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Promoting Reconciliation and Accountability in Sri Lanka

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By Neville Ladduwahetty

From 2012, Reconciliation and Accountability have been the twin pillars of the series of Resolutions that emerged from the UN Human Rights Council in Geneva. Perhaps, the thinking of those who developed the formula of linking Reconciliation with Accountability was guided by the notion that an effective accountability process that holds some members of the security forces and the associated leaders accountable and punished would somehow ease the humiliation of defeat, and make the painful processes of healing and eventual reconciliation more tolerable.

In general, this notion presumes that retributive justice would promote reconciliation. The presumption of such an outcome is not an assured given because the possibility exists for the positions of the parties hoping to reconcile to harden to a point of defeating the intended objective of reconciliation if retributive processes and their outcomes are perceived as being vindictive. Thus, the contemplated accountability exercise has the potential to be counterproductive depending on the context in which it is conducted.

 

SRI LANKAN EXPERIENCE

In the case of Sri Lanka, this theory could not be put to the test because the retributive process could not even get started. The reason for this being that those who devised the process overextended themselves and wanted the accountability process to be so effective that they conceived only a judicial mechanism that involved foreign judges, prosecutor etc. would achieve the intended objectives. The fact that such an arrangement would involve amending existing Laws and provisions in the Constitution, to the extent of requiring a two-third approval by Parliament and approval by the People at a referendum, escaped their attention.

This was brought to the attention of the Human Rights Council in March 2019 by the then Foreign Minister Tilak Marapana.

“The Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioner for Human Rights and other interlocutors, explained the constitutional and legal challenges that preclude it from including non-citizens in its judicial processes. It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a referendum”.

This gave the present Government legitimate grounds to withdraw from the co-sponsorship of UNHRC Resolution 30/1 in terms of Article 46 of the Vienna Convention 1969, which in essence states that a State may invalidate its consent to a Treaty if it violates a rule of its internal law of fundamental importance such as a Constitution of a sovereign State.

 

CURRENT SITUATION

Currently, the accountability process is at a stand-still because of the failure of the approach adopted. However, what exists is a collective body of material available in Reports prepared externally by the Panel of Experts appointed by the UN Secretary General and by the Office of the Human Rights Commission in Geneva together with internal Reports of Commissions of Inquiry appointed by the Government of Sri Lanka such as the Lessons Learnt and Reconciliation Commission (LLRC), and the Paranagama Commission that included International Experts.

This body of material has been reviewed from two distinct perspectives. Since the mandate to the LLRC was primarily to promote national unity and reconciliation among communities, its Report gives emphasis to Human Rights as reflected in paragraphs 5.2 and 5.3 cited below. On the other hand, the other Reports reflect a perspective that is based on International Humanitarian Law (IHL) as the applicable Law since the conflict had reached the threshold of a non-International Armed Conflict. Consequently, the material reviewed from a Human Rights perspective is bound to be different to a review based on IHL. Of the several reasons for this difference the most significant is that the LLRC viewed the conflict as between a State (GoSL) and a non-state actor (LTTE), thereby holding the State to a higher level of accountability than the LTTE, while under the perspective of IHL, responsibilities are shared equally as parties to an Armed Conflict. This makes the conclusions drawn from the respective perspectives different.

Paragraph 5.2 states: “Being a party to the following seven core international human rights instruments, Sri Lanka has given obligations under these Conventions through legislative measures, including the Constitution as well as executive and administrative measures”

Paragraph 5.3 states: “Sri Lanka therefore has constitutional and international obligations for the effective national implementation of these core conventions both during times of peace and war, and in the latter situation, together with applicable International Humanitarian Law…”.

It is therefore evident from the foregoing that the LLRC emphasis is on Human Rights with “applicable International Humanitarian Law’ during times of war. Had the LLRC recognized that it was a non-International Armed Conflict from the day the Cease Fire Agreement was signed as two parties recognized nationally and internationally to the conflict, the accepted applicable Law should have been International Humanitarian Law coupled with seriously derogated Human Rights during an Armed Conflict. This interpretation is reflected in the Sri Lankan Constitution and in the relevant Conventions during an Emergency as in the case of an Armed Conflict. The failure of the LLRC to recognize that it was a non-International Armed Conflict is the significant reason for its perspective to be different to the other Reports cited above.

 

LLRC’s INTERPRETATION of ACCOUNTABILITY

The material presented below are extracts from Chapter 9 of the LLRC Report titled “Summary of Principal Observations and Recommendations”. Since the two primary charges against the Government and the Security Forces are the excessive use of force and the inadequacies in the delivery of humanitarian aid, the two related sub-section from the LLRC Report presented below are: (1) “Measures to safeguard civilians and avoid civilian casualties” and (2) “Supply of humanitarian relief, including food and medicine to civilians in conflict zone”.

“Measures to safeguard…and No-Fire Zones”:

Paragraph 9.4: “In evaluating the Sri Lankan experience in the context of allegations of violations of IHL, the Commission is satisfied that the military strategy that was adopted to secure the LTTE held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority…”

9.7 Having reached the above conclusion, it is also incumbent on the Commission to consider the question, while there is no deliberate targeting of civilians by the Security Forces, whether the action of the Security Forces of returning fire into the NFZs was excessive in the context of the Principle of Proportionality…”

COMMENT: The two fundamental principles of International Humanitarian Law are: Distinction and Proportionality. Without Distinction as to who is a combatant and who is a civilian to question whether the military response was proportionate or excessive cannot be ascertained. Since the LLRC Report admits that the LTTE shed their uniforms during the final states of the conflict, the question of distinguishing a civilian from a combatant is not possible, which means the principle of Proportionality cannot be applied. Furthermore, the comment that the Security Forces were “RETURNING fire to the NFZs” makes clear that it was the LTTE in the NFZs that initiated the firing. Despite the obvious presence of LTTE combatants, the LLRC Report makes no reference to them and refers to ALL as civilians.

Therefore, to categorize ALL in the NFZs as civilians and to question whether the return of fire was excessive in the context of the Principle of Proportionality that has no applicability in the particular circumstances, is seriously flawed.

In regard to “Hospitals/Makeshift Hospitals paragraph 9.12 (b) of the LLRC report states: “None of the persons making representations was able to state with certainty that they were in a position to definitely confirm that the shells which fell on the hospitals, originated exclusively from the side of the Sri Lankan Army or from the LTTE…Another ex-LTTE cadre…stated that the Puthumatthalan hospital was in fact accidentally shelled by the LTTE for which they had subsequently apologized”.

Supply of Humanitarian Relief

Paragraph 9.15: “The Commission notes that the supply of food to the civilians held by the LTTE up to early 2009 was at reasonably adequate levels…However, these adequacy levels appear to have declined during the months of February, March, April and the first half of May 2009…”

Paragraph 9.16: “It must be acknowledged that the maximum quantities of food supplies, that were possible…due to the collective efforts of the Government of Sri Lanka, in particular the GAs and the Security Forces as well as international agencies such as the ICRC and WFP, and other volunteers who had provided selfless service on the spot in the No Fire Zone”.

The impression conveyed in the above comments is that the Government of Sri Lanka was responsible for and obligated to supply humanitarian relief to All in the No Fire Zone. Since it was not possible to separate combatants from civilians, this meant supplying humanitarian aid including medical supplies to the LTTE and engaging with them in an Armed Conflict, simultaneously. Such a flawed expectation is a result of the confused perspective adopted by the Commission as to the role of the Government. How could the Government be a party to the conflict and be a provider of humanitarian aid both at the same time?

COMMENT: Had the LLRC accepted IHL as the applicable Law, they would not have held the Government of Sri Lanka accountable for the “decline” in the supply of relief. The reason for including the Government in the list of those responsible for the supply of humanitarian relief is because their understanding of the Government’s responsibilities was misplaced. The Commission fails to acknowledge that the Government as a party to the Armed Conflict, should not be expected to supply aid of any kind to the LTTE. Instead, what the Government was expected to do was ONLY to facilitate free passage of humanitarian aid to those affected by the Armed Conflict as per ICRC Rules 55 and 56 (Vol. 87, Number 857 March 2005).

Rule 55: “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse, distinction, subject to their right of control”

Rule 56: “The parties to the conflict must ensure the freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions. Only in the case of imperative necessity may their movements be temporarily restricted”.

PROPOSED STRATEGY

There are two basic approaches that Sri Lanka could take in presenting its case before the forthcoming sessions in Geneva. One approach is to plead its case by presenting all the available evidence from sources such as that of Lord Naseby, UN Reports, opinions of experts in the Paranagama Commission Report and any other sources challenging the alleged claims in the UNHRC Resolution 30/1. The other is to challenge the alleged violations on the basis of International Humanitarian Law, backed up with support material referred to above. Of these two approaches there is a greater likelihood of the latter approach being more acceptable because it has a more credible basis than the former.

CONCLUSION

When Sri Lanka placed on record at the March 2019 UNHRC sessions that it was withdrawing from the co-sponsorship of UNHRC Resolution 30/1, it undertook, among other undertakings, to appoint a Commission of Inquiry “to review the reports of previous Sri Lankan COIs which investigated alleged violations of Human Rights and International Humanitarian Law, to assess the status of implementation of their recommendations and to propose deliverable measures to implement them in keeping with the new Government’s policy”.

The plea to anyone engaged in fulfilling the commitment stated above is to declare at the very outset that its review of reports of previous COIs is based on the fact that the conflict in Sri Lanka that ended in May 2009 was a non-International Armed Conflict, as recognized by international law. Consequently, the review process should bear in mind that the applicable Law is International Humanitarian Law together with derogated Human Rights Laws as reflected in International Covenants and in Sri Lanka’s Constitution during an Emergency. Therefore, the alleged violations presented in these Reports should be assessed in the context of these Laws, backed up with support material such from UN Reports, evidence presented by Lord Naseby, opinions of experts in the Paranagama Commission Report, and by the ICRC, etc.. Since the Additional Protocol II of 1977 is accepted as part of Customary Law and the fact that it embodies all recognized provisions of non-International Armed Conflict, the provisions of the Protocol should guide the review process of alleged violations committed collectively or individually.

The review process should also identify which recommendations in the Commission of Inquiry Reports relating to Reconciliation are deliverable in keeping with Government policy. In this regard one measure that would make a significant difference to Reconciliation is to demand tangible outcomes from the Office of Missing Persons, bearing in mind that their work could be constrained by the non-cooperation of Member States if they fail to disclose the identities of persons missing from Sri Lanka and who are now living in their countries under altered identities.

The forthcoming sessions in Geneva would be a defining moment for Sri Lanka in its relations with the UNHRC. Therefore, the Government should conclude its review process well in time, in order to enable it to canvas support among the members of the UN Human Rights Council on the basis of the legitimacy of the approach taken and bring closure to Accountability. At the same time the UN Human Rights Council should permit Sri Lanka the time and space to address Reconciliation through processes that each country has to fashion because its uniqueness is special to every country, and no country or International Agency has a universal formula to bring about Reconciliation among communities in a country.

 

Neville Ladduwahetty

November 15, 2020.



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Features

To recognise and reward Women Entrepreneur

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by Zanita Careem

WCIC “Prathibhabis-heka” national awards will be given to outstanding women entrepreneurs of Sri Lanka and the SAARC said Anoji de Silva, the chairperson of Women’s Chamber of Industry and Commerce WCIC at a press conference held at the Jetwing hotel Ward PlaceThis year the Women Entrepreneur Awards 2022 is powered by DFCS Aloka.This National Award which is recognised globally will help women to market their products to international buyers

“As a country we have faced many difficulties over the last few years. Now this is the time to reflect and ensure that local women can contribute and progress to be on par with international entrepreneurs She also noted that this award ceremony is a great opportunity for all since it’s an absolutely empowering platform. “You hear success stories of women from different walks of life and it’s very empowering and inspiring. I’m sure that the younger generation of women who will watch the ceremony wii be inspired to be sucessful entrepreneurs in the future S

“Our women entrepreneurs have the potential to help our economy to grow. They have made vast strides to build companies on a set of values and they have created diverse working environments.

The WCIC Prathibhabisheka Women Entrepreneur Awards will be held in January 22. To the question how financial records of small businesses headed by women could deter their ability to apply the chairperson said.

“We have a startup category which is under five years where they can submit documents for consideration. She responded “These women can apply but must submit proper records to back their applications or else they will be rejected wholeheartedly.The Women Entrepreneur Awards 2022

“Prathibha” depicts excellence in Sanskrit and WCIC will showcase the excellence of outstanding women entrepreneurs through WCIC Prathibhabisheka –

“The relaunched property is structured to assess the businesses in a holistic manner. We invite outstanding women entrepreneurs, especially the ones who have braved the challenges in the past years to share their story of resilience and achievements to compete for the coveted – WCIC Prathibhabisheka The Awards will honour women entrepreneurs for their tenacity to scale and grow, and for their contribution and impact on the economy. Whilst the competition is primarily for Sri Lankan Entrepreneurs, we have also included an opportunity for women in the SAARC region to compete in a special category” stated Anoji De Silva, the Chairperson of the WCIC.

The members of WCIC Ramani Ponnambalam and Tusitha Kumarakul-asingam, said”. We will be accepting applications under the categories – Start-up, Micro, Small, Medium and Large. Each category will have a specified revenue for the year under review – 2021/22. Gold, Silver and Bronze Awards will be presented for each category. With the view to identify and promote regional women entrepreneurs, we will encourage applications from all the provinces in the country and select the “Best of the Region” from each province.

The women will also be considered for the coveted special awards – Young Woman Entrepreneur, Outstanding Start- up, Most Positively Abled Woman Entrepreneur, The Most Outstanding Export Oriented Entrepreneur, The Best of the SAARC Region. The ceremony will culminate with the selection of the “Women Entrepreneur of the year -2022”.

“The entry kit can be downloaded from www.wcicsl.lk and completed and submitted to the WCIC along with all the material required to substantiate the applicant’s story. Entries close on the 31st of October.” stated Tusitha Kumarak-ulasingam.

WCIC Prathibabisheka – Woman Entrepreneur Awards 2022 is powered by– DFCC Aloka, as the Platinum Sponsor, with Gold Sponsors – Mclarens Group, LOLL Holdings Plc, Hayleys Leisure Pic, and AIA Insurance Lanka Ltd (Exclusive Insurance Partner), Silver – Finez Capital Ventures Print and Social Media Partners will be the Wijeya Group and Electronic Media Partner–ABC Network with Triad as our Creative Partner and Ernst & Young as Knowledge Partner.

Women’s Chamber of Industry and Commerce (WCIC) is the premier organization supporting entrepreneurs and professional business-women. The membership is open to women who believe they can contribute to society as well as benefit from the many facilities the organization creates. WCIC Prathibhasheka is relaunched this year as a flagship property, to recognize and reward outstanding women enterpreneurs who make a contribution to the SL economy.

For further information Contact- Janitha Stephens – 0766848080

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Marmalade sandwich in Queen’s handbag!

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In this period of national mourning, it may seem frivolous to comment on the late Queen’s handbag. After seven decades of selfless service to the nation, fashion is but a footnote to Her Majesty’s glorious reign.And yet her style is something that helped to create the powerful majestic image of Queen Elizabeth II, and which made her instantly recognisable worldwide. A key part of that image, and a constant presence in her working life, was her black Launer handbag.

Launer London was Her Majesty’s handbag maker for more than 50 years and has held the Royal Warrant since 1968. Launer bags are formal and structured, and proved to be the ideal regal accessory for public engagements. Its first royal patronage came from HM Queen Elizabeth the Queen Mother in the 1950s. Where others might have bought the latest ‘It’ bag, Queen Elizabeth exercised characteristic restraint with her handbags throughout her life, focusing on quality over quantity in her loyalty to Launer.

Her Majesty was known for her love of colour in her working wardrobe, wearing rainbow brights in order to be better seen by the public, but her accessories were always muted. Black mostly, sometimes beige or white in summer, gold or silver in the evening: neutrals that matched with every colour, allowing her to dress with ease. The timeless style of her trusty Traviata top-handle bag suited the Queen’s no-nonsense nature and symbolised her steadfast reign. The late Baroness Thatcher shared the Queen’s love of a strong top handle from classic British labels such as Launer and Asprey. These bags helped promote a look of someone in control. Like Queen Elizabeth, Thatcher’s handbags were such a part of her identity that they have earned their own special place in history and have been described as the former PM’s ‘secret weapon’. One such bag has been exhibited at the V&A alongside Sir Winston Churchill’s red despatch box. Both are artefacts of cultural and historic importance.

It has been said that there was another purpose to the Queen’s handbag on public engagements, namely that she used it as a secret signalling device. According to royal historian Hugo Vickers, Her Majesty would switch the bag from her left arm to her right to signal for an aide to come to her rescue if she tired of the conversation in which she was engaged. If she placed the bag on the table, this was a sign that she wanted to leave. Ever-practical, HM needed a bag that focused on functionality over fashion, choosing styles with slightly longer top handles that comfortably looped over the monarch’s arm, freeing her hands to accept bouquets and greet the public. Even in her final photograph, meeting her 15th prime minister in her sitting room at Balmoral Castle, just two days before her death last week, the Queen’s handbag can be seen on her left arm. Perhaps at this stage it was part armour, part comfort blanket.Even at the age of 96, Queen Elizabeth II did not lose her ability to surprise. She delighted the public by taking tea with Paddington Bear at her Platinum Jubilee celebrations and finally revealed what she keeps in her handbag: a marmalade sandwich, ‘for later’.

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Cinnamon Grand, Colombo welcomes You to the SEQUEL

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The next best thing in Colombo!

What would you get if you took the decadence of yesterday and paired it with the flavours of right now? Something bold and jazzy or rich and snazzy. Something we’d like to call the next best thing. All this and more at Cinnamon City Hotels to the SEQUEL at Cinnamon Grand, Colombo said a press release.

The release said the SEQUEL is where the old meets new, where charm meets sophistication and having a good time gets a new meaning. Colombo’s latest speakeasy cocktail bar is ready to welcome the discerning guest that is looking for that perfectly curated night.

“The SEQUEL will be a novel addition to Colombo’s nightlife catered to enthralling guests with our performances and showmanship,” said Kamal Munasinghe, Area Vice-President, Cinnamon City Hotels.

What do we mean when we say performance? It means that every little detail is tailored to those who appreciate elegance, and a bespoke experience like no other. Think walking into a vintage space accompanied by the sounds of Sinatra and Fitzgerald inviting you to do it your way or for once in your life. Think of the soul-searching and eclectic mix of Winehouse classics that you can drown your sorrows in.

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