US-Lanka agree on a compromise judicial mechanism?

Law courtsThe United States and Sri Lanka appear to have arrived at a compromise on the issue of foreign involvement in the proposed Judicial Mechanism to investigate, prosecute and try cases of war crimes allegedly committed by the Lankan armed forces in the last phase of Eelam War IV.

The US has apparently agreed to the Lankan proposal to have “some international participation in the investigation,” in place of foreign judges and prosecutors.

This was indicated by the US Assistant Secretary of State for Human Rights, Tom Malinowski, in an interview to Reuters during his recent visit to the island nation.

He pointed out that under the UN Human Rights Council’s resolution of October 1, 2015, “the government of Sri Lanka will determine the structure and the composition of the court” and that the resolution “respects Sri Lanka’s sovereignty.”

He then added that Lanka has made a “commitment to include some international participation in the investigation.”

Neither Malinowski nor his colleague, Assistant Secretary of State for South Asia, Nisha Biswal, mentioned “foreign judges” even once in their formal statements during their sojourn in Lanka, speaking about them only when asked to by reporters.

“These are complicated issues and there needs to be a process of consultation with all in order to ensure these things are done in a way that earns confidence of the people,” Malinowski explained.

Climb Down

The US has thus climbed down from its earlier stand that there should foreign judges in the mechanism. The UNHRC resolution of October 1, 2015, jointly moved by the US and Lanka, had categorically stated that there should be foreign and Commonwealth judges apart from foreign investigators and defense lawyers.

The UN High Commissioner for Human Rights, Prince Zeid, had reiterated this stand in his recent oral update to the Council on Lankan developments.

Lanka’s Firm “No”

Despite co-sponsoring the UNHRC resolution calling for foreign judges, key representatives of the Lankan government have, from the very beginning, ruled out foreign judges.

President Maithripala Sirisena has said that foreign expertise may be availed of, but not foreign judges as he has full confidence in the Lankan judiciary. Others said that Lankan laws do not permit foreign judges to try cases and deliver judgments.

Striking a middle path, Foreign Minister Mangala Samaraweera said that in between having foreign judges and not having them, there are many options which will be explored.

India’s Against Invasion of Sovereignty

India, which plays an important part in the ethnic issue in Lanka, is opposed to employment of foreign judges as it will be an invasion of a nation’s sovereignty.

Speaking at the UNHRC a few days ago, the Indian Ambassador Sayed Akbaruddin said that the UN must recognize the “different perceptions on the role of sovereignty.”

He called for “recognition of the primacy of national efforts in the realization of human rights along with due consideration for the values and other specific contexts of individual countries.”

India, Akbaruddin said, is against country-specific UNHRC resolutions and “aggressive naming and shaming.”

He urged the UN to recognize the “Right to Development” and not to  subordinate it to certain notions of human rights which do not accord with the culture and peculiar positions of individual member states.

US Too Is For Development

The US has begun to give primacy to economic development in its dealings with post-war Lanka.

Both Malinowski and Biswal emphasized the importance of development and giving the war affected people of Lanka a “peace dividend” on the grounds that there will be no ethnic reconciliation without a peace dividend. (New Indian Express)

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