Yearly Archive: 2015

Evidence of derogation of Human Rights prevails in most countries because of threats from terrorism. For instance, the introduction of the Patriot Act of the US following the 2001 terrorist attack in New York curtails many civil liberties through invasive surveillance by the NSA. With the recent terrorist attack in Paris, security measures are bound to be strengthened in many countries resulting in the derogation of Human Rights. Attempts to dismantle Sri Lanka’s PTA appear foolish in a background where there is a global need to be extra vigilant about threats from multi-dimensional sources. The derogation of Human Rights varies and reaches a minimum – the “Hard Core” of Human Rights during an Armed Conflict.

In the course of a media briefing Dr. Udagama, the present Chairperson of the Human Rights Commission, has indicated that “the HRC intends to play a pivotal role in shaping the state policy…” (The Island of Nov. 17). The Island report further says: “Commenting on the Geneva process, reconciliation and transnational justice, Dr. Udagama asserted that the entire process should be based on human rights law”.

The recent UNHRC resolution co-sponsored by the present Government of Sri Lanka aims to investigate members of the Sri Lankan armed forces for accountability in relation to allegations of war crimes. The investigative and legal processes are to include foreign judges, prosecutors and legal personnel.

 The UN Human Rights Commissioner in his report of 30 September 2015 indicates as follows why the foreign participation is desired.

‘I welcome the Government’s commitment made before this Council, to investigate those violations and ensure accountability’.  ’The unfortunate reality, however is that Sri Lanka’s criminal justice system is not currently equipped to conduct an independent, credible investigations of this breath and magnitude. This is why I have recommended the establishment of an ad hoc hybrid special court, integrating judges, prosecutors, lawyers and investigators mandated to try notably war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defence office and witness and victims protection program. In highly polarized environment such a mechanism is essential to give all Sri Lankans, especially the victims, the confidence in the independence and impartiality of the process. “.

“Now, all the duties of rulers are contained in this one sentence, the safety of the people is the supreme law.”- Thomas Hobbes (‘Man and Citizen’)
Who should be “accountable” and primarily to whom, on what issues and why? Are the Sri Lankan state, its military and its leaders primarily accountable under international law? Are they primarily accountable to the UN or a resolution passed by one of its bodies, which is not even the Security Council? Arguably this might have been the case had the Sri Lankan military invaded another country and occupied it even in part. That is a violation of international law and the founding Charter of the UN, the primary purpose of which is to regulate the conduct of the global inter-state system. However, the Sri Lankan State fought a war within its own legitimate borders, in order to restore and protect them. Under international law, Sri Lanka does not occupy any territory or peoples.

Surveying the events of the last ten days, it seems to me that the need of the hour is to penetrate the fog of misinformation and fantasy with regard to the consequences of the Geneva Resolution on Sri Lanka, and to make a realistic appraisal of the situation. The point of departure is a clear understanding of the facts.

I would like to set out here eight very compelling reasons why the Government’s action in this regard is, without a shadow of doubt, gravely detrimental to the national interest of Sri Lanka, and why implementation of this Resolution should be resisted with all vigour.