Transitional justice mechanism:

‘Unique Lankan model, no tribunals’

By Manjula Fernando

Foreign Minister Mangala Samaraweera says the government by September will come up with a ‘transitional justice structure’ that could be a model for other countries in the world. The Minister who is currently leading the operation of negotiating a credible truth seeking and accountability mechanism, which can win over public trust, to investigate allegations of war crimes and human rights violations, said the Sri Lankan reconciliation model will not be a replica of the South African model or any other. On the call to have foreign judges in the judicial mechanism of the transitional justice process he said, “There can be judges attending as observers or advisers. Therefore, I don’t think we need to get stuck in one word.”

Foreign Minister Mangala Samaraweera. Pic by Chinthaka Kumarasinghe

Sri Lanka commenced the partnership dialogue formally with the US in February this year. They are visiting other countries in the region. While the visit was to discuss regional issues, they also wanted to get an update on the excellent progress Sri Lanka is making, under the government of President Maithripala Sirisena.

But, he said, before the judicial mechanism is set up, there will be a wide ranging dialogue with all stake holders and the government will present something which is acceptable, credible and independent to the people of the country as well as the international community.

The full interview:

Q:What is the reason for the latest visit of Assistant Secretaries of State Nisha Biswal and Tom Malinowsky, was it to exert pressure on Sri Lanka to invite foreign judges to sit in the proposed judicial mechanism on accountability?

A: It is totally misleading to say that the United States or any other country is exerting pressure on Sri Lanka to agree to anything which Sri Lanka feels is inimical to its interests. In fact Ms. Biswal and Mr. Malinowsky are here on a regular visit which was planned months ago. This is in keeping with bilateral ties.

Sri Lanka commenced the partnership dialogue formally with the US in February this year. They are visiting other countries in the region. While the visit was to discuss regional issues, they also wanted to get an update on the excellent progress Sri Lanka is making, under the government of President Maithripala Sirisena.

This whole story that Sri Lanka has been compelled to agree to various conditions in the Geneva resolution is totally false and misleading. In the run-up to the presidential election of 2015, we clearly stated in the manifesto, under item 93, that if President Sirisena is elected we will establish a domestic mechanism in order to look into the various allegations of human rights violations and war crimes which had been levelled against Sri Lanka. Before I go on to the Geneva resolution in October, it is important to know the background of this resolution.

We were able to avert a national and international disaster. It was way back in May 2009, when UN Secretary General Ban ki Moon first came to Sri Lanka, then President Mahinda Rajapaksa and the Secretary General issued a joint statement. Sri Lanka gave an assurance that they will start a domestic inquiry into the various allegations which were levelled against the Sri Lanka Army during the latter part of the war. Following up on that statement the Permanent Representative to the UN in Geneva, a few days later presented a resolution on behalf of Sri Lanka. In that Sri Lanka’s commitment to the joint statement was reiterated with a number of promises including the promise of implementing the 13th Amendment fully and also other mechanisms to ensure transitional justice.

As a result, Sri Lanka in 2009 got the majority of the countries to support its resolution. It was passed with 25 votes for and 12 against. But having passed that resolution, Sri Lanka did not do anything at all to meet its commitments, instead the situation in the country deteriorated even more. All those who dared to talk or comment on human rights violations in Sri Lanka were labelled as terrorist sympathizers and traitors. By 2014, Sri Lanka had only about five countries to support in the United Nations. The UN Human Rights Council by then had decided to write its own report and then have an international inquiry, without the consent of the Sri Lankan Government.

That report was to have been tabled in March 2015. Had that report been tabled, international sanctions and travel bans for some of the key people in the then government would have followed. But fortunately, for the country, the new government took over on January 8. As the Foreign Minister of the new government, one of my first tasks was to go to Geneva to meet the Human Rights High Commissioner Prince Zeid Ra’ad Al Hussein and other key officials there.

We informed that the new government had received a mandate to set up a credible and independent domestic mechanism, to look into the various allegations. But we asked for time to work out the contours of this mechanism. Hence the tabling of the report that was scheduled in March, was postponed till September, to make way for us to come up with our own road map. In September, the High Commissioner tabled a new report, based on the achievements we had made in the first 100 days. They commended Sri Lanka’s new political trajectory.

The government decided that we will co-sponsor the resolution which the US had initiated during that session. But we did not sponsor the original version of the resolution. After long consultations with President Maithripala Sirisena and the Prime Minister Ranil Wickremesinghe, we suggested amendments. On August 1, we took the historic step of co-sponsoring the amended resolution on Sri Lanka. Now we are working towards implementing our commitments. We have certain obligations to the international community under international law, but what we are doing now is for the sake of the people of this country. If we are to move forward as a modern dynamic nation, winning the challengers of the 21st century, we must come to terms with the tragedies of our past.

Q: The call for international judges in the proposed accountability mechanism seems to have been renewed. How do you interpret the recent speech of the UN Human Rights High commissioner on Sri Lanka? Did he suggest that Sri Lanka was backpedalling on its commitments?

A: The President himself said in his Address to the Nation on February 4 that we decided to co-sponsor the resolution not because of international pressure but for the sake of the people. The President said “I did it because this is the only way, the tarnished name of our country and the good name of the soldiers can be restored”.

Currently, we are in the process of setting up the various mechanisms of the transitional justice. As a nation we must come to terms with what has happened before. There are four pillars in this reconciliation process.

First is the permanent office to deal with the missing persons issue. Secondly, the truth seeking mechanism. This will not be totally based on the South African experience but some of our technical people had been going to South Africa to study that system.

The third is the pillar of accountability. This is where the controversy seems to be. Accountability means that you must set up a judicial process, a mechanism which will deal with the perpetrators of human rights violations or war crimes, if those allegations are proven to be true.

And for that we have offered to form a mechanism with international participation. This is a word that everyone is now trying to distort and misuse for their own narrow political purposes. Foreign participation in investigation and in crime solving is nothing new in Sri Lanka. After former Prime Minister S.W.R.D.Bandaranaike’s and Minister Lalith Athulathmudali’s assassinations, we invited foreign investigators. Even former President Mahinda Rajapaksa appointed a string of foreign experts, including Justice Bhagawathi and Sir Desmond Silva.

The government’s position is wherever there is a dearth of local expertise, we will request foreign assistance. I don’t see anything wrong in that. But the controversy is whether we are going to have foreign judges to sit in the proposed judicial mechanism - this is just one aspect of the whole transitional justice process.

The President has already said that he is not in favor of having foreign judges. Constitutionally also there may be a problem. Although the constitution is silent on having foreign judges on the bench, one requires a judge to take an oath of allegiance to the Constitution of Sri Lanka if they are to sit on a bench here.

So there are issues, even if anyone wants foreign judges. On the other hand we have moderate sections of the Tamil community like the TNA requesting to have some component of foreign participation, in this process. But frankly, there is nothing to worry about. Between these two positions of having foreign judges and not having them, there are many acceptable options which can be explored and finalised.

Finally what matters is not whether the bench is black, blue or white, as they say the proof of the pudding will be in the eating. The proof of credibility and the independence of the courts will be in the acceptance of this by all the stakeholders.

That is why we have already started a consultation process, through an eleven member Task Force. This Task force is already speaking to different stakeholders. Not only the people in the North but those in the South - the military personnel and their families and religious leaders in the South - will be consulted. And once the consultations are over we will present something which is acceptable, credible and independent.

Q: Has there been an interim report by the Task Force?

A: No, the interim report is expected around September or latest by October. Only once the report is available will the mechanisms be put in place. It will not be done in secret. There will be a public discourse and a dialogue, then we will decide on a type of judicial mechanism which we are going to appoint.

Already we are in the process of dealing with low hanging fruit, the things which can be dealt with easily - the Office for the Missing Persons - it has got Cabinet approval and has been tabled in Parliament. Then by September once the ‘consultations report’ is out, we will also set up the truth seeking mechanism.

But before the judicial mechanism is set up, there will be a wide ranging dialogue, as I said we will come up with something which is independent, credible and acceptable to the stakeholders.

Q: Judges ‘participating’ and ‘sitting in judgement’, are they two different aspects ?

A: There are technical problems. If we are to have foreign judges there may have to be even a Constitutional amendment, so those are things which we have to sort out.

There can be judges attending as observers or advisers. Therefore, I don’t think we need to get stuck in one word. But this claim over hybrid court is absolute nonsense. The people who talk about it does not know what it is. All the hybrid courts established in the world earlier, were done by the United Nations. The country in question did not have the flexibility to name any of the judges, whereas in Sri Lanka, we have the authority to appoint all the judges. No other country is going to interfere, but at the same time we cannot appoint yet another institution to fool the people and satisfy ourselves.

I am sure Sri Lanka can come up with a model which could perhaps be a model for transitional justice for other countries in the future.

Q: What are the other options the government is looking at, in case there is strong opposition from the people to having foreign judges in this mechanism ?

A: It’s not the foreign component which is important, as I said, whether it is foreign or local or mixed, whatever, it has to be credible and independent. We will ensure that it is credible and independent. And of course we will also have international participation at all levels where we find that we lack expertise to do so.

We have to remember that our judiciary had lost credibility, in the last ten years. It was completely politicised, one of the Chief justices was chased home and judges were harassed into working with the government. Sri Lanka had one of the most, respected judiciaries in the world in the 50s and 60s.

Citizens of this country and the world have lost trust in our judiciary. But things have changed now, thanks to the 19th Amendment. However, after ten years of political manipulation, it will take some time to establish the fact that Sri Lanka has gained an independent judiciary.

Q: The Government has set a target to demilitarize the North and East provinces by 2018. What is the envisaged scope of demilitarization ?

A: Not only the North and the East, the whole country needs to demilitarize. During the last government, the President started creating military camps in almost every district through a gazette notification.

The brunt of this militarization was felt in the North and that is why as we came into power, we started the demilitarization process by appointing civilians to the post of Governor. We are continuing that process. Tamil people in the North cannot be subjected to military rule, so to speak, because of what happened before.

Civilian rule must be introduced, even the commercial activities going in that part of the country, will be given back to civilians.

The land issue is of course an important issue. Thousands and thousands of acres of land were taken over by the army for military purposes. That is understandable during a time of war. But now that the war is over, they must be returned to the rightful owners. Recently the President returned another 701 acres in Jaffna but there is more. By the end of 2017, all the land which the State has taken over will be released, except for those vitally needed for projects such as the expansion of the airport. Full compensation will be paid for the land that will be retained for these purposes. The military will also occupy a minimum number of acres.

Q:Government agencies have been put on alert after the recent recovery of suicide vests, ammunition and LTTE style claymore mines. There is also speculation of a possible LTTE revival, in this backdrop is the Government taking a risk by completely demilitarizing the North and the East?

A: No. We cannot govern a country based on fear and speculation on what would happen in the future. I mean after the JVP insurrection was crushed by the government, they did not decide to keep the army bases in certain areas in the South on the basis that there could be a JVP insurrection again.

It is the duty of the government; to ensure that there is no such insurrection and that can only be ensured not through having military camps but by winning the hearts and minds of the Tamil people. This is what the previous government could not achieve despite getting a wonderful window of opportunity immediately after the war. The war was decisively won, and the LTTE was defeated in May 2009 but the government did not have a plan to win the peace.

Tamil people who were sandwiched between the Army and the LTTE for many years were initially relieved that the LTTE was defeated but because of the way the Rajapaksa regime behaved the Tamil population got even more alienated.

They acted as if they invaded a foreign country. The new government will ensure that their genuine grievances are addressed. That is the only way to ensure there is no recurrence of what happened in the past.

Q: Since Sri Lanka at one point was studying the South African model are we looking at any other particular models on the war crimes tribunal ?

A: No what we are coming up is a unique Sri Lankan model. I am confident that our model will be a blueprint for other transitional justice mechanisms of the future. And also there will be no war crimes tribunal, that name itself is misleading. There are no tribunals. There are allegations of war crimes, the mechanisms are to make a credible investigation if those allegations are true.

And if not we will say it’s not true, and unlike the previous government we are not going to shoot the messenger. When serious allegations are made we cannot just dismiss it. There is another allegation that Sri Lanka used cluster bombs, if that is true, it is a very serious matter, we cannot dismiss it off hand. It is our duty as a government to prove to the world that it was not so through a credible investigation.

That is the only way to restore the credibility of our people and our country.

Q:At a recent press conference you said the intention is not to punish the lower rankers but to get at the top line of command.

A: I did not say to get at. If there has been any serious allegations of human rights abuses or even war crimes allegations, what is more important is the chain of command, because I know Sri Lanka has a very disciplined professional army, many of them will not do the things they have been accused of unless the orders came from above.

Because they are strictly disciplined, the lower rankers would carry out orders that they should not be carrying out.

Q:By the top order, do you mean the former Defence Secretary and the former President who was the Commander in Chief of the Armed Forces ?

A: Yes. But I don’t know what the command structure of the army is. In such instances we will have to seriously look into the command structure, and deal with the people who gave those commands. The soldiers are mere soldiers who carry out commands from the top order. On the other hand we now want to create an army which is aware of its international obligations as well as its national obligations so that even if someone gives them illegal orders, they have the courage and the discipline to say ‘no’.

Q: There is a huge cry saying that the former Defence Secretary and the former President are being politically targeted by the present government?

A: The huge cry is only coming from a small group of people. They are merely trying to use the soldiers as a cover for their own crimes.

Q: Is there another friendly resolution being mooted in Geneva? Is Sri Lanka going to co-sponsor that ?

A: When I go to Geneva in March next year, we will have a clear idea on the architecture and the contours of the special court. We would not have to set it up by then, but we will have an idea.

Q: In September this year Sri Lanka will not be on the agenda of the Human Rights Council ?

A: No. In the coming September, Sri Lanka will not be on their agenda. We go back in March.

Q: You said that you have invited even some of the extremist, pro-LTTE Diaspora groups to the country to witness the transformation here. Is it legal to do so ?

A: I have been meeting sections of the Diaspora, for over a year. In fact it is one of the LLRC recommendations. We had extremely talented and educated professionals who had to leave the country due to various reasons, including after 1983 riots.

They have now become responsible citizens of the respective countries they live in. The country will benefit by their return to take part in the development process, if not to stay on. Sri Lankans have excelled abroad in every field. We have deputy prime ministers, mayors, members of parliament, pop singers, authors, film makers and finest medical professionals. It should not be misunderstood that the government is speaking to only the Tamil Diaspora.

Q: You said the government is planning a Diaspora festival ?

A: Yes, a grand festival. Earlier I was planning to have it at the end of this year. It will be themed ‘Coming Home to Sri Lanka’. Our focus is on the second and third generation Sri Lankans. But suddenly I realized that it was a much bigger task than anticipated...so we are planning the festival in 2018, as part of Sri Lanka’s 70th birthday (independence anniversary).

Q: The PM will be addressing the South Asian Diaspora Convention in Singapore on July 18 and 19. Will these concerns be raised there as well ?

A: Yes and I am also taking part in that.

Q: What’s the significance of the visits by the Japanese Defence Minister and the Russian Foreign Minister in the near future ?

A: It shows Sri Lanka had won the confidence of the whole world. We have restored relations with our two giant neighbours, India and China. We also have raised our relations with the West to a certain level of excellence. We are moving away from our self imposed isolation and the practice of making enemies out of our traditional friends. For the first time we have a formal partnership dialogue with the US. The EU has removed the fishing ban and efforts are on way to regain GSP plus trade concessions in the near future.

We are back with Japan in a big way and also with China. The very fact that ministers of major countries - China, Japan and Russia – are flying in within a span of three weeks shows the importance Sri Lanka has gained. We will soon be welcoming the Canadian Foreign Minister as well.

Q: But the joint opposition has a different interpretation. They are of the view that the visits are indicative of the tremendous pressure Sri Lanka is subject to by the international community.

A: What is the joint opposition? It is a motley group of political adventurers of different parties basically living their life in a goldfish bowl, they think the world is the little fish bowl of theirs. But for the first time, Sri Lanka is moving forward with the rest of the world.

They have forgotten that, we have a tradition of welcoming foreign visitors since the times of Ibn Battuta, Marco Polo, Robert Knox and George Bernard Shaw.

Q: India has been concerned over China’s dominance in Sri Lanka as a development partner. Has the government been able to smooth out this factor ?

A: India has never expressed concern nor China over Sri Lanka’s relations with each other. Our foreign policy is not lopsided. We are fortunate to have two neighbours who will be the two largest economies in the world in 2030. Sri Lanka can take advantage of their projected economic boom. For the benefit of our people, we will continue this balanced and open foreign policy.