Features
Universal jurisdiction and Sri Lanka: Does govt. have coherent policy?
By Dharshan Weerasekera
In March 2021, the U.N. High Commissioner for Human Rights recommended that actions under universal jurisdiction be pursued against Sri Lankan military officers and civilian leaders who led the war against the LTTE. (A/HRC/46/20). The recommendation was repeated in March 2022 and September 2022. (A/HRC/49/9 and A/HRC/51/5). Meanwhile, in March 2021, by resolution 46/1, the Human Rights Council established a mechanism to collect evidence of war crimes purportedly committed during the war to be forwarded to countries interested in prosecuting individuals for the crimes in question.
Unfortunately, there is little or no discussion in local newspapers and academic journals about whether the drive to pursue Sri Lankans under universal jurisdiction is legitimate. It is in the public interest to start such a discussion. I argue that, firstly, universal jurisdiction as currently understood in international law cannot be applied to Sri Lankan officers and civilian leaders who oversaw the war. Secondly, there is a danger that acts of commission or omission by the government could lead to the relevant law being changed in regard to the said matter, with grave consequences not just for Sri Lanka but for other countries as well.
In this article, I shall briefly explain: i) what universal jurisdiction is and its benefits as well as drawbacks, ii) the unique attribute about universal jurisdiction and the danger of Sri Lanka setting a precedent, iii) the sources of the allegations of war crimes against Sri Lanka, iv) the flaw in the government’s response so far.
i) Definition, benefits and drawbacks of universal jurisdiction
Universal jurisdiction is the capacity of States to prosecute non-citizens for international crimes such as genocide, crimes against humanity, war crimes and others. The benefit of the procedure is that it provides a way to hold accountable persons who may have committed certain heinous crimes who might otherwise avoid answering for such deeds by hiding behind domestic laws. The drawback is that this process can be exploited. Anthony J. Colangelo, a scholar at Columbia University, says:
“Universal jurisdiction has been hailed as a catalyst for the global struggle to bring to justice elusive international criminals like tyrants and terrorists, while on the other hand decried as a dangerously pliable tool for hostile states to damage international relations by initiating unfounded proceedings against each other’s officials and citizens.” (Anthony J. Colangelo, ‘The Legal Limits of Universal Jurisdiction,’ Virginal Journal of International Law (2006), Vol. 47, 20, p. 151.)
ii) The unique attribute of Universal Jurisdiction
According to Colangelo, the unique feature of universal jurisdiction is that in regard to its exercise adjudicative jurisdiction (the authority to subject a person to judicial process) and prescriptive jurisdiction (the authority to apply a country’s laws to persons and things) are both determined by international law.
Adjudicative jurisdiction is determined by the relevant treaties. Colangelo says, “The treaties proscribing the various universal crimes represent a relatively longstanding consensus not only as to the prohibition of these crimes but also—necessarily—as to their substance” (p. 155.)
Prescriptive jurisdiction, meanwhile, is determined by customary international law. Colangelo says, “Evolution in custom likewise may alter and even expand the capacity of states to allow procedurally for universal adjudicative jurisdiction over perpetrators of international crimes” (p. 174). In my view, this is where the problem arises. Customary international law can evolve or change through state practice, which naturally includes acquiescence.
To turn to the current position of customary international law in regard to universal jurisdiction, Roger O’Keefe, a well-known lecturer at Cambridge University, contends that there must be some link between the impugned conduct and the interest of the prescribing State. (See Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concepts,’ Journal of International Criminal Justice 2 (2004), pp. 5-6) For instance, he discusses a number of ‘heads of jurisdiction,’ namely—territoriality, nationality of the offender, nationality of the victim, or offender’s service in the armed forces of the prescribing State—one or more of which are required for the exercise of universal jurisdiction.
It is difficult to imagine circumstances where other countries could claim such links in regard to acts purportedly committed during the conflict in Sri Lanka. Therefore, as matters stand, attempts at invoking universal jurisdiction against Sri Lankans who led the war-effort would most likely fail at the initial stage. However, if the government acquiesces when attempts are made to invoke universal jurisdiction based on material submitted by the impugned mechanism pursuant to a call for such action by the U.N. High Commissioner for Human Rights, a judge might interpret his or her role as facilitating the UNHRC’s human rights mandate and issue summons on the accused.
iii) The sources of the allegations of war crimes against Sri Lanka
To the best of my knowledge, there are three sources: first, reports by private organizations and NGO’s, second, reports associated the U.N. or the UNHRC and finally, the impugned mechanism. Of these, the findings of private organizations and NGO’s usually do not carry much weight unless they are supplemented by official reports of the U.N. or other recognized bodies.
To turn to the latter, there are two reports that are relevant to Sri Lanka: a) the Report of the Secretary General’s Panel of Experts (March 2011) also called ‘Darusman Report,’ and b) the Report of the Office of the High Commissioner’s Investigation on Sri Lanka (OISL report) of September 2015. The Darusman Report was commissioned by then U.N. Secretary General Ban Ki Moon for his personal use and not the result of a collective decision by a UN body. It suffers from this infirmity. However, the OISL report was authorised by resolution 25/1 of March 2014 and is the only official report of the UNHRC on the subject of war crimes in Sri Lanka.
Unfortunately, the findings of this report are of dubious value. To give just one example, consider perhaps the most famous allegation, the so-called ‘White Flag’ incident. The allegation is that, LTTE Political Wing leaders Nadesan, Pullidevan along with Nadesan’s wife and a number of others surrendered to the army and were subsequently killed.
The OISL panel analyzed photos and videos of the dead bodies, and also considered witness testimonies and open sources. They then conclude: “[Nadesan and the others] may have been executed by the Sri Lankan security forces sometime after 6.000 am on 18th May. However, further investigation is required to determine the full facts as to what happened and who was responsible for the killings” (OISL report, para 305).
The point is that, after analyzing all of the evidence in its possession, the best that the OISL panel could do is conclude that it does not know exactly what happened and recommend further investigations in order to find out what happened. It is difficult to see how a judge would issue summons based on such findings. (For a detailed analysis of all of the OISL’s charges, see Dharshan Weerasekera, ‘A Factual Appraisal of the OISL Report,’ Sarasavi Publishers, 2020)
That leaves the evidence-gathering mechanism established under resolution 46/1. The problem with this mechanism is that the material purportedly collected by it is accessible only to a handful of officials at the High Commissioner’s office. It is reported that, the unit has amassed over a hundred thousand pieces of evidence. However, it is a fundamental principal of the law of evidence that, ‘Evidence is weighed, not counted.’
No one knows what would happen if the material in question was subjected to even a rudimentary assessment considering such factors as delay, exculpatory evidence, conflict of interest (for instance, whether the witnesses were paid or granted other benefits). It is also reported that, the unit is funded entirely though voluntary contributions, which raises the spectre of politicization.
iv) The Flaw in the Government’s policy
The government has rejected the impugned mechanism. However, to the best of my knowledge, it has never yet objected to the High Commissioner’s call for countries to exercise universal jurisdiction against Sri Lankans. In my opinion, this leaves an opening for the UNHRC to continue to use the material purportedly collected by the unit regardless the government’s putative objections to it.
Conclusion
The government has an obligation to put an end to attempts at sullying the war-victory if, as it now appears to be the case, the available sources of evidence of purported war crimes are either demonstrably weak, or worse, the evidence is being funneled in secret directly to the prosecuting agencies without the accused persons or the government ever getting a chance to respond.
The government also has a responsibility not to permit alterations in customary international law in ways adverse to the interests of Sri Lanka as well as other countries. Concerned citizens should demand of the government whether it has a policy on the universal jurisdiction issue separate from that towards the evidence-gathering mechanism, and if so to explain exactly what that policy is.
(The writer is an Attorney-at-law.)
by Dr Gotabhya Ranasinghe
Senior Consultant Cardiologist
National Hospital Sri Lanka
When we sought a meeting with Hon Dr. Ramesh Pathirana, Minister of Health, he graciously cleared his busy schedule to accommodate us. Renowned for his attentive listening and deep understanding, Minister Pathirana is dedicated to advancing the health sector. His openness and transparency exemplify the qualities of an exemplary politician and minister.
Dr. Palitha Mahipala, the current Health Secretary, demonstrates both commendable enthusiasm and unwavering support. This combination of attributes makes him a highly compatible colleague for the esteemed Minister of Health.
Our discussion centered on a project that has been in the works for the past 30 years, one that no other minister had managed to advance.
Minister Pathirana, however, recognized the project’s significance and its potential to revolutionize care for heart patients.
The project involves the construction of a state-of-the-art facility at the premises of the National Hospital Colombo. The project’s location within the premises of the National Hospital underscores its importance and relevance to the healthcare infrastructure of the nation.
This facility will include a cardiology building and a tertiary care center, equipped with the latest technology to handle and treat all types of heart-related conditions and surgeries.
Securing funding was a major milestone for this initiative. Minister Pathirana successfully obtained approval for a $40 billion loan from the Asian Development Bank. With the funding in place, the foundation stone is scheduled to be laid in September this year, and construction will begin in January 2025.
This project guarantees a consistent and uninterrupted supply of stents and related medications for heart patients. As a result, patients will have timely access to essential medical supplies during their treatment and recovery. By securing these critical resources, the project aims to enhance patient outcomes, minimize treatment delays, and maintain the highest standards of cardiac care.
Upon its fruition, this monumental building will serve as a beacon of hope and healing, symbolizing the unwavering dedication to improving patient outcomes and fostering a healthier society.We anticipate a future marked by significant progress and positive outcomes in Sri Lanka’s cardiovascular treatment landscape within the foreseeable timeframe.
by Fr. Emmanuel Fernando, OMI
Jesuit Fr. Aloysius Pieris (affectionately called Fr. Aloy) celebrated his 90th birthday on April 9, 2024 and I, as the editor of our Oblate Journal, THE MISSIONARY OBLATE had gone to press by that time. Immediately I decided to publish an article, appreciating the untiring selfless services he continues to offer for inter-Faith dialogue, the renewal of the Catholic Church, his concern for the poor and the suffering Sri Lankan masses and to me, the present writer.
It was in 1988, when I was appointed Director of the Oblate Scholastics at Ampitiya by the then Oblate Provincial Fr. Anselm Silva, that I came to know Fr. Aloy more closely. Knowing well his expertise in matters spiritual, theological, Indological and pastoral, and with the collaborative spirit of my companion-formators, our Oblate Scholastics were sent to Tulana, the Research and Encounter Centre, Kelaniya, of which he is the Founder-Director, for ‘exposure-programmes’ on matters spiritual, biblical, theological and pastoral. Some of these dimensions according to my view and that of my companion-formators, were not available at the National Seminary, Ampitiya.
Ever since that time, our Oblate formators/ accompaniers at the Oblate Scholasticate, Ampitiya , have continued to send our Oblate Scholastics to Tulana Centre for deepening their insights and convictions regarding matters needed to serve the people in today’s context. Fr. Aloy also had tried very enthusiastically with the Oblate team headed by Frs. Oswald Firth and Clement Waidyasekara to begin a Theologate, directed by the Religious Congregations in Sri Lanka, for the contextual formation/ accompaniment of their members. It should very well be a desired goal of the Leaders / Provincials of the Religious Congregations.
Besides being a formator/accompanier at the Oblate Scholasticate, I was entrusted also with the task of editing and publishing our Oblate journal, ‘The Missionary Oblate’. To maintain the quality of the journal I continue to depend on Fr. Aloy for his thought-provoking and stimulating articles on Biblical Spirituality, Biblical Theology and Ecclesiology. I am very grateful to him for his generous assistance. Of late, his writings on renewal of the Church, initiated by Pope St. John XX111 and continued by Pope Francis through the Synodal path, published in our Oblate journal, enable our readers to focus their attention also on the needed renewal in the Catholic Church in Sri Lanka. Fr. Aloy appreciated very much the Synodal path adopted by the Jesuit Pope Francis for the renewal of the Church, rooted very much on prayerful discernment. In my Religious and presbyteral life, Fr.Aloy continues to be my spiritual animator / guide and ongoing formator / acccompanier.
Fr. Aloysius Pieris, BA Hons (Lond), LPh (SHC, India), STL (PFT, Naples), PhD (SLU/VC), ThD (Tilburg), D.Ltt (KU), has been one of the eminent Asian theologians well recognized internationally and one who has lectured and held visiting chairs in many universities both in the West and in the East. Many members of Religious Congregations from Asian countries have benefited from his lectures and guidance in the East Asian Pastoral Institute (EAPI) in Manila, Philippines. He had been a Theologian consulted by the Federation of Asian Bishops’ Conferences for many years. During his professorship at the Gregorian University in Rome, he was called to be a member of a special group of advisers on other religions consulted by Pope Paul VI.
Fr. Aloy is the author of more than 30 books and well over 500 Research Papers. Some of his books and articles have been translated and published in several countries. Among those books, one can find the following: 1) The Genesis of an Asian Theology of Liberation (An Autobiographical Excursus on the Art of Theologising in Asia, 2) An Asian Theology of Liberation, 3) Providential Timeliness of Vatican 11 (a long-overdue halt to a scandalous millennium, 4) Give Vatican 11 a chance, 5) Leadership in the Church, 6) Relishing our faith in working for justice (Themes for study and discussion), 7) A Message meant mainly, not exclusively for Jesuits (Background information necessary for helping Francis renew the Church), 8) Lent in Lanka (Reflections and Resolutions, 9) Love meets wisdom (A Christian Experience of Buddhism, 10) Fire and Water 11) God’s Reign for God’s poor, 12) Our Unhiddden Agenda (How we Jesuits work, pray and form our men). He is also the Editor of two journals, Vagdevi, Journal of Religious Reflection and Dialogue, New Series.
Fr. Aloy has a BA in Pali and Sanskrit from the University of London and a Ph.D in Buddhist Philosophy from the University of Sri Lankan, Vidyodaya Campus. On Nov. 23, 2019, he was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera.
Fr. Aloy continues to be a promoter of Gospel values and virtues. Justice as a constitutive dimension of love and social concern for the downtrodden masses are very much noted in his life and work. He had very much appreciated the commitment of the late Fr. Joseph (Joe) Fernando, the National Director of the Social and Economic Centre (SEDEC) for the poor.
In Sri Lanka, a few religious Congregations – the Good Shepherd Sisters, the Christian Brothers, the Marist Brothers and the Oblates – have invited him to animate their members especially during their Provincial Congresses, Chapters and International Conferences. The mainline Christian Churches also have sought his advice and followed his seminars. I, for one, regret very much, that the Sri Lankan authorities of the Catholic Church –today’s Hierarchy—- have not sought Fr.
Aloy’s expertise for the renewal of the Catholic Church in Sri Lanka and thus have not benefited from the immense store of wisdom and insight that he can offer to our local Church while the Sri Lankan bishops who governed the Catholic church in the immediate aftermath of the Second Vatican Council (Edmund Fernando OMI, Anthony de Saram, Leo Nanayakkara OSB, Frank Marcus Fernando, Paul Perera,) visited him and consulted him on many matters. Among the Tamil Bishops, Bishop Rayappu Joseph was keeping close contact with him and Bishop J. Deogupillai hosted him and his team visiting him after the horrible Black July massacre of Tamils.
Sri Lanka-Singapore Free Trade Agreement
By Gomi Senadhira
senadhiragomi@gmail.com
“You might tell fairy tales, but the progress of a country cannot be achieved through such narratives. A country cannot be developed by making false promises. The country moved backward because of the electoral promises made by political parties throughout time. We have witnessed that the ultimate result of this is the country becoming bankrupt. Unfortunately, many segments of the population have not come to realize this yet.” – President Ranil Wickremesinghe, 2024 Budget speech
Any Sri Lankan would agree with the above words of President Wickremesinghe on the false promises our politicians and officials make and the fairy tales they narrate which bankrupted this country. So, to understand this, let’s look at one such fairy tale with lots of false promises; Ranil Wickremesinghe’s greatest achievement in the area of international trade and investment promotion during the Yahapalana period, Sri Lanka-Singapore Free Trade Agreement (SLSFTA).
It is appropriate and timely to do it now as Finance Minister Wickremesinghe has just presented to parliament a bill on the National Policy on Economic Transformation which includes the establishment of an Office for International Trade and the Sri Lanka Institute of Economics and International Trade.
Was SLSFTA a “Cleverly negotiated Free Trade Agreement” as stated by the (former) Minister of Development Strategies and International Trade Malik Samarawickrama during the Parliamentary Debate on the SLSFTA in July 2018, or a colossal blunder covered up with lies, false promises, and fairy tales? After SLSFTA was signed there were a number of fairy tales published on this agreement by the Ministry of Development Strategies and International, Institute of Policy Studies, and others.
However, for this article, I would like to limit my comments to the speech by Minister Samarawickrama during the Parliamentary Debate, and the two most important areas in the agreement which were covered up with lies, fairy tales, and false promises, namely: revenue loss for Sri Lanka and Investment from Singapore. On the other important area, “Waste products dumping” I do not want to comment here as I have written extensively on the issue.
1. The revenue loss
During the Parliamentary Debate in July 2018, Minister Samarawickrama stated “…. let me reiterate that this FTA with Singapore has been very cleverly negotiated by us…. The liberalisation programme under this FTA has been carefully designed to have the least impact on domestic industry and revenue collection. We have included all revenue sensitive items in the negative list of items which will not be subject to removal of tariff. Therefore, 97.8% revenue from Customs duty is protected. Our tariff liberalisation will take place over a period of 12-15 years! In fact, the revenue earned through tariffs on goods imported from Singapore last year was Rs. 35 billion.
The revenue loss for over the next 15 years due to the FTA is only Rs. 733 million– which when annualised, on average, is just Rs. 51 million. That is just 0.14% per year! So anyone who claims the Singapore FTA causes revenue loss to the Government cannot do basic arithmetic! Mr. Speaker, in conclusion, I call on my fellow members of this House – don’t mislead the public with baseless criticism that is not grounded in facts. Don’t look at petty politics and use these issues for your own political survival.”
I was surprised to read the minister’s speech because an article published in January 2018 in “The Straits Times“, based on information released by the Singaporean Negotiators stated, “…. With the FTA, tariff savings for Singapore exports are estimated to hit $10 million annually“.
As the annual tariff savings (that is the revenue loss for Sri Lanka) calculated by the Singaporean Negotiators, Singaporean $ 10 million (Sri Lankan rupees 1,200 million in 2018) was way above the rupees’ 733 million revenue loss for 15 years estimated by the Sri Lankan negotiators, it was clear to any observer that one of the parties to the agreement had not done the basic arithmetic!
Six years later, according to a report published by “The Morning” newspaper, speaking at the Committee on Public Finance (COPF) on 7th May 2024, Mr Samarawickrama’s chief trade negotiator K.J. Weerasinghehad had admitted “…. that forecasted revenue loss for the Government of Sri Lanka through the Singapore FTA is Rs. 450 million in 2023 and Rs. 1.3 billion in 2024.”
If these numbers are correct, as tariff liberalisation under the SLSFTA has just started, we will pass Rs 2 billion very soon. Then, the question is how Sri Lanka’s trade negotiators made such a colossal blunder. Didn’t they do their basic arithmetic? If they didn’t know how to do basic arithmetic they should have at least done their basic readings. For example, the headline of the article published in The Straits Times in January 2018 was “Singapore, Sri Lanka sign FTA, annual savings of $10m expected”.
Anyway, as Sri Lanka’s chief negotiator reiterated at the COPF meeting that “…. since 99% of the tariffs in Singapore have zero rates of duty, Sri Lanka has agreed on 80% tariff liberalisation over a period of 15 years while expecting Singapore investments to address the imbalance in trade,” let’s turn towards investment.
Investment from Singapore
In July 2018, speaking during the Parliamentary Debate on the FTA this is what Minister Malik Samarawickrama stated on investment from Singapore, “Already, thanks to this FTA, in just the past two-and-a-half months since the agreement came into effect we have received a proposal from Singapore for investment amounting to $ 14.8 billion in an oil refinery for export of petroleum products. In addition, we have proposals for a steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million), sugar refinery ($ 200 million). This adds up to more than $ 16.05 billion in the pipeline on these projects alone.
And all of these projects will create thousands of more jobs for our people. In principle approval has already been granted by the BOI and the investors are awaiting the release of land the environmental approvals to commence the project.
I request the Opposition and those with vested interests to change their narrow-minded thinking and join us to develop our country. We must always look at what is best for the whole community, not just the few who may oppose. We owe it to our people to courageously take decisions that will change their lives for the better.”
According to the media report I quoted earlier, speaking at the Committee on Public Finance (COPF) Chief Negotiator Weerasinghe has admitted that Sri Lanka was not happy with overall Singapore investments that have come in the past few years in return for the trade liberalisation under the Singapore-Sri Lanka Free Trade Agreement. He has added that between 2021 and 2023 the total investment from Singapore had been around $162 million!
What happened to those projects worth $16 billion negotiated, thanks to the SLSFTA, in just the two-and-a-half months after the agreement came into effect and approved by the BOI? I do not know about the steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million) and sugar refinery ($ 200 million).
However, story of the multibillion-dollar investment in the Petroleum Refinery unfolded in a manner that would qualify it as the best fairy tale with false promises presented by our politicians and the officials, prior to 2019 elections.
Though many Sri Lankans got to know, through the media which repeatedly highlighted a plethora of issues surrounding the project and the questionable credentials of the Singaporean investor, the construction work on the Mirrijiwela Oil Refinery along with the cement factory began on the24th of March 2019 with a bang and Minister Ranil Wickremesinghe and his ministers along with the foreign and local dignitaries laid the foundation stones.
That was few months before the 2019 Presidential elections. Inaugurating the construction work Prime Minister Ranil Wickremesinghe said the projects will create thousands of job opportunities in the area and surrounding districts.
The oil refinery, which was to be built over 200 acres of land, with the capacity to refine 200,000 barrels of crude oil per day, was to generate US$7 billion of exports and create 1,500 direct and 3,000 indirect jobs. The construction of the refinery was to be completed in 44 months. Four years later, in August 2023 the Cabinet of Ministers approved the proposal presented by President Ranil Wickremesinghe to cancel the agreement with the investors of the refinery as the project has not been implemented! Can they explain to the country how much money was wasted to produce that fairy tale?
It is obvious that the President, ministers, and officials had made huge blunders and had deliberately misled the public and the parliament on the revenue loss and potential investment from SLSFTA with fairy tales and false promises.
As the president himself said, a country cannot be developed by making false promises or with fairy tales and these false promises and fairy tales had bankrupted the country. “Unfortunately, many segments of the population have not come to realize this yet”.
(The writer, a specialist and an activist on trade and development issues . )
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