A Chance for Justice in Sri Lanka?

by Mark Ellis, ‘The Huffington Post,’ Los Angeles, January 29, 2015

Decisions like these are often premised on a misguided belief that, in post-conflict environments, it is necessary to choose between justice and peace. But this is a false choice. Sri Lanka must deal with the deep and languishing divisions created by past human right abuses. A policy of impunity does the opposite and would be a grave mistake.

Mahinda Rajapaksa’s defeat in Sri Lanka’s 2015 presidential election evoked, for me, some harrowing images and a glimpse at a path to justice.

An estimated 40,000 civilians died in the final weeks of Sri Lanka’s 26-year civil war, as government forces battled the Liberation Tigers of Tamil Eelam, commonly known as the Tamil Tigers. While no court has held a formal investigation, it is alleged that government forces committed war crimes and crimes against humanity. In 2010, London’s Channel 4 News produced an extraordinary investigative documentary into the killings, and asked me to comment on the international legal implications of the footage. The video was the most graphic evidence of war crimes that I had seen. It appeared to show Sri Lankan government troops executing civilians: a soldier casually shot a bound and blindfolded prisoner as he lay amongst the bodies of Tamil prisoners; another executed a prisoner with a close-range shot to the head. In another frame, a soldier sexually brutalized a woman naked and either dead or unconscious on the ground.

One year later, a UN panel of experts confirmed what I believe I witnessed in that video: undisputed evidence of serious violations of international humanitarian and human rights law. There are indications of torture, and of widespread indiscriminate shelling causing large numbers of civilian deaths. There are allegations that government forces used cluster bombs, white phosphorus, and other chemical substances against civilians. These and other findings constitute credible evidence that Sri Lankan government forces committed war crimes and crimes against humanity.

The UN Office of the High Commissioner for Human Rights Investigation in Sri Lanka (OISL) is finalizing its report, due to be published in March. The report will undoubtedly mirror the earlier UN investigation.

While President, Mr. Rajapaksa consistently refused to investigate alleged atrocitiescommitted by his soldiers, and he himself was immune under the Sri Lankan constitution. Also, under international law, a Head of State has immunity ratione personae, or personal immunity, from virtually all lawsuits in foreign national courts.

Personal immunity only applies, however, while a leader holds office. An ex-Head of State cannot claim personal immunity.

The 2015 presidential election result finally creates the opportunity to bring Mr. Rajapaksa to justice for atrocities committed by Sri Lankan government forces, its agents, and paramilitary forces.

Mr. Rajapaksa will argue that he retains immunity for acts carried out in the line of military duty as Head of State. This claim would be based on immunity ratione materiae, or functional immunity, which does not attach to the office of Head of State but to the type of acts performed in that capacity. The principle of functional immunity is based on the notion that a Head of State should not have to compromise his or her decisions for fear of criminal or civil legal action.

But, would such immunity cover alleged international crimes while performing official presidential duties? Emphatically, “No.”

Despite a few odd and contradictory court decisions, war crimes, genocide, torture, or crimes against humanity can never be seen as “official acts” and, consequently, should never be protected under functional immunity. It is unthinkable to imagine that such nefarious crimes might be considered protected acts carried out by a Head of State.

Unfortunately, the newly elected President, Maithripala Sirisena has indicated that Mr. Rajapaksa and other senior military commanders will not face domestic prosecution. President Sirisena indeed seems willing to broker a deal with the very leaders who committed crimes. Decisions like these are often premised on a misguided belief that, in post-conflict environments, it is necessary to choose between justice and peace. But this is a false choice. Sri Lanka must deal with the deep and languishing divisions created by past human right abuses. A policy of impunity does the opposite and would be a grave mistake. Impunity is pernicious and suggests that atrocities can be condoned. They cannot. How can there be reconciliation in a community where criminals retain political legitimacy and immunity from prosecution?

International pressure is vitally important in this instance, and should be guided by the principle of universal jurisdiction.

Universal jurisdiction is the principle etched in law that every country has an interest in and responsibility to bring to justice perpetrators of the most abhorrent crimes — no matter where those crimes were committed, and regardless of the perpetrators’ nationality. The underlying premise is that certain offenses strike at the core of mankind and betray the law of nations itself. International law neither negates nor limits the jurisdiction of states with respect to such crimes, but instead gives effect to state interdictions to bring the assailants to trial. Universal jurisdiction empowers domestic courts to enforce international law.

Enforcing international legal norms — absolutely fundamental to protecting human rights and supporting peace and stability — must be a priority for the international community. Leaders of all nations must reject impunity, embrace the principle of universal jurisdiction, and clearly state that the alleged perpetrators will be arrested if they cross international borders. Accountability for atrocities committed in Sri Lanka can offer the country a chance to heal. More important, it will give voice to more than 40,000 victims who perished, brutally, in those last weeks of war.

Dr. Mark Ellis is Executive Director of the International Bar Association, London

HRW: Rajapaksa Legacy of Abuse

Assaults on Activists, Resistance to International Investigation in 2014

by Human Rights Watch, New York, January 29, 2015

<p>A Muslim woman cries next to her burnt house after a violent attack against Muslims in Aluthgama on June 16, 2014.</p>

A Muslim woman cries next to her burnt house after a violent attack against Muslims in Aluthgama on June 16, 2014.

The Sri Lankan government stepped up pressure in 2014 on human rights activists and journalists, particularly those urging justice for past war crimes, Human Rights Watch said in its World Report 2015 released today. A new government, elected in January 2015, should order investigations into arbitrary arrests, enforced disappearances, and killings since the final military operations in 2009.

In the 656-page world report, its 25th edition, Human Rights Watch reviews human rights practices in more than 90 countries. In his introductory essay, Executive Director Kenneth Roth urges governments to recognize that human rights offer an effective moral guide in turbulent times, and that violating rights can spark or aggravate serious security challenges. The short-term gains of undermining core values of freedom and non-discrimination are rarely worth the long-term price.

Sri Lanka’s new government, elected after the world report was finalized, has already taken important measures to improve free expression and other rights: blocked news websites were restored, media restrictions have been eased, and a fresh investigation ordered into the 2009 killing of journalist Lasantha Wickeramatunge. Activists and journalists report a lifting of government surveillance and pressure. The government has also asked for a list of all detainees held under the abusive Prevention of Terrorism Act for review.

The failure of the previous government of Mahinda Rajapaksa to honor its pledge to provide accountability for war crimes during the armed conflict with the rebel Liberation Tigers of Tamil Eelam, which ended in 2009, led the United Nations Human Rights Council to pass a resolution on March 27, 2014, calling on the UN Office of the High Commissioner for Human Rights to investigate serious violations of international human rights and humanitarian law by both sides to the conflict.

The Sri Lankan government immediately denounced the March UN rights council resolution, and several senior government members threatened to take action against anyone cooperating with the UN investigation. The new government has said that it will engage with the Human Rights Council, and it should take steps to ensure accountability and justice.

“The UN investigation is the first real hope for justice for victims of atrocities on both sides during Sri Lanka’slong civil war,” said Brad Adams, Asia director at Human Rights Watch. “Sri Lanka’s new government should cooperate with the UN investigation and act to end the previous hostility to justice.”

Human Rights Watch documented extensive surveillance in ethnic Tamil majority areas in the north, detention of activists, and shutting down of workshops organized in the south to train journalists from the north.

In 2014, ultranationalist Buddhist organizations denounced religious minorities, spurring mobs from the Buddhist majority to attack a largely Muslim town in the south, leaving at least four Muslims dead, nearly 80 injured, and many Muslim properties damaged. Although the government quickly denounced the violence and made some prompt arrests, it has not taken action against anyone who might have incited the violence.

“The Rajapaksa government’s resettlement and reconstruction of affected communities in the post-conflict years has been seriously marred by oppression of the Tamil population,” Adams said. “The new government has the responsibility to set Sri Lanka on the long road to ensure justice and rights for everyone, particularly minorities and critics of the government.”

Hopes Rise as Rajapakse Bites the Dust

by V . Gunaratnam, January 20, 2015

PRESIDENTIAL AMBITIONS GONE ASTRAY

Rajapakse triggered the presidential election, believing he would be easily returned to power for a third term, even though he had two more years left in his 2nd term. A great believer in soothsayers, he probably relied on their advice, and the war-victory over the LTTE in 2009, to carry him to victory.

But his regime, is hobbled by war crime charges.  A brother of the President, Gotabaya, is accused of having been directly involved. On his orders, Tamil combatants surrendering under a white flags were said to have been taken away and shot dead, in breach of international laws governing war, and to which Sri Lanka had subscribed. President Rajapakse, as Commander-in-Chief of the armed forces, is very likely implicated in the war crimes.

 

NEW FACE IN PRESIDENTIAL RACE

The choice of Maitripala Sirisena was a bold one as he was from the same party, the SLFP. He was admired as an honest person and who did not hanker after wealth or power for their own sake. As a senior cabinet member he has an equal claim to the victory in the war that ended in 2009. He is also free of the HR violations, the bombing of hospitals and civilian sites. It was former President Kumaratunga, and UNP Leader Ranil Wicremesinghe, who persuaded Sirisena to contest the presidency. Their political acumen paid off when Sirisena won. But it was not easy unseating an incumbent, who wielded a lot of power, and a brother who commanded the police and armed forces!

 

ELECTION AND SHENANIGANS

As the voting concluded, both contestants were continuously monitoring the results. At some point Rajapakse decided he was going to lose and called Lt. Gen Daya Ratnayake, the head of the armed forces, to deploy troops and intervene, but the general declined, as he did not want do anything illegal. It was only after this that Rajapakse made his concession speech. Later a top aide to the President Sirisena, said that even at the last hour, Rajapakse had tried to remain in office by other means.

 

RAJAPAKSE NOT THE LEADER OF ALL THE PEOPLE

The Tamils were a forgotten people after the war. The Lessons Learnt and Reconciliation Commission, in its report said that reconciliation was vital to bring the Tamils and Sinhalese together. But Rajapakse did nothing. It served his purpose to have the Tamils remain as a danger to the nation.

Sri Lanka regime was accused of war crimes, and President Rajapakse’s brother, Gotabaya, was specifically identified as the accused who gave the order to kill surrendering combatants. Instead of reconciling with the Tamils, the President sent an army into the North, hounding, plundering, robbing, and killing the Tamils. In the capital, the terrorist organization Body Bala Sena was hounding the minorities and others who got in the way! The White Van episodes had come to an end, but people knew who was responsible for their deployment.

 

WHAT ARE SIRISENA’S OPTIONS

Sirisena will no doubt have a plan of action, as to how he was going to tackle the various problems confronting the nation. Every minority, specifically, the Muslims/Moors, the Christians and the Tamils are the targeted. But these problems did not manifest themselves during the British rule.

The President needs time to prepare the ground, and create the atmosphere for minority problems to be considered. Solving the Tamil problem will also help settle the difficulties with the other ethnic groups.

As a matter of urgency, the nation needs a well qualified minister of defense, and another to preside over the police. Both were managed by a lowly retired army officer who knew next to nothing about managing a ministry, caring for the lives of surrendering combatants, or the well-being of his soldiers.

For a start, President Sirisena may get outside help from the UN to replace the army in the North, with a foreign military or police force from the West. However, the Provincial Council in the North should be consulted.

Nothing is going to change overnight, because the country has a new leader. President Sirisena has a lot on his plate, including the mess left behind by Rajapakse. The Tamils have been waiting expectantly since 1948. The President has to indicate, at some appropriate time, how he plans to proceed.

 

LEARN FROM OTHERS

Sri Lanka is equally the country of the Sinhalese as the Tamils, as it was when the British left in 1948. What is more, the Sinhalese and Tamils lived side by side for centuries without any conflict.

We can learn from the experience of many countries, where different peoples live together without any sort of conflict. Sri Lanka will do well to benefit from these countries, even get their assistance.

 

EUPHORIA IN THE NORTH

There was widespread euphoria in North as news reached the Tamils that Maitripala Sirisena had been elected as the new President. 

Following is what a foreign visitor to the North revealed on returning to Colombo just after the presidential election, to catch a flight to his home country: 

  • People, it appeared, were breathing more freely, as he said.
  • There was a palpable feeling of happiness.
  • Pongal was being celebrated, with the crackers going off everywhere.
  • People felt unafraid to freely discuss politics
  • No army personnel were in sight.
  • Douglas was nowhere to be seen.
  • In Colombo, he noted, both Sinhalese and Tamils, were walking in front of Temple Trees without fear or concern.

 

An Unexpected Change of Power in Sri Lanka

is good news for democracy

‘Washington Post’ editorial, January 14, 2014

http://www.washingtonpost.com/opinions/an-unexpected-change-of-power-in-sri-lanka-is-good-news-for-democracy/2015/01/14/d3b698f2-9b4a-11e4-96cc-e858eba91ced_story.html

SRI LANKAN President Mahinda Rajapaksa considered himself a shoo-in to win an unprecedented third term when he called an early election in November, and with some reason: He had presided over both victory in a 26-year-long civil war with Tamil insurgents and surging economic growth of 7 percent a year. The opposition had been cowed and criticism squelched by increasingly autocratic tactics.

Consequently, Mr. Rajapaksa’s surprising defeat by a former member of his cabinet, Maithripala Sirisena, after an election in which 81 percent of voters participated, can only be taken as an impressive demonstration of Sri Lankans’ commitment to preserving their long-standing democracy. Mr. Sirisena, who was sworn in Friday, has pledged to seek a swift constitutional reform that would strip the presidency of powers and create a parliamentary system. He has also vowed to restore the compromised independence of the judiciary, end the blocking of news Web sites and crack down on corruption.Resistance to this liberal restoration may be fierce. Several associates of the new president charged that Mr. Rajapaksa conceded the election only after military and police commanders rejected his attempt to stage a coup. The former president denies this, but his supporters in Parliament will likely try to block the prime minister appointed by Mr. Sirisena, Ranil Wickremesinghe, from forming a government next week. The proposed constitutional rewrite, which Mr. Sirisena promised to carry out in 100 days, requires a two-thirds parliamentary vote to be enacted, as would the impeachment of the controversial Supreme Court chief justice installed by Mr. Rajapaksa.

Sri Lanka’s big neighbor, India, and Western democracies have a major interest in the new government’s success. After he came under sustained criticism for his human rights record, including a United Nations investigation of atrocities at the end of the civil war, Mr. Rajapaksa turned to China, which, never troubled by human rights violations, seized on the opportunity to extend its influence. Beijing lent billions for construction projects, and Chinese President Xi Jinping personally launched a$1.5 billion port project in the capital, Colombo, in September. The recent visit to Colombo by a Chinese submarine underlined the growing strategic relationship.

The new government says it will cancel the port project and investigate some of the Chinese contracts for corruption while balancing relations with India, Pakistan, Japan and China. If Mr. Sirisena succeeds in rebuilding democratic institutions, Sri Lanka will return to being a natural ally of India and the United States rather than the authoritarian camp of China and Russia.

Appropriately, President Obama welcomed Mr. Sirisena’s victory as a “moment of hope” and said his administration looked forward to “deepening its partnership” with Sri Lanka. The election result offers Mr. Obama an unexpected chance to advance two important goals: his shift of U.S. foreign engagement toward Asia and the defense of democracy. Washington should do all it can to help Mr. Sirisena succeed.

President Mahinda Rajapaksa – a Victim of King Kavan Tissa’s Curse

by Sachi Sri Kantha, January 10, 2015

Mahinda RajapaksaSri Lankan pundits, Indian pundits and international pundits will pull their hairs and come out with some arrant nonsense on why a confident President Mahinda Rajapaksa lost the January 8th presidential election to his former pal and deserter Maithiripala Sirisena. I have no doubt that all will ignore the black curse of King Kavan Tissa (or Kaka Vanna Tissa) of Ruhuna. The name itself projects, that this king was of crow colored. (kaka – crow; vanna – color). Here is my quick take on it. He was the father of illustrious Tamil conqueror King Dutugemunu, about whose military record many Sinhalese rulers wish to be compared. The last one was Mahinda Rajapaksa.

When his son Dutugemunu was itching for a war with the wise ruler of Anuradhapura, a Tamil king Ellala (or Elara), King Kavan Tissa warned him. According to the author of Mahavamsa chronicle, “When his son Dutugemunu announced ‘I will make war upon the Damilas’, King Kavan Tissa forbade him saying, ‘The region on this side of the [Mahaganga] river is enough.’ [Mahavamsa, ch. 24, line 4]. History tells us, that in his vanity, King Dutugemunu fought with the old King Elara and defeated the latter in a duel conducted on mounted elephant. History also tells us that for all his military records and services to Buddhism, King Dutugemunu also died a disappointed man.

For those who are interested in the January 8th Presidential election results, I provide the following numbers. Maithripala Sirisena received 6,217,162 votes (51.28%) polled. The vanquished President Mahinda Rajapaksa was able to receive 5,768,090 votes (47.58%) polled. The vote difference was 449,072.

Here are the district wise numbers, for 22 districts. I begin with the Tamil population dominant districts, which are only 5 out of 22.

Jaffna: Sirisena – 252,574 (74.4%), Rajapaksa – 74,454 (21.85%)

Vanni: Sirisena – 141,417 (78.47%), Rajapaksa – 34,377 (19.07%)

Trincomalee: Sirisena – 140,338 (71.84%), Rajapaksa – 52,111 (26.67%)

Batticaloa: Sirisena – 209,422 (81.62%), Rajapaksa – 41,631 (16.22%)

Digamadulla (Amparai): Sirisena – 233,360 (65.22%), Rajapaksa – 121,027(33.82%)

 

As one could easily see, the vote margin between Sirisena and Rajapaksa in these five districts was 566,284. Sirisena’s ultimate vote margin of 449,072 is included in this 566,284 vote difference. If Mahinda Rajapaksa had used his brains and not listened to his Tamil sycophants (like Douglas Devananda) or LTTE traitors (likes of Karuna, Pillaiyan and K.P.) and not alienated the Tamil voters in the North and East of the island, he could have almost equaled his vote share (say in the margin of 40-45%) to that of Sirisena, and enjoyed the third presidential term which he yearned for. This is why, I mention that Mr. Rajapaksa was a victim of King Kavan Tissa’s curse.

Mr. Rajapaksa and his coterie were so drunk with power that they had completely forgotten the fact that the miniscule victory margin of less than 200,000 votes he received over Mr. Ranil Wickremesinghe in his 2005 Presidential election, was due to the Tamil boycott called by LTTE’s leader V. Prabhakaran. Mr. Rajapaksa and his coterie, in their grandiose triumphalism schemes since 2009, also forgot the fine deeds of King Dutugemunu’s magnanimity to his vanquished opponent Tamil king Elara.

Mahinda Rajapaksa (May 2014) A

Mahinda Rajapaksa (May 2014)

To complete the voting details of remaining 17 districts, first I provide 7 districts which voted for Sirisena over Rajapaksa. These are,

Polonnaruwa: Sirisena – 147,974 votes, Rajapaksa – 105,640 votes.

Badulla: Sirisena – 249,524 votes, Rajapaksa – 249,243 votes.

Nuwara Eliya: Sirisena – 272,605 votes, Rajapaksa – 145,339 votes.

Kandy: Sirisena – 466,994 votes, Rajapaksa – 378,585 votes.

Puttalam: Sirisena – 202, 073 votes, Rajapaksa – 197,751 votes.

Gampaha: Sirisena – 669,007 votes, Rajapaksa – 664,347 votes.

Colombo: Sirisena – 725,073 votes, Rajapaksa – 562,614 votes.

 

In these 7 districts, one could see how the votes polled between Sirisena and Rajapaksa were almost equally split in Badulla, Puttalam and Gampaha districts.

In the remaining 10 districts, Rajapaksa polled more than his deserter Sirisena, as follows. I list the votes polled by Sirisena first for consistency and because he was the ultimate winner in this contest.

Anuradhapura: Sirisena – 238,407 votes, Rajapaksa – 281,161 votes.

Matale: Sirisena – 145,928 votes, Rajapaksa – 158,880 votes.

Kurunegala: Sirisena – 476,602 votes, Rajapaksa – 556,868 votes.

Kegalle: Sirisena – 252,503 votes, Rajapaksa – 278,130 votes.

Kalutara: Sirisena – 349,404 votes, Rajapaksa – 395,890 votes.

Ratnapura: Sirisena – 292,514 votes, Rajapaksa – 379,053 votes.

Moneragala: Sirisena – 105,276 votes, Rajapaksa – 172,74 votes.

Galle: Sirisena – 293,994 votes, Rajapaksa – 377,126 votes.

Matara: Sirisena – 212,435 votes, Rajapaksa – 297,823 votes.

Hambantota: Sirisena – 138,708 votes, Rajapaksa – 243,295 votes.

 

On a personal note, I also feel a sense of loss in Mr. Rajapaksa’s defeat; for the sole reason that the anti-Tamil deeds of he, his sibling Gotabhaya Rajapaksa, his coterie (Dayan Jayatilleke, Rohan Gunaratna, K.P. etc.) and his Tamil sycophants (Narasimhan Ram, Subramanian Swamy, V. Anandasangaree, Douglas Devananda and Prof. Ratnajeevan Hoole), had stimulated my thoughts to contribute to this website for more than nine years. Now, I have to learn something new about the new President Maithiripala Sirisena!

One is tempted to repeat Shakespeare’s lines for Marc Antony, “O mighty Caesar! Dost thou lie so low? Are all thy conquests, glories, triumphs, spoils, shrunk to this little measure? Fare thee well.” [Julius Caesar, Act 3, scene 1, lines 149-151]

Amnesty USA’s HR Concerns

http://www.amnestyusa.org/our-work/countries/asia-and-the-pacific/sri-lankaamnesty-international-logo.jpg

Sri Lanka Human Rights

Human Rights Concerns

Sri Lanka’s brutal 26-year civil war between the government forces and separatists from the Tamil minority ended with a government victory in May 2009. During the war, both sides committed gross human rights abuses, including war crimes, for which no one has been held accountable. Enforced disappearances and torture have continued to be reported since the war’s end. Hundreds remain detained without charge or trial. Independent journalists and human rights defenders have been harassed and attacked. Draconian security laws inconsistent with international standards remain in place.

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