{"id":97856,"date":"2020-01-17T18:02:10","date_gmt":"2020-01-18T01:02:10","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=97856"},"modified":"2020-01-17T18:02:10","modified_gmt":"2020-01-18T01:02:10","slug":"erasing-the-eelam-victory-part-12a","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2020\/01\/17\/erasing-the-eelam-victory-part-12a\/","title":{"rendered":"ERASING THE EELAM VICTORY Part 12A"},"content":{"rendered":"

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

Sri Lanka co sponsored with USA in September\n2015 a UNHRC resolution, 30\/1 which said that the Government of Sri Lanka has\nundertaken to establish (1) a judicial mechanism with a Special Counsel to\ninvestigate allegations of violations and abuses of human rights and violations\nof international human rights law (2) A Commission for truth, justice,\nreconciliation and non-recurrence (3) An Office for Missing Persons (OMP) and\n(4) An Office for Reparations.<\/p>\n\n\n\n

(1)<\/strong>\nHYBRID COURT OF JUSTICE<\/strong><\/p>\n\n\n\n

Resolution 30\/1 called for a judicial\nmechanism with a Special Counsel to investigate allegations of violations and\nabuses of human rights and violations of international human rights law. What\nthey meant was foreign judges not local ones. This was introduced by the Tamil\nSeparatist Movement.<\/p>\n\n\n\n

TNA\nMP Sumanthiran told   the Congressional Caucus\nfor Ethnic and Religious freedom in Sri Lanka in Washington in 2016   that  the\nGeneva resolution 30\/1 was a negotiated text  \nand TNA had been personally involved in the negotiations. There was a\ntripartite understanding among the GOSL, the US and TNA that foreign judges,\nattorneys, and investigators  be\naccommodated in the Sri Lanka\u2019s courts for judging war crimes in the Eelam war. TNA had had originally asked for an\ninternational inquiry but settled for a hybrid model. <\/p>\n\n\n\n

There\nwas a doubt as to whether the Constitution of Sri Lanka would allow for foreign\nnationals to function as judges. We went into that question, clarified it, and\nsaid yes they can and that is how that phraseology was agreed upon\u201d said\nSumanthiran.  The Resolution explains in detail\nthat it included judges, prosecutors, defense attorneys and investigators  and that they have to directly examine the\ncases, not be advisors or   observers. <\/p>\n\n\n\n

Global\nTamil Forum spokesperson, Suren Surendiran also said agreement on the text of\nthe resolution has been reached following negotiations among what he called\n\u2018Core group members at the UNHRC\u2019 the government of Sri Lanka, and\nrepresentative of the Tamils. The agreement on foreign judges was not\nnegotiable. <\/p>\n\n\n\n

 In Sri Lanka, the Consultation Task Force on\nReconciliation Mechanisms (CTFRM)   called for full participation of foreign\njudges, and other foreign personnel, including defense lawyers, prosecutors and\ninvestigators, in transitional justice mechanism to address accountability issues.\nCritics observed that CTFRM endorsed the Oct 2015 Geneva Resolution\nrecommendation in respect of foreign judges, ignoring the fact that it violates\nthe Constitution. <\/p>\n\n\n\n

J.C. Weliamuna former head of Transparency\nInternational said   the Sri Lanka\njudiciary lacked the capacity to investigate system crimes. The International\ncommunity could not be expected to have faith in our judiciary since we\nourselves have no faith in it.<\/p>\n\n\n\n

S. Coomaraswamy said I know that most people\nliving outside the Northern and Eastern Provinces will not agree with having\ninternational involvement in the courts, but I think that is the only way to\nensure justice for those who suffered\nunjustly during the war<\/strong>,\u201d she said.  The Tamils want to know what really happened\nat the end of the Eelam war IV. They wish to know the truth.  That is why they are asking for an\nindependent international inquiry, said others. <\/p>\n\n\n\n

Human Rights Watch, an NGO closely linked to\nthe US foreign policy elite, is already campaigning that the proposed hybrid\ncourt for Sri Lanka contain a majority of international judges and an\ninternational chief prosecutor “to best insulate the court from improper\npolitical and other interference.<\/p>\n\n\n\n

The call for a hybrid court has been heavily\ncriticized and opposed in Sri Lanka. Foreign Minister Tilak Marapana ruled out\nincluding foreign judges in any judicial mechanism probing alleged human rights\nviolations saying it was against the Constitution of Sri Lanka.<\/p>\n\n\n\n

Hybrid\ncourts are a parallel system of justice composed of a mix of international and\nlocal staff, applying both international and national law, with foreign judges\nand domestic judges trying cases prosecuted and defended by teams of both local\nand foreign lawyers, said Tamara Kunanayagam. <\/p>\n\n\n\n

Hybrid\ncourts, with the enormous investments they require, are generally funded,\nmanaged and run by Western countries and cater to Western interests, as, for\nexample, in Sierra Leone, Cambodia and Iraq.<\/p>\n\n\n\n

Today,\nhybrid courts like the ad hoc international tribunals before them and the\nprinciple of universal jurisdiction, have lost credibility, not only because of\ntheir selective application to developing countries, but also because they have\nundermined the domestic judicial system, wherever they have been\nestablished,  concluded  Tamara.<\/p>\n\n\n\n

Failure to establish a judicial mechanism and\nspecial courts in Sri Lanka may result in Universal Jurisdiction\u201d said Eelamists.\nThe former UN High Commissioner of Human Rights Prince Zeid   openly suggested the extension of Universal\nJurisdiction to Sri Lanka. This, said critics, is a very extreme suggestion.<\/p>\n\n\n\n

Universal Jurisdiction allows a State to try a\nperson for alleged mass atrocities even if it did not happen within its own\nterritory and the perpetrator or victim are not citizens of that State. This is\non the grounds that the crime is so serious that it becomes an international\nissue. This is invoked for crimes which\nare so bad (heinous) that they impact on all countries. War crimes, such as\nusing child soldiers, and crimes against humanity, such as apartheid and\ngenocide, qualify for universal jurisdiction.<\/p>\n\n\n\n

Universal\nJurisdiction can be applicable to crimes committed anywhere, and tried\nanywhere, at any time. Moreover, extradition requests can remain valid for\ndecades, and the person cannot ever be certain of being free of prosecution\neven if he or she has been granted safe haven in another country.<\/p>\n\n\n\n

Universal\njurisdiction is based on the Princeton Principles on Universal Jurisdiction,\ndeveloped at the initiative of the International Commission of Jurists (ICJ),\nan organization initially partially funded by the CIA through a front\norganization, the American Fund for Free Jurists, said Tamara Kunanayagam.<\/p>\n\n\n\n

In  2011, the Kuala Lumpur War Crimes Commission<\/a> of Malaysia  exercised universal jurisdiction to try and convict in absentia<\/em><\/a> former US\nPresident George W.\nBush<\/a> and former British Prime Minister Tony Blair<\/a> for the\ninvasion of Iraq. In May 2012, the tribunal took testimony from victims of\ntorture at Abu Ghraib<\/a> and Guantanamo<\/a>, and\nconvicted in absentia<\/em> former President Bush, former Vice President Dick\nCheney<\/a>, former Defense Secretary Donald\nRumsfeld<\/a>, former Deputy Assistant Attorneys General John Yoo<\/a> and Jay Bybee<\/a>, former\nAttorney General Alberto\nGonzales<\/a>, and former counselors David\nAddington<\/a> and William\nHaynes II<\/a> for conspiracy to commit war crimes. The tribunal referred their\nfindings to the chief prosecutor at the International Court of Justice<\/a> in The\nHague. The legitimacy of the tribunal and its findings have been questioned.\n(Wikipedia) <\/p>\n\n\n\n

(2) TRANSITIONAL JUSTICE<\/strong><\/p>\n\n\n\n

The UN describes Transitional justice as the\nfull range of processes and mechanism associated with a society attempt to come\nto terms with a legacy of large scale past abuses.  In practice, Transitional Justice concentrates\non four activities. Truth and\nReconciliation Commission,   prosecutions, reparations and Reform<\/a>\nof police, judiciary, military and military intelligence. Transitional\nJustice says it is victim oriented.  <\/p>\n\n\n\n

The concept of\ntransitional justice was evolved to help countries in Latin America and Eastern\nEurope that were moving from repressive regimes to democracy. It was used in the case of military\ndictatorship or totalitarian regimes \nwhich had experienced human rights violations. Human rights\nactivists wanted to address systematic abuses by former regimes but without\nendangering the transitions to democracy”, that were underway. Therefore\nthis new multidisciplinary field was called transitional justice”. It was first used in Latin America\n(Argentina, Chile El Salvador, and Brazil) and later in Iraq, East Timor and\nmany African countries. <\/p>\n\n\n\n

If Transitional\nJustice is an attempt by a country to transition from systematic and widespread\nviolations of human rights, or societies transforming themselves after a period\nof pervasive human rights abuses as in Latin America and Eastern Europe to one\nof “peace, reconciliation and democracy”, how relevant is it to a\ncountry such as Sri Lanka that has experienced uninterrupted representative\ndemocracy even before it became a sovereign independent state, asked\nLadduwahetty. <\/p>\n\n\n\n

Such concepts\nhave NO relevance to a country such as Sri Lanka that has experienced\nrepresentative democracy even before it became a sovereign independent State. From what to what is Sri Lanka supposed to\ntransition.<\/p>\n\n\n\n

Transitional justice is a response to\nsystematic or widespread violations of human rights victims said International\nCenter for Transitional Justice.  It is the application of human rights. Transitional\nJustice is seen as an offshoot of the Human Rights movement. The HR movement is\na Neo-con\u201d tool for meddling in the third world, said Kamal Wickremasinghe. Transitional Justice, like its parent HR\nmovement, focuses exclusively on violence against the individual ignoring\nthe   political causes behind such\nevents. <\/p>\n\n\n\n

And that is where\nthe danger lies, continued Kamal. A country\u2019s agreement to participate in the\nTransitional Justice processes presupposes human rights abuses by it, and it is\nan admission that the country\u2019s judicial system is deficient in one way or the\nother. Transitional Justice is\nrecommended for Sri Lanka on the argument that human rights were violated\nduring and after the armed conflict,   said Ladduwahetty.<\/p>\n\n\n\n

Over the last two decades, Transitional Justice\nhas grown in to an \u2018industry\u2019   with a\ntendency to repeat mantras ,  rather than\ncritical thinking. NGOs currently offer\na full Transitional Justice  \u2018package\u2019\ncomprising assumptions , teams of experts, consultants, and even standardized\nsoftware packages for data management.<\/p>\n\n\n\n

A Transitional justice workshop was held in\nJaffna in 2016, organized by the National Peace Council . Bandaranaike Centre\nfor International Studies  advertised in\n2019 that it was having an advanced diploma in Transitional Justice.<\/p>\n\n\n\n

 (3)\nTRUTH COMMISSION.<\/strong><\/p>\n\n\n\n

UN Resolution 30\/1 called for a\nCommission for truth, justice, reconciliation and non-recurrence\u201d. This is\nusually shortened to  Truth Commission.\nTruth Commissions are official  bodies\n set up to investigate a past history of\nviolations of human rights in a particular country. The violations could be by\nthe military or by armed opposition forces.  Truth Commissions look at abuses over a period\nof time, rather than a specific event. Truth Commissions   are temporary bodies functioning for six months to two years, ending with the\nsubmission of a report. Most Truth Commissions released their reports, but\nZimbabwe\u2019s report  was kept confidential.\n<\/p>\n\n\n\n

Truth Commissions are not legal bodies, they\ndo not have the power to summon witnesses , to prosecute offenders or bring\ncases  to trial. Since they are not courts of law, they  can use a lesser standard of proof as\nwell.Therefore, in most cases   the Truth\nCommission is not followed by a trial.  <\/p>\n\n\n\n

Truth Commissions  are \nfree to listen to  whatever the\nvictims  say.  Victims\u2019 testimonies   are  the primary source of evidence  in Truth Commissions .  In the ongoing Truth Commissions of Colombia,\nevery victim would be believed, initially. it was up to the  Commission to verify  statements. Their grievances are heard in\ngood faith The principle of good faith does not allow victims to be rejected\nand humiliated, said the  Commission. <\/p>\n\n\n\n

Truth Commissions are considered suspect on three\ncounts. Firstly what is   \u2018Truth\u2019?\nSecondly, the word \u2018truth\u2019 features prominently in Christian thinking, together\nwith confession, healing, pain, witnessing\u201d it\ntherefore has a Christian flavor.   Thirdly TRCs are a highly political\ntool  that can be cleverly used  to \n\u2018determine the story of a traumatic period in a nation\u2019s history\u2019,\nobserved Kamal Wickremesinghe.  <\/p>\n\n\n\n

There were 15 Truth Commissions between 1974\nand 1993.  They are Uganda 1974, Bolivia\n1982, Argentina 1983, Uruguay 1985, Zimbabwe 1985, Uganda 1986, Philippians\n1986, Chile 1990, Chad 1991, South Africa 1992, Germany 1992, El Salvador 1992,     Rwanda 1993, South Africa 1993, and\nEthiopia 1993. Truth Commissions continued after 1993 as well, but I was unable\nto find a definitive list.  A Truth\nCommission is in place in Colombia at present.<\/p>\n\n\n\n

Sierra Leone Truth and Reconciliation\nCommission<\/a>  was \nset up after the  end of the\nSierra Leone civil war in 199. It said that both sides had targeted civilians,\nincluding children.   The  Truth Commission of Chile investigated deaths\nand disappearances under Augusto Pinochet<\/a>‘s rule.  \n<\/p>\n\n\n\n

El Salvador\nTruth Commission investigated murders and executions committed during the Salvadoran Civil War<\/a>.  This Truth Commission was the first Truth Commission\npaid for, sponsored and staffed by UN. The UN appointed the commissioners    and saw to it that the Commission\u2019s staff\ndid not contain any El Salvadorians. When the work of the Truth Commissions was\ndone, a general amnesty was passed by Parliament and this ended the matter. <\/p>\n\n\n\n

Rwanda\u2019s Truth Commission was created,\nfunded, and fully sposored by international  NGOs. Its \nreport gained a high level of credibility and wide  international  support and attention, said Hayner.\nRwanda  said they simply wanted to be heard. Until Rwanda no Truth Commissions had  named names, \nsince any individual who is named must be allowed to defense themselves.  Rwanda Commission named dozens of names.  <\/p>\n\n\n\n

The Truth Commission of Argentina investigated\ndisappearances carried out by the military.     This Truth Commission was considered the\nmost successful. Its  report documented\nthe cases of 9000 disappeared. The report  \n was published as a   book titled \nNunca Mas\u201d. The book  became a\nbest seller   and the term \u2018Nunca Mas\u2019 ( \u2018never again\u2019) was\nadopted by several countries in Latin America as a promise to never\nagain allow such campaigns of widespread and systematic human rights violations\ntake place.<\/p>\n\n\n\n

In Sri Lanka ,\nthree groups have urged a Truth Commission. JVP wanted a Truth commission .\nConsultation Task Force on Transitional Justice and Reconciliation\u2019 (chaired by\nManori Muttetuwegama) recommended that Truth Commission should be created, to\nfind the truth of what happened in the conflict in Sri Lanka. The time frame\nshould be the time period covered by the LLRC \u2013 February 22, 2002 to May 19,\n2009. That was not all. CTF wanted the offenders prosecuted in a formal court\nof law. The Truth Commission should share information relating to criminal\nconduct with a prosecutorial body”, CTF said.<\/p>\n\n\n\n

ICES held a meeting on Truth seeking\nand prosecutions in  2016. ICES invited\nsix foreign experts, two from Colombia, one from ICJ Rwanda, two from\nInternational Centre for Transitional Justice. \nICES discussed the proposed Sri Lanka Truth commission, and compared it\nto those had had been held elsewhere.  ICES\nwanted Sri Lanka\u2018s Truth Commission   to run parallel to criminal prosecutions.<\/p>\n\n\n\n

Yahapalana\ngovernment was planning to model the Sri Lankan Truth Commission on South\nAfrica\u2019s high profile Truth Commission established in 1996, said critics. South African Truth Commission was appointed\nby the African National Congress to investigate Human Rights abuses by the Africans. It was set up to accuse the Africans, not the\nwhites, though it was the whites, who were responsible for apartheid. <\/p>\n\n\n\n

 The scale of resources allocated to the South\nAfrican TRC, with 300 staff members and an annual budget of 18 million dollars,\nwas unprecedented in the history of truth commissions. During its course, the\ncommission took testimony from more than 22,000 victims and witnesses. The \nhearings were  conducted \nin a theatrical set up,    using a stage with floodlights. <\/p>\n\n\n\n

Witnesses\nwere briefed and trained beforehand. \nThey were rehearsed before appearing as they had never appeared in such\na stage before. White South Africans \nprovided lawyers for their accused, told witnesses what to say and made\nsure that   evidence was  destroyed. White South Africans said that Black victims\nwere exaggerating their account of terror.<\/p>\n\n\n\n

The report  \nattracted international \nattention  and ANC   was forced to respond publicly to\naccusations. ANC later questioned  the\naccuracy  of the report and refused to distribute\nit further.  <\/p>\n\n\n\n

The South African\nTruth Commission easily tops the list of failed TRCs in the world. It has been criticized\nfor its failure to make any material difference on the plight of the Black\npeople, or on reconciliation, miserably failing to deliver the \u2018rainbow nation\u2019\ndream promised as the purpose behind its creation, said Kamal Wickremasinghe. <\/p>\n\n\n\n

But the main\nreason behind the failure of the South African TRC was the  decision not  to treat crimes of Apartheid   harshly. South Africa  refused to be too \u2018harsh\u2019 on the crimes\ncommitted by perpetrators of Apartheid. Nelson Mandela insisted that\nindividuals should not be named  and they\nshould not be held personally accountable. \nAfrican National Congress  on the\nother hand wanted apartheid officials tried before war crimes tribunals. <\/p>\n\n\n\n

The opportunity\nafforded to perpetrators of grave human rights abuses to walk away from\nprosecution enraged many black South Africans. The Truth Commission allowed\nsome of apartheid’s worst offenders, including security force operatives\nresponsible for torture and cold-blooded murder , to \u2018get away with murder\u2019 in\nexchange for a bit of \u2018truth telling\u2019. Victims and their families were denied\naccess to the courts. <\/p>\n\n\n\n

The South African\nTRC has been blamed for underplaying the gross human rights abuses of Apartheid\nas well as the day-to-day suffering experienced by Blacks. Whites continue to\nenjoy  the old privileges. The Whites\ntook more than 80% of the land in the country for mining and agriculture. Less\nthan 10 % of the land has been redistributed from white to black ownership\nsince 1994. Black people are still economically marginalized, with 61% living\nin poverty, compared to just 1% of Whites. The Whites, as beneficiaries, were\nnever made accountable. Two decades\nafter the TRC, South Africa has failed to become the \u2018rainbow nation\u2019 the\ndesigners of the TRC promised, concluded Kamal Wickremasinghe. (Continued) <\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/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-97856","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\/97856","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=97856"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/97856\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=97856"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=97856"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=97856"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}