Sunday Times Editorial

Alleged war crimes and legal aid

18th October 2015

Soldiers brought before the proposed ‘war crimes tribunal’ will be defended by the State and pardoned before a council of religious leaders, the Sunday Times reported on its front page last week. The story created a buzz about how the Government will handle the ‘hot potato’ of accountability for the military campaign that liquidated the LTTE.

No doubt, these policies are still to be firmed up. The Government is in consultation with ‘stakeholders’, especially on how to set up, then implement, a High Court for War Crimes. But a nationalist Minister has already been tasked with the assignment of visiting camps and reassuring officers and men that the Government will not throw them to ravenous wolves after all they did to end the scourge of terrorism in this country.

The Foreign Minister went on record telling this newspaper that those who admit guilt before a proposed South African-style Truth Commission would be eligible for a pardon by a group of religious elders who will form the ‘Compassionate Council’.
That is, on the one hand, an ‘In-Out’ plea bargaining kind of procedure with the presumption of guilt cast on suspects. On the other hand, it is something of a sham show trial, merely to go through the motions of a War Crimes tribunal.

As it is early days in this consultation process, it may be presumptuous to ask too many questions but several issues are being raised for which the Government will have to find a suitable ‘via media’ between prosecuting suspects and punishing offenders of proven ‘war crimes’ without being seen as sacrificing the country’s Armed Forces.

Some of the questions raised are whether the Government will be prosecutor and defender or leave the prosecution to foreign counsel, thereby turning the Court into an international tribunal-especially when foreign judges also sit on it. Legitimate questions are also being asked about whether the some 11,000 LTTE former combatants and support staff who were released after rehabilitation will be brought back from civilian life and prosecuted for ‘war crimes’, and LTTE members currently still in custody will now be required to stand trial taking the country back to the horrific past rather than moving on to a bright future merely to appease those who don’t live here. There are also questions about legal aid for those that the conflict made victims, both at the hands of the Forces and the LTTE.

The provision of legal aid is already problematic. The Legal Aid Commission (LAC), despite its multitudinous branches, is weighed down by challenges, some of its own making. Low remuneration to its legal staff has left its offices perpetually manned by junior lawyers. Many of them are preoccupied with earning an income through private conveyancing practices at the expense of the underprivileged clients who seek the services of the LAC. Funding is meagre. There’s no gainsaying that the provision of legal aid is a low priority area for successive governments. This must change. Legal representation is a right, not a favour.

Govt. afraid to rock the boat
And so, Parliament, the country’s assembly of lawmakers eventually decided to take up the long-standing issue – repeated over and over again in the media – of poaching in Sri Lankan waters by Indian fishermen; but, all it produced was mere words. The deeds are yet to come.

It was a refreshing change to hear MPs of the northern-based Tamil National Alliance, after years of deafening silence for fear of upsetting India, come out in the open and speak on behalf of the people they claim to represent – the biggest victims of this poaching with impunity indulged in by mainly Tamil Nadu fishermen.

It is a well-established fact that these intruding fishermen, backed as they are by the Tamil Nadu state government which has a Sri Lankan Rupees 65 billion export industry, largely to the European Union, engage in IUU (Illegal, Unreported, Unregulated) practices. The EU blacklists countries that engage in IUU practices and makes a boast of its campaign but the dinner plates in Europe are filled with the fish, prawns and shrimps caught in the Palk Strait by these methods.

Tamil Nadu politicians who cry for the release of their fishermen nabbed poaching by the Sri Lanka Navy are exposed for their crocodile tears on behalf of the Sri Lankan Tamil population whose stomachs they hit by the thrice-weekly invasion by armada after armada of South Indian fishermen coming in big steel-plated trawlers.

It is somewhat unfortunate that when the Prime Minister went to India recently, the Indian side successfully got the visiting Sri Lankan leader to agree that Fishermen’s Associations of the two countries should sort out the protracted issue. For one, no country should sub-let its responsibilities to protect the nation’s sovereignty and territorial integrity to some private associations. For another, the Sri Lankan Fishermen’s Associations themselves do not want to be a party to an exercise in futility. They quite rightly know it is just a delaying tactic adopted by the Indian side so that Indian fishermen can continue to exploit the marine resources in the Sri Lankan side of the Palk Strait.

At the very least, there ought to be a moratorium while whatever talks are going on. Sri Lanka is too afraid of India to even consider going for some international arbitration before the International Court of Justice (World Court) in The Hague or elsewhere as other countries with similar issues have done. The Government has neither the political will, nor the courage, and apparently the skill, to challenge India as for instance, it did successfully in the 1960s and ’70s in obtaining sovereignty over the islet of Kachchativu.

Meanwhile, the rape of the Palk Strait continues unabated. Tomorrow, another flotilla of hundreds of Indian fishing boats will come, crossing the IMBL (International Maritime Boundary Line) and engage in ‘bottom trawling’ and other IUU practices in these waters. It is not only fishing these unwelcome visitors are carrying out; there is rampant smuggling from sarees to narcotics.
Parliament couldn’t even pass a resolution condemning India – or if they were so afraid, condemning these fishermen for what they are doing. It was, as our headline reporting the proceedings of Parliament stated, just another “talk show’.