By Udaya P Gammanpila Courtesy Ceylon Today

MP M.A. Sumanthiran recently threatened in Parliament to take the Sri Lankan Government before an International Criminal Tribunal unless it establishes a hybrid justice system to inquire into war crime allegations. A hybrid justice system means participation of foreigners as judges, prosecutors and investigators. In a criminal investigation, Police Officers conduct the investigation and collect evidence and witnesses. Usually, the Attorney General prosecutes the defendants in Courts.

Judges deliver judgments after hearing both sides. Tamil separatists demand to get foreign Police Officers, prosecutors and Judges involved in inquiring war crime allegations.

Reason

MP Sumanthiran had reason to make this threat. The resolution cosponsored by Sri Lanka in October 2015 contained a demand to establish a hybrid justice system to probe alleged war crimes. The new resolution co-sponsored by the Government in March 2019 contains the same demand. The only difference is the Foreign Minister’s stand. Although Minister Managala Samaraweera fully endorsed this demand in his speeches at the UNHRC, Minister Tilak Marapana, at its 40th session held in this month, refused to establish a hybrid justice system claiming it was unconstitutional. Minister Marapana’s speech made Tamil separatists frustrated and furious. That is why MP Sumanthiran was compelled to make the above-mentioned speech in Parliament.

He is a brilliant lawyer and a knowledgeable person. Hence, he is fully aware of the facts about international tribunals. In this backdrop, why does he make this baseless threat? Obviously, he wants to instil fear in the minds of Government leaders. He has good understanding about behaviour of the leaders of the present Government. Because of their inferiority complex in respect of their former colonial masters, they are in fear of Western nations. They are ready to even betray the motherland to appease these vicious forces. Therefore, the Government may take this threat seriously. Hence, let us look at legal and political aspects of establishing war crime tribunals.

Criminal tribunals
International Criminal Tribunals can be established only by adopting a resolution at the UN Security Council. The Security Council has established two such criminal tribunals to prosecute leaders in former Yugoslavia and Rwanda.
The Security Council consists of fifteen members of which five are permanent. 

Permanent members are USA, UK, France, Russia and China. These members have veto power to reject a resolution. Hence, in addition to support of at least nine members, the resolution should not be opposed by any permanent member, to ensure its adoption. A large number of resolutions brought before the Security Council against Israel failed to see the daylight since the USA exercised its veto power

There is a risk of mooting a resolution to establish an International Criminal Tribunal against Sri Lanka in the Security Council. Since two permanent members, namely, USA and UK, have brought resolutions against Sri Lanka in the UNHRC, these States are capable of repeating it in the Security Council because of lobbying by Tamil separatists. However, there are two permanent members with veto power in the council who are of the opinion that Sri Lanka has not committed war crimes or genocide attempts. These States are China and Russia.

China and Russia have been continuously voting with Sri Lanka in the UNHRC since 2009. These States never deserted Sri Lanka when Sri Lanka was facing humiliating defeats at votes. Present Government betrayed and embarrassed these friendly nations by cosponsoring the anti-Sri Lanka resolutions brought by our enemies.

When Sri Lanka co-sponsored anti-Sri Lanka resolutions, it was obviously a slap on the faces of nations who supported Sri Lanka for previous resolutions. By siding with the enemy, Sri Lanka has told its friends that those nations have committed a blunder by supporting Sri Lanka for the previous resolutions.
Fortunately, these nations have realised Sri Lanka is presently under the control of its enemies and it is a temporary turbulent situation. 

Their sympathy and support towards Sri Lanka was reflected in their speeches in the UNHRC in the recent past. In this backdrop, Sri Lanka can confidently expect its friendly permanent members of the Security Council, China and Russia, to veto any resolution to establish a tribunal to punish Sri Lanka. Collective veto by China and Russia is a common feature in the council in the recent past.

In the light of the above, the Government should not panic and commit irreversible mistakes by establishing Hybrid Courts. Instead, the Government should avoid any action or inaction which could question the independence of the judiciary.

The conduct of the Constitutional Council is crucial in this regard. The Parliament and public vehemently criticised the appointments made by the Constitutional Council to the Superior Courts. The Council failed to provide reasons for ignoring several senior Judges when it recommended junior Judges as the Chief Justice and Presidents of the Court of Appeal. Similarly, they ignored senior Judges in the High Court when appointments were made to the Court of Appeal.

Biased conduct

The Constitutional Council’s biased conduct was not limited to the Judiciary. It was extended to other branches of the justice system.

When the head of prosecution (Attorney General) and the head of investigation (Inspector General of Police) were appointed, the council ignored the senior officers without any valid reason.

Hence, speculation is rife that the Council was politically motivated in recommending persons for high posts in the justice system.

 Hence, we are in genuine fear that the Constitutional Council is on a deliberate attempt to discredit our justice system with a view to justifying the hybrid justice system with foreign Judges, prosecutors and investigators.