By Sulochana Ramiah Mohan
The warning from the United Nations Human Rights Council (UNHRC) is simple and stark. Institute “a special court to check on the alleged war crimes or face universal jurisdiction.”
The terse warning issued in Geneva at the periodic review of progress with regard to alleged human rights violations in Sri Lanka means that this country has to begin a legal process of trying people who are alleged to have committed war crimes during the separatist war or open the country’s people to arrest and prosecution in other countries.
How it works is like this. If a Sri Lankan, who has been involved in the war as a military officer or a politician, can be arrested and tried in a country that has signed the so-called Rome Statutes, if they are authorized to do so by the United Nations. The warning by the UNHRC last week was precisely that.
International Human Rights Organizations or other interested parties can file action in the courts of States that are signatories and argue that the person is involved in a war crime or genocide and that person can be arrested and charged.
In practical terms, this will severely restrict the countries to which military officers and some Sri Lankan political officials can travel to if the UN carries through with this threat.
Currently 139 countries, which include all the European and Latin American countries, Canada and many African States have signed on. Much of Asia is off the list.
Sri Lanka came under the spotlight while the civil war was going and even after it ended in 2009, when the UNHRC was bombarded with issues related to the war,
bombings, its foreign policies, reconciliation, human rights violations and war crimes. Last week at the UNHRC 37th session Deputy High Commissioner of the UNHRC Kate Gilmore stated that the Council “regrets that there is slow progress in establishing transitional justice mechanisms.” She added that in the absence of concrete results or publicly available drafts of legislation, it seems doubtful that the transitional justice agenda committed to by the Government under this Council’s resolution 30/1 could be fully implemented before its next report in March 2019. T
hen she surmised the importance of a Special Court in Sri Lanka with the involvement of international practitioners and calling on member States to consider the use of universal jurisdiction.
Unfortunately for Sri Lanka it is a co-sponsor of the very resolution that will cause the UNHRC to take this action. The bitter reality remains that there is no mechanism at UNHRC to backtrack on certain sections or from the whole Resolution that was passed on Sri Lanka.
Most of the focus on the prosecutions will be on the members of the former regime of President Mahinda Rajapaksa and that prompted the Joint Opposition and ‘concerned’ persons to send a 30-member delegation to the UNHRC session to fight the resolution.
Dr. Nalaka Godahewa and Rtd Admiral Sarath Weerasekara were among the delegates representing the Global Sri Lanka Forum (GSLF) who argued that that the Council did not vote for a ‘co-sponsored mechanism but passed it’. They got into a heated argument with some members of the Tamil Diaspora at a side event in Geneva. The GSLF members said that the war was legitimate and there were no war crimes committed by the troops. Dr. Godahewa blamed the Tamil Diaspora for fundraising for the LTTE and said that they should be held accountable for supporting terrorism.
The Tamil expats argued that the Sinhalese indiscriminately killed Tamils during the war and in racial riots. The heated argument saw the Tamil diaspora leave the side event.
Admiral Weerasekera told Ceylon Today before leaving for Geneva, that under a special privilege in the UN where complaints can be dropped, the GSLF went to complain that the UNHRC Chief Zeid al-Raad Hussein without getting a single vote from the Council made Sri Lanka co-sponsor the resolution, and wanted to see if that could be challenged.
He said that co-sponsoring was a serious step towards undermining the country’s security. But once the co-sponsored resolution is adopted, you can’t tinker with it, say many experts.
Sri Lanka by co-sponsoring the Resolution, not once but twice, pledged to the UNHRC that they will set up the Special Court with international Judges and Lawyers.
But later the Government backtracked on that promise saying that the local courts were competent to conduct these trials. What the government wants is a local mechanism claiming that the legal system is quite trustworthy and they pointed out some of the most difficult cases have been handled well under the current regime. This confidence building exercise is gradually picking up in fact to show that the legal system is ‘improving’.
Universal Jurisdiction can lead to the next level of unwarranted decisions by the international community. But whether they will do so is a matter to be discussed after March 2019, when the two-year ‘grace period’ ends for Sri Lanka.
As I wrote earlier, Universal Jurisdiction means, the UN urges countries around the world who are signatories to the Rome Statutes to arrest and prosecute Sri Lankan political and military leaders implicated in these alleged crimes visiting their countries.
The UN General Assembly can’t refer Sri Lanka directly to International Criminal Court (ICC). They can recommend and urge UN Security Council to refer Sri Lanka to the ICC. As of now, there is very little chance that any country, including China, will use its veto to protect Sri Lanka. Vetoes are used by permanent members of the UN Security Council in very exceptional circumstances, when it affects their interest.
Canadian academic in the field of international criminal and human rights law and currently Professor of international law, School of Law Middlesex University,
London in United Kingdom William A. Schabas explained that International law, including treaties that have been ratified by Sri Lanka, including the Geneva Conventions of 1949 and the UN Convention Against Torture require that those who perpetrate certain international crimes be prosecuted. It makes no exception for so-called ‘war heroes’ he told Ceylon Today.
He also mentioned that a resolution of the Human Rights Council is not binding upon States. There will be great pressure upon Sri Lanka to comply with the resolution. But it is not a legal obligation imposed by the Charter of the United Nations. He added, “
According to an old saying, ‘justice delayed is justice denied’. Any delay in the implementation of the measures proposed by the UNHRC is unfortunate. Obviously, the concern is that the hybrid tribunal will be postponed indefinitely.
“Such hybrid tribunals are very useful and helpful mechanisms for the delivery of justice in divided societies where there exist serious concerns about a lack of impartiality. Sri Lanka would not be the first country in the world to recognize this, and to welcome the involvement of judges from outside the country, because their impartiality is much less likely to be questioned.”
Unfortunately, the Government had a ‘soft’ response to the UNHRC Deputy High Commissioner’s statement which reiterated the importance of a special court in Sri Lanka with the involvement of international practitioners and the call on member States to consider the use of universal jurisdiction.
There was also no mention of that call by Foreign Minister Tilak Marapana who responded to her statement thereafter.
However, Marapana only stated that Sri Lanka’s judiciary and law enforcement mechanisms are fully capable and committed to the processes of advancing justice to all concerned.
He reiterated, “It has a long history of integrity and professionalism and since January 2015, steps have been taken to further strengthen its independence. And may I add, Mr. President, that all reconciliation mechanisms will be implemented in accordance with our Constitution.”
What Marapana said was that the action by the Sri Lankan security forces during the conflict was against a group designated as a terrorist group by many countries, and not against any particular community in our country.
He also went on to say that the operations of the terrorist group, which for the first time in recent history have deliberately targeted innocent civilians have now been adopted by terrorist groups all over the world. “All communities in Sri Lanka were united against terrorism in my country, and now that terrorism has been defeated, all communities today work in unison towards reconciliation and economic progress of the country,” he said.
He added that in September 2017, the President formally operationalized the Permanent Office on Missing Persons. The members selected, in accordance with the provisions of the Act, represent the pluralistic society of Sri Lanka. The appointed members are currently receiving training and studying practices of similar mechanisms elsewhere which will help them to discharge their mandate effectively but Gilmore said they regret that the commissioners of the Office of Missing Persons were only recently appointed, 20 months after the adoption of the legislation.
In the meantime, the Opposition Party the Tamil National Alliance’s spokesperson MP M.A. Sumanthiran and Global Tamil Forum (GTF) visited the United States of America at the time when Sri Lanka has been under scrutiny at the UN in Geneva, with appointments secured from the relevant highest levels of authority at the UN, US Administration and Government and the Norwegian Government. This visit was significant especially considering that the US still hasn’t appointed an Ambassador in Geneva, the GTF had noted.
Delegation included, MP Sumanthiran, Father S.J. Emmanuel, President of the Global Tamil Forum (GTF), now resident in Sri Lanka and members from the various member organizations from the US – United States Tamil Political Action Council (USTPAC), Canada – Canadian Tamil Congress (CTC), Norway – Norwegian Tamil Forum (NTF), Australia and the United Kingdom.
The primary objective of the visit was to brief the officials and governments of the ground reality considering the deteriorating situation with law and order, appraisal of status on the constitutional reform process and implementation of UNHRC resolutions 30/1 and 34/1.
Among other serious concerns, the GTF said that the delegation discussed the need to demand Government of Sri Lanka to commit to a timebound implementation plan of resolutions 30/1 & 34/1 of the UNHRC and the need for UNHRC monitoring and oversight over Sri Lanka beyond March 2019.
Apparently, the delegation has asked for another extension of time from March 2019 so that the Government of Sri Lanka can complete its tasks because the remaining one year is insufficient.
GTF spokesperson Suren Surendiran told Ceylon Today that, “It’s not a matter of just extending the time, it’s keeping Sri Lanka on the agenda of the UNHRC and the international community beyond March 2019. Its GoSL’s choice whether they want to lose their credibility amongst its own citizens and around the world. When commitments are made to an international forum like the UN and you deliberately refuse to implement it, obviously it will have consequences like for example universal jurisdiction being applied to the alleged criminals. It is also up to Sri Lanka whether it wants to deal with the past in a comprehensive manner and put it to rest, so that all Sri Lankans can move forward in a reconciled and peaceful Sri Lanka.”
While all these crisscross arguments locally and internationally take place, the most important repercussion of these deliberations should not be forgotten. Last Sunday, Tamil Canadian MP Gary Anandasangaree told Ceylon Today “someone is going to get caught under Universal Jurisdiction if Sri Lanka fails to act.”
What many know is that there is a list of names of those allegedly involved in war crimes that is with the UNHRC and with many other international human rights defenders who worked on Sri Lanka. Our officials are unaware of the names on the list and if universal jurisdiction is sprung upon us someone somewhere will get the surprise of their lives. Time we took this matter seriously.
The UN General Assembly can’t refer Sri Lanka directly to International Criminal Court (ICC). They can recommend and urge UN Security Council to refer Sri Lanka to the ICC. As of now, there is very little chance that any country, including China, will use its veto to protect Sri Lanka. Vetoes are used by permanent members of the UN Security Council in very exceptional circumstances, when it affects their interest