Hybrid\ncourts have now lost credibility, said critics. The hybrid court in\nCambodia  (2003)  delivered only three convictions after 14\nyears of effort  and the  costs  exceeded USD 200 million.  Hybrid courts  cost too much for the host country  alone. \nThey are generally funded, managed and run by Western countries and\ncater to Western interests.  <\/p>\n\n\n\n

Hybrid\ncourts undermined the domestic judicial system, wherever they have been\nestablished, observed  critics.  Evidence rules are lower than\nthose in the  national legal systems and\nlife sentences can be handed down on little evidence. <\/p>\n\n\n\n

U.S.\nSenator Patrick Leahy, of the    US  Senate\nJudiciary Committee, speaking on Sri Lanka at the U.S. Senate, in June 9, 2015\nstrongly recommended a  hybrid  court.  Human\nRights Watch,  campaigned  in 2016 for a hybrid court  where the majority of judges were foreign. HRW\nalso wanted an international chief prosecutor.<\/p>\n\n\n\n

There\nwas support in Sri Lanka too for a Hybrid Court. The Tamil separatists wanted a\n  Hybrid court. They said the local\njudges are not to be trusted . Jehan Perera said the  Tamil civilians (victims\u201d) are demanding an\ninternational or hybrid system of courts with  foreign judges as they  do not trust  local courts. \nJ.C. Weliamuna,  former head of\nTransparency International said   the Sri\nLanka judiciary lacked the capacity to investigate system crimes.   Also \nthat the  international community\ncould not be expected to have faith in our judiciary since we ourselves have no\nfaith in it.  <\/p>\n\n\n\n

Neville Ladduwahetty pointed out \n that the local legal system is  perfectly capable of hearing war crimes cases.\nCases involving military personnel can  also\nbe investigated and tried within the military court system, as is the practice\nin many other countries, especially those whose forces are involved in active\nmilitary duties.  <\/p>\n\n\n\n

UNIVERSAL  JURISDICTION.<\/strong><\/em><\/p>\n\n\n\n

 <\/em>The UNHCR Resolutions on Sri Lanka\nrecommended Universal Jurisdiction. Zeid al Hussein,  UNHCHR asked for this twice in one UN  session. <\/p>\n\n\n\n

The doctrine\nof universal jurisdiction allows the law courts of one country to  try persons  of another nationality, who have committed war\ncrimes in another country, provided there is evidence or reasonable ground for\nthe suspicion of guilt . Many countries do not permit their nationals to be\nextradited  for this purpose. Therefore some\ncountries  allow Universal jurisdiction  in absentia. <\/p>\n\n\n\n

 The Economist\u201d reported in  2021 that the number of universal\njurisdiction cases is rising. There have been 815 cases from 2008-2017. At\nleast 16 countries have heard cases.  There\nwere 71 completed cases,  mostly with\nconvictions,  40% African, 25% Middle\nEast, 20% Europe and 8%  Asia.<\/p>\n\n\n\n

Ladduwahetty\nwriting in 2021  pointed out that thought\nuniversal jurisdiction  is accepted  in the case of international armed conflicts\n(Protocol I),   there is  still no  decision on whether it applies to\nnon-international conflicts as in Sri Lanka. <\/p>\n\n\n\n

Sri Lanka\ntakes the position that there is no possibility of universal jurisdiction in\nthe Eelam war, because there is no case. No self-respecting court anywhere in\nthe world will entertain these charges, said Sarath Weerasekera . Cases already\nfiled under universal jurisdiction against a number of our commanders  failed, because, the allegations simply do\nnot pass basic evidence standards. Also the accusers are politically motivated.\n<\/p>\n\n\n\n

Allowing our war veterans to be tried in other countries for\nalleged crimes committed here is worse than being tried by an international\ncriminal tribunal. An international criminal tribunal is a multilateral body\nwhereas a single country is a different matter altogether, said Chandraprema. <\/p>\n\n\n\n

SPECIAL\nPROSECUTOR<\/strong><\/p>\n\n\n\n

 It appears that in 2017   Prime Minister Ranil Wickremasinghe  has given a personal assurance to Ben\nEmmerson, UN Special Rapporteur on Human Rights and Countering Terrorism, that the\nGovernment would set up an Office of the Special Prosecutor to bring criminal\ncharges against those involved  in  war crimes during the Eelam War. Emmerson\nreported this at a media conference. This information was also posted on a UN\nwebsite and re-posted on Groundviews. <\/p>\n\n\n\n

The wording\nof the written statement clearly presupposes that “serious atrocities”\nwere committed by both sides, meaning by the Sri Lankan armed forces as well. Since\nthe Tigers are either dead,  in jail, in\nself-exile, rehabilitated and released , this means the only target that\u2019s left\nstanding is Sri Lankan military, observed  Dayan Jayatilleke.   ( Continued\nin C11)<\/p>\n","protected":false},"excerpt":{"rendered":"

KAMALIKA PIERIS The war cry\u201d for war crimes came from the west which is smarting from the defeat of the LTTE in Eelam war IV. This   essay looks at the various measures used to bring the Sri Lanka army before a war crimes tribunal. The International Criminal Court  is the   sole  international tribune for war […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[104],"tags":[],"class_list":["post-116424","post","type-post","status-publish","format-standard","hentry","category-kamalika-pieris"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/116424","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=116424"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/116424\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=116424"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=116424"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=116424"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}