THE
TGTE DEMANDS THE GOVERNMENT OF SRI LANKA TO CHANGE THE RATIONALE FOR
TRANSITIONAL JUSTICE
(Press
Release at the conclusion of the Human Rights Council’s 32nd
Session)
This
week the UN Human Rights Council(UNHRC) in its 32nd
session turned its attention once again to Sri Lanka, focusing on Sri
Lanka’sprogress toward fulfilling the commitments it undertook last
fall in a resolution it co-sponsored with the United States. In
Resolution 30/1, Sri Lanka made 12 specific commitments designed to
ensure accountability for the international crimes committed in 2009
and to promote better protection of human rights in the country. We
feel that the Foreign Minister’s speech at the session is the
continuation of the Sirisena administration’s attempt to hoodwink
the international community.
- Contradiction between the Resolution and the Foreign Minister’s Statement
The
Foreign Minister repeated President Sirisena’s words: “He
said that Sri Lanka is committed to implement the Resolution to
protect the dignity of our State, our People and our Security
Forces”. There is a contradiction within that statement. With
the security forces and sections of the Sri Lankan State remaining
accused by a number of organisations, including UN bodies, and the
High Commissioner himself accusing Sri Lanka in the OISL report of
committing war crimes and crimes against humanity, Sri Lanka cannot
be “committed to implement the Resolution to protect the dignity
of our State, our People and our Security Forces”, all at
the same time, unless the ‘people’ President Sirisena is
referring to are the Sinhala people. So, actually SLG only wants to
protect the dignity of the State, the Sinhala people and their
security forces, because of the wide international recognition that
the State and security forces committed systematic human rights
abuses against the Tamil people, some amounting to war crimes, crimes
against humanity and genocide.
While
it is understandable that making haste slowly – festina lente
– is one way of dealing with situations in countries grappling with
conflict, the main issue that concerns Sri Lanka has been that its
successive governments, including the present one, deliberately
ignore issues that affect the Tamil people – most importantly the
victims / survivors.
While the Oral Report of the High Commissioner for Human Rightsto the UNHRCnoted some incremental progress, the High Commissioner also expressed concern that the promise of Justice was at risk of “Stalling”.
The
High Commissioner for Human Rights, in his oral report to the
Council, did note some positive incremental progress. However, he
expressed concern that “the full promise of governance reform,
transitional justice and economic revival has yet to be delivered and
risks stalling or dissipating.” The High Commissioner expressed
concern at the number of people who remain detained without charge
and the government’s continued reliance on the Prevention of
Terrorism Act to make new arrests the vast majority of whom are
Tamils. He criticized the Sirisena government for allowing those
alleged to be responsible for killings and abductions to continue to
hold public office and face no criminal investigation.
Five International Experts [MAP] have expressed concern at the Lack of real progress in the nine months since the adoption of Resolution 30/1.
The
TGTE asked the Monitoring and Accountability Panel [MAP] consisting
of five independent international experts to monitor Sri Lanka’s
progress in implementing its commitments made in 30/1. This panel of
experts and the consultant to the Panel, Geoffrey Robertson QC,
presented their findings at a side event held at the 32nd
session. The Panel concluded that there are serious weaknesses in
Sri Lanka’s efforts to date. Heather Ryan, a recognized expert in
transitional justice, stated: “We are concerned about the apparent
lack of true political will and leadership to meet its accountability
and related transitional justice needs in the country.”
Sri Lanka’s Foreign Minister still fails to Acknowledge the Key Findings of the High Commissioner of Human Rights in his September 2015 Report.
During
the 32nd session, the Foreign Minister of Sri Lanka, Hon
Mangala Samaraweera, addressed the Council. The speech was
self-congratulatory in tone and failed to unreservedly acknowledge
many of the key findings in the High Commissioner’s September 2015
report. Most notably, the Report found that ample evidence existed to
establish reasonable grounds that crimes such as unlawful killings &
enforced disappearances, shelling of civilian areas and hospitals,
sexual torture and a denial of humanitarian aid were committed
primarily by State forces. The Foreign Minister failed to
acknowledge the large number of former LTTE cadres still being
detained without charge. By characterizing the Government’s policy
with respect to reconciliation and justice as one of “making haste
slowly,” the Foreign Minister was implying that the international
community should believe that Sri Lanka’s efforts to date are
reasonable, serious and diligent.
The
Foreign Minister also stated that “in order for a transitional
justice mechanism to be effective in achieving the desired
objectives, the necessary mechanisms should be properly sequenced,
integrated and coordinated.” He notably failed to give any specific
or estimated dateby when a judicial mechanism would be operational.
The TGTE is deeply troubled that seven years after the crimes, the
Government of Sri Lanka’s policy is one of “making haste slowly”
while entangling itself in vague and unspecified procedures that it
asserts must precede real justice for the victims. The TGTE
emphatically rejects this. While justice mechanisms can sometimes
take years, our experience in studying the situation in Bosnia, East
Timor, Sierra Leone, Rwanda and others has established that such a
mechanism can and must start as soon as possible in order to secure
evidence and preserve the possibility of justice for the victims.
The
Foreign Minister speaking in Norway in June made clear that the
mandate of the justice mechanism will consider human rights
violations and “perhaps war violations during the earlier period”.
The TGTE is shocked at the suggestion that a domestic judicial
mechanism will not consider war crimes charges committed during the
final phase of the war. This is an affront to the High Commissioner’s
oral report that noted evidence of the use of cluster bombs towards
the end of the war which should now be investigated, as well as his
findings in September 2015 that reasonable grounds exist to believe
war crimes may have been committed during that period.
On 15 January
2016, Prime Minister Ranil Wickremasinghe himself went on record
acknowledging that thousands of Tamils who surrendered to the Sri
Lankan Security forces were no longer alive. The enforced
disappearance of human being is an ongoing criminal offence until the
fates of the disappeared persons has been account for. In this case,
where the enforced disappearances of human beings is widespread and
systematic, it constitutes a Crime against Humanity. Under these
circumstances it also constitutes an indicia of genocide. Is the
Sirisena government really developing a domestic judicial mechanism
with no authority to investigate this?
- Office of Missing Persons
A case in point
is the establishment of the Office of Missing Persons (OMP). The OMP
was one of the four transitional justice mechanisms proposed by the
Sri Lankan Government as stated by Foreign Minister Samaraweerain
September 2015 who said, “These mechanisms will be evolved and
designed through a wide process of consultations involving all
stakeholders, including victims.” To us, this meant that all the
four mechanisms proposed would be implemented only after consulting
“all stakeholders including victims.”
But this has
not happened even in the one mechanism that is already in the process
of being implemented, the OMP. The Foreign Minister himself has
admitted that there were no proper consultations. Speaking about the
OMP, he has said “The draft Bill approved by Cabinet to establish a
Permanent and Independent Office on Missing Persons, which is an
essential component of the truth-seeking process and the first
mechanism in the transitional justice programme, has already been
gazetted and included in the order paper of Parliament.” He went on
to say “A Task Force consisting entirely of civil society
representatives has been appointed to seek the views of the public
that will inform the designing of the truth-seeking, justice,
accountability and reparations mechanisms.” This means the Task
Force’s work is just beginning but the draft bill to establish the
OMP is already before parliament! What is more, the Foreign Minister
has not uttered a word about consultations preceding the setting up
of the OMP when he spoke on the topic this year either.
- Sri Lanka’s denial of individual Remedy under the International Convention for the Protection of all persons from Enforced Disappearance
According to the
Foreign Minister, the International Convention for the Protection of
All Persons from Enforced Disappearance was ratified and the draft
legislation to give effect to the provisions of the Convention is to
be presented to the Cabinet in July, for gazetting and presentation
to Parliament. However, Sri Lanka has not made any declaration under
Article 31 recognizing the competence of the committee of enforced
disappearance (CED) to consider and receive communications from
aggrieved individuals. In other words, widespread, systematic
disappearances are one of the most sustained human rights abuses
perpetrated by the Sri Lankan State for almost 25 years. Even the
Paranagama Commission spoke about 20,000 cases which had been
reported to it. Yet, the cavalier attitude displayed by the Sri
Lankan Government in dealing with this major problem and addressing
the need for accountability, truth or justice for the victims of this
crime does not match the colorful claims made by the Foreign
Minister.
- Absence of even a token effort on Demilitarization
On the continued
militarization of the Tamil homeland, the Foreign Minister said that
“The Government has clearly instructed the military that all the
land obtained from civilians must be released latest by 2018, and
that the owners of whatever land that may be required for national
installations or development purposes would be fully compensated.”
But there is no discussion whatsoever about the withdrawal of the
military from the NorthEast, which is vital if civilian life is to
return to normal in the conflict areas.
The Prevention Of Terrorism Act continues to be used to arbitrarily detain and torture Members of the Tamil Community.
In
Resolution 30/1, Sri Lanka expressly and voluntarily undertook to
repeal the Prevention of Terrorism Act1(PTA),
a law that the High Commissioner for Human Rights found provided the
legal context for arbitrary detentions and torture, possibly
constituting crimes against humanity. The PTA continues to be used as
the legal ‘justification’ for arbitrary arrests and torture.
The
organization ‘Freedom from Torture’ recently found “clinical
evidence shows that torture continues in Sri Lanka under President
Sirisena.” The UN Special Rapporteur on Torture, Juan Mendez, after
a recent visit to Sri Lanka, said: “sadly the practice of
interrogation under physical and mental coercion still exists and
severe forms of torture, albeit probably in less frequent instances,
continues to be used.” He found that “both old and new cases [of
torture] continue to be surrounded by total impunity”.
The
TGTE is deeply appalled by President Sirisena’s failure to prohibit
the continued use of the PTA, either by executive order or through
proposed legislation.
As
far as reviewing the PTA – which the Foreign Minister promised last
year – is concerned, Minister Samaraweera said in Geneva this week
“A Committee is now putting the final touches to the first draft of
the new counter-terrorism legislation that will replace the much
criticized and much abused Prevention of Terrorism Act, in keeping
with Sri Lanka's commitment and obligations to human rights and
countering terrorism.” But if this repeal and replacement is indeed
happening, then there is no transparency in the process, except for
cryptic news reports about the name of the legislation replacing the
PTA but nothing else. Opposition Parliamentarian Mr. M. A.
Sumanthiran while testifying before the US Congressional Caucus on
Ethnicity and Religious Freedom on June 14, 2016 stated that the he
had learnt that the new proposed legislation would be worse than the
existing PTA.
The High Commissioner reaffirmed that the inclusion of International Judges and Prosecutors in a Domestic Mechanism is essential for its Success.
The
TGTE is concerned that 9 months after the unanimous adoption of
Resolution 30/1,there remained a lack of will on the part of Sri
Lanka to make an unequivocal commitment to the inclusion of
international prosecutors and judges in a transitional justice
mechanism. Despite clear statements by the U.S., co-author and
sponsor of 30/1, that international personnel must be part of any
mechanism, President Sirisena and senior members of his government
have repeatedly asserted that internationals will have no direct role
to play. In Geneva this week, the Foreign Minister deftly
characterized this issue as “indicative of a healthy democracy”
and as a celebration of diversity. The TGTE welcomes the High
Commissioner’s clear reaffirmation during the 32nd
session that “international participation in the accountability
mechanisms would be a necessary guarantee for the independence and
impartiality of the process”. Such an international presence has
proven a key element to the success of other hybrid tribunals, most
recently in the Extraordinary African Chambers in Senegal which found
Hisséne Habré, the former president of Chad, criminally responsible
for the crimes against humanity of murder and rape, and sentenced him
to life imprisonment. The hybrid courts for Sierra Leone, East Timor
and Kosovo are also examples of the importance of concrete
international involvement to ensure impartiality, and to insulate the
court from local influences. Sri Lanka’s assertion that it can have
a completely objective and wholly domestic justice mechanism is
either unbridled hubris or a ploy to ensure that an effective
accountability mechanism is never established.
The victims deserve actual justice and not mere preparatory steps.
The
TGTE calls upon the UN HRC to require Sri Lanka to demonstrate its
commitment to justice with concrete actions that actually result in
perpetrators being held accountable. As the High Commissioner noted
in his oral report: “While the Government has been engaged in a
variety of preparatory processes, overall progress in setting up
structures that would allow for the design and establishment of the
different transitional justice components has been hesitant and
slow.” The burden is upon President Sirisena and his government to
demonstrate that it can overcome the well-entrenched structures
responsible for the crimes that the High Commissioner found, in his
September report, still “remain in place, ready to be reactivated
…to prevent any progress in …addressing accountability.”As the
London Guardian recently noted, many senior members of the
Sirisena government, including the president himself, played a role
in overseeing the final military campaign of the conflict. At
present, it appears that these structures that remain in place have,
as predicted, succeeded in stalling actual justice in a complex
tangle of “preparatory processes”. Now, over seven years after
the crimes, the victims deserve more than mere “preparatory
processes”; they deserve actual justice as soon as possible.
- Assimilation not Reconciliation
The Foreign
Minister talked about the return of democracy. It is true that since
the regime change, the Sinhala polity has witnessed the return of
some democratic measures such as the 19th amendment which
enabled sharing of power between the President and the Prime Minister
and restoration of some individual rights. However, as highlighted
earlier, those changes have been limited to the Sinhala polity, and
have not reached the Tamil polity. The major reason for this is the
refusal by the Sinhala leadership and the Sinhala polity to recognize
the collective rights of the Tamil Nation. It is only with the
recognition of the collective rights of Tamils, namely nationhood and
the right to self-determination, will only provide the context in
which democracy and individual rights can thrive. The Sirisena
administration, while attempting to reduce the Tamil’s Nationhood
to a “minority” status, and pursuing Sinhala supremacy under the
guise of reconciliation is engaging instead in assimilation. The
Rajapaksa administration pursued assimilation it brazenly, while the
Srisena administration is doing it much more subtle ways.
A corollary to
the above is that the power of implementation is still in the hands
of the Sinhala bureaucracy.
The recognition
of the army commander Sarath Fonseka, alleged to be a Genocidaire
and a war criminal, now as a Field Marshal, and later his appointment
as a Member of Parliament do not appear to be measures of
reconciliation.
The Srisena
administration’s call for and efforts towards mixed marriages is
an example of this administration’s policy of assimilation. The
marriages between the Sinhala soldiers and Tamil women from the
occupied villages are examples of the assimilative not reconciliatory
measures. Wereliably understand that the Tamil women were being made
to consent to those marriages through fear and/or favor. We surmise
that these marriages are a form of sexual violence. We have not
heard calls for marriages between a Tamil male and a Sinhala female.
The
establishment of Sinhala Military Goodwill Villages in the
traditional Tamil homeland, in areas such as Mannar and Kokuveli, is
another measure of colonization and assimilation – not
reconciliation. If the Srisena administration is genuine about
reconciliation, the TGTE would like to challenge them to show their
goodwill by engaging in decolonization.
In the Foreign
Minister’s observations, with respect to the new Constitution, the
word ‘federalism’ is conspicuously absent. While the TGTE is
firm in its belief that only an independent state of Tamil Eelam
would be the measure of remedial justice, and the non-recurrence of
another Mullivaaikkal genocide, the Tamil domestic leadership in Sri
Lanka believes that the Sirisena administration will deliver
federalism. It is often stated that the Sinhala polity will not
accept any political arrangement that bears the name ‘federal’.
Thus it is led to believe that the administration will deliver a
“nonfederal-federal” solution. If history is any guide, Sinhala
polity not only does not accept the word federalism but it does not
believe in any form of meaningful power sharing between the Sinhala
nation and the Tamil nation.
- No hope for Justice for the Victims due to the rationale of Transitional Justice propagated by the Government of Sri Lanka
In
the nine long months since the Foreign Minister spoke last at the UN
HRC, it is clear that the Government of Sri Lanka wishes to “protect
the dignity of our State, our People and our Security Forces.” We
have only seen that in trying to achieve this, it has violated the
process to set up the OMP and distorted the content of the OMP Bill.
Furthermore, the way militarization and the counterterrorism
legislation is expected to evolve, as outlined by the Foreign
Minister, there is no hope for consultation of victims to take place
in a victim-friendly environment for transitional justice mechanism
to follow
- Reparation
The
Foreign Minister did not at all address the question of reparation.
The TGTE calls upon the proponents of the Resolution 30/1 to take
immediate measures to provide reparation to the victims of war and
the former LTTE carders.
- Call For Action
The
TGTE takes this opportunity to urge the international community to
acknowledge that now, over seven years after the largest atrocity
crime of this century in which 70 to 100 thousand people were killed,
the light of justice continues to grow dim for the victims, and,
therefore, to insist that Sri Lanka takes immediate steps to deliver
actual justice and not just aspirational preparations designed to
appease the international community. The TGTE has very little faith
that the GoSL will take measures in favor of the victims and to
combat impunity and ethnic repression.
- Non UN Actions
The
TGTE, while continuing to pursue this quest for transitional justice
for Tamils through the UN mechanism, it will also pursue it outside
the UN arena.
Visuvanathan Rudrakumaran
Prime Minister – TGTE
1 “Welcomes
the commitment of the Government of Sri Lanka to… repeal the
Prevention of Terrorism Act, and to replace it with anti-terrorism
legislation in accordance with contemporary international best
practices.”
source:Tgte
source:Tgte
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