Connect with us

Features

Promoting Reconciliation and Accountability in Sri Lanka

Published

on

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.



Continue Reading
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Features

Credibility in governance through elections and not security forces

Published

on

Ranil Wickremesinghe

By Jehan Perera

President Ranil Wickremesinghe’s warning that he is prepared to declare a state of national emergency and use the military to suppress any public protests for change of government would reflect the pressures he is under. The manner in which he has used the security forces to deal with the protest movement has been unexpected. His words and deeds are contradictory to what he has previously stood for as a five-time former prime minister. This is especially true in the case of the ethnic and religious minorities who have consistently voted for him and his party at elections. They have felt safer and more secure under his governments which always sought to reduce the heavy hand of state oppression in which national security is given pride of place. He has always promised them much though he has been unable to deliver on much of what he promised.

Notwithstanding the unfortunate rhetoric and actions of the present time the belief still persists that President Wickremesinghe is the best of the available options. Recent pronouncements of the president have reignited hope that he will address the problems of the religious and ethnic minorities. He has stated that he does not want to leave this problem to the next generation. He has said that he wants to resolve this intractable national problem by the country’s 75th independence anniversary on February 4 next year. The hope that the president will make a fresh effort to resolve their problems has led the main Tamil party, the TNA, to desist from voting against the budget which passed with a relatively small majority. Their spokesperson, M A Sumanthiran said in Parliament that due to the president reaching out to them, stretching out his hand, they did not vote against the budget although they disagreed with it.

It is not only in words that the president has reached out to the ethnic and religious minorities. Reports from the north and east indicate that the Maveer (Heroes) Day commemorations this year took place without incident. During the past two years scores of people were arrested and a massive presence of security forces blocked the people from participating in public events. On this occasion the security forces did not get involved in any attempt to stop the commemorations. University students distributed sweets and even cut a birthday cake to celebrate slain LTTE leader Velupillai Prabhakaran’s birthday. The analogy that the president drew to himself being seen as a Hitler who exterminated ethnic and religious minorities is misplaced. The release of those held under the Prevention of Terrorism Act for engaging in similar acts in the past would further contribute to the reconciliation process.

WORSENING CRISIS

In this context, the president’s use of militaristic rhetoric can only be understood in relation to the growing economic crisis that shows no sign of abating. The anticipated IMF bailout package is at risk of getting indefinitely delayed. It was initially anticipated to come in September then in November but now January is being targeted. Japan’s top brokerage and investment bank, Nomura Holdings Inc, has warned that seven countries – Egypt, Romania, Sri Lanka, Turkey, Czech Republic, Pakistan and Hungary – are now at a high risk of currency crises. Sri Lanka is in third place on the table of risk. The next devaluation of the rupee could see another spike in inflation that will make the cost of living even more unbearable to the masses of people.

The president is on record as having said that the economic crisis will get worse before it improves. Both anecdotal and statistical evidence indicates that it is indeed worsening. University teachers at the University of Sabaragamuwa reported that attendance in their classes was down by at least a quarter. Students who come from other parts of the country are unable to afford the cost of meals and so they stay at home. A study by the Institute of Policy Studies has shown that about four percent of primary, 20 percent of secondary and 26 percent of collegiate students had dropped out of school in the estate sector, which is the worst affected. The future costs to the country of a less well educated population is incalculable and inhumane.

As it is the situation is a dire one for large swathes of the population. Research from the University of Peradeniya has revealed that close to half of Sri Lanka’s population, 42 percent (up from 14 percent in 2019) are living under the poverty line. Professor of Economics Wasantha Athukorala has said there is a dramatic increase in the poverty level of over three-hold across the past three years. In 2019, nearly 3 million people lived below the poverty line, but that number has increased to 9.6 million in October 2022. In these adverse circumstances stability in a polity can be ensured either through legitimacy or through force. It would be tragic if the latter is the choice that is made.

ELECTORAL SOLUTION

President Wickremesinghe has been stressing the importance of political stability to achieve economic development. His recent statement that the security forces will be used to negate any unauthorised protest is a sign that the government expects the conditions of economic hardship to escalate. The general public who are experiencing extreme economic hardship are appalled at the manner in which those who committed acts of corruption and violence in the past are being overlooked because they belong to the ruling party and its cliques. The IMF has made anti-corruption a prerequisite to qualify for a bailout, calling for “Reducing corruption vulnerabilities through improving fiscal transparency and public financial management, introducing a stronger anti-corruption legal framework, and conducting an in-depth governance diagnostic, supported by IMF technical assistance.”

It is morally unacceptable even if politically pragmatic that the president is failing to take action against the wrongdoers because he needs their votes in parliament. As a start, the president needs to appoint a credible and independent national procurement committee to ensure that major economic contracts are undertaken without corruption. Second, the president needs to bite the bullet on elections. The country’s burning issues would be better accepted by the country and world at large if they are being dealt with by a statesman than by a dictator. Government that is based on the people’s consent constitutes the sum and substance of democracy. This consent is manifested through free and fair elections that are regularly held. Local government elections have been postponed for a year and are reaching their legal maximum in terms of postponement. These elections need to be held before March next year.

Elections will enable the people to express their views in a democratic manner to elect their representatives for the present. This would provide the government with guidance in terms of the decisions it is being called to take to revive the economy and place the burden in a manner that will be acceptable to the people. The provincial council elections have been postponed since 2018. Democratically elected provincial councils share in the burdens of governance. The devolution of power that took place under the 13th Amendment was meant to promote ethnic harmony in the country. The president who has taken the position that he is for a solution to the ethnic conflict should seriously consider conducting the provincial council elections together with the local government elections se their financial costs. By doing so he will also gain legitimacy as a democratic statesman and not a dictator.

Continue Reading

Features

WEDNESDAY – Movie Review

Published

on

The Addams Family is back with a new tale to tell! Originally created by Charles Addams as a comic strip published in The New Yorker, it offered readers a sarcastic take on the ‘typical nuclear family’ by substituting it with a more macabre bunch of strange and eerie individuals. Since then the titular family has been adapted on to the big screen many times, from live action movies to animated versions, the Addams Family has gained many fans throughout the years. Created by Alfred Gough and Miles Millar, with Tim Burton working on four episodes of the eight-part series, Wednesday is a welcoming tale for young fans, but unfortunately fails to think outside the box and remains anchored to the floor with a messy storyline.

Dead-eyed Wednesday Addams (Jenna Ortega) is a stubborn, independent and intelligent teenager in this new series. Her penchant for attracting trouble wherever she goes alarms her parents, Morticia (Catherine Zeta-Jones) and Gomez (Luis Guzmán). With an already strained relationship with her parents (specifically her mother), Wednesday is enrolled at Nevermore, an academy for outcasts like herself. Having attended the academy themselves, Morticia and Gomez are hopeful that their daughter will ‘fit right in’. Caught between trying to build her own identity and other teenage complexities, Wednesday soon finds herself in the middle of a twisted mystery.

This is the first time audiences are introduced to a teenage Wednesday, which allowed the creators to build a new world on their own terms, but while keeping true to the original nature of the character. The creators do a fair amount of world building by introducing other outcasts like the Fangs (vampires), Stoners (Gorgons), Scales (sirens) and Furs (werewolves), among others. Nevermore Academy itself is beautiful and comes with the classic package of creepy crypts, hidden rooms and secret societies. The series also offers a decent amount of gore, although they could have added more given Wednesday’s proclivity for gore-related activities. The series deals with classic young-adult tropes which includes teenage crushes, bullies, relationships and even prom, among other things. The series navigates through Wednesday’s journey of self-discovery, which is a new avenue for both the character and the fans. From understanding and displaying her emotions to discovering her identity and understanding her peers, the series takes a deep dive into heavy material.

Ortega’s performance as the titular character plays a major role in keeping audiences glued to the screen. This is also the first time viewers are shown a teenage Wednesday Addams, which works to Ortega’s benefit as she depicts more dimensions to the ghoulish, morose character many are associated with based on previous renditions. Her facial expressions and ability to deliver on seriously emotional moments strengthens her role as the lead. The rest of the Addams Family, even with limited screen time, lack the eccentricities their characters should have. Hopeless romantics Morticia and Gomez seem incompatible in this version and Uncle Fester is far less crazy than he ought to be. The only member worth mentioning is the Thing—a severed hand— who brought more character and spirit to the series acting alongside Ortega. With barely any room to develop a majority of the characters are prosaic and tedious, even though they remain vital to the plot.

Apart from Ortega, Gwendoline Christie and Emma Myers deserve honorable mentions for their roles as Nevermore’s head teacher, Larissa Weems and the peppy Enid Sinclair respectively. Enid quickly became a fan favorite as the character was the polar opposite to Wednesday. Her character is vital to Wednesday’s character development and their journey to find common ground as mismatched individuals is amusing.

Christina Ricci who played Wednesday in the 90s returns as ‘normie’ teacher, Miss Thornhill and unfortunately barely stands out and this in large part due to the messy storyline. The series is bogged down with numerous subplots and overlapping tropes and the characters with potential for growth are completely overlooked. With love triangles, bullies and killer monsters on the loose, the series self-destructs and the climax sinks into disappointment.

At the end of the day, Wednesday plays to the beat of the new generation and touches on new themes, which is welcoming seeing as the character should grow up at some point. While not everyone may relate to Wednesday’s teenage perils, it is interesting to witness her growth and her journey as an ‘outcast’ or ‘weirdo’. And while Wednesday doesn’t exactly offer a distinctly unique story, it gives audiences a small taste of what Jenna Ortega’s Wednesday is capable of. Creating a story around a well-established franchise is a difficult task, and in this case the creators fail to add value to their visions. If the series continues, the creators will have the opportunity to think further outside the box and push the limits to Wednesday’s character and give audiences a bone-chilling experience. Wednesday is currently streaming on Netflix.

 

 

Continue Reading

Features

Stage set for… AWESOME FRIDAY

Published

on

The past few weeks have been a very busy period for the new-look Mirage outfit…preparing themselves for their big night – Friday, December 2nd – when they would perform, on stage, for the very first time, as Donald Pieries (leader/vocals/drums), Benjy (bass), Niro Wattaladeniya (guitar), Viraj Cooray (guitar/vocals), Asangi Wickramasinghe (keyboard/vocals), along with their two frontline female vocalist, Sharon (Lulu) and Christine.

They have thoroughly immersed themselves in their practice sessions as they are very keen to surprise their fans, music lovers, and well-wishers, on opening night…at the Peacock, Berjaya Hotel, in Mount Lavinia.

Action starts at 8.00 pm and, thereafter, it will be five hours of great music, along with EFFEX DJs Widhara and Damien, interspersed with fun and excitement…for the whole family!

Yes, opening night is for the whole family, so you don’t need to keep some of your family members at home – kids, especially.

Working on their repertoire for Friday, bassist Benjy says “what we will dish out will be extra special, with lots of action on stage.”

It would be interesting to see Sharon (Lulu) doing her thing with Mirage, after her early days with the Gypsies, and, I’m told, a dynamic performance from Sharon is what is in store for all those who make it to the Peacock this Friday

Edward (Eddy) Joseph (centre) with Donald and Benjy

While the band was at one of their practice sessions, last week, they had a surprise visitor – Edward (Eddy) Joseph, a former member of the group Steelers, who is now based in Germany.

Eddy is here on a short visit and is scheduled to return to Germany, tomorrow (30).

He spent an hour with Mirage, at their practice session, and says he is disappointed that he would not be around for the group’s opening night.

However, there is a possibility of several well-known personalities, in the showbiz scene, turning up, on Friday night, to experience the sounds of the new-look Mirage, including Sohan Weerasinghe and Joey Lewis (from London).

Rajiv Sebastian, too, says he is keen to be a part of the fun-filled evening.

You could contact Benjy, on 0777356356, if you need to double check…their plans for AWESOME FRIDAY!

Continue Reading

Trending