Features
Prosecutorial Vs. Victim-based approaches to accountability
by Neville Ladduwahetty
A report in The Island (May 20, 2024) states that the UN human rights office has “criticised the Sri Lankan government’s failure to acknowledge and hold accountable the perpetrators of tens of thousands of enforced disappearances … Authors of the report also accuse the Liberation Tigers of Tamil Eelam of “engaging in abductions” which were described as “tantamount” to enforced disappearances” (May 20, 2024). Continuing, the report adds that the UN. The High Commissioner for Human Rights had stated: “Accountability must be addressed. We need to see institutional reform for reconciliation to succeed”.
In the meantime, the Secretary General of Amnesty International (AI) had “called for Sri Lanka to be referred to the UN Security Council and subjected to international war crimes inquiry when she participated to pay tribute to those who perished at Mullivaikkal. While the call for Sri Lanka to be referred to the Security Council may have pleased those who came to pay tribute, the reality is that such a referral would inevitably be vetoed. However, the fact remains that AI along with the UN Human Rights is advocating a prosecutorial approach to Accountability.
For instance, the Nuremberg Trial was strictly prosecutorial. In contrast, the Marshall Aid Plan was Victim based. While the objective of the former was to seek justice for the victims by prosecuting the perpetrators of the crimes, it was the latter that enabled Germany to recover and join the community of nations as a powerful and respected member.
The question that divides scholars and others who pursue accountability is; which approach to adopt. Should it be prosecutorial or victim based? While some, such as the UN report cited above advocate a prosecutorial approach for the sake of justice, others such as the High Commissioner are non-committal as to which approach to adopt. Yet, others want some aspects of both approaches. Therefore, the first question to be addressed is which approach to adopt, taking into account the particularities of the Sri Lankan society and the background that led to the armed conflict.
ESTABLISHING the CONTEXT
At a fundamental level, the raison d’etre for the armed conflict was the deep sense of grievance felt by the Tamil community; a circumstance they believed could only be overcome by resorting to an armed conflict to establish a separate state for themselves. For those representing the State of Sri Lanka, their bounden duty was to protect and preserve the territorial integrity of their cherished unitary state in keeping with Article 3 of Protocol II that state: “Nothing in the Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government by all legitimate means to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State”. The only means by which these vastly contending positions could be resolved was through an armed conflict; a fact recognized by the UN Human Rights Commission in paragraph 182 and 183 of their OISL report of 2015.
Pargraph 182 states: “Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka, with all parties to the conflict bound to respect the guarantees pertaining to the treatment of civilians ….”
Paragraph 183 states: “In addition, the government and armed groups that are parties to the conflict are bound alike by the relevant rules of customary international law applicable in non-international armed conflict”.
Therefore, if both the Sri Lankan State and the LTTE “are bound alike” by the relevant rules of customary international law applicable in non-international armed conflict”, why is all the attention to address accountability ONLY fixated on the Sri Lankan State and none on the LTTE. Since most of those who perished in Mullivaikkal were victims of the policy adopted by the LTTE to take civilians hostage, and continue to endanger the security of hundreds of thousands taken hostage by continuing to engage in hostilities, should NOT the LTTE also be held accountable? This being the case, would the evidence gathering that is currently being undertaken by the UNHRC in order to exercise Universal Jurisdiction, also apply to policies such as hostage taking and shooting escapees?
PROSECUTORIAL APPROACH
Judging from the attention given ONLY to the government of Sri Lanka by the UNHRC and by entities such as AI, the outcome of any judicial processes would be skewed, which means NO justice, despite the fact that the Sri Lankan Government and the LTTE “are bound alike” by relevant rules of customary international law as in common Article 3 and Protocol II; a fact confirmed below.
INTERNATIONAL COURT OF JUSTICE, Judgment of 27 June 1986,
(NICARAGUA v. UNITED STATES OF AMERICA), MERITS
Judgment – para. 215 to 292
“The conflict between the contras’ forces and those of the Government of Nicaragua is an armed conflict which is “not of an international character”. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts. Because the minimum rules applicable to international and to non-international conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict. The relevant principles are to be looked for in the provisions of Article 3 of each of the four Conventions of August 12, 1949, the text of which, identical in each Convention, expressly refers to conflict not having an international character” (ICJ Judgment, Nicaragua v. U.S para 215 – 292)
“In the Military and Paramilitary Activities in and against Nicaragua, the International Court of Justice observed that the acts of the Contras, fighting against the Nicaraguan Government, were governed by the law applicable to armed conflict not of an international character i.e. Common Article 3. Similarly, in the Tublada case, the Inter-American Commission considered”: Common Article 3’s mandatory provisions expressly bind and apply equally to both parties in internal conflicts, i.e. government and dissident forces. Moreover, the obligation to apply Common Article 3 is absolute for both parties and independent of the obligation of the other. Therefore, both the MTP attackers [the armed opposition group fighting in the conflict under consideration] and the Argentina armed forces had the same duties under humanitarian law” (Zegveld, Accountability of Armed Opposition Groups in International Law, p.21, ICJ Judgment Nicaragua v. US para 119 and Case No. 11/137).
Judging from the ICJ opinions cited above, it is certain that not only violations by the Sri Lanka Government but also violations perpetrated by the LTTE should be reviewed in the course of a Judicial Trial, since they are “bound alike”. Therefore, although violations by the Government forces and LTTE would be judged by Common Article 3, the fact remains that the leadership of the LTTE who ordered the taking of 300,000 plus civilians, hostage is not among the living or has disappeared, and cannot be subjected to a trial despite the fact that the act of taking civilians hostage amount to a war crime and a crime against humanity. Thus, the exercise of gathering evidence against Government perpetrators pales in significance compared with endangering the security of 300,000 plus civilians that were taken hostage. Despite this, a prosecutorial process would mean a skewed outcome of any trial because of the strong possibility that violations perpetrated by the Sri Lankan Government would dominate the trial.
Thus, while a few of those associated with the LTTE would have to face prosecution, the majority cannot be located or identified since they have acquired new identities and are domiciled in foreign countries. Also, others who were in positions to exercise command responsibility, but are no longer among the living cannot be prosecuted for the crimes committed, e.g. taking 300,000 civilians hostage and killing those who attempted to escape.
Under circumstances where it would be next to impossible to identify and prosecute former members of the LTTE because they are dispersed primarily in the West with fresh identities, a prosecutorial approach would lead to an asymmetric outcome resulting in the polarization of the two communities to a degree that could give cause for instability and even resumption of hostilities since the numbers associated with successive Governments who could be identified and prosecuted would significantly be more.
Furthermore, while it would be possible to identify those associated with the Government responsible for command, it is NOT possible to identify the leaders of the LTTE who were responsible because they are no longer among the living.
The net effect of such an asymmetric outcome following a prosecutorial process would permanently damage the efforts advocated and undertaken to bring about reconciliation.by successive Governments. For the UNHRC to include the provision in several of its Resolutions that “a credible justice process should include independent judicial and prosecutorial institutions….”, is because their perception is based on the premise that prosecuting the guilty would foster reconciliation.
While such a premise may be applicable to normal law and order situations, it is NOT applicable to Sri Lanka’s armed conflict that spanned three decades involving two communities if the prosecutorial process causes disproportionate outcomes as referred to above. Furthermore, if the outcome is such that more from the Sinhala majority community is prosecuted than from the minority Tamil community for whatever reason, the consequences would be to seriously setback the reconciliation processes; an outcome that defeats what the UNHRC hopes to achieve.
VICTIM BASED APPROACH
The real possibility of such serious outcomes, requires that the scope of the investigation is limited to such a degree that legal prosecution is not possible in the context of Sri Lanka. However, the scope of the investigation could be such that it is possible to establish the body of evidence associated with a particular incident There is strong evidence that the security forces targeted temporary hospitals despite being aware of their location. However, there is also counter evidence that the LTTE directed artillery fire from such locations and moved their ordinance soon after, thus tempting the security forces to target these make-shift hospitals. The investigation would then be limited to what each party to the conflict did in a given situation and not go beyond as to who was culpable to warrant prosecution under the relevant laws. Investigations would thus be a record of actions taken by respective parties to the conflict without delving further to establish which party was responsible for which violation of which laws, Human Rights or Humanitarian.
While this concept takes root, the leadership of both communities should jointly develop mechanisms to address the needs of victims and take joint responsibility for their implementation, instead of depending solely on the elected Government for Reconciliation to be effective and unity restored.
CONCLUSION
In light of the hard reality associated with prosecutorial processes cited above, and the ruling by the International Court of Justice in the case. Nicaragua v. U.S the “acts of the Contras fighting against the Nicaraguan Government were governed by the law applicable to armed conflict not of an international character i.e. Common Article 3…”. Therefore, the approach should be to limit investigations, not with the intent of prosecution because it would be skewed for reasons cited above. but with the intent of recording the events that occurred during the armed conflict, and which party to the armed conflict could be identified with the respective violations with a view to use this body of evidence to institute reforms to prevent recurrence.
It is indeed a matter of serious concern that successive Sri Lankan Governments have failed to acknowledge that the Sri Lankan Security Forces and the LTTE are bound alike by the laws applicable to the armed conflict in Sri Lanka. This has seriously dented addressing issues of accountability in a balanced manner.
At the end of such investigations the present leadership of the parties to the conflict should acknowledge the serious omissions and commissions committed by both parties and move on by declaring the broadest possible amnesty to all who were associated with the conflict as stated in Section 5 of Article 6 of the Additional protocol II of 1977.
Article 6 Section 5 States: “At the end of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained”.
Since such amnesties and pardons have been instituted starting with the release of child soldiers and nearly 11,000 plus former LTTE combatants and more recently the release of prisoners, the practice has been in operation from time to time. This process would have gained momentum if not for the clamour for prosecutorial processes locally and resolutions of UNHRC that are tantamount to External intervention. The need therefore, is to regularize this practice and bring closure to an issue whose time has come.
Features
‘Lord Edgware Dies’
It has been some time since I read an Agatha Christie, the plot of which I cannot remember. So, I was delighted to find on the shelves of a friend Lord Edgware Dies, which I had a vague memory of, but no certainty about who had done it.
When I read it, I found that my memory of who was probably the killer was correct, but I could not be certain and the red herrings Christie threw in were so diverting that until almost the very end I wondered if I had been wrong.
The plot is very simple. Jane Wilkinson, who is married to Lord Edgware, tells him that she is desperate for a divorce since she is in love with a very proper Anglo-Catholic peer, Lord Melton, but Edgware refuses to divorce her. She asks Poirot to talk to him, which he does, and is surprised to find that Edgware has told Jane he is prepared to give her a divorce. This was, after he had categorically refused, through a letter, which Jane said she had not received.
That night Edgware is murdered, after Jane had been to see him, or so the butler said, and also Edgware’s secretary. But Jane had been that evening at a grand dinner many miles away, where a dozen fellow guests could swear to her presence.
There was a solution however to the mystery of two Jane Wilkinsons, namely a skilful impersonator called Carlotta Adams who, in the opening chapter had impersonated Jane Wilkinson, who had also been at the performance. But when Poirot goes to see her, he finds that she had been found dead on the morning after Edgware had been killed, of an overdose. And in her bag was a gold case, with a strange inscription, that contained the drug, along with a pair of pince-nez.
Her maid said she had written a letter to her sister in America and posted it the previous night. Poirot asks Inspector Japp to get the letter, and a transcript is received from America, and in it the name of Edgware’s nephew Ronald Marsh is mentioned; he had taken Carlotta to dinner after her performance, with which the book opens, and had then set her a challenge. Japp arrests Marsh, but Poirot is not happy and asks for the original of the letter, which the sister sends him. That shows that a page is missing, and the tear is obvious, though that raises the question as to why it had not simply been cut.
Matters are further complicated by the fact that Marsh had gone in a taxi to the Edgware house, along with Edgware’s daughter Geraldine, in the interval of an opera which had previously seemed to provide them with cast iron alibis. Geraldine had gone in to fetch her pearls so that Marsh could raise money he needed, and thus had an opportunity to kill Edgware, as did Marsh, for the driver said he had got out of the taxi while waiting and gone into the house.
Marsh explained why he had gone to the house on the night of the murder as having followed Bryan Martin, an American actor, who had been in love with Jane, whom he saw go into the house with a key. But there was no one visible when he entered, and Geraldine almost immediately came down and they left together. And Martin too has become an object of suspicion to Poirot, for he had been to see him before the murders were discovered with a story of being followed by a man with a gold tooth – a story Poirot immediately realized was false when he was asked how old the man was, and was told he was young, for young people did not have gold teeth.
A heap of French money Edgware had got for a trip to Paris was missing, but since Marsh had no need for it after his cousin’s offer of help, Poirot deduces that it must have been taken by the butler, who has disappeared. Christie has stressed that he is astonishingly handsome, unusual in a butler, and Poirot notes a resemblance to Martin, so he thinks the mysterious man going into the house must have been him.
Incidentally, later Poirot assumes that Edgware’s change of mind was because he was involved in some scandal, and I believe Christie intends us to see the cause of this in his handsome butler, though this is not specified.
Meanwhile, Poirot has asked Japp to find out the provenance of the case found in Carlotta’s handbag, and it turns out to have been made in Paris, specially commissioned, and collected by a woman with pince-nez.
But then another murder occurs—that of another guest at the grand dinner, which provided Jane with her alibi. The victim is an actor who had been bemused when Jane, at a lunch, thought the Judgment of Paris referred to the city. He told Hastings he wanted to see Poirot, but was killed before he could get to the appointment. Poirot had rushed there when told about his request, but it was too late.
Meanwhile, Poirot has tried out the pince-nez on Edgware’s secretary, but she could not see through these. It was only a chance remark heard outside the theatre that led him to try them out on Wilkinson’s maid Ellis, a spare pair that had been appropriated for the night of the murders.
Poirot then lays things out, having summoned Martin and told him that he probably suppressed Edgware’s letter, as he had been dropped by then and he did not want Jane to marry another. But after teasing Martin, Poirot says that Jane was in fact the murderer, and she got Carlotta to impersonate her at the dinner while she went to the house and killed her husband. After meeting Carlotta later and checking with her through a call that she had
not been rumbled, Jane had gone ahead with the murder – she put veronal into her drink and the case with veronal into the handbag. She forgot to take out the pince-nez she had used earlier to imitate an American. Carlotta had registered as the American in a hotel and Jane had gone to see her, and there they exchanged identities. After seen the letter, she made use of it by tearing off the page that referred to her, and the S of She, so that the person who had challenged Carlotta to impersonate her seemed to be a man.
There is a coda in which Jane, condemned to death, writes to Hastings, still full of pride at her ingenuity hoping she will be remembered.
Features
Desilt reservoirs, learn from our ancient irrigation systems
by Prof. O. A. Ileperuma
Silting of reservoirs is a major problem today affecting our hydropower production and irrigation systems. The main Mahaweli reservoirs are silted to a considerable extent reducing the water holding capacity of them. Due to poor soil management practices, floodwaters deposit large amounts of silt in these reservoirs. When the Polgolla reservoir was fully drained about two years back, one could see mountains of silt in the lower reaches of the reservoir. A rough estimate is that 50% of the total capacity of these reservoirs has been lost to siltation. This is a serious issue which affects not only power and agriculture but also flood control.
Our ancient irrigation systems ensured that desilting of reservoirs took place under royal decree where all users of the reservoirs were ordered to carry out desilting of reservoirs during the dry season. The clay thus collected was used in making bricks for the construction of great stupas which dot the landscape of our ancient kingdoms. This ensured that the reservoirs had their full capacity filled with water for the next cultivating season. Our ancient kings were clever enough not to construct reservoirs by blocking main rivers such as the Mahaweli. A classic example is the Minipe left canal where they tapped only the surface water of Mahaweli. Even the bigger tanks such as Nuwara Wewa and Parakrama Samudraya were fed with minor rivulets. There were also other ingenious features in the cascade irrigation systems built by the ancient kings, such as mud sluice canals and forest reservations between the reservoirs in the cascade system. These reservations helped trap silt and remove excess nutrients, which could otherwise contribute to increasing salinity as water flowed from one reservoir to another.
- Parakrama Samudraya
- Kalawewa
- Kotmale
A classic engineering marvel is the former Yoda Ela, which carries water from Kalawewa to Nuwara Wewa and Tissa Wewa. It is 87 km long although the straight distance between these points is only about 40 km. The gradient of this canal is about 10 cm per km or 6 inches per mile. Yodha Ela functions as a moving reservoir and feeds about 4,600 hectares of paddy lands. It is a winding canal with about 120 smaller reservoirs on its way. It was constructed during the reign of King Dhatusena around 459 AD and later expanded by King Parakramabahu by connecting more reservoirs to the network. Unfortunately, during the Mahaweli project our modern-day engineers constructed a concrete canal replacing the winding path of this Yoda Ela also called Jaya Ganga. This effectively removed the ability of the old Yoda Ela to remove silt and nutrients. The bank of this Ela has wet zone trees such as jak and areca nut growing well. They take up the nutrients from the flowing stream making the water suitable for irrigation later.
Ancient Mesopotamian civilisations depended on dams constructed along the two main rivers, Euphrates and Tigris. After continuous irrigation of their fields over several thousand years, salinity of the irrigated lands increased making them unsuitable for agriculture. People died due to famine and this clearly illustrates the danger of blocking main rivers for agriculture. There is scientific evidence that the salinity of paddy soils in the Mahaweli C area is increasing.
We saw the devastation caused by Cyclone Ditwah. The sluice gates of the Kotmale Reservoir were opened, and Kandy and Peradeniya were flooded. If the reservoir had had greater storage capacity, couldn’t the opening of the gates have been delayed? This may not be an argument that modern-day engineers would readily accept, and I am not an irrigation expert. These ideas may well be naïve. But most of us tend to think of reservoirs mainly in terms of hydropower generation and irrigation, while their role in flood control receives much less attention. The question therefore deserves serious consideration. Could restoring lost reservoir capacity through desilting help improve our ability to manage extreme rainfall and reduce flood risks?
Desilting our reservoirs should be considered a national priority.
Features
Losing out to Ethiopia
Export diversification – Missing the wood for the trees – Part III
by Gomi Senadhira
In Sri Lanka, the word “Ethiopia” is often used as disparaging slang to describe individuals or areas experiencing extreme poverty, starvation, or severe economic hardship. This linguistic habit originated in the 1980s with the Western media coverage of the devastating Ethiopian famine of 1983-85. That media coverage shocked the world but also left an outdated and offensive global stereotype that the country is permanently starving. Much has changed since then. By now, with an annual growth rate of around 9%, it is the fastest-growing economy in sub-Saharan Africa. Ethiopia has also emerged as a highly competitive exporter and is challenging not only its competitors in the region but also countries like Sri Lanka. This article is on how Sri Lanka has lost ground to Ethiopia (and a few other countries) in the GCC markets for agricultural and floricultural products.
Sri Lanka – A Pioneer in the Agriculture and Floricultural Market in the GCC
As discussed in Part II of this article, by the mid-1980s Sri Lanka had established a strong foothold in the GCC’s fruit, vegetable, and floricultural market. Geographical proximity and well-established shipping and air links gave Sri Lanka a strong comparative advantage over Southeast Asian and African nations. Thailand, Vietnam, and Kenya were not even in the market. At that time, Ethiopia was experiencing (as BBC news reports described) “a biblical famine”.
The market was not very large, but it was lucrative and growing. Trade Minister Lalith Athulathmudali as well as the Chairman of the Export Development Board, Victor Santiapillai, who visited Kuwait (and the GCC countries), recognised the market potential for these products and encouraged us to continue with our work. The minister was particularly keen to further develop links between the market for these products, exporters, and his Export Production Villages (EPVs). So, it was becoming a successful case not only for export diversification but also for transferring gains from exports directly to rural households.
From Trailblazer to Tailender
As a result, even by the beginning of this century Sri Lanka had a larger market share than most of its competitors from Asia or Africa. But since then, our competitiveness has weakened significantly. The tables below provide a comparative snapshot of Sri Lanka’s performance vis-à-vis Thailand, Vietnam, Kenya and Ethiopia in the GCC market for vegetables, fruits and floricultural products. As illustrated therein, in 2001 Sri Lanka was ahead of Thailand, Kenya and Ethiopia in this small but rapidly growing market. Since then, we have fallen behind Thailand, Kenya and many other countries in that lucrative market. If this trend continues, Sri Lanka will fall behind Ethiopia within the next few years. (See Table 1)
In the GCC market for vegetables (covered in HS chapter 07), Sri Lanka was ahead of most other competitors in 2001. As illustrated in Table 1 , Sri Lanka had failed to develop this market, while Thailand, Kenya, and even Ethiopia had very efficiently increased their market shares. The GCC is a market to which Sri Lanka can supply some vegetables, like cabbages, by sea. It appears Sri Lanka had also failed to exploit this mode of supply.
We can see a similar trend in the market for fruits. Vietnam, Kenya, and Thailand have emerged as major players, while exports from Sri Lanka have staggered on slowly. In this segment, Vietnam has emerged as a leading player during the last twenty years and the GCC imports from Viet Nam have shot up from US$44 thousand in 2001 to US$346 million by 2024. In part one of these articles, I discussed the remarkable increase of jackfruit exports from Vietnam “…just $3 million in 2015 to an impressive $236.8 million in 2023” while most of our jackfruit production rots under the trees. This explains how countries develop their markets, geographically and product-wise. (See Table 2)
Sri Lanka’s performance has been weakest in the market for floricultural products (HS Chapter 06), which groups live trees, cut flowers, and ornamental foliage. When we first entered the market in the 1980s, the market was dominated by the Netherlands, and Kenya and Ethiopia were not even in the market. At that time, we identified the Gulf states as a market where Sri Lanka could have a dominant presence due to geographical proximity. Even in 2001, Sri Lanka was ahead of Kenya, Ethiopia, and Thailand. But by now, Kenya has emerged as the dominant supplier. Ethiopia is also expanding its market share and is the third-largest exporter. (See Table 3)
Missing the Wood for the Trees
In the mid-1980s, Sri Lanka first established its foothold in the GCC market. Since then, Thailand, Vietnam, Kenya, and even Ethiopia have moved well ahead of us and have become leading players. Why did we lag behind in our export diversification efforts in general and, more particularly, in the GCC market?
The reasons are very clear. After the initial attempts in the 1980s and early 1990s, Sri Lanka has not been proactively involved in identifying, developing, and promoting new products and markets, or protecting and further developing new markets already established. The focus has simply been on traditional exports: tea, coconut, cinnamon, and garments, while other products were almost ignored. In essence, we have been and continue to focus intensely on a narrow group of products and markets, and we have lost sight of the bigger picture.
(The writer can be reached at senadhiragomi@gmail.com)
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