SRI LANKA CAN LEARN FROM BRITISH

GOVERNMENT IN FACING UP TO WAR

CRIMES CHARGES--JEHAN PERERA
16 June 2014
The international human rights communitys determination to pursue with its
probe into alleged war crimes in the last phase of Sri Lanas ci!il war is widely seen
within Sri Lana as e!idence of pre"udice against the country# $owe!er% what has
happened to the Sri Lanan go!ernment must not be seen in isolation from
international de!elopments# Some of &ritains most senior military and political figures
now face a war crimes in'uiry as the (nternational )riminal )ourt *())+ announced it
would mae a ,preliminary e-amination. into claims of ,systemic. abuse by &ritish
forces in (ra'# /ore than 400 indi!idual cases are cited% representing ,thousands of
allegations of mistreatment amounting to war crimes of torture or cruel% inhuman or
degrading treatment#0 (n a statement on its website% the ()) said ,The new information
recei!ed by the 1ffice alleges the responsibility of officials of the 2nited 3ingdom for
war crimes in!ol!ing systematic detainee abuse in (ra' from 2004 until 2005#.
The &ritish go!ernment has sought to downplay these allegations but at the same time
affirmed that they will conduct their own in!estigations# The 6ttorney 7eneral has said
that the go!ernment 0completely re"ects0 claims that &ritish forces had been
responsible for systemic abuse and pledged to do 0whate!er is necessary0 to show
any allegations were being dealt with within the &ritish "ustice system# $e described
&ritish soldiers as .some of the best in the world. and said ,the !ast ma"ority. of the
armed forces ,operate to the highest standards% in line with both domestic and
international law#. 6t the same time the 6ttorney 7eneral indicated willingness to
cooperate with the ()) in!estigation saying ,( will pro!ide the office of the prosecutor
with whate!er is necessary to demonstrate that &ritish "ustice is following its proper
course#0
(t is three years late now% but Sri Lana still has an opportunity to regain the initiati!e
with regard to in!estigating the past# The third and most recent resolution of the 28
$uman 9ights )ouncil on Sri Lana had two pro!isions in it for addressing the issue of
accountability for the end phase of the countrys three decade long war# :irst it called
on the Sri Lanan go!ernment to conduct a credible domestic in!estigation into the
matter# 6t the same time it also made reference to the two pre!ious resolutions that
made the same call% and noted that progress was not satisfactory# Therefore% it was
only as a second option% that the 28$9) resolution called on the 1ffice of the $igh
)ommissioner for $uman 9ights *1$)$9+ to conduct its own independent
in!estigation#
28 ;91&<
28 $uman 9ights )ommissioner 8a!aneethem ;illay who is due to retire shortly
noted that her office had ,put in place a staff team that will be supported by se!eral
e-perts and Special ;rocedures /andate $olders to conduct the comprehensi!e
in!estigation to ad!ance accountability and thus reconciliation#. The response of the
Sri Lanan go!ernment to the 28 $uman 9ights )ommissioners re'uest to cooperate
with this team and facilitate their !isit to Sri Lana has been entirely negati!e# The Sri
Lanan /ission in 7ene!a issued a strongly worded statement gi!ing the
go!ernments reasons for its re"ection of the 28 in!estigation# 6mong the reasons it
set out was that the 28 resolution challenged the so!ereignty and independence of Sri
Lana and also !iolated the principle of international law that national remedies
needed to be e-hausted before resorting to international mechanisms#
The statement also raised 'uestions about the suitability of some of the persons
appointed to conduct the in!estigation# The go!ernment has the e-perience of /s
;illays own !isit to Sri Lana in September last year# (t ended acrimoniously and the
report she ga!e was !ery critical of the go!ernance and human rights situations in the
country# She has now re'uested the Sri Lanan go!ernment for its cooperation in
taing this in!estigation forward# (t is unliely that Sri Lana can successfully in!oe
either bias or national so!ereignty as !alid reasons to re"ect the 28 9esolution# 6ll
States who are members of the 28 are re'uired to follow the 9ule of Law and uphold
human rights# (t is obligatory on the 28 and its agencies to in!estigate allegations of
!iolations of human rights and war crimes for otherwise the 28 )harter will be a mere
piece of paper to be left to indi!idual States to follow or not# 6t the !ery least% they
need to demonstrate that there is a credible domestic process of in!estigation that has
not yet been e-hausted# This appears to be the &ritish approach in dealing with its
own war crimes allegations#
(ndeed% it is this approach that the opposition parties in Sri Lana are demanding of
the go!ernment# They are calling on it to conduct a credible domestic in!estigation in
which case they will gi!e their support in ;arliament to promoting it as an alternati!e to
the 28 in!estigation# The J=; has said that if% within three months% the go!ernment is
willing to in!estigate and report on se!eral incidents which ha!e occurred in the past
few years because they ha!e !iolated both human and democratic rights of the
people% it is willing to support the go!ernments resolution in ;arliament# 1n the other
hand% the 28; has called on the go!ernment to cooperate with the 28 in!estigation
saying that blanet refusal to engage with the team of 28 appointed in!estigators is
ain to admitting guilt and depri!ing itself of an opportunity to mae its case# (f the
go!ernment is prepared to accept these proposals of the opposition parties% they could
mo!e to a position that is similar to the &ritish go!ernments response to the ())#
71=<98/<8T 6;;916)$
$owe!er% in an attempt to gain greater political consensus for its re"ectionist position%
the ruling party under the leadership of ;resident /ahinda 9a"apasa has decided to
turn o!er the final decision on whether to cooperate with the in!estigation to
;arliament# The go!ernments stance has been made clear# The Leader of the $ouse%
/inister 8imal Siripala de Sil!a handed o!er a resolution to Speaer )hamal
9a"apasa for a debate ne-t wee% opposing the 28$9)>appointed international
panel from coming to Sri Lana to probe alleged war crimes# The resolution states that
,This ;arliament should oppose the (nternational (n'uiry en!isaged by the 28$9)
office as such an in'uiry will harm the reconciliation% reconstruction and rehabilitation
process and peace in Sri Lana and also damage the so!ereignty and integrity of the
country#.
6s the go!ernment has a 2?4 ma"ority in ;arliament% the outcome is a foregone
conclusion# (t appears that the go!ernments moti!ation to tae the issue before
;arliament is for reasons of domestic politics# 6lthough the go!ernment leadership
would be aware of the ramifications of the 28 probe% its priority at the present time
would be on elections which are anticipated within the ne-t se!eral months# (n winning
elections the go!ernment has utili@ed the power of nationalism to the ma-imum# <!en
now its members are challenging the opposition to show if they are traitors or patriots
with regard to the 28 probe# Auring the period of the war% and its immediate aftermath%
the go!ernment was able to rally nationalism to its side to ensure the defeat of the
LTT<# The resolutions of the 28 $uman 9ights )ouncil and now the in!estigation to
be conducted by the 1ffice of the $igh )ommissioner for $uman 9ights has presented
the go!ernment with yet another opportunity to mobili@e the power of nationalism on
its behalf#
1n the other hand% the go!ernment also needs to consider the implications of a
re"ection of the 28 in!estigation# This will be ain to an e->parte "udgment in a court of
law# <->parte "udgments are in!ariably in fa!our of the side that participates in the
court proceedings# They also tend to go strongly against the party that refuses to
participate whose !iews are not heard# The danger for the go!ernment will be that the
e->parte "udgment of this in!estigating team will outli!e the term of office of the
go!ernment# The go!ernment may win the ne-t election% but the damage to the
countrys long term interests must also be recogni@ed# Sri Lana is a part of the
international system that it will be defying# (n a time of confusion there is a need to go
bac to first principles# There is a need for all parties in!ol!ed in the in!estigation to
conduct their affairs with an open mind and in a spirit of goodwill# This is the only way
in which intractable and difficult problems may be resol!ed# (t is to be hoped that
;arliament chooses the path of cooperation with the international community and the
28 system rather than that of confrontation#