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Whatever Trump does, Sri Lanka needs to deliver transitional justice and take the high road

11 January 2019 01:33 am - 0     - {{hitsCtrl.values.hits}}


The Donald Trump administration has withdrawn from the UNHRC, calling it a “cesspool of political bias”


n 2012, addressing the United Nations Human Rights Council sessions Sri Lanka’s then Human Rights Minister Mahinda Samarasinghe questioned the United States’ moral right to bring in a resolution, while it itself was being accused of committing war crimes. He spoke prior to the passage of the resolution calling for an investigation into alleged war crimes during the last stages of Sri Lanka’s separatist conflict.  He ended his speech by saying “Physician, heal thyself.”

The Biblical phrase has not lost its relevance since it first appeared in Luke 4:23, with there being no dearth of nitpickers looking at the speck in other people’s eyes instead of the log in theirs. 
The phrase will remain relevant, as long as double standards, duplicity and deception are seen as a norm in realpolitik or dirty politics.
Following the change of government in January 2015, Sri Lanka ditched its confrontational approach to Western nations’ moves to hold the then government accountable and adopted the strategy of partnering with the accusing nations. Accordingly, in October 2015, the new Maithripala Sirisena-Ranil Wickremesinghe government, together with the US and other Western nations, became a co-sponsor of a new UNHRC resolution. This, among other things, called for transitional justice mechanisms, including the setting up of a special tribunal with the participation of international investigators, prosecutors, and judges, to ensure that on both sides those criminally responsible were brought to justice.  

However, days after the resolution was passed, government leaders, in a bid to placate ultranationalist forces, began to say they would not allow any foreign judges or observers to get involved in any judicial process to try military officers, who are, for millions of southerners, war heroes.
With filibustering tactics and what was seen as deliberately slowed-down reconciliatory measures, Sri Lanka seems to believe that it has subdued the international calls for the setting up of a hybrid court or the participation of foreign judges in the transitional justice process. The government seems to believe that together with Sri Lanka’s geopolitical advantage, measures such as the setting up the Office of the Missing Persons, returning some of the lands taken over by the military to the rightful owners and acceding to the Optional Protocol to the Convention against Torture and adopting a National Human Rights Action Plan have done the trick. 
But the UN Human Rights Commissioner’s report last year also noted “with much regret” Sri Lanka’s slow progress in establishing transitional justice mechanisms. “In the absence of concrete results or publicly available drafts of legislation, it seems doubtful that the transitional justice agenda committed to by the Government under this Council’s resolution 30/1 could be fully implemented before our next report in March 2019,” the report said. 

The report came with a caveat: Before March 2019, Sri Lanka has to initiate a credible local mechanism and the failure could lead to a UNHRC proposal in favour of universal jurisdiction.  The continuous delay in initiating a domestic inquiry may not augur well for Sri Lanka during the March sessions of the UNHRC. Also sending a signal of defiance is this week’s appointment of Major General Shavendra Silva as Chief of Staff of the Sri Lanka Army, despite war crimes allegations against 58 Division which he led during the last stages of the war. 

War crimes committed by all sides of Sri Lanka’s conflict should be probed and the culprits punished -- or pardoned under a truth-and-reconciliation system in keeping with the principle of restorative justice. 
The international concern is not so much over the form of the probe -- whether Sri Lanka should follow the domestic or universal jurisdiction. Rather it is about justice through a credible process. 
As the Janatha Vimukthi Peramuna Parliamentarian Bimal Ratnayake pointed out in Parliament on Tuesday, Sri Lanka’s Superior Court judges are capable of handling a domestic war crimes trial, as they have proved their independence with their landmark ruling on the presidential actions during the constitutional crisis. So why fear? 

Since the Nuremberg trials, the international practice has been that either war crime allegations are tried under universal jurisdiction -- as happened with regard to the conflicts in Cambodia, Rwanda, Yugoslavia and Liberia – or brought under a credible domestic mechanism – like the Chilcot 
inquiry in Britain.  

Besides, UN member-states are required to cooperate with UN investigators with regard to allegations of ongoing human rights violations.  Failure to cooperate may lead to the member-state being named and shamed in the Human Rights Commissioner’s annual report while the member-state may also come under fire during the periodic review. Apart from this, there is no penalizing mechanism for non-cooperation. However, the biggest blow will be the non-cooperating member-state losing its moral right to champion human rights and point fingers at violators. 

It is in this context, the phrase ‘physician, heal thyself’ appears apt to question the United States’ moral right to be the co-sponsor of the resolutions against Sri Lanka. Not only has the Donald Trump administration withdrawn from the UNHRC, calling it a “cesspool of political bias”, it has also, of late, stopped cooperating with UN investigators over potential human rights violations occurring inside America.
Early this week, Britain’s Guardian newspaper in an exclusive article exposed the Trump administration’s non-cooperation with the UN human rights officials and commented that the move, apart from delivering a major blow to vulnerable US communities, was sending a dangerous signal to authoritarian regimes around the world. 

The article says the Trump administration, in a clear departure from the past, has not extended any invitation to a UN monitor to visit the US to investigate human rights inside the country since the start of Donald Trump’s term in January 2017. The State Department has ceased to respond to complaints from special rapporteurs, it said.

If the US could close the door on UN investigators, Sri Lanka and other countries which face charges of human rights violations could adopt the same approach. In June last year, days after the US withdrew from the UNHRC, the then US ambassador Atul Keshap conveyed to the Sri Lankan government that the US would remain fully engaged with the Sri Lankan Government to help it meet its continuing and standing commitments to the international community to advance the cause of reconciliation and lasting peace for all Sri Lankans.

In the Trump administration’s pullout from the UNHRC and its policy of non-cooperation with UN human rights investigators, some may see an opportunity for Sri Lanka to call on the US to withdraw the UNHRC resolutions.  Whether the US cooperates with UN investigators or not and whether the UNHRC includes Sri Lanka on the agenda or not, Sri Lanka must see delivering transitional justice to the war affected as a moral obligation.  This will help Sri Lanka walk tall as a noble nation, after decades of conflict.

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