Columns

• President tells BBC no foreign judges will be allowed, but PM speaks of foreign participation
• Fonseka likely to enter Parliament and get portfolio as part of the battle against Rajapaksa-linked group
• One stand for local polls and another for world community could put Sri Lanka in political quagmire again

With local council elections only six months away, according to his own agenda, President Maithripala Sirisena dropped a bombshell last week.

Prime Minister Ranil Wickremesinghe talking to Jon Snow (not seen) in the video grab taken from Channel 4 footage

He declared that foreign judges and prosecutors should not be involved in investigations into allegations of war crimes by troops and Tiger guerrillas. It was only a week earlier he declared that local polls would be held in July. There is still some doubt on the date. The Delimitation Commission would have to first re-define boundaries of some local bodies. Thereafter, several amendments to local government laws will have to be passed by Parliament. One such amendment is to make provision for an increase in representation of women.

Sirisena was perhaps trying to nip in the bud a possible campaign at the polls by the opposition, backed by his predecessor Mahinda Rajapaksa, about troops being tried by foreign judges. Leave alone a foreign judge, the very fact that they are being tried even by a local court is such a sensitive issue particularly in rural areas. It could be projected as the troops being punished for defeating the guerrillas. Sirisena told BBC’s Sinhala service Sandeshaya that neither the judges nor foreign prosecutors should be involved in an investigation into alleged war crimes. However, the remarks set off anger among local and overseas Tamil groups. The foreign offices of some western governments were livid. United Nations Human Rights High Commissioner Zeid Ra’ad al-Hussein who arrives in Colombo on Friday night, a UN source in Geneva said, would raise issue with President Sirisena.

“He will ascertain whether the Sri Lanka Government is going back on the commitment made when it co-sponsored the US-backed resolution,” the source who did not wish to be identified said. On Saturday, Zaid will fly to Jaffna for a meeting with Chief Minister C.V. Wigneswaran and others. Upon his return, he is due to meet President Sirisena, Premier Ranil Wickremesinghe and Foreign Minister Mangala Samaraweera. Thereafter, the Human Rights High Commissioner is to have a detailed meeting in Colombo with Tamil National Alliance (TNA) MPs on the basis they are key stakeholders.

Sandeshaya interview
The BBC Sandeshaya report, later widely reported by its English channel, said: “The President of Sri Lanka has said foreign judges and prosecutors should not be involved in an investigation into allegations of war crimes. In a BBC interview, President Maithripala Sirisena said the country did not need to ‘import’ specialists. Both the army and Tamil Tiger rebels are accused of atrocities in the civil war that ended in 2009.

“The Government previously backed a UN resolution calling for a war crimes court supported by foreign judges. But on Thursday (January 21), the President said ‘I will never agree to international involvement in this matter. We have more than enough specialists, experts and knowledgeable people in our country to solve our internal issues,’ he said. ‘This investigation should be internal and indigenous, without violating the laws of the country and I believe in the judicial system and other relevant authorities in this regard. The international community need not worry about matters of state interest.’

“Asked when the court might be set up, he said, these things cannot be done instantly or in a hurried manner. ‘We will certainly reach our target but it’s a process.’ In October 2015, Sri Lanka co-sponsored a UN Human Rights Council resolution calling for a special judicial mechanism to prosecute war crimes to be established — with support from Commonwealth and foreign judges, prosecutors and investigators…..”

Locally, the TNA condemned Sirisena’s comments.
TNA spokesperson and Jaffna district Parliamentarian M. A Sumanthiran told a special media briefing at the Opposition Leader’s office that the Government had already agreed to include foreign judges, according to a resolution passed at the UN Human Rights Council (UNHRC) in October last year. He said Sri Lanka co-sponsored the Resolution and it could not go back on the assurances given to the international community.

“Involving Commonwealth and other foreign judges, defence lawyers and authorised prosecutors and investigators is a must to establish a credible mechanism. We will continue to pressure the Government to fully implement the Resolution,” Sumanthiran said. He argued that the TNA is “of the firm view” that any investigations or any other accountability mechanism, should be designed based on the resolution. He added that the TNA proposed to meet President Sirisena to clarify matters.

TNA goes to Foreign office in London
TNA leader Rajavarothayam Sampanthan and Sumanthiran were in London on Friday. Whilst Sampanthan took flight to Edinburgh that morning, Sumanthiran, together with TNA London Branch President D. Rathnasingham, called on officials manning the Sri Lanka Desk at the Foreign and Commonwealth Office at King Charles Street. They raised issue over Sirisena’s remarks. Those familiar with the talks said British officials said that it could be to appease domestic sentiments and argued it did not appear to be a policy shift. They said matters would become clearer in the days to come. This was particularly after the Zaid visit to Colombo. Later Sumanthiran flew from London to join Sampanthan. They are taking part in a discussion at the University of Edinburgh on the system of devolution in Scotland. It has been arranged by the Centre for Policy Alternatives in Colombo. For the TNA, this is a prelude to placing its proposals when Parliament converts itself into a Constitutional Assembly or a Committee to draft a new Constitution.

The London-based Global Tamil Forum (GTF), recognised now as a stakeholder in the reconciliation process and de-listed by the Government from prohibited groups, said in a statement that it was “deeply concerned and disappointed” by Sirisena’s recent comments. The statement said: “The President’s assertions are a direct refutation of the Resolution 30/1 passed in the UN Human Rights Council (UNHRC) on 1 October 2015 which Sri Lanka itself co-sponsored. The resolution clearly committed Sri Lanka to involving Commonwealth and other foreign judges, defence lawyers and authorised prosecutors and investigators in its judicial processes. Sri Lanka will breach the provisions of a resolution that it co-sponsored if President Sirisena’s assertions are implemented….” Both President Sirisena and Foreign Minister Mangala Samaraweera have met senior members of the GTF at lunch during a visit to London. Thereafter, Samaraweera met them on different occasions during visits to the British capital. He had in fact invited a delegation to visit Colombo.

The GTF in its statement quoted from the speech Samaraweera delivered at the Human Rights Council in Geneva on September 14, ahead of the adoption of the resolution. It said, “…Therefore, I say to the sceptics: Don’t judge us by the broken promises, experiences and U-turns of the past….. …. ….My plea to you Ladies and Gentlemen, is: trust us and join us to work together and create the momentum required to move forward and take progressive, meaningful and transformative steps to create a new Sri Lanka…”

Together with the US-based Tamil Political Action Committee (USTPAC), the GTF also wrote to High Commissioner Zaid this week seeking an immediate appointment for a meeting in Geneva. An appointment is unlikely until the envoy’s visit to Sri Lanka is concluded.

The first official reaction from the United States came from Keith Harper, Washington’s Ambassador to the UN in Geneva. He played a key role when the resolution was adopted last year. He tweeted: Keith Harper (@USAmbHRC) tweeted at 0:09 pm on Mon, Jan 25, 2016: For #SriLanka – credibility of any accountability mechanism requires involvement of foreign judges etc. That has and will not change. #lka (https://twitter.com/USAmbHRC/status/691593791724220416?s=03)

Sirisena re-iterated his assertions in a Talk to Al Jazeera interview aired on Friday. He told Hoda Abdel_Hamid “I must say very clearly there is no (sic) allegations regarding ‘war crimes,’ there were war crimes allegations during the early stages. But at the United Nations Human Rights Council in Geneva, mainly in the proposals presented in September, there were no ‘war crimes’ allegations against us.

“They contained allegations of human rights violations only. When you consider the facts surrounding the allegations of human rights violations, we are committed as a member of the United Nations, to implementing the main points and proposals.”

The US Ambassador to United Nations, Samantha Power, who plays a direct role in the Sri Lanka process, told the UN Security Council last Wednesday, “Relatives of victims in both Mexico and Sri Lanka spoke of how disappearances upended virtually every aspect of their lives. And we can all imagine if this happened to us the way in which we would not be able to function in the way we once had. Many of those I spoke with withdrew from their communities out of depression or fear; breadwinners often stopped going to work, dedicating themselves instead to searching for their loved ones; children could not sleep at night or focus in school…..” She added “I heard from families who reported cases to authorities, only to see them sit on key investigative leads or misplace crucial evidence. Others were discouraged or even threatened by the very officials whose job it was to help them. In Jaffna, Sri Lanka, just a couple of months ago a mother told me how, in March of 2009 she had seen men in military uniforms abduct her 16-year-old daughter, and she had been beaten when she tried to intervene. Yet despite promptly reporting that crime to officials, the mother told me, she had never heard anything back. She has spent nearly every day of the six years since searching for her daughter, whose whereabouts remain unknown….”

Diplomats in Colombo said Power’s remarks were an indication that Sri Lanka was still very much on the US radar and “the issue has not been forgotten after the Geneva resolution.” The New York Times said in an editorial on Thursday, “…. the wounds of war cannot be healed until a transitional justice process demanded by the United Nations in a resolution last October moves forward. On that score, Mr. Sirisena says his government will not act “in haste.” This is unacceptable. Atrocities were committed by both Tamil rebel troops and the Sri Lankan Army during the civil war. The perpetrators must be brought to trial….”

It added, “…….This month, Mr. Sirisena announced the beginning of a process to draft a new constitution. These are welcome steps. But they are no substitute for justice. Troubling allegations of torture under Mr. Sirisena’s watch – which his government denies – must be addressed. Military leaders who oversaw the bloody operations that killed as many as 40,000 Tamil civilians in the final months of the war remain in command, and have even been promoted. A dangerous anti-Muslim campaign by Singhalese nationalists is threatening to further fray Sri Lanka’s ethnic fabric.

“Last fall, the United Nations agreed to allow Sri Lanka to set up its own special court on war crimes. Mr. Sirisena needs to move quickly to fulfil his government’s obligation to the United Nations and its moral duty to Sri Lankans.”

Article 6 of the US sponsored resolution adopted in Geneva on October 1 last year states: “….Welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system, notes with appreciation the proposal of the Government of Sri Lanka 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; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also 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 authorised prosecutors and investigators;..”

Field Marshal coming to Parliament
President Sirisena, the Sunday Times learnt, had a high level meeting with Premier Wickremesinghe and Foreign Minister Samaraweera this week on the question of foreign judges and investigators after the issue was raised in Parliament by Opposition MPs seeking clarification on the Government’s position on this. Premier Wickremesinght told the Sunday Times last night “We are not departing from the Geneva resolution.” The move came as the man who led troops to defeat the Tiger guerrillas militarily, Field Marshal Sarath Fonseka, is to enter Parliament. This is to fill the vacancy on the United National Party (UNP) National List caused by the death of M.K.A.D.S. Gunawardena.

Though on the UNP ticket, party leaders have conceded, that the late Gunawardena was a member of the united front group like Champika Ranawaka, Rajitha Senaratne and Hirunika Premachandra. In fact, members of the group had sought the slot from the UNP leadership. Hence, they are in favour of Fonseka’s entry. There is speculation in Government circles of a ministerial portfolio for him. Most believe he would be a strong political weapon to counter growing extremism, the campaigns by former President Mahinda Rajapaksa and criticism over the probe into alleged war crimes. At least two UNP ministers are not in favour of the move and claimed they would quit. However, a senior leader of the party described it as posturing and said no such thing would happen.

A British TV channel that was mired in controversy over reporting the war in the past was given clearance by the Government to visit Sri Lanka. A Channel 4 television crew from London was in Colombo and travelled to Jaffna. This was to report on the post-war situation. A report the channel aired thereafter included excerpts of an interview with Premier Wickremesinghe by presenter Jon Snow. Here is the transcript:

Jon Snow: It took six years and there is still no investigation?
Prime Minister: We are putting together the mechanism for accountability and reconciliation. By May or so, before the UN Human Rights Council meets in Geneva, we will have our proposals ready.

JS: The critical issue as far as the international community and the Tamils are concerned is the international dimension. The President said last week there will be no international involvement in this investigation.
PM: We have not ruled that out. I am just telling you that whatever else is given they must finally also benefit. It’s a long process that we started. We are standing by our commitments on the Geneva resolution.
JS: In the end it comes down to trust. Doesn’t it? And trust is in short supply.
PM: We are putting it together. I don’t think there is anything to be worried about. I put my neck out more than anyone else. We will get you one. By May all these doubts will go off.

JS: There is a tremendous need to get to the truth of why the UN estimates, I think correctly from our own evidence that 40,000 people died on those killing fields.
PM: Actually Jon there were large numbers of those who were killed. We have a question whether it was 40,000. But we are interested in finding out the actual number.

JS: When we produce our original evidence we were told that they were all fake. Now the Government accepts that they are true.
PM: I know the story about you and the previous regime but all we are saying is the numbers. There has to be casualties in that type of fight. We stand ready with the international community to determine what the final numbers are.
JS: Last week when it came to discussing the disappearances, people who cannot be found, you said they are dead. It has taken six years for anybody to come forward and say there is nobody missing and they are dead. Is that true? Are you certain there are no detention centres?

PM: There are no detention centres in the north or the south.
JS: Are you certain?
PM: I am sure.
JS: Is any form of detention known to the Government?
PM: The 292 who are in detention are known to the Government.
JS: Is that all?
PM: That is all. No one else.
JS: The problem is that we have specific cases of which people are recorded as having surrendered and seen in detention one year on. But they cannot be seen later in the day and they have not come home.
PM: They are most probably dead.

JS: But why die in detention?
PM: This is why the Missing Persons Office and the TRC (Truth and Reconciliation Commission) are there for. We have to find out what happened. At least people want an answer.
JS: A lot of blame has been pointed towards Rajapaksa, former President and former Minister of Defence. Does the facility exist if they are found to have abused their power for them to be prosecuted?
PM: Anyone in Sri Lanka can be prosecuted if there has been abuse of power. That is an offence. Unfortunately many abuses of power are not offences in Sri Lanka. They can be investigated by a Select Committee of Parliament or by a Commission of Inquiry but whatever is an offence under the laws of Sri Lanka, yes, anyone can be prosecuted.

JS: Including them?
PM: Including them.
Premier Wickremesinghe told the Sunday Times this week; “We will have participation from foreign judges. This is nothing new. There have been occasions when foreign judges served here in the past too.” He said South Africa would assist in the setting up of the Truth and Reconciliation Commission (TRC). At present a discussion is under way to determine whether those who will face charges, if found guilty, will have one or two appeals, one in the Court of Appeal and the other in the Supreme Court.
Notwithstanding this, different pronouncements by different leaders in the Government have continued to cause confusion. Last Thursday, Minister Rajitha Senaratne, the official Government spokesperson, was asked about the probe into alleged war crimes. This was during the weekly media briefing he conducts after Wednesday’s ministerial meeting. Here is an account of what transpired:

Q: The President told the BBC recently that there was no requirement to have foreign judges for the investigations on alleged war crimes. Did the Cabinet discuss this matter?
A: Our position is that it will be a local investigation. Even the Prime Minister has taken the position that it is a local investigation, but with foreign components. It can be foreign assistance or foreign technology. Even the former President Mahinda Rajapaksa brought persons like Desmond de Silva. We will not even do that.

Q: Will this be legal assistance?
A: If necessary we can get. If the Commission requires we can get it.
Q: The President says no foreign intervention.
A: That will not be allowed at any cost. Intervention is different to assistance.
Q: The US ambassador says something different.
A: That is their opinion
Q: They have a different opinion and you have a different opinion. Therefore can this be resolved?
A: We can resolve it. What the UN says is that the inquiry should be held by judges who are acceptable, keeping to the standards. We have persons of the calibre of Justice Weeramanthri. The judges will be local, if there is any other assistance required we will obtain it, but not judges.

Quite clearly, a lack of clarity has remained a fundamental issue since the Human Rights Council adopted the US-backed resolution which was co-sponsored by Sri Lanka. Without doubt, as the resolution itself says, it is for the Government of Sri Lanka “to establish a judicial mechanism.” As for the rest of the provisions in the resolution, it is incumbent on the Government to explain both its position and own commitment since Sri Lanka has co-sponsored the resolution. One stance to meet the political exigencies of an impending local poll and another for all other reasons can turn out to be both disastrous and costly. The previous Government’s credibility was virtually destroyed by contradictions and duplicity. A repeat can only be costlier now.