The politics of foreign judges in the Geneva processa

By Jehan Perera-March 6, 2017, 8:34 pm 

The weekend after the opening session of the UN Human Rights Council in Geneva, I went to the public library to exchange books. While standing in line to return the borrowed books, I was approached by one of the other library members standing in line. He had seen me on television at the opening session in Geneva, where I was part of the government delegation but representing a civil society perspective. This event had received wide coverage in the Tamil media in particular. He urged me to ensure that the victim survivors of the war should be compensated by the government without delay. He said they needed jobs and money to look after their children and the disabled needed to be provided with artificial limbs in addition.

The victims of the war have yet to find redress. Those whose loved ones have gone missing and those who have had their ancestral lands taken over, languish in poverty without breadwinners and also want justice are all looking to Geneva to find redress that they are not receiving at home. The hopes they were given in October 2015, when the Sri Lankan government co-sponsored a resolution of the UN Human Rights Council that called for these to be done, have not been realised so far. In relation to the vast needs of the people, relatively little has been done by the government in all of these areas. In one area, however, there has been a significant impact. This is in the lifting of fear of a government that no longer violates laws with impunity.

The international human rights groups and Tamil Diaspora members who gathered on the sidelines of official events did not wish the Sri Lankan government to be given extra time to implement the promises it had made. Most of them were opposed to the government’s bid to obtain a "rollover" of the October 2015 resolution that the government is seeking with an extension of the time frame by a further two years. Those who work on behalf of victims of violations know that victims do not wish to wait long for justice and also need to be compensated quickly in order to get on with their lives. Those who are victims do not wish to wait for years for justice to be done.

TIME EXTENSION

However, the reality is that Sri Lanka is almost certain to get the extension it wants. Indeed, it is reported that Sri Lanka will co-sponsor a resolution led by the US and the core group once again at the 34th Session of the UN Human Rights Council. Secretary General of the Secretariat for Coordinating Reconciliation Mechanisms Mano Tittawela has said that the Government would submit a resolution together with the US, UK and Montenegro that it hopes would give Sri Lanka a two year extended time-frame to implement the 2015 resolution. There is unlikely to be any country today that would wish to impose political or economic sanctions on Sri Lanka which is one of the brighter spots in the world today in terms of human rights and the quality of life of most of its people.

During their stay in Geneva, the Sri Lankan delegation was able to meet with most important parties at the side events to the official conference. This included meetings with the UN Secretary General Antonio Guterres and with UN Human Rights Commissioner Prince Zeid bin Ra'ad Zeid al-Hussein and with the ambassadors to the UN of various powerful countries. Some of those who are currently playing a decisionmaking role in UN processes have had previous engagements with Sri Lanka and are in a position to make a comparative analysis of the situation in Sri Lanka as against other countries. They tend to be impressed at the overall developments in Sri Lanka which they can compare with the deterioration to be found in many parts of the world. Government leader of Myanmar, Aung San Suu Kyi is being viewed with considerable disappointment, despite being awarded the Nobel Peace Prize in the pastg, due to the mass atrocities reported from there which show no sign of diminishing.

The Sri Lankan government delegation led by Foreign Minister Mangala Samaraweera were able to impress most of those they met with their commitment to improving inter-ethnic relations within the country and improving the lives of the people in general. The Sri Lankan delegation together with the Sri Lankan embassy in Geneva were able to host a side event which was attended by over a hundred persons drawn from the international human rights community, media, Tamil Diaspora and diplomats. They gave every person who wished to speak an opportunity to have their say, and answered every question that was asked without bluff or bluster. As a result the meeting that was scheduled to be for an hour was extended to nearly double that time.

HYBRID MECHANISM

The issue on which there remains a measure of uncertainty is that of foreign judges in a hybrid court to look into war crimes. Accountability and the punishment of those who have committed grave violations of human rights are an integral part of the UN mandated system of transitional justice. The question is how best this can be obtained. Hybrid courts are not necessarily the answer. The hybrid court system established in Cambodia in 2003 has delivered only three convictions after 14 years of effort and the cost has exceeded USD 200 million. In addition, there were instances of the foreign judges and prosecutors publicly disagreeing with each other and resigning from their posts along with allegations of government pressure on them.

Where countries have judicial systems that have not completely collapsed, there is strong resistance to brining in foreign judges to be in decisionmaking positions. Colombia, which is the most recent success story in transitional justice, has chosen the path of having national judges only with foreign expertise in an advisory role. In Sri Lanka, both President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe have said that they are not in favour of foreign judges, as it is not politically possible given the resistance to it from within the national system. The person who appealed to me in the public library said that he wanted war victims to be looked after better by the government and that it was more important to sustain the living than to avenge the dead. This does not mean that victims do not want justice, but that they need sustenance now.

However, the report of the UN High Commissioner for Human Rights into Sri Lanka’s implementation of the October 2015 resolution has a critical tone and refers to the "slow pace of transitional justice in Sri Lanka and the lack of a comprehensive strategy to address accountability for past crimes risk derailing the momentum towards lasting peace, reconciliation and stability." The UN recommendation is that the Sri Lankan government should establish a hybrid mechanism for purposes of war crimes trials. Those who are champions of human rights will necessarily stand for the ideal. But politics is the art of the possible. The final decision on which way the UN Human Rights Council will go will be decided by the representatives of governments of the 47 countries that are its members. It is unlikely that they will decide to force upon the Sri Lankan government what it does not consider to be politically possible.