Features
Comment on 51st Session of UNHRC: Time for course correction
by Neville Ladduwahetty
Addressing the 51st Session of the Human Rights Council, the UN Acting High Commissioner stated: “Thirteen years since the end of the war, tens of thousands of survivors and their families continue to seek justice and to know the truth about the fate of their loved ones. They remain in need of reparations. The Sri Lankan State has repeatedly failed to pursue an effective transnational justice process and uphold victims right to truth, justice and reparations. Rather, as described in our previous reports, successive governments have created political obstacles to accountability, actively promoted and incorporated some military and former paramilitary officials credibly implicated in alleged war crimes into the higher levels of government, and have failed to present a shared understanding of the conflict and its root cause”.
Continuing, the Acting High Commissioner stated: “It is the hope of this office that the Government will now seize the opportunity offered by the changed circumstances in the country to re-embark on these fundamental processes that promote national reconciliation by ensuring accountability for past human rights violations and abuses. In the absence of current and effective accountability options in Sri Lanka, the High Commissioner has called on States to pursue alternate strategies to advance the accountability at the international level, including through consideration of targeted sanctions against alleged perpetrators as well as cooperation to initiate prosecutions on the basis of extraterritorial and universal jurisdiction.
The focus of this article is on the comment that “The Sri Lankan State has repeatedly failed to pursue an effective transnational justice process and uphold victims right to truth, justice and reparations”.
EXPERIENCES of TRUTH and JUSTICE
MECHANISMS
If Sri Lanka is to “seize the opportunity offered by the changed circumstances”, a significant contribution towards this endeavour could be made by the UNHRC by clearly outlining what it means by an “effective transitional process” and propose a suitable framework for Sri Lanka to seize the opportunity, instead of repeatedly referring to the failure of the Sri Lankan State. Judging from the variety of processes adopted by other countries and their experiences, no country has succeeded in developing an “effective transitional process”, least of all the much hyped TRC of South Africa that focused on a restorative process of “healing the nation” and therefore not on a retributive process of prosecution. Therefore, for the sake of all concerned, the Acting High Commissioner should at this juncture outline whether Sri Lanka should adopt a restorative process with reconciliation in mind, or adopt a retributive process and resort to prosecutions, bearing in mind the inevitable consequences that are associated with each choice.
A word of caution to the Acting High Commissioner is not to expect transitional justice processes for Sri Lanka to be similar to the processes adopted by South Africa, Sierra Leone, East Timor, Cambodia and Bosnia and Herzegovina because they were all internal armed conflicts, while the conflict in Sri Lanka was a Non-International Armed Conflict, as provided in Common Article 3 of all the Geneva Conventions. This difference was recognized by the UNHRC in their OISL Report (OHCHR Investigation on Sri Lanka – OISL).
As for the internationally recognized TRC of South Africa, its legacy, according to Dr. Desmond Tutu, was: “The TRC was confronted by a number of challenges, as it was not accepted by all parties to the conflict. The top echelons of the military did not cooperate with the commission. It was mainly the foot soldiers in the security forces and those who were already imprisoned or were facing charges who applied for amnesty. Senior politicians in the former government and senior leaders in the security forces did not apply. In the case of the liberation movements, the members argued that as they had conducted a “just war,” they were not required to apply for amnesty because their actions did not constitute gross violations of human rights”.
Unlike in the case of domestic settings where human rights violations are addressed through criminal investigations, prosecution and possible conviction, the experience of countries that have attempted to establish Truth and Justice Mechanisms following serious crimes in the context of internal armed conflicts is to prosecute only those believed to be most responsible while for the rest the Mechanism only serves as an opportunity to present their narrative as the “truth”.
An article that confirms such outcomes titled “Retribution and Reconciliation: War Crimes Tribunals and Truth Commissions – can they work together?” By Howard Varney, in Our Freedoms states: “At an international level the global community has reacted to massive human rights atrocities in the former Yugoslavia and in Rwanda with the establishment of international criminal tribunals. Smaller hybrid courts, involving both local and foreign judges, prosecutors and investigators have been set up in Sierra Leone, East Timor, Cambodia and Bosnia and Herzegovina. In most of these cases the attempts to deliver justice have been confined to the prosecution of only those regarded to be most responsible for the violation of human rights. This strategy is born out of necessity”.
If this is the outcome of Truth and Justice Mechanisms, as far as the victims in Sri Lanka are concerned, the several Presidential Commissions provided the opportunity for them to convey their “truth” in the form of their narratives, and the justice that followed is in the form of ongoing reparations paid to them. As for prosecution of those responsible for serious violations of human rights and/or humanitarian law is concerned, existing legal provisions are in place through High Courts and Courts of Appeal assisted by the Human Rights Council of Sri Lanka for anyone who has access to credible evidence to avail themselves of this legal framework. This approach conforms with the procedures adopted under provisions of “Individual Penal liability”. This topic was dealt at length in a book titled “Our Fundamental Rights of Personal Security and Physical Liberty” (Justice A.R.B. Amerasinghe).
However, such prosecutions invariably polarize communities as has been the case in other countries, thus ending up being a deterrent to reconciliation. It is for this reason that many authorities find retributive approaches to address violations being incompatible with reconciliation; which incidentally, is the end goal following serious conflicts.
RECOMMENDATIONS of OISL REPORT of the OHCHR
Whether or not the approach as stated in the Report of the Office of the High Commissioner for Human Rights reaches the threshold of “effective transitional justice”, they have advocated that Article 3 common to all Geneva Conventions is applicable to the armed conflict that took place in Sri Lanka.
Furthermore, Paragraph 182 of the above Report states: “Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka, with all parties to the conflict being bound to respect the guarantees pertaining to the treatment of civilians and persons hors de combat contained therein. Common article 3 binds all parties to the conflict to respect as a minimum, that persons taking no direct part in hostilities as well as those placed hors de combat shall be treated humanely”.
Paragraph 183 states: “In addition, the Government and armed groups that are parties to the conflict are bound alike by the relevant rules of customary international law applicable in non-international armed conflict”.
Therefore, even if Sri Lanka has not ratified Additional Protocol II of 1977, Sri Lanka and the LTTE are bound alike by customary law, and taking civilians hostage and using them as a human shield, is a war crime and therefore a violation of customary law; a fact incorporated in Article 13 (6) of Sri Lanka’s Constitution that states: “Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to general principles of law recognized by the community of nations”.
RELEVANCE of PARAGRAPH 183
If, as Paragraph 183 states “the Government and armed groups that are parties to the conflict are bound alike” by customary international law “applicable to non-international armed conflict”, it must then follow that the act by the LTTE of taking of tens of thousands hostage and using them as a human shield is a war-crime for which they must be held accountable. Furthermore, by doing so the LTTE not only violated the provisions codified in “Protocol Additional to the Geneva Conventions […] relating to the Protection of Victims of Non-International Armed Conflict, but is also responsible for being the cause for the disproportionately high number of deaths in the conflict zone.
This makes all the difference between internal armed conflicts as in the countries cited above, and those as in Sri Lanka that come within the purview of Protocol Additional to the Geneva Conventions relating to Non-International Armed Conflicts. This cardinal fact makes the intention of the Government to appoint a Truth and Reconciliation Commission modelled on South Africa’s TRC, totally inappropriate. Furthermore, the fact that Paragraph 183 binds the Government and the LTTE alike, the accountability for the deaths in the conflict zone and the reparations for the victims should be a shared responsibility and not entirely the responsibility of the Government, as conveyed repeatedly in UNHRC Resolutions.
CONCLUSION
The position being consistently taken by the Acting High Commissioner and her predecessors is that the Government of Sri Lanka is solely responsible for the human rights and humanitarian law violations. This is because they have categorised the conflict in Sri Lanka as an internal armed conflict, similar to conflicts that occurred in countries such as South Africa, Sierra Leone, East Timor, Cambodia and Bosnia and Herzegovina. However, as stated above, this is NOT the case with the armed conflict in Sri Lanka; a fact that is recognised and acknowledged in the OISL Report of the OHCHR – a part of the very Institution that the Acting High Commissioner represents. Furthermore, if political obstacles to accountability are not to be created, the UNHRC should caution the Government about setting up a Truth and Reconciliation Commission, modelled on South Africa’s TRC.
Therefore, instead of continuing to sing the same old refrain of Transitional Justice as being appropriate, it is about time that the UNHRC accepted the procedures laid out to address Accountability in the Protocol Additional to the Geneva Conventions as being the most appropriate as recommended in the OISL Report of the OHCRC. Furthermore, it should be acknowledged that the most serious violation, amounting to a war crime, was committed by the LTTE when they took hundreds of thousands of civilians, in the conflict zone, hostage and used them as a human shield for which there is no parallel.
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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