UNHRC Cannot Rely On Sri Lanka To Prosecute Its Armed Forces – Part II
Usha S Sri-Skanda-Rajah
As the search for justice for victims of the Tamil genocide continues.
– While the application of ‘universal jurisdiction’ by individual states to prosecute war criminals must be pursued rigorously, the way forward for member states of the UN Human Rights Council is to lobby the UN Security Council for an ICC referral or for the establishment of an international special criminal tribunal for Sri Lanka.
Part 1 of this article showed the UN Human Rights Council’s prolonged reliance on the Sri Lankan government to prosecute members of its armed forces and senior political leaders, cannot be sustained any longer – those responsible for “some of the worst crimes in the 21st century.” And it was obvious a hybrid court is definitely not in Sri Lanka’s agenda.
Part 2 herein makes crystal clear UNHRC’s prolonged reliance on Sri Lanka to prosecute its armed forces is unsustainable, examining the role played by Sri Lanka’s current president, the plethora of Sri Lanka’s lies, the phenomena of double talk, its sworn loyalty to its armed forces as well as its ‘war on terror’ narrative, the never ending triumphalism mentality, the volatile political situation in Sri Lanka and more – that does not bode well, going forward in the search for justice for the victims of the Tamil genocide.
Sri Lanka agreed to a hybrid judicial mechanism:
Sri Lanka’s underlying approach to fulfilling its criminal justice commitments is based upon cunning, deception, untruths and unsubstantiated claims as will be seen in the parts to this article yet to follow. In the context of criminal justice, one of four pillars of transitional justice, it is necessary to look at the commitments Sri Lanka signed up to – as a co-sponsor no less of the two resolutions on ‘Promoting Reconciliation, Accountability and Human Rights’, which requires it, in good faith; under 30/1 para 6: “to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and international humanitarian law, with the participation in that judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators; and under para 7: to reform its domestic law (creating enabling legislation) to ensure it can implement effectively its own commitments.”
President Sirisena has openly said he wouldn’t prosecute his army:
President Sirisena, (including the coalition and the opposition) has rejected wholesale the idea of “foreign participation” and has said he won’t allow his armed forces to be prosecuted. Both of which, as per his public declaration, is but the stark reality on the ground in Sri Lanka, which the UNHRC must face up to and come to terms with; first it’s important to comprehend president Sirisena is not going to put himself in jeopardy as part of the regime that committed the offence, some taking place, under his watch, at a critical time when he served as defense minister at the last stages of the war, when some of the mass atrocities committed against civilians happened; the time when surrendering LTTE leaders and the rank and file were executed and instances of enforced disappearances took place; His name could be in the list of perpetrators, possibly in the OISL report (OHCHR Investigation on Sri Lanka), the president once boasting he stopped the publication of that list.
Prosecuting the army and ‘foreign participation’ are politically damaging:
Both prosecuting the army and ‘foreign participation’ are politically explosive propositions. If considered, would spell doom for Sirisena’s governing coalition (or for whosoever is in power) which is now hanging by a thread – the use of the race card is a malady found to be normal in Sri Lanka, where its politicians use it against each other for their political survival and one-upmanship as they vie for the affections and acceptance of their Sinhala Buddhist base.
