Last week the Commission on Missing Persons (Maxwell Paranagama Commission) had issued a clarification regarding the recommendations made in its report. They had explained that they had not proposed foreign judges and that the misconception that they had done so was due to the commission ‘reviewing’ measures taken in other countries before proposing a specific mechanism for Sri Lanka and that what they had actually proposed was a mechanism without foreign judges, foreign investigators or foreign prosecutors. This would need some further clarification in the light of what was written in this column last week.
Paragraphs 611 to 626 of the Paranagama commission report deal with the subject of establishing a ‘war crimes’ division within the Sri Lankan court system. This section provides a comprehensive theory of how to go about this task from A to Z. Foremost of course is the need to incorporate the laws applied by international war crimes tribunals into local law. Paragraphs 611 to 614 sets out how Article 13(6) can be used to retroactively introduce the laws applied by international war crimes courts to Sri Lanka. This was the same constitutional provision used to punish Sepala Ekanayake in the 1980s for hijacking an Alitalia plane. In particular it is stressed that the doctrine of ‘command responsibility’ has to be introduced to Sri Lanka.
(If the laws used by international war crimes courts are to be introduced to Sri Lanka, this doctrine of command responsibility will be one of the most contentious issues especially in the light of the latest developments in this sphere in the International Criminal Tribunal for the former Yugoslavia. The doctrine of command responsibility is still very much a work in progress. We will deal with this issue at the appropriate time. It would suffice for the moment to note that the Paranagama Commission has gone out of its way to single out the doctrine of command responsibility as needing to be introduced into Sri Lankan law. That is obviously with the hope of roping in the entire command structure which operated during the war – particularly the Rajapaksas.)
After the necessary laws are introduced, the Paranagama report mentions a range of alternatives from paragraphs 615 to 626 to set up a war crimes division within the Sri Lankan courts system. Several examples are mentioned from Uganda, Kenya Bosnia-Herzogovina and Fiji where special divisions of the domestic courts systems were set up to try international crimes with the participation of foreign judges. At times the foreign judges may be limited to the Commonwealth. But what is the distinction between a judge from a Commonwealth country and a foreign judge? If a judge from Canada, Britain or Australia were to work in Sri Lanka would he not be a foreigner? The reference to the ‘Commonwealth’ in a context like this is always an attempt to downplay the ‘foreignness’ of the judge.
It has to be stressed most emphatically that the Paranagama report was not just ‘reviewing’ what had been done in other countries. The creation of a special war crimes division within the Sri Lankan courts system with foreign judges was one of the alternatives that the Commission was proposing. If foreign judges were not going to be appointed the commission suggests that as an alternative to that, international technical assistance may be supplied by the UN, or friendly nations, as was done in the trial of Saddam Hussein.
If none of these alternatives were to the liking of the Sri Lankan government, the commission suggests that an experiment in The Gambia which was designated as a Special Division of the Supreme Court of Gambia, once again with some foreign (Commonwealth) judges ‘may possibly be viewed with favour’. In paragraph 617 the commission stresses that “In the event that Sri Lanka were to set up a purely domestic tribunal without the participation of any foreign judges, it is the view of this Commission that there should be international technical assistance and observers.” What that means in essence is that the first preference of the commission is for a special division of the local courts WITH foreign judges. If that is not possible they want at least foreign technical assistance and foreign observers.
Proposed purely domestic option
Paragraph 620 explicitly states that this ‘Commission has been through an exhaustive tour of possible alternatives’ as to how accountability can be addressed in Sri Lanka. If none of the above is possible, as a last resort the commission has recommended that a purely domestic mechanism be established. No mention is made of foreign judges, technical assistance or observers in relation to this mechanism. How it is supposed to operate is stated in paragraphs 625 and 626 and can be summarised as follows:
*A Truth and Reconciliation Commission is to be formed along with a War Crimes Division of the High Court.
*The Attorney General of Sri Lanka to be empowered to place before a judge of that Court evidence in relation to any individual who may be criminally liable for a violation of the laws of war.
*Any such individual so appearing before the Court will have the right to submit that he has no case to answer in relation to such allegations.
*Where the evidence submitted by the Attorney General is held by a judge of the Court to amount to a prima facie case the individual concerned would be summonsed to appear before the TRC.
*A failure to answer the Summons will result in a fine, withdrawal of civic rights, imprisonment or a combination thereof.
*Where the person concerned makes his appearance before the TRC he would be given the choice of remaining within the TRC process or opting for a trial before the High Court.
*If the named individual chooses to make a full admission before the TRC, he can thereafter apply for an amnesty in relation to whatever he has admitted.
*If the TRC is satisfied that the individual concerned ‘has been honest and truthful’ the TRC will then have a discretion to grant such an individual an amnesty which would act as a bar to any further criminal or civil proceedings against that individual within Sri Lanka.
*Even if an Amnesty were to be granted, the TRC in its discretion in appropriate cases would have the power to forfeit civic rights and order reparations.
*Where the TRC is satisfied that an individual appearing before it has failed to tell the truth they would have the power to send the matter for trial.
*Where a named individual exercises his right to be tried or is remitted for trial, the matter will proceed in the same way as in any other criminal trial within the jurisdiction of Sri Lanka.
*Anyone convicted by the Court will have the right to appeal against conviction and or sentence to the Court of Appeal.
The debate in Sri Lanka is mostly centred around the participation of foreign judges, prosecutors and investigators. The last named alternative does not have any of these, yet it is every bit as objectionable as the earlier suggestions that included foreign judges and prosecutors. The purely domestic mechanism resembles an inquisition more than a judicial process. Once the Attorney General presents evidence of war crimes against an individual to the Special High Court and the court decides that there is a prima facie case, the individual concerned is frogmarched to the Truth and Reconciliation Commission (TRC). The TRC process is not voluntary and there is no provision to go before the TRC except through the court.
This may seem superficially similar to a magistrate referring a matter to a conciliation board or a family law court referring a couple that has applied for divorce to a marriage counsellor. But this referral to a TRC takes on a different dimension altogether. A conciliation board or a marriage counsellor attempts to bring peace between the warring parties with a view to terminating the proceedings in court. But a Truth and Reconciliation Commission has a different function since it seeks to uncover information about the past. In the mechanism proposed by the Paranagagama Commission, the TRC functions like the room where ‘Kondaya’ was interrogated over the recent child murder.
Firstly, you have no choice whether to appear before the TRC or not. You are referred to the TRC by the courts and if you do not answer the summonses issued by the TRC you can either be fined imprisoned or even have your civic rights taken away. Once you turn up before the TRC you are given the choice of spilling the beans and possibly qualifying for an amnesty or refusing to spill the beans and opting for a trial. Even if you spill the beans, if the TRC is not satisfied that you have revealed everything, they can still send you for trial after having already incriminated yourself! This need to satisfy the TRC that you have spoken the truth is by far the biggest problem in this proposed set up. The TRC is not a court of law and they do not carry out any investigations. On what grounds are they to come to the conclusion that a person standing before them has not spoken the truth?
Turning war heroes into ‘Kondayas’
This arbitrary power given to the TRC will place every accused standing before it in the same situation that Kondaya found himself in police custody. The only way that Kondaya had to avoid unpleasantness was to admit guilt to every question that the police put to him and an elaborate story of how the crime was committed was built up. Similarly, anybody standing before the TRC will have to say everything which he thinks the TRC would like to hear from him, otherwise he’ll not get his amnesty! By what stretch of the imagination are we to believe that the cause of justice will be served through such an arrangement?
Anybody going before the TRC would be very eager to say anything that would qualify for an amnesty. Before long it will be known what chords need to be struck to convince the TRC that the accused has divulged everything and they will be singing accordingly. The admissions made by one accused can then be used to judge whether another accused was singing the song properly. With a ‘truth and reconciliation’ process like this, we will have neither truth nor reconciliation.
Furthermore, what of the question of sharing information between these mechanisms? The Paranagama commission has not said that whatever is said in the TRC will not be used in court proceedings against that individual or others. Hence the War Crimes High Court will be allowed to make use of admissions made in the TRC. Once you have compromised yourself by admitting to various things, the TRC can still send you for trial on the basis that you have not revealed everything. What was said in the TRC will naturally be used against him or will work against him in court. If the court calls for evidence, what option will the TRC have but to hand everything over to the court? A court of law takes precedence over any commission.
Nobody in his right mind is going to divulge anything if he does not have a cast iron guarantee that that his admission will get him the amnesty he wants. Even if an accused goes before the TRC and is granted the amnesty, it will be valid only in Sri Lanka. He can always be arrested and tried when he goes overseas. To make things worse, the recent American sponsored UNHRC resolution called for the implementation of the recommendations in the OHCHR report on Sri Lanka which called for among other things, for Sri Lankans suspected of war crimes to be arrested and tried in other countries under universal jurisdiction. Since Sri Lanka joined this resolution as a co-sponsor, Sri Lanka itself has agreed to its citizens being tried overseas under universal jurisdiction.
Given the foregoing, it would be a major mistake for anybody to say anything at all before the TRC proposed by the Paragagama commission and it would be less risky to take their chances in court. So in the final analysis, what the Paranagama Commission has proposed is a TRC that no one will want to go before so that what is left functioning is the Special High Court. What is worse is that the TRC can be used as a tool to get people to make strategic admissions which then can be used as evidence against targeted individuals in the War Crimes High Court.
The Paranagama Commission has gone beyond its mandate to pander to the political needs of the present government. When this Commission was instituted on August 15 2013, through Gazette notification No: 1823/42, that was just to look into complaints of abductions and disappearances of persons resident in the Northern and Eastern provinces. Later in July 15, 2014, this commission was given its ‘second mandate’ through gazette notification 1871/18 which was to answer eight specific questions. Three of them were on allegations related to the Sri Lanka military and five related to allegations against the LTTE. The allegations against the LTTE need not concern us here. The specific questions posed in the terms of reference in relation to allegations against the Sri Lankan military were as follows:
i. The principal facts and circumstances that led to the loss of civilian life during the internal armed conflict that ended on the 19th May 2009, and whether any person, group or institution directly or indirectly bears responsibility in this regard by reason of a violation or violations of international humanitarian law or international human rights law.
ii. Whether such loss of civilian life is capable of constituting collateral damage of a kind that occurs in the prosecution of proportionate attacks against targeted military objectives in armed conflicts and is expressly recognized under the laws of armed conflict and international humanitarian law, and whether such civilian casualties were either the deliberate or unintended consequence of the rules of engagement during the said armed conflict in Sri Lanka.
iii. The adherence to or neglect of the principles of distinction, military necessity and proportionality under the laws of armed conflict and international humanitarian law, by the Sri Lankan armed forces.
These terms of reference do not include making recommendations on any judicial mechanisms that should be set up by the government to try war crimes. Yet the Paranagama commission has gone on to do exactly that. The specific questions that the Paranagama commission was supposed to answer in their second mandate were based on paragraph 4.359 of the Lessons Learnt and Reconciliation Commission. Even if we look at this particular paragraph of the LLRC report, there still isn’t anything mentioned about mechanisms for a war crimes tribunal of any kind. This raises the question as to where the Maxwell Paranagama Commission derived the authority to put forward suggestions about judicial mechanisms to try war crimes? They have clearly acted outside their mandate in making these suggestions.
Suppression of important information
The irony of it is that the foreign experts on the advisory panel of the Maxwell Paranagama Commission had given some very valuable written opinions focusing on the specific questions posed in the terms of reference of the second mandate. Those opinions should have been included as annexures to the Paranagama report but they have all been left out. The foreign experts who provided written legal opinions were some of the most prominent experts in the field – Sir Desmond de Silva QC, Sir Geoffrey Nice QC, Professors David Crane and Michael Newton, Rodney Dixon and a written military assessment by Major General John Holmes. Only the last mentioned has been published as an annexure to the Paranagama report. The legal opinions have all been suppressed. However The Island published all these legal opinions in an exclusive expose and these documents can be accessed on the following links.
If readers peruse these legal opinions they will see how sharply they contrast with the Paranagama report released recently. Sir Desmond de Silva was an advisor to the Paranagama Commission till its final report on the second mandate was submitted but he too has acted to suppress his own opinions given last year. The reason for that is obviously because Maxwell Paranagama and Sir Desmond de Silva have both been terrorized into following the diktat of the powers that be. Anybody who reads newspapers will know that Sir Desmond was given a ‘work over’ second only to that given to former Chief Justice Mohan Peiris. Now he has been made to toe the new line. Maxwell Paranagama too has been suitably intimidated with no less a person than the UN Human Rights Commissioner himself calling for the dismissal of his Commission. So the Paranagama report has been written entirely to pander to the powers that be.
They are unable to publish the legal opinions mentioned above because they contrast so starkly with the present form of the Paranagama report. Since the Commission does not seem to be inclined to publish the findings of its own advisory panel, someone in the opposition should table before parliament the documents that were published in The Island so that the Commission will be forced to accept or deny that these were the genuine legal opinions of the experts mentioned above. If they deny these documents are genuine, there will be the question why nobody registered a denial months ago when these legal opinions were prominently published in this newspaper. If by some chance they deny the authenticity of these documents, we can take things on from that point onwards.
In conclusion, this writer would like to draw the attention of the public and the Paranagama Commission itself to an article titled “Eight compelling reasons for resisting implementation of the Geneva resolution” By Professor G.L.Peiris which appeared in the Daily Mirror a few days ago and in particular to the section where he expresses his disappointment at the government agreeing to set up special judicial mechanisms to try our military and police personnel. He has upheld their right to be charged and tried by the regular established courts of the land. This finally is the crux of the issue. The Paranagama Commission needs to explain to the public exactly why they deem it necessary not only to amend the law but also to establish special courts to try our military personnel for war crimes. Anything that a soldier can be accused of during a time of war, murder, rape, robbery, intimidation, illegal detention, torture etc is all covered by the existing law. Why then is it necessary to amend the criminal law and why can’t the regular courts system be used to try any military personnel against whom there may be evidence of crimes as suggested by Prof. GLP? We respectfully await an answer.