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.