Feature Article

New mantra of ‘hybrid courts’ in the game of geo-politics

[TamilNet, Sunday, 17 May 2015, 10:57 GMT]
The US-based Human Rights Watch (HRW) was condemning the new regime of Sri Lanka for appointing Major General Jagath Dias, the war-time commander of the abusive 57 division of the SL Military as the new Army Chief of Staff. At the same time, the HRW was urging the new regime in Colombo to “put into place an effective accountability mechanism with a significant international component.” The Tamil people should note the terminology being adopted in the global orchestration in narrowing down the ‘pressure’ on Sri Lanka into a domestic process, Tamil activists for alternative politics in Jaffna cautioned on Sunday. Tamils should pay particular attention to how the HRW and other rights outfits are trying to justify a ‘domestic‘ process while the USA and China are competing with each other in building strategic partnerships in the Indian Ocean Region, the activists further said.

“The government should put into place an effective accountability mechanism with a significant international component,” the HRW said in its statement issued on Sunday.

The statement went on to say: “Previous government accountability mechanisms have been impaired by harassment, threats, and violence against witnesses and commissioners. The best way to address this problem would be to create a combined international and domestic court similar to the successful hybrid courts in Sierra Leone and Bosnia-Herzegovina.”

* * *

Responding, the Tamil activists for alternative politics said: “Within one year, the terminology being adopted by the personalities and outfits serving the global human rights regime has been systematically downplayed from ‘international mechanism’, through ‘international involvement’, and later ‘international assistance’ and into international component in Sri Lankan domestic investigations in addressing the war crimes and the crimes against humanity. The international players were systematically avoiding the term genocide.

What we have witnessed today in the statement issued by the US-based rights watchdog, is the introduction of the term ‘international component’ and the example of ‘hybrid courts’ of Sierra Leone and Bosnia-Herzegovina.

The global outfits serving the geopolitics are also directing the Colombo-based legal activists and NGO circles in Colombo in an effort to justify a domestic process, the activists said.

“This is an orchestration of geo-politics-driven human rights agenda and Tamils should take particular note of these developments, as they mark the Genocide Memorial Day on 18 May,” the Tamil activists said.

The Sri Lankan state, and all its organs including the judiciary, is a guilty party in the crime of genocide. The apprehension around hybrid courts is that it gives legitimacy to the guilty party by virtue of giving legitimacy to the local judiciary.

“The emerging students of international law among the global Tamils should subject the role played by the outfits such as the Human Rights Watch and the International Crisis Group to critical scrutiny,” the activists for alternative politics further said.

* * *

Former Puisne Judge of the Supreme Court of Canada, Louise Arbour, who became the UN Human Rights chief (1999 - 2004) and later the president and the CEO of the International Crisis Group (2009 - 2014), was reasoning out why the ICG was not supporting the claim of Tamil independence in the island. The ICG, under her leadership was in the forefront in denying the genocide committed on Eezham Tamils. Her successor in the UN Human Rights Commission, Navi Pillay, was also not recognising the allegation of genocide in 2013.

In an address to Carnegie Council for Ethics in International Affairs, Ms Arbour was also ‘explaining’ why the ICG was not backing the claim of ‘earned sovereignty’ to Eezham Tamils.

The video evidence added herewith would show how the CEO of the ICG, Louise Arbour. was negating the sovereignty and the demand for independence of Eezham Tamils in September 2010.

But, even the ICG, at that time, was calling for ‘international investigation’ into the alleged war crimes in Sri Lanka. But, the group was promoting the paradigm of equating the violations of the oppressive and genocidal state of Sri Lanka with that of the LTTE and the orchestration at that time was that an international investigation should subject the war crimes of ‘both sides’.

Transcript of Louise Arbour's video excerpt follow:

Since 1998, the International Crisis Group, of which I am currently president since about a year ago, has supported the Independence for Kosovo.

Back then in1998, which as was you know, still at the height of the conflict between NATO and the Serb government, the Crisis Group has taken the position that the Federal Republic of Yugoslavia had been unwilling to permit the free exercise of Kosovo Albanians' Right to Self Determination and that Kosovo was now entitled to create its own international status separate from the Federal Republic of Yugoslavia.

The view of the Crisis Group was that the denial by Belgrade of Kosovo Albanians' political, economic, social and cultural rights, meant that they had a right to seek Self-Determination externally.

A few months ago, in fact in May 2010, we published a report on war crimes in Sri Lanka, in which we detailed very severe violations of International Humanitarian Law, both by the Sri Lankan government forces and by the Tamil Tigers, particularly in the last four or five months of that terrible war, which they had waged over a period of over 30 years.

The evidence that our investigators gathered, suggested that in these last few months of the war, tens of thousands of Tamil civilians, man, women, children were killed. Many were wounded, there were deliberate attacks — there is credible evidence to suggest there were deliberate attacks on civilian targets, on hospitals, intentional shelling of civilians by the Sri Lankan forces. And, there is evidence to suggest that, through the chain of command, this would implicate the responsibility of top government and military leaders.

We called for an international investigation into this alleged war crimes in Sri Lanka. We felt that this had to be an international investigation given the demonstrated lack of political will or capacity for genuine credible domestic investigations inside the country.

And yet, despite the increasingly authoritarian regime in Sri Lanka and its still appalling treatment of the Tamil minority, the Crisis Group believes that the best mean of ensuring the Tamils' Right to Self-Determination is still within the existing borders of the Sri Lankan State.

We also published a report on the Tamil diaspora, urging Tamil leaders outside Sri Lanka, to not only to renounce explicitly the Tamil Tiger (LTTE) methodology, but also to renounce its separatist ideology, if it is to play a useful role in opening a political space for the accommodation of the Tamils' Right to Self-Determination inside of the existing state of Sri Lanka.

The Crisis Group has dealt with a variety of situations in the last several years, where conflicts including armed conflict were triggered, either by the purported exercise of the Right to Self-Determination or by efforts to resist it.

In many cases, secession claims are rooted in a history of repression, exclusionary visions of governance or the denial of rights of minority groups, which drives these groups to pursue Self-Determination outside the confines of State borders.

I mentioned the three, but I can think of others, just as easily have included Somaliland and Montenegro, where we have supported independence, Northern Iraq, where we have defended the unity and territorial integrity of Iraq or Abkhazia, South Ossetia, Nagorno-Karabakh, Aceh or Kashmir, where we have avoided taking an explicit position, either for or against secession. But, in all of these cases, secessionist movements and claims continue to be advanced.

The Kosovo opinion by the International Court of Justice (ICJ) leaves unanswered the important question whether a right for secession can be found in the Right to Self-Determination, and if so in what circumstances. I think, for that, we have to examine the Right to Self-Determination itself.

As you know, this is a right, which is expressed in Article 1 of the United Nations Charter and also in Article 1 of the two most important international human rights instruments, the International Covenant of Civil and Political Right (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR).

And the way it has done so is by asserting that Self-Determination is a right that must be initially fulfilled internally, that is within the boundaries of existing state. This imposes on sovereign states serious obligations, regarding both democracy – that is participation as the preferred method for people to freely determine its political status – and the protection of minority rights for the fullest protection for the free pursuit of people's economic, social and cultural development.

Secession may provoke population displacement and further unrest if the newly created nation-state is unwilling or unable to accommodate its own newly created minorities.

It is often advanced also that claims of sovereignty have to be earned – now, I must say, in general terms, I am very wary of any notion that fundamental rights need to be earned. In my view, they don't, that is why they are fundamental rights.

And yet, there is no question for instance, in Somaliland, democratic root and functioning institution assist in advancing the legitimacy to its claim to independence.

In the same way, ahead of Montenegro referendum in 2005, we had argued that Montenegro formed a genuinely multi ethnic government without internal conflict. In that sense it is not that the right has to be earned but the realization of the right has to be compatible with the rights of others.

Conversely, at the other extreme, the Tamil Tigers' brutal rule of Tamil areas where it controlled its own people and the atrocities perpetrated over the years by the LTTE – including ethnic cleansing and massacres and their treatment of the Muslim minority inside their areas – undermine very severely their claim, their secessionist claim.

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