War Crimes Tribunal:

What's MR afraid of?

by Dr. Abdul Ruff

As speculated, former Sri Lankan president Mahinda Rajapaksa, fearing certain punishment for his role in war crimes against Lankan Tamils, on October 26 opposed the international war crimes apparatus and urged all parties not to allow the passage of new laws aimed at persecuting members of the armed forces.

- ibtimes.co.uk

A proper investigation on war crimes would reveal all facts about state sponsored crimes against humanity and help punish the guilty and also pave the way for a better future for the nation. Credible investigation cum punishment would alert all rulers around the world to beware of war crimes.

There are allegations that war crimes were committed by the Sri Lankan military and the Liberation Tigers of Tamil Eelam (LTTE) during the war, particularly during the final months of the conflict in 2009.

The alleged war crimes include attacks on civilians and civilian buildings; executions of combatants and prisoners; enforced disappearances by the Sri Lankan military and paramilitary groups backed by them; acute shortages of food, medicine and clean water for civilians trapped in the war zone; and child recruitment by the Tamil Tigers.

A panel of experts appointed by UN Secretary-General Ban Ki-moon to advise him on the issue of accountability with regard to any alleged violations of international human rights and humanitarian law during the final stages of the civil war found "credible allegations" which, if proven, indicated that war crimes and crimes against humanity were committed by the military. The panel has called on the UNSG to conduct an independent international inquiry into the alleged violations of international law.

The Sri Lankan government has denied that its forces committed any war crimes and has strongly opposed any international investigation. In March 2014 the United Nations Human Rights Council authorized an international investigation into the alleged war crimes.

War crimes are prohibited by the Geneva Conventions, of which Sri Lanka is a signatory. In 2002 the International Criminal Court (ICC) was created by the Rome Statute to prosecute individuals for serious crimes, such as war crimes. Sri Lanka is not a signatory of the Rome Statute.

Therefore, it is only possible for the ICC to investigate and prosecute war crimes in Sri Lanka if the UN Security Council was to refer Sri Lanka to the ICC.

In denial

Rajapaksa disowns any allegation of crimes, let alone war crimes. In a speech delivered at a Buddhist temple in Colombo, Rajapaksa said he opposed the resolution passed against Sri Lanka at the UN Human Rights Council (UNHRC) in Geneva, and warned that such a Resolution would put the country at risk.

Apparently, Rajapaksa used the new Sirisena government to block the UN investigation on war crimes but failed. Recently the UN passed a Resolution condemning on war crimes in Sri Lanka under Rajapaksa at the UN Human Rights Council.

The report called for suspects to be prosecuted by a hybrid court with international judges. Rajapaksa said, the government has co-sponsored the Geneva Resolution without considering its implications and without informing parliament and appraising the people about it. "If a separate criminal justice apparatus is to be set up with foreign judges, prosecutors and investigators, our ordinary law as well as the constitution itself will have to be amended," he added.

Rajapaksa won the 26-year war against the LTTE in 2009, but his military was accused of killing thousands of civilians during the final weeks of the conflict.

The UN report found "patterns of grave violations" between 2002 and 2011 and said it was likely that tens of thousands lost their lives in the final stages of the war.

Rajapaksa, who was defeated in a January poll, said his government did not co-operate with the probe mainly because it was instituted outside the established procedure of the UNHRC.

The investigation on Sri Lanka was not carried out by an independent Commission of Inquiry, but for the very first time, by the Office of the High Commissioner on Human Rights,"

President Maithripala Sirisena has pledged a credible domestic mechanism under an independent local judicial system, but the UN has said Sri Lanka's criminal justice system is not yet ready for the task.

Prime Minister Ranil Wickremesinghe said the government would set up commissions for truth seeking, justice, reconciliation and preventing conflict, saying all the mechanisms will be domestically-drafted.

German Foreign Minister Frank-Walter Steinmeier, on a visit to Colombo recently said implementation of the UN recommendations should be a largely "national task."

The former strong man of Lanka, who in fact had sought a dynasty rule in the island nation of South Asia and even introduced his family rule, believed that if any members of the armed forces were involved in any wrong-doing, they should be tried under the local laws and in local courts.

"The present attempt being made in this country is to introduce these faulty laws and procedures to Sri Lanka and to jail our war heroes expeditiously. No self-respecting citizen should allow this to happen," he said.

Local process

However, the Sri Lankan Government maintained that the process to fix accountability as mandated by the latest UNHRC resolution will be purely domestic and dismissed claims by the opposition that it would be a hybrid mechanism. "I wish to stress that this would be a Sri Lankan process, not a hybrid process.

It will be the Sri Lankan institutions and systems that will be implementing the process," Foreign Minister Mangala Samaraweera said.

Rajapaksa, as the Head of State and Commander in Chief of the military, finds it impossible to shake off responsibility for committing war crimes and crimes against humanity. However, Rajapaksa, as Head of State, has immunity against international law. It was said after the war that he would be tried the day he is beaten in an election and is no more the head of state.

Just as what happened to Charles Taylor or Milosevic who committed genocidal crimes and breached international law, Rajapaksa can also be taken by the International Criminal Court and will be charged with committing war crimes.

President Sirisena should be careful not to get into the trap of Rajapaksa who wants to escape punishment for his commissions and omissions.

Now there is credible evidence against the Rajapaksa regime. President Sirisena has to ensure justice for the Tamils but leaving Rajapaksa unpunished would defeat that mission.

- Kashmir Watch