Sri Lanka’s Failure To Establish Hybrid Court Must Lead To ICC Referral

By Usha S Sri-Skanda Rajah –March 2, 2017

Usha S Sri-Skanda-Rajah

Come March 2017 UN Must Act on Sri Lanka – Part 2

“When humans understand fully they have rights, it is next to impossible to make them un-know it.” – High Commissioner Zeid Ra’ad Al Hussein

The 34th Session of the UN Human Rights Council (UNHRC) has begun and all eyes are turned to Geneva. What struck me most in the High Commissioner’s opening remarks was this line, a line so true and profound: “When humans understand fully they have rights, it is next to impossible to make them un-know it.”

And for the Tamil people seeking justice, truth, reparations and guarantees of non-recurrence – the so called four pillars of transitional justice, the High Commissioner’s words couldn’t have been more true and profound.

So it seems words can be true and profound, but they can also hold empty promises and half truths. And that’s what we heard from Sri Lanka’s foreign Minister Mangala Samaraweera, as he addressed the UNHRC, a speech full of empty promises, half truths, innuendos and glaring omissions – it would seem the Minister managed to con his way out of the rather thorny issue of noncompliance, exactly as predicted – but did he convince his audience? Hopefully not. It was quite apparent to anyone in the human rights business that his country had done nothing, virtually zero towards implementing Resolution HRC30 it had co-sponsored, on the 1st of October 2015 on, “Promoting Accountability, Human Rights and Reconciliation”. As always the Minister does a pretty good job in giving hollow assurances to the international community, but for how much longer. There will come a day when words would have to be put into action. words such as these that are repeated over and over again and have sadly lost its meaning in Srilanka:

I quote:

“The Srilanka that we seek to build here onward, should be one where justice reigns; where human rights are valued; where every individual’s dignity is upheld; where civil society and the media play their due role; a society that believes in the importance of the independence of the judiciary and the rule of law; and where everyone has equal rights.”

End quote.

More contemptuous was the Minister’s long list of steps taken by Srilanka, since he last addressed the UNHRC in June 2016. Almost everyone of those items listed hadn’t come to fruition, seemingly bordering on half truths; a list that appeared to be more a ‘to do list’ than a completed list.

It was as I wrote in my article: ‘Come March 2017 UN Must Act On Srilanka‘, and the question on everyone’s mind:

I quote:

“How far has Sri Lanka gone towards fulfilling its obligations under Resolution HRC 30, i.e. towards delivering transitional justice to victims of Mullivaiikal? Sri Lanka seems to be inching its way to nowhere as many still ponder over the question that’s been asked again and again: In the search for justice, will Sri Lanka match up to the task? Transitional Justice meaning, criminal Justice, reparations, truth and memory, institutional reform, gender issues, matters pertaining to children and youth etc..

As regards even the new regime the answer still seems to be a resounding no!”

End quote:

The Minister also found people to blame for the delays, insinuating that: “extremists forces were creating road blocks.” As if the Minister didn’t know, if he wont, someone else must tell the High Commissioner and the UNHRC and the member states, (if they don’t know yet), its the extremist forces from the Minister’s community and their bigotry that was the root cause for the conflict and for its perpetuation; it is they who would be the final authority and the ones who would decide how far this Resolution HRC30 would go – in Srilanka politicians play the race card all the time – a compelling reason to tarry no more but opt for an independent international judicial mechanism and move on.

More than what the Minister said, what the Minister didn’t say was important; especially his marked silence on the failure to establish a hybrid judicial mechanism consisting of foreign judges, prosecutors, counsels and investigators. Obviously the Minister had nothing to say, because Srilanka had done nothing to crow about. It now seems clear that Srilanka would be asking for that extension of possibly 18 months or a complete withdrawal of resolution HRC30 in the comprehensive written report it would be submitting that would be opened for debate, as set out in para 18 of Resolution HRC30.

It’s these glaring omissions that were taken up soon after the Minister spoke by the Independent, Monitoring and Accountability Panel (MAP) commissioned by the Transnational Government of Tamil Eelam (TGTE). MAP had been working from the time Resolution HRC30 was adopted, monitoring Sri Lanka’s compliance of it; and while Srilanka would come to the 34th session as expected with empty promises, this team of distinguished, internationally known legal luminaries, specialised in transitional justice, and ‘Mass Atrocity Crimes’ was busy putting Srilanka under intense scrutiny.

MAP tasked to monitor & “shine a light” on Srilanka’s implementation or lack thereof of Resolution HRC30 released the findings and recommendations of its 2nd spot report to coincide with the 34th Session and after the Minister made his address to the UNHRC. The report, in short, called for an ICC (International Criminal Court) referral by the UN Security Council built into a brand new resolution, if Srilanka failed, among other, to establish a hybrid judicial mechanism within one year:

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