War crimes:

Mixed views on domestic or international mechanism

by P. Krishnaswamy

Dr.Paikiasothy Saravanamuttu

Renowned human rights activists Dr.Paikiasothy Saravanamuttu, founder Executive Director of the Centre for Policy Alternatives (CPA), Dr.(Mrs) Nimalka Fernando, Convener of the Platform for Freedom (PF) and Attorney-at-Law K.S.Ratnavale when asked whether they considered an international mechanism or a domestic mechanism as appropriate to conduct probes on the purported war crimes, on release of the UNHRC report end of this month, they expressed mixed views.

Excerpts of their views:

Dr.Paikiasothy Saravanamuttu:

It is clear that for many families of victims no mechanism can be credible if it is exclusively domestic. At the same time, it is incumbent on those who insist on an international mechanism to clarify as to what they mean by this and how it will be achieved. Referral to the International Criminal Court (ICC) is bandied about almost as a mantra.

Sri Lanka however did not sign the Rome Statute and therefore referral to the ICC, if this is what an international mechanism is about, will require a Security Council Resolution, which in turn appears impossible in the near and medium term future. There needs to be a lot of awareness raising and provision of information with regard to all of this or else a lot of false hopes could be raised and that would be tragic. The process of transitional justice, if it is to be domestic in the main, *must* meet with international standards.

It is not about ticking boxes or making gestures; it is about meaningful reconciliation, *has* to be , victim centred and accountable.

Dr.(Mrs) Nimalka Fernando:

We have struggled to combat the culture of impunity which destroyed the human dignity and core values of decency. It is in such a context we managed to get three resolutions passed in 2012, 2013 and 2014 at the Human Rights Council Sessions building an international consensus to appoint an International Committee to investigate in allegations of war crimes, crimes against humanity and humanitarian law and continuing violations of human rights in Sri Lanka.

There were difficulties in relation to conducting this international investigation as GOSL under Mahinda rejected this investigation. We have to develop and establish mechanisms that will restore confidence of the victims. Now the government has informed the US and the US is congratulating the Sri Lankan government about this domestic mechanism.

But the victims and human rights defenders have NOT been informed and no dialogue has taken place. For reconciliation and justice victims have to be consulted and we have to restore their faith in our systems.

Due to political interference we have lost faith in the Police and Judicial system in general. Further we are all well aware that our statutes and domestic systems have no framework to deal with war crimes, crimes against humanity and violation of humanitarian laws. We need new laws and mechanism that is framed in keeping with international standards.

I am waiting to read the Report to be submitted in Geneva to formulate a more meaningful response together with the victims in consultation with them as what is best for them.

Attorney-at-Law K.S.Ratnavale:

The accountability issue is not a recent phenomenon but is one that has been haunting Sri Lanka for the last several decades that could be traced to the 1958 race riots, 1977 and 1983 pogroms and through the thirty year ethnic war reaching a crescendo in the form of war crimes and and crimes against humanity leading up to the last days of the ethnic war in 2009.

Crimes and atrocities by Sri Lankan armed forces and state actors continue to this day. Sexual abuse and rape were systematically used as a weapon of war as several well researched reports reveal.

Strengthened by the entrenched sense of impunity and deep seated racist tendencies, the police,security forces and government officials derive their nonchalant conduct from a lack of political will and active collusion by those in authority. In this backdrop the Tamil people are well aware that no justice will be meted out to the victims by any form of domestic mechanism.

Past experience with domestic law and the country's judicial system show that not even a lowly peon or office aid let alone the upper echelons of the chain of command will be permitted to stand trial for war crimes.

The Tamils in Sri Lanka are not prepared to venture into the realm of Reconciliation without the Justice and Accountability issues being adequately and satisfactorily dealt with.

In a country where the head of state himself is tainted with having been the *pro tem *Defence Secretary at the time the Sri Lankan forces massacred thousands of unarmed civilians in May 2009 and another war crimes perpetrator being elevated by the present regime to the rank of Field Marshal, the Tamil people in Sri Lanka have very little choice indeed.