By Kishali Pinto Jayawardene
I do not think that there is a thinking person among us who will deny that international criminal justice targeting egregious human rights violators across national boundaries, is more often arbitrary if not capricious. This is a fact of international realpolitik though international law may blissfully teach us otherwise.
Denying citizens their rights
That being said, does national sovereignty mean that a government can do pretty much as it pleases with its citizens?
In other words, if a government enforces Nazi style laws and treatment for citizens of one race, then should the rest of the world stand by and not intervene? Or, should we take a step sideways and excuse a government indulging in a Cambodia style reinvention of a dangerously subverted workers paradise on this same basis?
Or for that matter, should 'sovereign rulers' be applauded when they gradually dismantle constitutional institutions, confine laws and legal processes to theory and intimidate intellectual or practical dissent?
Where do we stop with this reasoning, premised ostensibly on national sovereignty but conforming more to an obsolete form of state sovereignty that denies citizens their rights? The answer to these questions does not lie in shrill cries of discrimination or selectiveness in international realpolitik.
Arrogant governments cannot wave the fig leaf of national sovereignty to shield itself from international scrutiny at its whim and fancy. To do so would be to thrust themselves into a most unenviable whirlpool of international politics that ill befits nations emerging from internal conflict with the inevitable corollaries of perilously vulnerable economies. Burma is just one country that has been plunged into such a whirlpool at the cost of its citizens; does Sri Lanka wish to be another?
The UNSG's advisory panel
This government has thought fit to employ a convenient weapon of national (or rather, state) sovereignty to meet both the panel appointed by the United Nations Secretary General (UNSG) to advise himself on the actions that occurred during the last stages of the conflict as well as the European Commission's GSP Plus privilege. The two situations are however clearly distinct.
Insofar as the first situation is concerned, irrespective of whether such action has been selective or not, it is clearly stated by the Office of the UNSG that this is an advisory panel though some have speculated that it is a precursor to a full fledged international war crimes inquiry and media reports commonly refer to this as a war crimes panel.
The Sri Lanka government may rant and rail against this decision which is however, to its advantage domestically as forming a good rallying point now that the Liberation Tigers of Tamil Eelam (LTTE) are no longer available to suit this purpose. Reportedly and predictably, Russia and China have also issued stern statements castigating the appointment of the panel. Current international dynamics mean that it is far from likely that this will be turned into a war crimes inquiry. But, given the obduracy of the government in refusing to acknowledge any accountability and minimizing even existing constitutional safeguards against rights abuse in a Rule of Law context, are we surprised at this action? Can even restorative justice (forget about retributive justice) as parroted by government spokespersons, exist in an environment where the Rule of Law is pushed aside as so much unnecessary baggage?
Examining the EU's 'wish list'
Whatever may be this logic in respect of war crimes inquiries, using state sovereignty in trying to win a concessionary trade privilege for itself, as is the case of the EU GSP Plus, is undeniably ludicrous. Put purely and simply, the 'wish list' of fifteen conditions stipulated by the EU now under frantic attack by the government, relate to rights and freedoms of Sri Lankan citizens. Take the EU out of the equation and these conditions are precisely what local human rights practitioners had been incessantly calling for. Basically we are talking of conformity to the 17th Amendment to the Constitution, the replacement of emergency law by ordinary criminal procedure, stopping the harassment of journalists, allowing independent legal advice to a criminal suspect as well as a host of conditions relating to the practical implementation of Sri Lanka's international obligations.
Conformity to international obligations
The last is of core relevance. Under the canny stewardship of the late Minister Lakshman Kadirgamar in 1997, Sri Lanka led the way in South Asia in ratifying and signing the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). However, this wise decision was unfortunately undercut by the 2006 Singarasa decision written by former Chief Justice Sarath Silva declaring that the country's accession to the Protocol was unconstitutional based upon a regrettable intermixing of the authority of municipal law with norms of international law. Much of the furore over Sri Lanka's compatibility with international obligations arose, in fact, due to this judgment. A later advisory opinion by this same Chief Justice certifying our national legal framework as compatible with international law and a later farcical 'ICCPR Act' did little to remedy this situation.
The EU conditions additionally request a right of individual petition to the Convention Against Torture (UNCAT), reduction of the number of derogations to the ICCPR and the repeal or amendment of those emergency provisions that are incompatible with the ICCPR or UNCAT. Interestingly it has also asked for the publishing of the full report of the 2006 Udalagama Commission of Inquiry. Up to now, only extracts of defence counsel had been mischievously planted in some newspapers, claiming these to be extracts from the Commission report. In addition, it is requested that places of detention be independently monitored, a list of those detained under emergency law be made public and they be either released or brought to trial.
The bluff has to stop
How could the satisfaction of these conditions interfere with our national sovereignty? Rather, would they not actually enhance the sovereignty of Sri Lanka's citizens, particularly in this post war stage? Shorn of the outraged rhetoric based on state sovereignty, (as carefully contrived as this) is, is it not time that this government recognizes that the bluff has to stop?