(Concluding Remarks made by Foreign Minister Mangala Samaraweera on October 23rd 2015 in the Parliamentary debate on the resolution on Sri Lanka passed by the UN Human rights Council in Geneva)
The national unity government has committed itself to winning the peace, securing the country from political violence that has haunted it since independence and it has dedicated itself to ensuring that the culture of impunity that has prevailed – whether for corruption, drug dealing or violations of human rights – is put to an end.
Sri Lankans – whether they be children in the North desperate to know if their fathers are alive or not, mothers of soldiers yearning to know the truth of what happenened to their son who went Missing in Action, families of the 600 policemen who were killed in cold blood by the LTTE or the wives of slain journalists. They have aright to know what happened and they also have a right to seek justice. Similarly, if such crimes occurred, society has a moral obligation to investigate and and apply legal systems for justice, and reparations. The State bears such a legal responsibility.
In fact Government’s 100 day work programme, at point 93, states that “since Sri Lanka is not a signatory to the Rome Statute regarding international jurisdiction with regard to war crimes, ensuring justice with regard to such matters will be the business of national independent judicial mechanisms.”
Therefore, in order to break away from our turbulent post-Independence history – which has included two Sinhala youth insurgencies, multi-actor Tamil militancy and LTTE terrorism – and set the country on the path towards sustainable peace, security and prosperity; it is our duty by the people of this nation and our duty towards future generations to undertake a course correction to ensure the non-recurrence of violence. These measures include the creation of a new constitution to solve the national question and address many of the root causes of the conflict that have plagued our land for many decades. Collectively, these measures will ensure that our society is never tormented by such violence ever again.
But there are also more immediate wounds that need to be diagnosed and healed. War’s greatest effects are on the most vulnerable. And just as many mothers from my electorate suffered the loss of their loved ones at the hands of impunity and abuse not so very long ago, and to this day suffer the pain of not knowing whether their sons or brothers were dead or alive; today many of our mothers, fathers, sisters and brothers in the North, East and other parts of the country are in a similar position.
Therefore, both to prevent violence, abuse and impunity from ever occurring again, and to ensure that the suffering of those who have lost loved ones is recognized, that crime is punished and that any injustice is remedied the government has resolved to adopt a four-pillared strategy. The four pillars are truth, justice, reparations and non-recurrence. Under this strategy, the government intends to create four separate institutions:
(ii)A Commission for Truth, Justice, Reconciliation and Non-recurrence to be evolved in consultation with the relevant authorities of South Africa. This mechanism is envisaged as having a dual structure. For many victims of human rights abuses, from whichever community, where the perpetrators are unclear for a judicial mechanism to handle, or where the practices of the state and society have resulted in discrimination, this Commission will allow them to discover the truth, understand what happened and help remedy any sense of injustice.
A special feature of this will be a Compassionate Council, consisting of senior religious figures.
(ii) An Office on Missing Persons based on the principle of the families’ right to know, to be set up by Statute with expertise from the ICRC.
(iii) A Judicial Mechanism with a Special Counsel to be set up by Statute. This takes into account the right of victims to a fair remedy and aims to address the problem of impunity for human rights violations suffered by all communities. There have been previous instances as well in Sri Lanka when criminal justice mechanisms of different kinds have been set up. This, therefore, is not at all an alien concept. Neither is it aimed at a particularly group of persons, but something that is essential in terms of upholding the rule of law, and creating a society that respects the rule of law.
(iv) An Office for Reparations to be set up by Statute to facilitate the implementation of recommendations relating to reparations made by the proposed Commission on Truth, Justice, Reconciliation and Non-recurrence, the Office of the Missing Persons, the LLRC and any other entity;
These bodies will be created after wide-ranging and deep consultations with all the stakeholders involved, including the victims, experts, political parties, the security forces and civil society. The all party conference held yesterday, and chaired by President Sirisena, is the beginning of these process. We will also be having a workshop next week with civil society to consult on the consultations process.
Sri Lanka has suffered a long-history of political violence; in fact, we have endured far too much violence for a country our size. We have experienced two youth insurgencies, militancy and terrorism. But following the defeat of groups engaging in violence, we have always tried to take wide-ranging, deep and perhaps even radical measures to address the root causes of violence and ensure long-term social stability and security.
For example, as a direct response to the 1971 insurrection, the government instituted a reform package that placed severe limits on land-ownership, house ownership and income in order to address . The education system was also significantly reformed.
After the 1987 insurrection, the Government appointed the Youth Commission to study the causes of the then insurgency and make recommendations that would address the grievances that led to it. The government then drastically scaled down its economic reform plan, closing the Colombo North Medical College, created a comprehensive and targeted poverty alleviation scheme, the Janasaviya Scheme, and engaged in further education sector reform and development. These accommodative measures helped prevent further political violence and brought the groups that resorted to political violence into the mainstream.
Similarly, following the recommendations of the LLRC and Paranagama Report, the process we have proposed will (i) study the root causes of conflict and make recommendations as to how they can be addressed, while also parallely; (ii) addressing the immediate suffering and grievances of our citizens; in addition to (iii) ensuring that justice and the rule of law prevail.
All sections of society agree that steps must be taken urgently to achieve reconciliation and prevent non-recurrence. This was pointed out by the LLRC after speaking to many people in our country. However, some extremists have misled the public and created controversy around the participation of international experts.
Is International participation necessary? No, it would not be if Sri Lanka had a credible judicial and law-enforcement system; in addition to the necessary forensic, judicial and legal technical expertise.
Since independence we have sought international expertise and assistance when we did not have the expertise available in Sri Lanka, or when we felt that international assistance would provide greater independence and secure the confidence of the country.
For example, the three-member Commission of Inquiry appointed by Madam Sirimavo Bandaranaike’s government to inquire into the assassination of Prime Minister SWRD Banadaranaike had two Commonwealth judges: Abdel Younis from Egypt and Justice GC Mills-Odich from Ghana. A British barrister, Phineas Quass QC, was also brought down to participate in the trial. Foreign experts were also used in the investigations, a team from Scotland Yard in Britain came to Sri Lanka.
In fact, Scotland Yard is no stranger to Sri Lanka; they were brought in to ensure the credibility of the investigations into the assassination of Lalith Athulathmudali. During their stay in the country they were called to help in the investigations of President Premadasa’s assassination, but were unable to do so for logistical reasons. More recently, they were called in for the investigations into the assassinations of Lakshman Kadirgamar and N. Raviraj.
Even more recently, JVP lawyers have called for the use of US rather than Chinese technical expertise in investigating the Matale Mass Graves, which was then carried out.
The previous government felt that monitoring by international experts would strengthen the independence and credibility of the Udalgama Commission. Therefore, it created the IIGEP or international independent group of experts. The IIGEP was an internationally monitored investigation into charges that the LTTE and the security forces had committed violations of human rights. Unlike the mechanism we are contemplating, where judges, lawyers and investigators will be decided by the Sri Lankan government, IIGEP experts were nominated by Australia, Britain, Canada, the European Union, Japan, Netherlands and the US.
More recently, if one looks at the report prepared by the Commission former President Mahinda Rajapaksa appointed, the Paranagama Commission Report, we see extensive international participation from across the world – the UK, US, Canada and South Africa. You only need to turn to the page listing acknowledgements in the Report before you to see the nature of international participation.
Furthermore, as this House is aware, Sri Lankan judges and investigators, including those from the Attorney-General’s Department and the Police have and continue to regularly perform judicial and investigative responsibilities overseas. In fact, six of the eight judges on Fiji’s Supreme Court are Sri Lankans. Sri Lankan judges have also served as judges on the benches of other Commonwealth countries.
Sri Lankan judges have served on international courts that deal with issues of war crimes. For example, Christopher Weeramantry was Vice-President of the International Court of Justice, Asoka de Silva served on the International Criminal Tribunal for Rwanda, Raja Fernando sat on the Special Court for Sierra Leone and Nihal Jayasinghe served in the Extraordinary Chambers in the Courts of Cambodia.
One important turning point in Sri Lanka’s recent history, and one reason we may need to have international judges is because the very citizens our country, irrespective of race or religion have little faith in the judiciary. Ever since the appointment of Sarath N Silva as Chief Justice, the judicial system has gone downhill, and after the impeachment of Shirani Bandaranayke and the installation of Mohan Pieris, the Sri Lankan judiciary became the laughing stock of the word. All the major political parties condemned the impeachment, civil society condemned it, the Sri Lankan Bar Association, the International Bar Association them and many other lawyers associations in Sri Lanka and around the world condemned it, the international community condemned it.
The people also lost faith in the independence and impartiality of military tribunals after the shocking political witch hunt they mounted against Field Marshall Sarath Fonseka. This is why the man who led the war even yesterday at the All Party Conference said that he supports an international investigation into allegations against the Army.
After our government came to power, measures have been undertaken to reverse this trend – for example, the Constitutional Council is now functioning and the Attorney General’s Department is no longer under the President’s Office – and in a few years time there will be no pressing need for international involvement in our judicial system; but until we can regain the confidence of our own people and the international community an international component will be necessary.
In fact, if not for the politically motivated and irregular impeachment of Justice Bandaranayake, eminent figures including Venerable Dambara Amila, Prageeth Ekneligoda’s wife Sandya Ekneligoda, anti-corruption campaigner. J.C. Weliamuna, civil society leaders, and leaders who have fought for the rights of the mothers whose sons and daughters died during the JVP insurrection and war against the LTTE like Brito Fernando, would not ask for international judges. It is because of the breakdown of the rule of law that the victims in Rathupaswala, Katunayake and Welikada are now calling not only for international participation in judical mechanisms but international inquiries.
The resolution, at operative paragraph six, “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 authorized prosecutors and investigators”. Therefore, the architecture of this mechanism is Sri Lanka’s hands.
However, the Paranagama Report, a commission appointed by former President Mahinda Rajapaksa, prescribes the Gambian formula in which all judges and prosecutors were foreigners.
At paragraph 616, the report says “It is the view of this Commission that successful experiment in the Gambia in 1981, following an upheaval in which many died, may possibly be viewed with favour. In that instance, a court which was part of the national legal system, known as the Special Division of the Supreme Court of the Gambia, was set up taking on judges from the Commonwealth. This was a court that met both national and international concerns.”
Sri Lanka’s security forces once had a sterling reputation for professionalism, discipline and humanity. They were, by and large, able to maintain this reputation over the course. This was partly because a few who sullied this good name by committing crimes were tried.
There are many instances in the past when Sri Lanka has done so. Some examples were mentioned by the Deputy Minister of Provincial Councils and Local Government, Honourable Karunaratne Paranavitana.
In 1996, five soldiers and a policeman were convicted and sentenced by the Trial-at-Bar in Colombo for the abduction, committing the rape and murder of Krishanthi Kumaraswamy and committing the murders of her mother, brother and neighbor.
In 1999, a brigadier, a captain and six other security forces personnel were prosecuted for the abduction and murder of over 30 school children in Embilipitiya in 1989.
Two members of the armed forces were tried and convicted for the murder of beauty queen Premawathi Manamperi in 1971.
There are many other cases of prosecutions, such as the Floating Bodies of Bolgoda and Bindunuwewa.
As the Paranagama Commission points out at paragraph 76, “The LLRC report has already made it clear that it was incumbent on the GOSL to bring the individual perpetrators of war crimes to justice and that this would also avoid besmirching the reputation of the SLA as a whole. Indeed, contrary to international opinion, senior SLA officers concur with this approach.
In responding to the question whether the GoSL should investigate the alleged execution of Balachandran, Prabhakaran’s youngest son, Major General Udaya Perera, former Chief of Staff, stated:
“More than the Government of Sri Lanka, it is we, the army who should take responsibility, if that cowardly killing happened at the hands of our men.””
This is also why Field Marshall Sarath Fonseka has supported the need for investigations. Being a military man he did not mince his words, plainly saying, “We have to clear our name”. He has also said that “if there are allegations against military operations, I am ready to face anybody and present the right picture. There is no problem.” In addition, he has expressed his support for foreign assistance in the process.
We owe it to vast majority of soldiers who, in the face of great adversity, stood by their principles and duty, acting with decorum, professionalism and humanity. We owe it to them to clear their name. We will not let the mistakes of the few cloud them and their future prospects, including for international roles such as contributing to maintaining and upholding international peace through the United Nations.
In fact, Sri Lanka is not the only country in the world to initiate such action to save the good name of security forces personnel. It is the trial, conviction and imprisonment of the few service personnel who have committed crimes that helps maintain the reputation of the armed forces as a whole. For example, the US’ trial and imprisonment of those responsible for the Abu Ghraib torture helped protect the name of the US security forces as a whole. The UK similarly prosecuted those who were alleged to have committed torture and manslaughter – and many are serving jail terms. In fact, some of them were tried under the ICC Act because the UK ratified the ICC’s Rome Statute.
The people of Sri Lanka have the right to know if any violations of their rights or atrocities have taken place. The Udalagama, Paranagama and OISL reports identify many cases of LTTE atrocities, including the killing of civilians, holding the Tamil population hostage, torture, political assassinations, murder of surrendees, child recruitment, atrocities against the Muslim population. There are many more. We need to know the truth and hold responsible anyone who has been party to these primes and is still alive
International participation will help convey to the world the atrocities committed by the LTTE. Allow me to quote from the OISL report:
At paragraph 49 the report says, “The LTTE developed as a ruthless and formidable military organisation, capable of holding large swathes of territory in the north and east, expelling Muslim and Sinhalese communities, and conducting assassinations and attacks on military and civilian targets in all parts of the island. One of the worst atrocities was the killing of several hundred police officers after they had surrendered to the LTTE in Batticaloa on 17 June 1990.”
Again from the OISL report, paragraphs 676 and 677 :
“From 2002 until the end of the conflict, UNICEF maintained a database of known cases of child recruitment. It documented 6,905 children recruited by LTTE, including 2,689 girls. According to numerous reports, in the last few months of the conflict, the LTTE increasingly recruited children younger than 15 years”
Similarly, just as much as we must investigate the murder of 600 policemen who surrendered to the LTTE in the Eastern Province, we need to investigate the White Flag case and other cases identified by the reports that I mentioned above. The proposals outlined today and in the resolution will create the systems and the institutions to investigate all cases of abuse and human rights violations and bring those responsible to justice.
In this process, the focus must be on those who bear the greatest responsibility for any wrongs committed. This is in fact the recommendation of the Paranagama Commission and Udalagama Commission.
The Paranagama Commission report states at paragraph 613:“There can be no effective domestic mechanism for the purpose investigating international crimes that apply in all conflicts, including non-international armed conflicts, unless the GoSL incorporates into Sri Lankan law the core crimes applicable in non-international armed conflicts so that they could be relied on under statue law to investigate and prosecute. In particular, the doctrine of command responsibility, which is part of customary international law for all conflicts and thus applicable to the Sri Lankan conflict, should be incorporated into Sri Lankan law. This has occurred in many other countries through the adoption of specific legislation to create certainty about the applicable law.”
The Udalagama Commission report concurs, stating that:
“In inquiries of this nature of the question of command responsibility plays a significant role. The question of command responsibility which focus not only on the responsibility of superior officers for issuing illegal orders which are carried out by subordinates but also refers to responsibility for omission to act.”
In fact, when orders are issues from the political leadership, the armed forces are obliged to carry it through without questions asked and therefore this question of command responsibility is important.. Would any members of the security forces have killed white flag surendees or Prabhakaran’s son without orders from the top? If so, those who gave orders need to be dealt with, just as much as those who may have committed these crimes.
Sri Lanka has yet another window of opportunity to come to terms with its past and move on. Extremists in the North and in the South have been defeated in the recent elections, two of the most liberal minded leaders since independence are leading the country and the two main parties, for the first time in history, have formed a national unity government. This is a moment we cannot lose.
We must remember that if we are to move forward as a country, there is no way than to come to terms with and deal with our past. The need of the hour, perhaps even the need since Independence, has been to defeat the forces of extremism who have, since independence, attempted to make Sri Lanka a mirror that reflects their fears and prejudices. The time has come for the moderates of our country to come together to build a new multi-ethnic, multi-religious and multilingual Sri Lanka where equality, justice and freedom prevails for each and every citizen.
Let me quote from my speech in Geneva on the 14 of September, that I would like to table to be included in Hansard.
“Let us design, define and create our future by our hopes and aspirations, and not be held back by the fears and prejudices of the past. Let us not be afraid to dream. Let us not be afraid to engage in meaningful dialogue aimed at finding solutions to problems as opposed to pointing fingers, heaping blame and scoring political points at the expense of future generations.”