Columns

• Ranil and Mangala hold several rounds of talks with western envoys to finalise new resolution; Lanka’s Geneva envoy reprimanded
• Resolution encourages Commonwealth or foreign participation
• Sirisena says there cannot be two Presidents; orders review of security arrangements for Rajapaksas
• Cabinet committee meets JVP leader, promises effective probe on ten high profile cases

Findings that Sri Lankan troops and Tiger guerrillas allegedly committed war crimes spurred the Government into action in many spheres this week. This is whilst the first United States draft resolution on the findings of the OISL (the OHCHR investigation on Sri Lanka) went through some significant changes during informal public discussions by members of the Human Rights Council. That was on the sidelines of the on-going 30th sessions last Monday and Tuesday in Geneva. While most of the changes were salutary to Sri Lanka, it still retained a proviso in an operative paragraph dealing with accountability issues. It says, “…further affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, authorised prosecutors and investigators.”

President Maithripala Sirisena (middle) on arrival in New York, walks with Prasad Kariyawasam (right), Sri Lanka's Ambassador in the US

The exclusion of the word “international” in the affirmation, like the moderation of most of the text, was the result of efforts by Prime Minister Ranil Wickremesinghe. On Monday morning he brought up the issue with British High Commissioner James Dauris at a meeting in ‘Temple Trees’. Later on Tuesday, he had a conference call with Atul Keshap, the US Ambassador to Sri Lanka, who was then in Geneva. Also linked to the conference call were Foreign Minister Samaraweera (who was then in Colombo) and High Commissioner Dauris. The main thrust was to exclude references to the use of the word “international” in describing the investigative mechanism. As for the use of the word “foreign,” highly placed Government sources argued, there were precedents. When this played out, TNA’s M.A. Sumanthiran flew to New York for a meeting with Michele J. Sison, US deputy envoy to the UN (and former Sri Lanka Ambassador). She is number two to Ambassador Samantha Power. Those interactions sealed the deal over a final resolution. The word “international,” was replaced by “foreign” paving the way for the inclusion of mostly Commonwealth judges and others.

During interactions with both Washington and London, Premier Wickremesinghe is learnt to have pointed out there were Constitutional provisions under which the alleged crimes can be investigated and those responsible punished. Thus, there was no need for changes in the law. An Operative paragraph (7)

which states that “The trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and violations of international humanitarian law, including during the period covered by the LLRC (Lessons Learnt and Reconciliation Commission)” could be executed. This, he had pointed out, was through Article 13 (6) of the Constitution which said, “Nothing in this article should prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed , was criminal according to the general principles of law recognized by the community of nations.”

Telephone diplomacy
The second draft, released in Geneva on Thursday evening, is the final one. Though the deadline for handing in resolutions to the OHCHR was 1 p.m. on Thursday, the hectic telephone diplomacy from different capitals, delayed it by three and half hours. Thus it was officially released only at 17.17 hours Geneva time. This was to accommodate changes that came from Washington, New York and Colombo. There were some tense moments when only the US and Sri Lanka delegations had a closed-door meeting. Diplomats in Geneva say they expect the resolution will be passed unanimously on September 30. The final resolution was welcomed by US Secretary of State John Kerry. He said in a statement: “The Sri Lankan government’s decision to join as a co-sponsor (of the US resolution) paves the way for all of us to work together to deliver the commitments reflected in the resolution.” He described it as a “landmark shared recognition of the critical importance of truth, justice, reparations, and guarantees of non-recurrence in promoting reconciliation and ensuring an enduring peace and prosperity for all Sri Lankans.”

Some of the key issues arising from the OISL report were examined by a newly set up ministerial team headed by President Maithripala Sirisena. Their task is to formulate strategies for key issues faced by the Government. Apprehension over the efficacy or credibility of Sri Lankan courts is one of the important reasons why the UN Human Rights High Commissioner Zeid Ra’ad Al Hussein recommended “hybrid special courts” to probe alleged war crimes by troops and guerrillas. While welcoming moves for a “credible domestic inquiry,” the UNHRC chief said, “but, it needs to convince a very sceptical audience – Sri Lankan and international – that it is determined to show results.” Added Foreign Minister Mangala Samaraweera in an interview with the Sunday Times last week that “there is a school of thought that our judicial system has been run down to such an extent, particular in the last ten years.”

There was strong criticism over how the judiciary functioned under the Mahinda Rajapaksa administration. This was over appointments of some judges for purely political reasons, their controversial public conduct and questionable or allegedly biased rulings. As revealed in our front page report today, it has already been decided to initiate impeachment proceedings against a Supreme Court Judge for what is being described as proven misbehaviour if a courts case he is now facing finds him guilty. The Constitution makes provision for impeachment of judges after the President has made an address to Parliament, supported by the majority of the total number of MPs. Another judge has come under investigation after allegations that the spouse ran a consulting firm. This firm, it is alleged, had direct involvement with the functions of the judge concerned. “We will verify the accuracy of all the allegations and then take appropriate action,” a high ranking Government source said yesterday. “We are determined to clean and shore up the professional image of our judiciary,” the source added. This will be done through legally prescribed means to make clear there are no political motives, the source added.

The Cabinet team, besides Sirisena, includes Prime Minister Ranil Wickremesinghe, Kabir Hashim, Duminda Dissanayake, Champika Ranawaka, Nimal Siripala de Silva, Lakshman Kiriella, Rajitha Senaratne, Malik Samarawickrema and S.B. Dissanayake.

Last Tuesday, this Committee invited Janatha Vimukthi Peramuna (JVP) leader Anura Kumara Dissanayake to discuss issues related to bribery and corruption. The US resolution has welcomed the establishment of the Commission to investigate allegations of bribery, corruption, fraud and abuses of power, and stressed the importance of such investigations and the prosecution of those responsible in ending impunity and promoting good governance. The JVP leader was a member of the apex Committee which oversaw anti-corruption operations in the “National Government” which President Sirisena set up after he was voted to office at the January election.

No two presidents
Sirisena told JVP leader Dissanayake that the Government was planning to conduct intensive probes on some ten high profile cases of corrupt activity and related matters. These include the Avant Garde floating armoury case and the one on RADA (Reconstruction and Development Agency) which was tasked to build houses in the north after the tsunami of December 2004. None had been built though millions of rupees were claimed. Sirisena said that on his return from New York on October 3, he would summon a meeting of top officials including Police and brief them on the need to pursue these and other investigations. In a statement to Parliament on Tuesday, Dissanayake alleged that among the bank accounts Avant Garde held was one in which the company held Rs. 30 billion. Most of these cases, a Government source said yesterday, related to former President Mahinda Rajapaksa or members of his family.

Rajapaksa also came in for severe criticism at Wednesday morning’s weekly ministerial meeting. It had been re-scheduled from 7 p.m. that night to 9.30 a.m. in view of Sirisena’s then impending departure to the US in the early hours of Thursday. “Mey ratey Janadipathivaru dennek inna beha. Ey vagey deval wena eka navaththanna oney” (there cannot be two Presidents in the country. Such things have to be stopped), Sirisena remarked on reports that the Army, Navy and Police had placed a heavy security cordon around a tourist resort in Pasikudah where Rajapaksa and his family were holidaying. Photographs of Rajapaksa, in swimming trunks and safety jackets riding water scooters with a security officer seated behind or snorkelling went viral in some websites. There were also similar photographs of his sons Namal (Hambantota District MP) and Yoshitha (a Navy officer). The President said he just could not understand why such heavy security was needed since Rajapaksa was now only an MP and the threat level was not as high. He said when Rajapaksa was President, there was a fleet of 1,400 vehicles. It has now been drastically reduced.

Sirisena pointed out that Rajapaksa was now using some 240 security personnel. “After I finish my tenure in office, I don’t want to go looking for official bungalows. I will go to Polonnaruwa and live in my house,” he said. He pointed out that Rajapaksa had more vehicles for use than him as President. Yet, he was asking for more. Even as he made those remarks this week, some of the Presidential Secretariat vehicles which had earlier been reported missing were being returned, some by former MPs. An angry Sirisena then directed Finance Minister Ravi Karunanayake to submit a report to the next meeting of the Cabinet of Ministers on the costs to the taxpayer to sustain Rajapaksa’s security, his support staff and related activity. Thereafter, he is to obtain a fresh threat assessment and call upon the National Security Council to decide on the form of security that should be afforded to Rajapaksa both as a former President and now MP.

Sirisena was also angry that one or more ministers in his team had leaked to the media moves by him to have them sign a document to adhere to “collective responsibility.” Eyagollo thamange harda shaakshiyata viruddava vedakaranawa or they are working against their own conscience, he remarked. He said he has had many calls from persons asking him why such a matter has been publicised. He added that ministers should forward to him a report every month giving an account of what they had accomplished in accordance with the five-year plan that is being envisaged. Ministers approved 17 different cabinet memoranda including a Memorandum of Understanding with the United Arab Emirates (UAE) to set up a Joint Committee for Consular Affairs. Another was approval for the construction of houses for the resettlement of families affected by the separatist war.

At the weekly media briefing that follows the ministerial meeting, Official spokesperson and Health Minister Rajitha Senaratne was asked about “hybrid special courts” to investigate alleged war crimes. Here is a brief account of the Q & A that followed:

Q: There is mention about a Hybrid Court in the OHCHR report to investigate alleged war crimes. What is the position?
A: There is nothing like that. You were the ones who have started something like that. There is no name like that.
Q: No Minister! UN High Commissioner’s announcement clearly referred to “hybrid special courts.” There is no need for you to accuse the media over it.

A: No, I did not accuse you. I said that it was not a word which I or the UN said.
Q: It was indeed referred to by the UN. In fact it is in the headline of the summary it sent.

A: Now, this is only a proposal by the Human Rights Commissioner. This is not the end. That report is now with the UNHRC and it will make the final decision. There is no reference to the word ‘hybrid’ in that. They have proposed a domestic inquiry in the US resolution. A majority of countries have agreed to this. Some countries are still opposing. So, I don’t see any ‘hybrid story’ here but a domestic inquiry. They may request us to have foreign technical advice. Even Mahinda Rajapaksa did that.

As pointed out in these columns last week, the first US resolution made no reference to a “domestic mechanism” or “hybrid special courts.” Similarly, the second and the final resolution, released in Geneva on Thursday, makes no such reference too. However, Foreign Minister Mangala Samaraweera conceded in an interview with the Sunday Times that “Hybrid Special Court” was one of the possibilities we have to explore.” He added, “We have not closed our doors on any of these ideas. Finally, whatever we do is not merely to satisfy a few of us. It must be a credible mechanism which is acceptable to all concerned. Within those parameters we have to leave our options open for discussion.”

It is in this backdrop that four key elements have been included in the final US resolution with the concurrence of Sri Lanka for “Commonwealth and other foreign judges, defence lawyers, authorised prosecutors and investigators.” The first draft did not include defence lawyers. From New York, Samaraweera said in a statement on Friday: “We are confident that Sri Lanka has the capacity, expertise and the commitment to implement the provisions of the resolution over a period of time, step by step, taking appropriate action that will ultimately vindicate that our nation and her people are at peace, assuming its rightful place among the community of nations.” He added that the “international community recognises” what he called the “reality that the reputation of the vast majority of the armed forces was tainted in the recent past because of the system and culture created by a few in positions of responsibility.” It is quite clear that the thrust of the upcoming probes will focus more on those responsible for orders to the armed forces. Prime Minister Ranil Wickremesinghe is to meet military and Police top brass, beginning today, to explain the varied aspects of the OISL report and the Government’s planned actions.

Aryasinha statements
During last Monday’s informal consultations in Geneva on the final US resolution, Sri Lanka’s Permanent Representative Ravinatha Aryasinha made an intervention. He pointed out that “many paragraphs in the current draft (the first one) are in fact counterproductive to the reconciliation efforts of the Government, and have the tendency to polarise communities, vitiate the atmosphere on the ground that is being carefully nurtured towards reconciliation, and peace building and restrict the space required for consultations. There is a real danger that the current approach will leave room for negative interpretation, thus, only helping ‘spoilers’ in this process.” Aryasinha charged that the 24 preambular paragraphs and 26 operative paragraphs, which are “repetitive, judgemental and prescriptive” and “not in keeping with the spirit of the process of reconciliation and reform that is underway in my country under the National Unity Government.” Government leaders were livid with embarrassment over what was described as “confrontational” remarks. One of them said, “if our envoy was unable to make a contribution from Geneva, it took Premier Wickremesinghe to use telephone diplomacy to produce results.”

Aryasinha’s remarks also drew a strong response from the Human Rights Watch. Its UNHRC co-ordinator John Fisher said in a statement: “Trust us, Sri Lanka’s foreign minister, Mangala Samaraweera, told the United Nations Human Rights Council in Geneva just before the release of a landmark report into atrocities committed during the country’s long civil war, which ended in 2009……

“The UN human rights chief flagged the need for ‘political courage and leadership’ to tackle ‘deep-seated and institutionalized impunity,’ which risks future violations. ‘Institutionalized impunity’ has been allowed to fester for decades, he said, and the only way to effectively try past abuses in a highly politicized environment like Sri Lanka is to integrate international judges, prosecutors, lawyers, and investigators into a hybrid court – merging domestic and overseas expertise.

“Sri Lankan President Maithripala Sirisena’s initial reaction to the report and its several dozen recommendations was cautiously receptive, a welcome change from his predecessor’s combative and dismissive approach. And hopes were raised when Samaraweera said, ‘Don’t judge us by the broken promises, experiences and U-turns of the past.’

“But when the diplomats in Geneva met to negotiate a draft resolution on the report, Sri Lanka’s envoys returned to their old tricks. The Sri Lankan delegation proposed amendment after amendment to the draft text, seeking to strip away all references to implement the report’s recommendations, including international participation in a justice mechanism and ending impunity. Virtually no paragraph was left unscathed. ….”

On Wednesday evening, the Foreign Ministry in Colombo sent instructions to Ambassador Aryasinha asking him not to formulate his own media statements and deliver them to the media in Colombo and elsewhere directly from Geneva. More so, when he takes part in informal events. The directive made clear that such material should be forwarded to the Ministry of Foreign Affairs which would determine whether it should be released for publication or broadcast. Aryasinha has remained Sri Lanka’s PR since the Rajapaksa administration and was earlier a vociferous critic of the US and her allies.

TNA responds
Welcoming the US-Sri Lanka joint resolution to be introduced on Wednesday Sept 30, the Tamil National Alliance (TNA) said in a statement that “in particular, we welcome the draft resolution’s call on Sri Lanka to involve foreign and Commonwealth judges, lawyers, investigators and defenders in a judicial mechanism to be set up in Sri Lanka that would be mandated to try international crimes. This constitutes a significant victory for justice in Sri Lanka. The TNA is committed to help the government and international stakeholders evolve such a court, and will support its work. We also wish to note our appreciation of the government’s assent to this text and its willingness to co-sponsor it in the Human Rights Council.

“A court established on these lines would represent a dramatic break from the past and could herald the beginning of an end to impunity. The draft resolution tabled today (Thursday) was the product of a difficult consensus. We are acutely aware that some of the language used in the interests of a consensus will not satisfy all victims of the conflict whom we represent and who have reposed their trust in the TNA. However, we are of the view that the draft provides a constructive starting point for what will inevitably be a long road to reconciliation….”

Suren Surendiran, spokesperson for the London-based Global Tamil Forum (GTF), another major stakeholder, declared, “While welcoming the government’s commitments, we note that implementing the resolution and the recommendations of the OISL report of the High Commissioner will be the real test of progress, and not merely words.”

The preambular paragraphs in the final US resolution remain 24 whilst the operative paragraphs have been reduced to 20. Some of the highlights of the preambular paragraphs:

Recognizing the improved environment for members of civil society and human rights defenders in Sri Lanka, while expressing concern at reports of ongoing violations and abuse of human rights and recognizing the expressed commitment of the Government of Sri Lanka to address issues including those involving sexual and gender-based violence and torture, abductions, as well as intimidation of and threats against human rights defenders, and members of civil society,

Emphasizing the importance of a comprehensive approach to dealing with the past incorporating the full range of judicial and non-judicial measures, including, inter alia, individual prosecutions, reparations, truth-seeking, institutional reform, vetting of public employees and officials, or an appropriately conceived combination thereof, in order to, inter alia, ensure accountability, serve justice, provide remedies to victims, promote healing and reconciliation, establish independent oversight of the security system, restore confidence in the institutions of the State and promote the rule of law in accordance with international human rights law, with a view to preventing the recurrence of violations and abuses, and welcoming in this regard the Government’s expressed commitment to ensure dialogue and wide consultations with all stakeholders,

Recognizing that mechanisms to redress past abuses and violations work best when they are independent, impartial, and transparent; are led by individuals known for displaying the highest degree of professionalism, integrity, and impartiality; utilize consultative and participatory methods that include the views from all relevant stakeholders including, but not limited to, victims, women, youth, representatives from various religions, ethnicities, and geographic locations as well as marginalized groups; and designed and implemented based on expert advice from those with relevant international and domestic experience,

Recognising that a credible accountability process for those most responsible for violations and abuses will safeguard the reputation of those, including within the military, who conducted themselves in an appropriate manner with honour and professionalism.

Recalling the responsibility of States to comply with their relevant obligations to prosecute those responsible for gross violations of human rights and serious violations of international humanitarian law constituting crimes under international law, with a view to ending impunity.

Here are some of the more important operative paragraphs in the final US resolution that will be supported concurrently by Sri Lanka on Wednesday at the Human Rights Council sessions in Geneva.

Welcomes the positive engagement between the Government of Sri Lanka and the High Commissioner and his Office since January 2015 and encourages the continuation of such engagement in the promotion and protection of human rights and in exploring appropriate forms of international support to and participation in Sri Lankan processes for seeking truth and justice,;

Supports the Government of Sri Lanka’s commitment to strengthen and safeguard the credibility of the processes of truth seeking, justice, reparations, and guarantees of non-recurrence by engaging in broad national consultations with the inclusion of victims and civil society, including non-governmental organizations, from all affected communities that will inform the design and implementation of these processes, drawing on international expertise, assistance and best practices;

Welcomes the Government of Sri Lanka’s commitment to undertaking a comprehensive approach to dealing with the past incorporating the full range of judicial and non-judicial measures; welcomes in this regard the proposal by the Government of Sri Lanka to establish a Commission for Truth, Justice, Reconciliation, and Non Recurrence, an Office of Missing Persons, and an Office for Reparations; welcomes the Government’s willingness to give each mechanism the freedom to obtain assistance, both financial, material and technical from international partners including the OHCHR; and affirms that these commitments, if implemented fully and credibly, will help to advance accountability for serious crimes by all sides and help achieve reconciliation;

Recognizes the need for a process of accountability and reconciliation for violations and abuses committed by the Liberation Tigers of Tamil Eelam as highlighted in the OISL report;

Welcomes the government’s recognition that accountability is essential to uphold the rule of law and build confidence in the people of all communities of Sri Lanka in the justice system, takes note with appreciation of the Government of Sri Lanka’s proposal to establish a Judicial Mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; and affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and further affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators;

Encourages the Government of Sri Lanka to reform its domestic law to ensure that it can effectively implement its own commitments, the recommendations made in the report of the Lessons Learnt and Reconciliation Commission, as well as the recommendations of the report by the Office of the High Commissioner for Human Rights requested in resolution 25/1, including by allowing for, in a manner consistent with its international obligations, the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and violations of international humanitarian law, including during the period covered by the LLRC;

Encourages the Government of Sri Lanka to introduce effective security sector reforms as part of its transitional justice process that will help enhance the reputation and professionalism of the military and include ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law including members of the security and intelligence units; and increasing training and incentives focused on the promotion and protection of human rights of all Sri Lankans;

Welcomes the initial steps taken to return land and encourages the government to accelerate the return of land to its rightful civilian owners, and to undertake further efforts to tackle the considerable work that lies ahead in the areas of land use and ownership, in particular the ending of military involvement in civilian activities, the resumption of livelihoods and the restoration of normality to civilian life, and stresses the importance of the full participation of local populations, including representatives of civil society and minorities, in these efforts,

Encourages the Government of Sri Lanka to investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and other members of civil society, as well as places of worship, and to hold perpetrators of such attacks to account and to take steps to prevent such attacks in the future;

Welcomes the Government of Sri Lanka’s commitment to review the Public Security Ordinance Act and review and repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation in line with contemporary international best practices;

Welcomes the Government of Sri Lanka’s commitment to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearances without delay, to criminalize enforced disappearances and to begin issuing Certificates of Absence to the families of the missing as a temporary measure of relief;

Encourages the Government of Sri Lanka to develop a comprehensive plan and mechanism for preserving all existing records and documentation relating to human rights violations and abuses and violations of international humanitarian law, whether held by public or private institutions;

Welcomes the government’s commitment to a political settlement by taking the necessary constitutional measures and encourages the Government of Sri Lanka’s efforts to fulfill its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and encourages the Government of Sri Lanka to ensure that all Provincial Councils, are able to operate effectively, in accordance with the 13th amendment to the Constitution of Sri Lanka;

Welcomes the Government’s commitment to issue instructions clearly to all branches of the security forces that violations of international human rights law and international humanitarian law, including those involving torture, rape, and sexual violence, are prohibited and that those responsible will be investigated and punished, and encourages the government to address all reports of sexual and gender-based violence and torture;

Requests the Office of the High Commissioner to continue to assess progress on the implementation of OHCHR’s recommendations and other relevant processes related to reconciliation, accountability, and human rights; to present an oral update to the Human Rights Council at its thirty-second session, and a comprehensive report followed by discussion on the implementation of the present resolution at its thirty-fourth session;

Encourages the Government of Sri Lanka to continue to cooperate with special procedures mandate holders, including responding formally to outstanding requests;

Encourages the Office of the High Commissioner and relevant special procedures mandate holders to provide, in consultation with and with the concurrence of the Government of Sri Lanka, advice and technical assistance on implementing the abovementioned steps.

With Sri Lanka now becoming a co-sponsor of what would be a unanimous resolution at the UNHCR on Wednesday, there is no gainsaying that a bigger responsibility lies with the Government. It is imperative that the Government ensures transparency and an on-going dialogue with the public by telling its stories as they are for two important reasons. One is to carry the people along with the Government in all the initiatives. The other, even more importantly, to marginalise those who may want to disrupt the process for political reasons. Even if such a step is bitter, they would be wiser to win public confidence than leave the task to spin masters to doctor and engineer events.