Wednesday, 18 May 2016

Former Justice Ministry Secretary Dr. Jayawickrama makes strong case for hybrid court to probe war crimes




By Shamindra Ferdinando

Former Justice Ministry Secretary, Dr Nihal Jayawickrama last week declared that the then Foreign Minister, Lakshman Kadirgamar had been assassinated on the night of August 8, 2005 in circumstances that were "classified and shrouded in mystery."

Internationally - renowned Dr Jayawickrama alleged that the assassination of Batticaloa District lawmaker, Joseph Pararajasingham, during Christmas mass, at St. Mary’s Church, Batticaloa in 2005, the killing of five Tamil university students in Trincomalee in January 2006, as well as the killing of founding editor of The Sunday Leader, Lasantha Wickrematunga, in January 2009, hadn’t been investigated or not effectively probed.

Having efficiently explained the accountability, on the part of the Sri Lankan State, leading to the break-up of the country, due to the conflict, 79-year old Dr Jayawickrama threw his weight behind a Geneva Resolution meant to establish a hybrid court to investigate war crimes allegations.

 Dr Jayawickrama declared that the country lacked the experience and expertise to undertake such a task on its own, while castigating the judiciary, the military and law enforcement agencies.

The onslaught couldn’t have come at a worse time for those opposed to international intervention. Others expressed delight.

Sri Lanka’s accountability issue will come up for discussion at the Geneva-based United Nations Human Rights

 Dr Jayawickrama was delivering Deshamanya Dr P.R. Anthonis Memorial Oration at Sasakawa Hall Auditorium on May 11, 2016, on the invitation of the Lanka-Japan Friendship Society.  

He utilized a rare lecture titled ‘healing the nation: A question of leadership’, to castigate the previous Rajapaksa administration. Dr Jayawickrama had been perhaps the youngest ever to serve as Secretary to the Justice Ministry, at the age of 32.  Felix Dias Bandaranaike had been the Justice Minister at that time.

Among the audience was Japanese Ambassador to Colombo, Kenichi Suganuma.

 Declaring that the post-war national reconciliation couldn’t be achieved unless the Government of Sri Lanka (GoSL) addressed the contentious issue of accountability, Jayawickrama threw his weight behind calls for a significant international role in the proposed war crimes probe.  The coordinator of the UN sponsored Judicial Integrity Programme even disputed President Maithripala Sirisena’s strong opposition to foreign intervention in accountability mechanism. 

The legal luminary blamed former President Mahinda Rajapaksa for the post-war current crisis, over mass scale violations, during eelam war IV (August 2006-May 2009) as well as post-war accountability issues. Let me quote Dr Jayawickrama verbatim in respect of proposed formation of war crimes probe: "Without accountability, there can be no reconciliation in any society. The hybrid court, which the UN High Commissioner for Human Rights recommended for Sri Lanka, is a unique element in the human rights, based approach to transitional justice in a post-conflict situation. Comprising international judges, prosecutors, lawyers and investigators, a hybrid court is designed to deal with those who bear the greatest responsibility for series of crimes, arising from or during the conflict, such as war crimes or crimes against humanity, including sexual crimes and crimes against children. President Maithripala Sirisena has repeatedly asserted that under no circumstances will he agree to the participation of foreigners in the accountability process in Sri Lanka. The President has claimed that Sri Lanka has an independent judiciary which is quite capable of addressing the issues of accountability without any foreign assistance. It is perhaps time for the President’s advisers to brief him on the real position."

 Jayawickrama faulted successive governments for categorising the conflict as a situation caused by terrorism.  Alleging that successive governments had failed to restore good governance, Dr Jayawickrama declared: "On the other hand, there is the issue of justice, reparation and reconciliation, which has been brought to the fore through the actions of succession of Presidents who set out to resolve a political and human rights problem, conveniently dubbed "the terrorist problem’, through the application of military power."

The Justice Ministry Secretary in the United Front Government of Mrs Bandaranaike paid a glowing tribute to Ranil Wickremesinghe for having the courage and vision to enter into a Ceasefire Agreement (CFA), in February, 2002, with the LTTE to pave the way for negotiations meant to work out a lasting settlement. Dr Jayawickrama included Premier Ranil Wickremesinghe in a group of people whom he considered as real leaders.

Twice President Rajapaksa didn’t earn praise for giving resolute political leadership during the three-year combined security forces campaign. Rajapaksa earned the wrath of Western powers for refusing to halt the offensive on the Vanni east front.

Former Justice Ministry Secretary, Dr Jayawickrama refrained from at least briefly discussing the events leading to collapse of the CFA and the subsequent annihilation of the LTTE in May, 2009. Had the then government succumbed to Western pressure, in early 2009, the LTTE would have certainly survived the war on the Vanni east front. Thanks to the Rajapaksas determination and the then Army Chief Lt. Gen. Sarath Fonseka’s leadership the war was brought to a successful conclusion during the third week of May, seven years ago. The Army couldn’t have achieved victory under any circumstances without the Navy and Air Force meeting their strategic objectives. 

The Island front-page story on May 13, 2016, issue, titled ‘International assistance required to probe war crimes’ on the basis of Dr Jayawickrama’s lecture, received swift attention of the government as well as a section of the Colombo-based diplomatic community. Foreign Ministry on Friday (May 13) released the text of Dr Jayawickrama’s statement. The ministry highlighted the then President JRJ’s 1979 directive to the Army to quell the northern insurgency.

The writer, too, strongly believes that Sri Lanka should accept a significant international role in the inquiry. In fact, a hybrid court can certainly help Sri Lanka to disprove most of the accusations directed at the previous administration. However, the proposed hybrid court should examine all available information pertaining to contentious issues of accountability. Unfortunately, Dr Jayawickrama conveniently refrained from mentioning several critically important factors which can dispute some of the major allegations, discrepancy in figures, in respect of the number of civilians killed during the Vanni offensive, as well as the origins of the war.

There cannot be any dispute over Dr Jayawickrama’s assertion that both the UNP and the SLFP had caused the disintegration of the nation by taking, what he called, politically expedient measures such as denial of franchise to a substantial number of Indian Tamil voters, colonisation of dry zones in northern, eastern and north central provinces, replacing English as the medium of instruction in schools, declaration of Sinhala as the official language, thereby depriving Tamil-speaking educated youth of an opportunity to secure employment in the state sector, and the 1972 Constitution.

Dr Jayawickrama declared: "The tragedy of the 1972 Constitution was that it heard and responded only to the voices of those who celebrated its creation. The issue of federalism was not even allowed to be raised."

 He quite rightly pointed out that controversial policy of standardization, in respect of university admission, in 1970, had a catastrophic impact. Dr Jayawickrama asserted: "Nothing could have been more frustrating to the educated Tamil youth than their inability to enter the stream of higher education owing to the standardization and be diverted away from the mainstream life in the country.

 Jayawickrama, a key functionary in Mrs Bandaranaike’s government that introduced the first republican constitution of 1972 said: "THIS FEELING OF DESPAIR AND NON-FULFILMENT CONTRIBUTED IMMENSELY TO THE EMERGENCE OF A MILITANT YOUTH MOVEMENT." The academic also faulted successive governments for calling the situation, caused by militant youth movement, a terrorist problem. Dr Jayawickrama asserted it was a political and human rights problem.

War-winning Rajapaksa administration never made a serious effort to examine the origins of terrorism in Sri Lanka. Had former President Rajapaksa mandated the Lessons Learnt and Reconciliation Commission (LLRC) to conduct a thorough inquiry, it could have produced a better report.

Sri Lanka could have easily neutralized what Dr Jayawickrama referred to as a Tamil militant movement if not for Indian intervention, in the early 80s. Indian intervention transformed a domestic security issue to a conventional military challenge, coupled with a devilish campaign to assassinate political and military leaders, beginning with the assassination of SLFP Mayor of Jaffna, Alfred Duraiyappah, on July 27, 1975. Although, Dr Jayawickrama mentioned the Duraiyappah assassination, there hadn’t been any reference to New Delhi’s despicable role in Sri Lanka.

 Obviously, the former Lankan civil servant didn’t hold India accountable for causing massive death and destruction here. No less a person than former Indian Foreign Secretary J.N. Dixit in his memoirs titled ‘Makers of India’s Foreign Policy: Raja Ram Mohun to Yashwant Sinha’, released during 2004, admitted India causing terrorism here.

 The war-winning government never made a genuine effort to examine Dixit’s declaration. The one-time India’s High Commissioner in Colombo acknowledged that New Delhi’s intervention had been prompted by Sri Lanka’s oppressive and discriminatory policies towards its Tamil community, as well as JRJ’s cosy relationship with US, Israel and Pakistan. According to Dixit, New Delhi had been wary of Sri Lanka’s involvement with the US Israel and Pakistan against the backdrop of what the veteran diplomat called international and regional strategic environment during the 1980-1984 period. Having exposed New Delhi’s machinations, Dixit asserted Indian intervention in Sri Lanka as one of the two foreign policy blunders of Indira Gandhi. Dixit explained Gandhi’s failure to condemn Soviet invasion of Afghanistan in Dec 1979 as the other blunder. But, perhaps the most significant assertion made by Dixit as regards the origins of terrorism never attracted the attention of the government. Dixit asserted: "Her (Indira Gandhi) logic was that she could not openly alienate the former Soviet Union which India was so dependent for defence supplies and technologies. Similarly, she couldn’t afford the emergence of Tamil separatism in India by refusing to support the aspirations of Sri Lankan Tamils. These aspirations were legitimate in the context of nearly fifty years of Sinhalese discrimination against Sri Lankan Tamils."

Sri Lanka never bothered to examine Dixit’s statement. Instead, the previous government hired very expensive US and other public relations firms to improve its image.

Indian military adventure in Sri Lanka led to an attempt on the life of Maldivian President Maumoon Abdul Gayoom in the early hours of Nov 3, 1988.

What would have happened if the bid to oust Gayoom succeeded? Indian trained Sri Lankan terrorists carried out the raid on the Maldives. India never accepted responsibility for the operation conducted by those who had been trained and armed to destabilize Sri Lanka. In fact, India earned the praise of Western powers and influential section of media for coming to the rescue of tiny Male.

It would be pertinent to mention that two large trawlers carrying fully armed 80 terrorists and two Maldivians had left Mannar during the deployment of the Indian forces, including the navy, in accordance with the Indo-Lanka Peace accord.

Those who had been pushing for a hybrid court to examine accountability never felt the need to probe India’s culpability in causing massive death and destruction here. The Indian project also resulted in the deaths of over 1,500 of its forces’ personnel in addition to the assassination of former Indian PM Rajiv Gandhi, in May, 1991, and an abortive raid on the Maldives in Nov, 1988. India could never absolve itself of the blame for ordering the assassination of at least two TULF lawmakers, representing the Jaffna District, in the 80s. 

Dr Jayawickrama didn’t find fault with India for voting against Sri Lanka on more than one occasion at the UNHRC after having plunged the neighbouring country into unprecedented crisis.

If not for the political leadership given by former President Rajapaksa, Sri Lanka would have been still been fighting terrorism. Sri Lanka’s triumph over the LTTE, in May, 2009, wouldn’t have been possible if not for the then President Chandrika Kumaratunga liberating the Jaffna peninsula in early 1996. Securing Jaffna had been her biggest achievement.

In respect of child recruitment, Dr. Jayawickrama squarely blamed Karuna Amman for recruiting child soldiers during the war. The former Justice Ministry Secretary described the group, commanded by Karuna, as one of those who had been involved in the recruitment of children. Contrary to his claim claim that Karuna had defected to the government during 2007, one-time Batticaloa commander quit the organisation in March 2004. Since then, Karuna worked with the military and played a significant role in the ultimate destruction of the LTTE military machine.  Strangely, there hadn’t been any reference in Dr Jayawickrama’s speech to an unprecedented agreement between the UN and the LTTE, finalised during May, 1998 to end recruitment of child soldiers.

The UN issued a statement through the office of the Resident Co-coordinator in Colombo, assuring that the LTTE would not use children, below the age of 18 in combat. The UN also quoted the LTTE as having said that the group would not recruit children below the age of 17. (Tigers agree to end use of children below 18 in combat-The Island, May 9 1998)

Child recruitment continued until the Army wiped out the LTTE on the banks of the Nanthikadal lagoon, in May, 2009.

 Although the UN claimed it had the LTTE’s consent to set up a mechanism to monitor the commitments made by the group, it did nothing to implement the agreement. The UN admitted that during talks, between top UN delegation and the LTTE, the latter refused to release under-age recruits or reveal the number of such cadres in uniform at that time (UN, LTTE to discuss modalities, with strap line pledge to stop using children in combat – The Island – May 11, 1998)

The UN never made a serious attempt to ensure the implementation of the decision taken in the Vanni. International human rights organizations, particularly the London headquartered Amnesty International, remained mum, though they knew what was happening on the ground.

Had Karuna remained with the LTTE he, too, would have earned the sympathy of those who couldn’t bear the annihilation of the group.

Although, Dr Jayawickrama expressed serious doubts as regards Kadirgamar’s assassination, Norwegians spearheading peace efforts here raised the issue with LTTE leader Velupillai Prabhakaran himself through the then London-based Anton Balasingham. Thanks to whistle-blowing website, Wiki Leaks, a confidential US diplomatic cable, which dealt with secret meeting between high ranking Norwegian representatives and Balasingham in London, in August 2005, is now in the public domain. In the wake of Kadirgamar’s assassination, major countries, as well as the UN Security Council, strongly advised the then Kumaratunga government not to cease negotiations with the LTTE. Obviously, the international community knew the LTTE carried out the assassination.

Jayawickrama expressed doubts about Kadirgamar’s assassination, close on the heels of Field Marshal Sarath Fonseka alleging the then Defence Secretary Gotabhaya Rajapaksa engineering a suicide attack on himself on the morning of Dec 1, 2006. Many an eyebrow was raised over their claims with Canada-based veteran journalist, D.B.S. Jeyaraj, strongly reiterating that the LTTE’s responsibility for the attack on Rajapaksa. If Dr Jayawickrama felt that the LTTE hadn’t been responsible for Kadirgamar’s assassination, who could have carried it out Dr Jayawickrama’s claim should be studied against the backdrop of Norway funded National Peace Council (NPC) declaration that Kadirgamar’s assassination was tragic but inevitable.

Those who had been demanding accountability on the part of Sri Lanka on the basis of unsubstantiated allegations are silent on a highly damaging resolution being adopted on so far unverified allegations. In accordance with the UNSG Panel of Experts (PoE) released in March 2011, these allegations couldn’t be subject to any form of scrutiny for 20 years, from the date of the release of the report in March, 2011. Dr Jayawickrama refrained from discussing this aspect. The previous government, too, didn’t take up this issue as it shamelessly exploited the accountability issue for political advantage. The previous administration politically gained by propagating that the former President faced a non-existent electric chair in Geneva.

Having praised the then Premier Wckremesinghe for courageously entering into CFA, in 2002, Dr Jayawickrama stopped short of naming those who had sabotaged the peace process. The then five-party Tamil National Alliance (TNA) remained silent as the LTTE quit the negotiating table, in April 2003. At the April 2004 general election, the TNA received the strong arm backing of the LTTE to win the lion’s share of seats in the then temporarily merged North-Eastern Province by helping to stuff ballot boxes in full view of visiting EU monitors. Having endorsed the LTTE as the sole representative of the Tamil speaking people, the TNA threw its weight behind the LTTE to engineer front runner Ranil Wickremesinghe’s defeat at the Nov., 2005 presidential polls. The former President has been accused of bribing the LTTE to engineer Wickremesinghe’s defeat. The government is yet to probe this aspect.

Perhaps, an internationally-assisted probe can help establish circumstances leading to the war and the annihilation of the LTTE.