Paranagama probe mechanism a possible solution : Says Desmond De
Silva
by Manjula Fernando
Sir Desmond de Silva, Queen’s Counsel of the United Kingdom, is an
eminent British jurist who later had a career in international legal
activism, serving on various international bodies dealing with critical
judicial and legal issues pertaining to international crisis situations
and country hot spots. He has been previously picked by the UN to
produce a report on international law violations and was Chief
Prosecutor of a UN-sponsored international criminal tribunal. His e-mail
based interview with the Sunday Observer last week was his first after
the Paranagama Report was published. In it, he responds to the
allegations against him and the implications of the Paranagama
Commission Report in the light of subsequent developments, especially in
the aftermath of the UN Human Rights Council resolution in Sri Lanka.
Q: What impact did the Paranagama Report have on the
allegations made against Sri Lanka by the Darusman Report?
A:The Darusman Report alleged that up to 40,000 civilians had
been killed in the final months of the war. This was, in numerical
terms, a genocidal figure. The Paranagama Report destroyed the ‘myth’ of
the 40,000 civilians killed in the final months and went onto further
destroy the allegation of genocide against the government of Sri Lanka.
The Report even referred to a Judgment of a Dutch Domestic Court which
absolved the Sri Lankan government from being characterized as a “racist
regime” and went on to deal with the principles that immerged in the
International Court of Justice in the case of Croatia vs Serbiaas
recently as 2015. The application of the principles that emerged from
that case could in no way satisfy the pro-LTTE accusations of genocide.
This was a vital contribution to the whole debate and served to put the
record straight.You would have noticed that the most recent OISL (UNHRC)
Report made no mention of the 40,000 figure that the Darusman Report had
so unjustifiably published to the world.
Q: A complaint was made against you that there is a conflict
of interest in your acting as the Chairman of the International Advisory
Council advising the Paranagama Commission. In this light, the President
was called on to rescind your appointment. Can you tell us the outcome
of the allegation against you and do you believe it was a politically
inspired attempt to suppress the Paranagama Report?
A: A determined effort was made to get President Sirisena to
rescind my appointment as chairman of the Advisory Council. The basis
upon which this was done was an allegation made to my professional body
– the Bar Standards Board in England – that I was acting with
professional impropriety, in that there was a conflict of interest. The
Petition against mewas sent to the President some ten days before the
Paranagama Commission Report was due to be delivered to the President.
This allegation against me was based on an ignorance of the law and was
an attempt to disrupt the work of the Commission. Because I had no time
to be side-tracked in answering stupid allegations, I maintained my
silence until now. Last year, the Bar Standards Board, having gone into
the details of the allegations, not only threw them out, but the case
officer for the Bar Standards Board described it as a “politicized
complaint” against me.
Q: On the important issue of accountability how do the
recommendations of the Paranagama Report fit in with the position taken
up by the President in his recent comments to the BBC?
A:The Paranagama Report specified only one ‘Proposed Mechanism’. That
is to be found in paragraph 625 of the Paranagama Report. It recommends
a totally Sri Lankan mechanism and is, thus, wholly consistent with what
President Sirisena said to the BBC, namely, that it would be a local
mechanism with no foreign judges sitting in judgment over the citizens
of this country. Therefore, a proper analysis demonstrates that there is
a unity of view between the Paranagama recommendation and the expressed
views of President Sirisena.
Q: How do the recommendations of the Paranagama Report square
with the observations of the Minister of Foreign Affairs on the 23
October 2015 in Parliament when he said that “the Paranagama Commission
...prescribes the Gambian formula, where all the judges and prosecutors
were foreigners”?
A: As Judge Maxwell Paranagama has pointed out yet again, the
Gambian formula was never the recommended mechanism. In the course of
doing a Report of this kind, we had to deal with international customary
law. International customary law deals with what other countries have
done in post conflict situations. Of course, we dealt with the Gambia
and indeed many other places. But there was only one proposed mechanism
set out in the Paranagama Report at paragraph 625. How on earth anyone
could think we were recommending the Gambian model is totally
incomprehensible to me. The Gambian model never involved a Truth and
Reconciliation Commission, whereas, the Paranagama Report recommendedin
its “Proposed Mechanism”a Truth and Reconciliation Commission plus a new
War Crimes Division of the High Court.
Q:As a prominent international lawyer who was personally
appointed by the Secretary General of the UN to be the Chief Prosecutor
of a UN sponsored international war crimes court, what steps, do you
think, the Government should take to meet the demands of Geneva?
A: Of course, it is entirely up to the government, what
mechanism is thought appropriate. A mechanism based on what the
Paranagama Report set out in paragraphs 625 and 626, with possible
adaptations to meet current needs, may be a possible solution. This
would include a Truth and Reconciliation Commission complemented by a
Compassionate Committee. The Compassionate Committee consisting of
eminent religious personages could be brought into being to recognize
the need of those who, from whichever side of the conflict, have made
admission of wrong doing in relation to possible war crimes and who seek
to make amends for such crimes by being truthful and contrite. These
persons may, therefore, need spiritual solace and understanding in
coming to terms with their wrong doing. The Paranagama Commission makes
provision for criminal trials where, for example, it is clear to the
Truth and Reconciliation Commission that the particular individual is
not telling the truth. As in the case of the South African Truth and
Reconciliation Commission, the Paranagama Report has recommended
amnesties for those who tell the truth. An amnesty will be a bar to any
further civil or criminal proceedings in Sri Lanka.
Q: It seems that the Paranagama Commission report received
little or no recognition during UN Human Rights High Commissioner’s
recent visit to Sri Lanka. Your comments?
A: On the contrary, the Paranagama Report featured prominently
in a decision made by the Joint Opposition in a press release published
on February 8, 2016 in which they expressed their opposition to the
Report on the basis that Paranagama had recommended a foreign judge
solution as the judicial mechanism. As I have already said, that was not
the recommendation of the Paranagama Commission.
Q: In the aftermath of the UN HR High Commissioner’s visit,
there are allegations that Prince Zeid has been violating article 7 of
UN Charter, which says the UN cannot interfere in internal matters of a
country. There are others who refute this claim. Do you think his visit
or his comments amounts to interference?
A: When a State signs up to the UN Charter it surrenders a
part of its sovereignty in that, it agrees to be bound by Security
Council Resolutions under Chapter VII. Thus, the non-intervention in the
internal affairs of States is no longer an absolute rule, especially,
with the emergence of conventional norms regarding civil rights, and,
more generally, human rights since the end of Second World War.
Unfortunately, there is an outdated view by some that the international
community cannot look over the fence to see what is going on in a
particular country. If that were true, why then, the international
community would have no power to condemn the demolition of the statues
of the Buddha in Afghanistan by the Taliban in 2001, the current slavery
being imposed upon unfortunate people in the Middle East by ISIS and,
the constant beheadings by the same group.
Q: Do you think that the Zeid visit is beneficial to Sri
Lanka?
A: The visit by Prince Zeid is clearly an important step in
Sri Lanka’s re-engagement with the international community. He was
appointed UN High Commissioner for Human Rights by the Secretary General
of the UN, following the approval of the General Assembly. From my own
knowledge of him, he is a decent and impressive man. There are clearly
some outstanding issues over which the government needs to satisfy the
international community. I am quite sure that with goodwill on all sides
and by the elimination of unrealistic expectations, practical solutions
can be found so as to ensure that all the communities in Sri Lanka can
benefit from the very hard won peace. What the international community
must remember is that sometimes justice has got to be sacrificed for
peace where it is clear that holding trials will impede peace. At the
end of the Second World War Emperor Hirohito of Japan was not prosecuted
for war crimes, although others were, because it was important not to
estrange the Japanese people and impede reconciliation. In recent times
in the UK, in order to bring peace to Northern Ireland, the government
issued over 180 amnesties. This is not to say that there should never be
prosecutions for violations of international humanitarian law. |
