Sunday, July 03, 2016

The Transnational Government of Tamil Eelam in response to the Statement made by Mr. Mangala Samaraweera, M.P. Minister of Foreign Affairs of Sri Lanka & Leader of the Sri Lanka Delegation at the High Level Segment of the 32ndSession of the UN Human Rights Council Geneva



THE TGTE DEMANDS THE GOVERNMENT OF SRI LANKA TO CHANGE THE RATIONALE FOR TRANSITIONAL JUSTICE
(Press Release at the conclusion of the Human Rights Council’s 32nd Session)
This week the UN Human Rights Council(UNHRC) in its 32nd session turned its attention once again to Sri Lanka, focusing on Sri Lanka’sprogress toward fulfilling the commitments it undertook last fall in a resolution it co-sponsored with the United States. In Resolution 30/1, Sri Lanka made 12 specific commitments designed to ensure accountability for the international crimes committed in 2009 and to promote better protection of human rights in the country. We feel that the Foreign Minister’s speech at the session is the continuation of the Sirisena administration’s attempt to hoodwink the international community.
  1. Contradiction between the Resolution and the Foreign Minister’s Statement
The Foreign Minister repeated President Sirisena’s words:   “He said that Sri Lanka is committed to implement the Resolution to protect the dignity of our State, our People and our Security Forces”. There is a contradiction within that statement. With the security forces and sections of the Sri Lankan State remaining accused by a number of organisations, including UN bodies, and the High Commissioner himself accusing Sri Lanka in the OISL report of committing war crimes and crimes against humanity, Sri Lanka cannot be “committed to implement the Resolution to protect the dignity of our State, our People and our Security Forces”, all at the same time, unless the ‘people’ President Sirisena is referring to are the Sinhala people. So, actually SLG only wants to protect the dignity of the State, the Sinhala people and their security forces, because of the wide international recognition that the State and security forces committed systematic human rights abuses against the Tamil people, some amounting to war crimes, crimes against humanity and genocide.
While it is understandable that making haste slowly – festina lente – is one way of dealing with situations in countries grappling with conflict, the main issue that concerns Sri Lanka has been that its successive governments, including the present one, deliberately ignore issues that affect the Tamil people – most importantly the victims / survivors.
  1. While the Oral Report of the High Commissioner for Human Rightsto the UNHRCnoted some incremental progress, the High Commissioner also expressed concern that the promise of Justice was at risk of “Stalling”.

The High Commissioner for Human Rights, in his oral report to the Council, did note some positive incremental progress. However, he expressed concern that “the full promise of governance reform, transitional justice and economic revival has yet to be delivered and risks stalling or dissipating.” The High Commissioner expressed concern at the number of people who remain detained without charge and the government’s continued reliance on the Prevention of Terrorism Act to make new arrests the vast majority of whom are Tamils. He criticized the Sirisena government for allowing those alleged to be responsible for killings and abductions to continue to hold public office and face no criminal investigation.
  1. Five International Experts [MAP] have expressed concern at the Lack of real progress in the nine months since the adoption of Resolution 30/1.

The TGTE asked the Monitoring and Accountability Panel [MAP] consisting of five independent international experts to monitor Sri Lanka’s progress in implementing its commitments made in 30/1. This panel of experts and the consultant to the Panel, Geoffrey Robertson QC, presented their findings at a side event held at the 32nd session. The Panel concluded that there are serious weaknesses in Sri Lanka’s efforts to date. Heather Ryan, a recognized expert in transitional justice, stated: “We are concerned about the apparent lack of true political will and leadership to meet its accountability and related transitional justice needs in the country.”
  1. Sri Lanka’s Foreign Minister still fails to Acknowledge the Key Findings of the High Commissioner of Human Rights in his September 2015 Report.

During the 32nd session, the Foreign Minister of Sri Lanka, Hon Mangala Samaraweera, addressed the Council. The speech was self-congratulatory in tone and failed to unreservedly acknowledge many of the key findings in the High Commissioner’s September 2015 report. Most notably, the Report found that ample evidence existed to establish reasonable grounds that crimes such as unlawful killings & enforced disappearances, shelling of civilian areas and hospitals, sexual torture and a denial of humanitarian aid were committed primarily by State forces. The Foreign Minister failed to acknowledge the large number of former LTTE cadres still being detained without charge. By characterizing the Government’s policy with respect to reconciliation and justice as one of “making haste slowly,” the Foreign Minister was implying that the international community should believe that Sri Lanka’s efforts to date are reasonable, serious and diligent.
The Foreign Minister also stated that “in order for a transitional justice mechanism to be effective in achieving the desired objectives, the necessary mechanisms should be properly sequenced, integrated and coordinated.” He notably failed to give any specific or estimated dateby when a judicial mechanism would be operational. The TGTE is deeply troubled that seven years after the crimes, the Government of Sri Lanka’s policy is one of “making haste slowly” while entangling itself in vague and unspecified procedures that it asserts must precede real justice for the victims. The TGTE emphatically rejects this. While justice mechanisms can sometimes take years, our experience in studying the situation in Bosnia, East Timor, Sierra Leone, Rwanda and others has established that such a mechanism can and must start as soon as possible in order to secure evidence and preserve the possibility of justice for the victims.
The Foreign Minister speaking in Norway in June made clear that the mandate of the justice mechanism will consider human rights violations and “perhaps war violations during the earlier period”. The TGTE is shocked at the suggestion that a domestic judicial mechanism will not consider war crimes charges committed during the final phase of the war. This is an affront to the High Commissioner’s oral report that noted evidence of the use of cluster bombs towards the end of the war which should now be investigated, as well as his findings in September 2015 that reasonable grounds exist to believe war crimes may have been committed during that period.
On 15 January 2016, Prime Minister Ranil Wickremasinghe himself went on record acknowledging that thousands of Tamils who surrendered to the Sri Lankan Security forces were no longer alive. The enforced disappearance of human being is an ongoing criminal offence until the fates of the disappeared persons has been account for. In this case, where the enforced disappearances of human beings is widespread and systematic, it constitutes a Crime against Humanity. Under these circumstances it also constitutes an indicia of genocide. Is the Sirisena government really developing a domestic judicial mechanism with no authority to investigate this?
  1. Office of Missing Persons
A case in point is the establishment of the Office of Missing Persons (OMP). The OMP was one of the four transitional justice mechanisms proposed by the Sri Lankan Government as stated by Foreign Minister Samaraweerain September 2015 who said, “These mechanisms will be evolved and designed through a wide process of consultations involving all stakeholders, including victims.” To us, this meant that all the four mechanisms proposed would be implemented only after consulting “all stakeholders including victims.”
But this has not happened even in the one mechanism that is already in the process of being implemented, the OMP. The Foreign Minister himself has admitted that there were no proper consultations. Speaking about the OMP, he has said “The draft Bill approved by Cabinet to establish a Permanent and Independent Office on Missing Persons, which is an essential component of the truth-seeking process and the first mechanism in the transitional justice programme, has already been gazetted and included in the order paper of Parliament.” He went on to say “A Task Force consisting entirely of civil society representatives has been appointed to seek the views of the public that will inform the designing of the truth-seeking, justice, accountability and reparations mechanisms.” This means the Task Force’s work is just beginning but the draft bill to establish the OMP is already before parliament! What is more, the Foreign Minister has not uttered a word about consultations preceding the setting up of the OMP when he spoke on the topic this year either.
  1. Sri Lanka’s denial of individual Remedy under the International Convention for the Protection of all persons from Enforced Disappearance
According to the Foreign Minister, the International Convention for the Protection of All Persons from Enforced Disappearance was ratified and the draft legislation to give effect to the provisions of the Convention is to be presented to the Cabinet in July, for gazetting and presentation to Parliament. However, Sri Lanka has not made any declaration under Article 31 recognizing the competence of the committee of enforced disappearance (CED) to consider and receive communications from aggrieved individuals. In other words, widespread, systematic disappearances are one of the most sustained human rights abuses perpetrated by the Sri Lankan State for almost 25 years. Even the Paranagama Commission spoke about 20,000 cases which had been reported to it. Yet, the cavalier attitude displayed by the Sri Lankan Government in dealing with this major problem and addressing the need for accountability, truth or justice for the victims of this crime does not match the colorful claims made by the Foreign Minister.




  1. Absence of even a token effort on Demilitarization
On the continued militarization of the Tamil homeland, the Foreign Minister said that “The Government has clearly instructed the military that all the land obtained from civilians must be released latest by 2018, and that the owners of whatever land that may be required for national installations or development purposes would be fully compensated.” But there is no discussion whatsoever about the withdrawal of the military from the NorthEast, which is vital if civilian life is to return to normal in the conflict areas.


  1. The Prevention Of Terrorism Act continues to be used to arbitrarily detain and torture Members of the Tamil Community.

In Resolution 30/1, Sri Lanka expressly and voluntarily undertook to repeal the Prevention of Terrorism Act1(PTA), a law that the High Commissioner for Human Rights found provided the legal context for arbitrary detentions and torture, possibly constituting crimes against humanity. The PTA continues to be used as the legal ‘justification’ for arbitrary arrests and torture.
The organization ‘Freedom from Torture’ recently found “clinical evidence shows that torture continues in Sri Lanka under President Sirisena.” The UN Special Rapporteur on Torture, Juan Mendez, after a recent visit to Sri Lanka, said: “sadly the practice of interrogation under physical and mental coercion still exists and severe forms of torture, albeit probably in less frequent instances, continues to be used.” He found that “both old and new cases [of torture] continue to be surrounded by total impunity”.
The TGTE is deeply appalled by President Sirisena’s failure to prohibit the continued use of the PTA, either by executive order or through proposed legislation.
As far as reviewing the PTA – which the Foreign Minister promised last year – is concerned, Minister Samaraweera said in Geneva this week “A Committee is now putting the final touches to the first draft of the new counter-terrorism legislation that will replace the much criticized and much abused Prevention of Terrorism Act, in keeping with Sri Lanka's commitment and obligations to human rights and countering terrorism.” But if this repeal and replacement is indeed happening, then there is no transparency in the process, except for cryptic news reports about the name of the legislation replacing the PTA but nothing else. Opposition Parliamentarian Mr. M. A. Sumanthiran while testifying before the US Congressional Caucus on Ethnicity and Religious Freedom on June 14, 2016 stated that the he had learnt that the new proposed legislation would be worse than the existing PTA.


  1. The High Commissioner reaffirmed that the inclusion of International Judges and Prosecutors in a Domestic Mechanism is essential for its Success.

The TGTE is concerned that 9 months after the unanimous adoption of Resolution 30/1,there remained a lack of will on the part of Sri Lanka to make an unequivocal commitment to the inclusion of international prosecutors and judges in a transitional justice mechanism. Despite clear statements by the U.S., co-author and sponsor of 30/1, that international personnel must be part of any mechanism, President Sirisena and senior members of his government have repeatedly asserted that internationals will have no direct role to play. In Geneva this week, the Foreign Minister deftly characterized this issue as “indicative of a healthy democracy” and as a celebration of diversity. The TGTE welcomes the High Commissioner’s clear reaffirmation during the 32nd session that “international participation in the accountability mechanisms would be a necessary guarantee for the independence and impartiality of the process”. Such an international presence has proven a key element to the success of other hybrid tribunals, most recently in the Extraordinary African Chambers in Senegal which found Hisséne Habré, the former president of Chad, criminally responsible for the crimes against humanity of murder and rape, and sentenced him to life imprisonment. The hybrid courts for Sierra Leone, East Timor and Kosovo are also examples of the importance of concrete international involvement to ensure impartiality, and to insulate the court from local influences. Sri Lanka’s assertion that it can have a completely objective and wholly domestic justice mechanism is either unbridled hubris or a ploy to ensure that an effective accountability mechanism is never established.
  1. The victims deserve actual justice and not mere preparatory steps.

The TGTE calls upon the UN HRC to require Sri Lanka to demonstrate its commitment to justice with concrete actions that actually result in perpetrators being held accountable. As the High Commissioner noted in his oral report: “While the Government has been engaged in a variety of preparatory processes, overall progress in setting up structures that would allow for the design and establishment of the different transitional justice components has been hesitant and slow.” The burden is upon President Sirisena and his government to demonstrate that it can overcome the well-entrenched structures responsible for the crimes that the High Commissioner found, in his September report, still “remain in place, ready to be reactivated …to prevent any progress in …addressing accountability.”As the London Guardian recently noted, many senior members of the Sirisena government, including the president himself, played a role in overseeing the final military campaign of the conflict. At present, it appears that these structures that remain in place have, as predicted, succeeded in stalling actual justice in a complex tangle of “preparatory processes”. Now, over seven years after the crimes, the victims deserve more than mere “preparatory processes”; they deserve actual justice as soon as possible.
  1. Assimilation not Reconciliation
The Foreign Minister talked about the return of democracy. It is true that since the regime change, the Sinhala polity has witnessed the return of some democratic measures such as the 19th amendment which enabled sharing of power between the President and the Prime Minister and restoration of some individual rights. However, as highlighted earlier, those changes have been limited to the Sinhala polity, and have not reached the Tamil polity. The major reason for this is the refusal by the Sinhala leadership and the Sinhala polity to recognize the collective rights of the Tamil Nation. It is only with the recognition of the collective rights of Tamils, namely nationhood and the right to self-determination, will only provide the context in which democracy and individual rights can thrive. The Sirisena administration, while attempting to reduce the Tamil’s Nationhood to a “minority” status, and pursuing Sinhala supremacy under the guise of reconciliation is engaging instead in assimilation. The Rajapaksa administration pursued assimilation it brazenly, while the Srisena administration is doing it much more subtle ways.
A corollary to the above is that the power of implementation is still in the hands of the Sinhala bureaucracy.
The recognition of the army commander Sarath Fonseka, alleged to be a Genocidaire and a war criminal, now as a Field Marshal, and later his appointment as a Member of Parliament do not appear to be measures of reconciliation.
The Srisena administration’s call for and efforts towards mixed marriages is an example of this administration’s policy of assimilation. The marriages between the Sinhala soldiers and Tamil women from the occupied villages are examples of the assimilative not reconciliatory measures. Wereliably understand that the Tamil women were being made to consent to those marriages through fear and/or favor. We surmise that these marriages are a form of sexual violence. We have not heard calls for marriages between a Tamil male and a Sinhala female.
The establishment of Sinhala Military Goodwill Villages in the traditional Tamil homeland, in areas such as Mannar and Kokuveli, is another measure of colonization and assimilation – not reconciliation. If the Srisena administration is genuine about reconciliation, the TGTE would like to challenge them to show their goodwill by engaging in decolonization.
In the Foreign Minister’s observations, with respect to the new Constitution, the word ‘federalism’ is conspicuously absent. While the TGTE is firm in its belief that only an independent state of Tamil Eelam would be the measure of remedial justice, and the non-recurrence of another Mullivaaikkal genocide, the Tamil domestic leadership in Sri Lanka believes that the Sirisena administration will deliver federalism. It is often stated that the Sinhala polity will not accept any political arrangement that bears the name ‘federal’. Thus it is led to believe that the administration will deliver a “nonfederal-federal” solution. If history is any guide, Sinhala polity not only does not accept the word federalism but it does not believe in any form of meaningful power sharing between the Sinhala nation and the Tamil nation.
  1. No hope for Justice for the Victims due to the rationale of Transitional Justice propagated by the Government of Sri Lanka
In the nine long months since the Foreign Minister spoke last at the UN HRC, it is clear that the Government of Sri Lanka wishes to “protect the dignity of our State, our People and our Security Forces.” We have only seen that in trying to achieve this, it has violated the process to set up the OMP and distorted the content of the OMP Bill. Furthermore, the way militarization and the counterterrorism legislation is expected to evolve, as outlined by the Foreign Minister, there is no hope for consultation of victims to take place in a victim-friendly environment for transitional justice mechanism to follow
  1. Reparation
The Foreign Minister did not at all address the question of reparation. The TGTE calls upon the proponents of the Resolution 30/1 to take immediate measures to provide reparation to the victims of war and the former LTTE carders.
  1. Call For Action
The TGTE takes this opportunity to urge the international community to acknowledge that now, over seven years after the largest atrocity crime of this century in which 70 to 100 thousand people were killed, the light of justice continues to grow dim for the victims, and, therefore, to insist that Sri Lanka takes immediate steps to deliver actual justice and not just aspirational preparations designed to appease the international community. The TGTE has very little faith that the GoSL will take measures in favor of the victims and to combat impunity and ethnic repression.
  1. Non UN Actions
The TGTE, while continuing to pursue this quest for transitional justice for Tamils through the UN mechanism, it will also pursue it outside the UN arena.
Visuvanathan Rudrakumaran
Prime Minister – TGTE
1 “Welcomes the commitment of the Government of Sri Lanka to… repeal the Prevention of Terrorism Act, and to replace it with anti-terrorism legislation in accordance with contemporary international best practices.”
source:Tgte

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