By way of contrast, the past five years saw the former government headed by former President Maithripala Sirisena make strenuous efforts to reach an accommodation with the international community on matters that had previously been contentious. But this was politically costly to that government, which was manifest at the presidential elections. These matters revolved around the three decade long war and its aftermath. On the one hand, military personnel and strategic analysts from the international community came to Sri Lanka to learn about the Sri Lankan model of defeating terrorism. On the other hand, there was a concerted campaign by international human rights organisations, the Tamil Diaspora and also foreign governments to demand an accounting for past human rights violations and war crimes that they alleged had taken place in the course of the Sri Lankan war.
During the past five years of the Sirisena-Wickremesinghe government it was the latter perspective that had the upper hand. At a graduation ceremony for military personnel recently, Prime Minister Mahinda Rajapaksa stated in a graphic manner that “The change of government of January 2015 was almost as if a hostile foreign force had invaded and taken over Sri Lanka.” In his speech he pointed out that this had two major consequences. The first was that the intelligence services were rendered completely inoperative, which finally led to the former government’s inability to prevent the disastrous Easter Sunday bombings. “Members of the intelligence services were persecuted, harassed and jailed by the previous government on false charges. It was not just the intelligence services that had to face this situation. The entire high command of the armed forces during the war against the LTTE was brought before the police with a great deal of media publicity to answer all kinds of allegations,” he said.
One of President Gotabaya Rajapaksa’s pledges in his election campaign was to withdraw from the previous government’s co-sponsorship of the controversial UN Human Rights Council Resolution 30/1 of October 2015 titled “Promoting reconciliation, accountability and human rights in Sri Lanka”. He said “We will always work with the United Nations, but I can’t recognize what they have signed.” He further said, “We have already rejected that, as a party we have rejected that agreement and in public we have rejected that.” According to the UNHRC resolution, the previous government had promised to fulfil over thirty commitments which included establishing a judicial mechanism comprising international judges, prosecutors and investigators to ensure accountability for serious human rights violations and war crimes.
Many who supported the UNHRC resolution from the perspective of human rights defenders described the proposed judicial mechanism as a “hybrid court” which became a lightning rod for those who opposed it. Due to the highlighting of the “hybrid court” the entire UNHRC resolution became, and remains, synonymous in the public mind with seeking punishment for the victors in the war. In his recent speech to the graduating military personnel of the Defence Services Command and Staff College, Prime Minister Mahinda Rajapaksa sought to assuage these concerns. He said that the government would “rectify the injustices of the past five years” and that “initiatives will be taken at the international level to restore to our armed forces the respect and dignity they deserve.”
It is worth noting in this context that both President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, whose government co-sponsored the UNHRC resolution, backed down from the position that there would be international judges sitting in judgment over Sri Lankan military personnel and defence authorities in deference to the strong popular opposition to it. The depiction of the UNHRC resolution as being primarily about prosecution of the soldiers is unfortunate as most of the resolution is about the return of land, restoration of normalcy and includes truth seeking, reparations and institutional reform which could obtain the support of the general population. But this larger message was neglected by the former government, which did not champion what it has signed.
Speaking after formally assuming duties, Foreign Minister Dinesh Gunawardena indicated the government’s foreign policy priorities when he said that they were focused on “revisiting” agreements signed under the previous Government. The Minister said that the President’s election manifesto made it clear that any foreign agreements that had a negative impact on Sri Lanka’s national security, sovereignty and integrity would be reviewed. He said that many controversial foreign agreements would also be reviewed, including the UN Human Rights Council (UNHRC) Resolution 30/1, promoting reconciliation, accountability and human rights in Sri Lanka, which was co-sponsored by Sri Lanka.
Accountability and the punishment of those who have committed grave violations of human rights are an integral part of the UN mandated system of transitional justice. This is also the position of human rights organisations. The question is how best this can be obtained. Where countries have judicial systems that have not completely collapsed, there is strong resistance to bringing in foreign judges to be in decisionmaking positions. Colombia, which is the most recent success story in transitional justice, has chosen the path of having national judges only with foreign expertise in an advisory role. Hybrid courts are not necessarily the answer. The hybrid court system established in Cambodia in 2003 has delivered only three convictions after 14 years of effort and the cost has exceeded USD 200 million.
If Sri Lanka is to strengthen its case for renegotiating the UNHRC resolution and changing the provision that calls for international judges, prosecutors and investigators in a hybrid mechanism, it is important that the government should be able to show that the Sri Lankan legal system is independent of political interference. The 19th Amendment to the constitution, which the government seems to want to get rid of, could be its source of strength. This law was intended to strengthen the independence of key state institutions such as the judiciary, police, public service, human rights commission and elections commission. As the Swiss embassy case has attracted a great deal of international attention, it is going to be a litmus test of how the world sees the independence of the Sri Lankan legal system. This will include the way in which the police investigates with or without bias and the way in which the Attorney General’s Department presents their case to the judiciary who will be the ultimate decision makers about the truth of the matter.