Features
Comment on 51st Session of UNHRC: Time for course correction
by Neville Ladduwahetty
Addressing the 51st Session of the Human Rights Council, the UN Acting High Commissioner stated: “Thirteen years since the end of the war, tens of thousands of survivors and their families continue to seek justice and to know the truth about the fate of their loved ones. They remain in need of reparations. The Sri Lankan State has repeatedly failed to pursue an effective transnational justice process and uphold victims right to truth, justice and reparations. Rather, as described in our previous reports, successive governments have created political obstacles to accountability, actively promoted and incorporated some military and former paramilitary officials credibly implicated in alleged war crimes into the higher levels of government, and have failed to present a shared understanding of the conflict and its root cause”.
Continuing, the Acting High Commissioner stated: “It is the hope of this office that the Government will now seize the opportunity offered by the changed circumstances in the country to re-embark on these fundamental processes that promote national reconciliation by ensuring accountability for past human rights violations and abuses. In the absence of current and effective accountability options in Sri Lanka, the High Commissioner has called on States to pursue alternate strategies to advance the accountability at the international level, including through consideration of targeted sanctions against alleged perpetrators as well as cooperation to initiate prosecutions on the basis of extraterritorial and universal jurisdiction.
The focus of this article is on the comment that “The Sri Lankan State has repeatedly failed to pursue an effective transnational justice process and uphold victims right to truth, justice and reparations”.
EXPERIENCES of TRUTH and JUSTICE
MECHANISMS
If Sri Lanka is to “seize the opportunity offered by the changed circumstances”, a significant contribution towards this endeavour could be made by the UNHRC by clearly outlining what it means by an “effective transitional process” and propose a suitable framework for Sri Lanka to seize the opportunity, instead of repeatedly referring to the failure of the Sri Lankan State. Judging from the variety of processes adopted by other countries and their experiences, no country has succeeded in developing an “effective transitional process”, least of all the much hyped TRC of South Africa that focused on a restorative process of “healing the nation” and therefore not on a retributive process of prosecution. Therefore, for the sake of all concerned, the Acting High Commissioner should at this juncture outline whether Sri Lanka should adopt a restorative process with reconciliation in mind, or adopt a retributive process and resort to prosecutions, bearing in mind the inevitable consequences that are associated with each choice.
A word of caution to the Acting High Commissioner is not to expect transitional justice processes for Sri Lanka to be similar to the processes adopted by South Africa, Sierra Leone, East Timor, Cambodia and Bosnia and Herzegovina because they were all internal armed conflicts, while the conflict in Sri Lanka was a Non-International Armed Conflict, as provided in Common Article 3 of all the Geneva Conventions. This difference was recognized by the UNHRC in their OISL Report (OHCHR Investigation on Sri Lanka – OISL).
As for the internationally recognized TRC of South Africa, its legacy, according to Dr. Desmond Tutu, was: “The TRC was confronted by a number of challenges, as it was not accepted by all parties to the conflict. The top echelons of the military did not cooperate with the commission. It was mainly the foot soldiers in the security forces and those who were already imprisoned or were facing charges who applied for amnesty. Senior politicians in the former government and senior leaders in the security forces did not apply. In the case of the liberation movements, the members argued that as they had conducted a “just war,” they were not required to apply for amnesty because their actions did not constitute gross violations of human rights”.
Unlike in the case of domestic settings where human rights violations are addressed through criminal investigations, prosecution and possible conviction, the experience of countries that have attempted to establish Truth and Justice Mechanisms following serious crimes in the context of internal armed conflicts is to prosecute only those believed to be most responsible while for the rest the Mechanism only serves as an opportunity to present their narrative as the “truth”.
An article that confirms such outcomes titled “Retribution and Reconciliation: War Crimes Tribunals and Truth Commissions – can they work together?” By Howard Varney, in Our Freedoms states: “At an international level the global community has reacted to massive human rights atrocities in the former Yugoslavia and in Rwanda with the establishment of international criminal tribunals. Smaller hybrid courts, involving both local and foreign judges, prosecutors and investigators have been set up in Sierra Leone, East Timor, Cambodia and Bosnia and Herzegovina. In most of these cases the attempts to deliver justice have been confined to the prosecution of only those regarded to be most responsible for the violation of human rights. This strategy is born out of necessity”.
If this is the outcome of Truth and Justice Mechanisms, as far as the victims in Sri Lanka are concerned, the several Presidential Commissions provided the opportunity for them to convey their “truth” in the form of their narratives, and the justice that followed is in the form of ongoing reparations paid to them. As for prosecution of those responsible for serious violations of human rights and/or humanitarian law is concerned, existing legal provisions are in place through High Courts and Courts of Appeal assisted by the Human Rights Council of Sri Lanka for anyone who has access to credible evidence to avail themselves of this legal framework. This approach conforms with the procedures adopted under provisions of “Individual Penal liability”. This topic was dealt at length in a book titled “Our Fundamental Rights of Personal Security and Physical Liberty” (Justice A.R.B. Amerasinghe).
However, such prosecutions invariably polarize communities as has been the case in other countries, thus ending up being a deterrent to reconciliation. It is for this reason that many authorities find retributive approaches to address violations being incompatible with reconciliation; which incidentally, is the end goal following serious conflicts.
RECOMMENDATIONS of OISL REPORT of the OHCHR
Whether or not the approach as stated in the Report of the Office of the High Commissioner for Human Rights reaches the threshold of “effective transitional justice”, they have advocated that Article 3 common to all Geneva Conventions is applicable to the armed conflict that took place in Sri Lanka.
Furthermore, Paragraph 182 of the above Report 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 being bound to respect the guarantees pertaining to the treatment of civilians and persons hors de combat contained therein. Common article 3 binds all parties to the conflict to respect as a minimum, that persons taking no direct part in hostilities as well as those placed hors de combat shall be treated humanely”.
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, even if Sri Lanka has not ratified Additional Protocol II of 1977, Sri Lanka and the LTTE are bound alike by customary law, and taking civilians hostage and using them as a human shield, is a war crime and therefore a violation of customary law; a fact incorporated in Article 13 (6) of Sri Lanka’s Constitution that states: “Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to general principles of law recognized by the community of nations”.
RELEVANCE of PARAGRAPH 183
If, as Paragraph 183 states “the Government and armed groups that are parties to the conflict are bound alike” by customary international law “applicable to non-international armed conflict”, it must then follow that the act by the LTTE of taking of tens of thousands hostage and using them as a human shield is a war-crime for which they must be held accountable. Furthermore, by doing so the LTTE not only violated the provisions codified in “Protocol Additional to the Geneva Conventions […] relating to the Protection of Victims of Non-International Armed Conflict, but is also responsible for being the cause for the disproportionately high number of deaths in the conflict zone.
This makes all the difference between internal armed conflicts as in the countries cited above, and those as in Sri Lanka that come within the purview of Protocol Additional to the Geneva Conventions relating to Non-International Armed Conflicts. This cardinal fact makes the intention of the Government to appoint a Truth and Reconciliation Commission modelled on South Africa’s TRC, totally inappropriate. Furthermore, the fact that Paragraph 183 binds the Government and the LTTE alike, the accountability for the deaths in the conflict zone and the reparations for the victims should be a shared responsibility and not entirely the responsibility of the Government, as conveyed repeatedly in UNHRC Resolutions.
CONCLUSION
The position being consistently taken by the Acting High Commissioner and her predecessors is that the Government of Sri Lanka is solely responsible for the human rights and humanitarian law violations. This is because they have categorised the conflict in Sri Lanka as an internal armed conflict, similar to conflicts that occurred in countries such as South Africa, Sierra Leone, East Timor, Cambodia and Bosnia and Herzegovina. However, as stated above, this is NOT the case with the armed conflict in Sri Lanka; a fact that is recognised and acknowledged in the OISL Report of the OHCHR – a part of the very Institution that the Acting High Commissioner represents. Furthermore, if political obstacles to accountability are not to be created, the UNHRC should caution the Government about setting up a Truth and Reconciliation Commission, modelled on South Africa’s TRC.
Therefore, instead of continuing to sing the same old refrain of Transitional Justice as being appropriate, it is about time that the UNHRC accepted the procedures laid out to address Accountability in the Protocol Additional to the Geneva Conventions as being the most appropriate as recommended in the OISL Report of the OHCRC. Furthermore, it should be acknowledged that the most serious violation, amounting to a war crime, was committed by the LTTE when they took hundreds of thousands of civilians, in the conflict zone, hostage and used them as a human shield for which there is no parallel.
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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