Will Sirisena's hybrid courts for war crimes bring justice to Sri Lankan Tamils?

His government knows it has to agree to an internationally acceptable inquiry as Colombo's credibility both at home and abroad on this issue has been eroded.

 |  6-minute read |   04-10-2015
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President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe consolidated their hold on power by luring some of the senior members of the Sri Lanka Freedom Party (SLFP) to join the national unity government. This had dissipated the effectiveness of the SLFP to function as the main opposition party in the Sri Lankan parliament. As a result, the speaker nominated the Tamil National Alliance (TNA) leader R Sampanthan as the opposition leader, a gesture welcomed by the Tamil minority.

The President's political exercise has created a jumbo cabinet with 47 members of cabinet rank (including the president and the prime minister), 19 state ministers and 23 deputy ministers. Thus, out the 225 members of parliament, as many as 89 members are occupying ministerial chairs! Though the Sirisena regime has ensured its stability by accommodating various political and regional interests within the power structure, its adverse effects on the quality of governance remains an open question.

President Sirisena, prime minister Wickremesinghe and their loyalists control portfolios like defence, finance, home affairs, external affairs and policy planning. This would enable them to continue with the reform agenda. However, the presence of some of the tainted SLFP members as ministers facing corruption allegations has clouded the sincerity of the government's promise to get rid of corruption.

In yet another step to improve governance, the government announced the formation of the Constitutional Council (CC). This was in accordance with the 19th Amendment of the Constitution which was adopted in the parliament to ensure transparency in appointing members for nine independent commissions (including the electoral commission and the bribery commission). However, the first meeting of the ten-member Cabinet committee (CC) on Septemebr 10 was attended only by six of the seven members of parliament (including the speaker, the prime minister, leader of the opposition and three ministers). The other four members expected to join the CC shortly include the nominee of the opposition Janatha Vimukthi Peramuna (JVP) and three civil society nominees - Dr AT Ariyaratne, former UN under-secretary general Radhika Coomaraswamy and President's counsel Shibly Aziz.

Sri Lanka PM's visit to New Delhi

Prime minister Wickremesinghe after assuming office was on his maiden visit to New Delhi from September 14 to 16. During the visit, he met his counterpart Narendra Modi, external affairs minister Sushma Swaraj, President Pranab Muhkerjee and minister for road transport, highways and shipping, Nitin Gadkari.

The two prime ministers are believed to have discussed issues related to bilateral trade and defence cooperation. Addressing a joint press conference after their talks, Modi described it as a historic year for India-Sri Lanka relations because "Sri Lanka has voted twice this year for change, reforms, reconciliation and progress."

He assured India's full support to Sri Lanka's new government. Modi added "we recognise our closely aligned security interests and the need to remain sensitive to each other's concerns. We both reaffirmed our commitment to deepen our defence cooperation."

Wickremesinghe, in reciprocation, said the two countries had to improve trade and increase security forces cooperation in the Indian Ocean. Though they made no specific reference to Tamil minority issues or to the forthcoming UN Human Rights Council (UNHRC), probably both issues figured in their talks. Sri Lanka media went on overdrive after Indian minister Gadkari spoke of discussing a proposal to construct a land-tunnel link between India and Sri Lanka with the Sri Lankan prime minister; however, Colombo denied holding any talks with India on this issue.

Sri Lanka resolution at the UNHRC

UN human rights commissioner Zeid Ra'ad Al Hussein presented the report of the Office of the High Commissioner for Human Rights (OCHR) on the follow up action on the UNHRC resolution of Sri Lanka's at the 2012 Council meeting. The OCHR report was based on the "principal findings of the OCHR investigations on Sri Lanka (OISL)", which were included in the report.

The report was a scathing indictment of the conduct of both the Sri Lanka government and the LTTE during the years preceding, during and after the Eelam War resulting in gross violations of human rights, killing of innocent civilians and prisoners, enforced disappearances and alleged war crimes by the Sri Lanka army and the Tamil Tigers. However, the report recognised the cooperative attitude of the Sri Lanka government to the UN efforts and the series of actions it had taken to improve governance overcoming the aberrations of the past. Pointing out the failure of the Rajapaksa government to conduct an impartial investigation into the allegations, Prince Zeid recommended the setting up of an international hybrid mechanism to investigate the allegations and monitor further action. Both foreign and local judges would participate in the hybrid court.

In Sri Lanka, the proposed hybrid mechanism drew a lot of flak on the constitutional impropriety in having foreign judges presiding over domestic courts as well as on the issue of violation of Sri Lankan sovereignty. Not surprisingly, former president Rajapaksa came out strongly against the revised draft.

Sri Lanka would prefer to have a purely domestic process due to political sensitivities in international involvement in such a process. It would also pave way for former president Mahinda Rajapaksa to whip up nationalist sentiments and use them as a ploy to come back to power. However, the Sirisena government knows it has to agree to an internationally acceptable inquiry as Sri Lanka's credibility both at home and abroad on this issue has been eroded. So its stand had been to agree for holding an internationally acceptable domestic inquiry and not any international inquiry.

After hectic diplomatic parleys, in a bid to evolve a consensus last week, the US presented a fresh draft resolution co-sponsored by Sri Lanka. The revised US draft tones down the exact nature of foreign participation while retaining it in a domestic mechanism, though it recognises the serious nature of the allegations as well as the failure of Sri Lanka to act upon them as required by earlier UNHRC resolutions.

The TNA chief and opposition leader Sampanthan, acting with pragmatism rather than playing for the gallery, has welcomed the draft. In an interview to The Hindu he said the draft addressed the main issues of accountability and reconciliation.

The involvement of Commonwealth and other foreign judges, defence counsel, prosecutors and investigators would give the judicial process much greater credibility, he added. Tamil diaspora has been divided over the US resolution. Though some of the diehard erstwhile supporters of the LTTE have criticised it, many agree with Sampanthan that this was the best possible resolution that could have been achieved. And only a consensus resolution could make its honest implementation possible.

Not unexpectedly, Tamil Nadu political parties have demanded a purely international investigation to do justice to Sri Lankan Tamils. However, Indian external affairs ministry spokesman Vikas Swarup has made clear that India would support the revised US draft. This was expected as India had always been on principle opposed to the role of foreign judges in internal conflicts.

The spokesman, commenting on the issue after Prime Minister Narendra Modi and President Sirisena, met on the sidelines of the UN general assembly meeting in New York, said "Our position is very clear. We stand for justice and at the same time we are respectful of the Sri Lankan sovereignty issues to the extent the Sri Lankan government is comfortable with the formulation that marries the two."

This article first appeared on the writer's blog.

Writer

Colonel R Hariharan Colonel R Hariharan @colhari2

The writer is a retired Military Intelligence specialist on South Asia with rich experience in terrorism and insurgency operations.

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