Motoo Noguchi
It
is critical to recognize that the ongoing efforts for the reconciliation
mechanisms are for the entire people of Sri Lanka and are intended to benefit
all of them in an equal manner.
There
may be some misunderstanding that the mechanisms will benefit only a part of
the people of Sri Lanka, such as Tamil people, but this should not be the case.
In addition to the unprecedented nature of the efforts, maybe some foreign
words unfamiliar to the Asian people, such as transitional justice and
accountability, are a cause of the misunderstanding. In fact, these words do
not exist in the Japanese language, neither, and we have yet to find directly
equivalent and natural translation of these words in Japanese. Therefore, I
will try to explain my understanding of the reconciliation without using these
words.
Later
in the 20th century, Sri Lanka entered a tragic phase of violence and war which
finally ended in 2009. Since then, the Government and people of Sri Lanka have
been focusing on rebuilding a united, peaceful, and prosperous country. During
the decades of prolonged violence and war, many people suffered immensely,
irrespective of ethnicity or religion. Indeed, the serious sufferings extended
to the entire country. But the tragic phase ended and now you are rebuilding
your country.
As
an initial step, there are several things to be prioritized, together with
constant efforts to achieve further economic development. First, the fate and
whereabouts of those who are still missing must be found and known to their
families without further delay. Second, those who seriously suffered must be
adequately redressed so that they can regain their dignity and hope and start a
new life. Third, those who were responsible for these serious sufferings must
be punished according to law and subject to the availability of credible
evidence. Fourth, all the communities across the country must reunite to
rebuild a peaceful and prosperous country and to prevent the recurrence of past
tragedies.
To
achieve the objectives above, the reconciliation mechanisms are composed of
four pillars, truth, justice, reparations, and non-recurrence. All of them are
equally important to rebuild the country and to lay the foundation for
sustainable economic development for a united and peaceful country. It is
important not only for the present Sri Lankan people, but more so for the
generation of your children. You must not make your children face again all the
tragedies that you had to undergo.
This
is my understanding of what the reconciliation means. This is such a simple
thing, which I trust is the common belief of all the Sri Lankan people. You
don’t need to see it as overly complicated or something foreign to the culture
of Sri Lanka.
Among
the four pillars, the accountability mechanism or criminal prosecution is seen
as the most politically sensitive issue. I see this largely coming from the
misunderstanding that the judicial mechanism that is under discussion will
benefit only a part of the entire population, more concretely only Tamil
people. This is because many people, in particular those from the majority
community, tend to see this mechanism as a forum for prosecuting the alleged
war crimes committed by the military forces during the war, while leaving the
crimes committed by the LTTE side unaddressed. As a result, they tend to see
the accountability mechanism as a structurally one-sided and inherently unfair
forum aimed at punishing their war heroes.
I
don’t think that is the case, because what this mechanism intends to do is to
prosecute those who were responsible for serious sufferings of people,
irrespective of their ethnicity or religion, and thereby to provide justice to
victims, their families, and their communities. The main criteria in the case
selection should be the gravity of crime and not who committed the crime. This
is exactly what is meant by the rule of law and there is no space for politics
here. In other words, the judicial mechanism should be designed, structured and
operated in a way that it will benefit all the communities of Sri Lanka in a
fair and equal manner. The scope of crimes to be addressed by the judicial
mechanism needs to be carefully considered taking this point into account, both
in terms of material and temporal jurisdiction. Because this is a critical
point to ensure the unreserved support and active participation for the
judicial mechanism, which are crucial for its success in delivering justice
that is acceptable to all.
It
is also important to know that the judicial mechanism is not a forum to pursue
collective responsibility to some entities including the military forces. On
the contrary, it is procedures to identify individual criminal responsibility,
thereby contributing to convictions against some individuals while releasing
others from unfounded allegations against them. And those who are prosecuted of
course have a right to rebut to charges against them under due process of law
and shall be acquitted in case of a successful defense or the absence of
evidence to prove guilt beyond reasonable doubt.
The
question of international judges seems to have been focused in the discussion
surrounding the accountability mechanism. In my view, what is most important is
not the nationality of judges, but whether an individual serving as judge can
be supported from all the communities equally and whether the people is willing
to leave the fate of cases of his/her wisdom and professionalism. What is more
important is to secure the fair, skillful and efficient investigations which
are a prerequisite to make any subsequent trials meaningful. Without high
quality investigations there are not much that even the most able judges can
do.
Some
may argue that it would be better to forget about past events and just look to
the future, without undergoing painful and complicated procedures of criminal
prosecution and trials. However, I think such an approach will effectively
endorse the culture of impunity, will fail to provide justice to victims, and
will increase the risk of recurrence of similar crimes and tragedies. As an
established democratic country, Sri Lanka must stick to the rule of law, not
only on legal texts but also through concrete action of the judiciary.
In
the end, the ability of State to protect its people by adherence to the rule of
law is one of the most essential infrastructure of a Nation State. Same as
other critical elements of social infrastructure such as water, sanitation,
education, transportation and financial systems, the principled and efficient
judiciary is a key element for a democratic nation. For Sri Lanka to make great
steps forward towards sustainable economic development and prosperity, the
stable and determined application of the rule of law is a must. Japan is a long
friend of Sri Lanka. Nearly seventy years ago, when Japan was struggling to
rebuild the country from the scourge of war, Sri Lanka was one of the first
countries which strongly supported Japan in its endeavors to return to the
international community.
Now
that Sri Lanka is determined to overcome the past tragedies and move forward,
I, as a Japanese citizen, am most honoured and pleased to be of any help to you
in these unprecedented endeavors. I thank you, my friends,” he said.
__________________________________________________________________________________Motoo Noguchi is a Prosecutor at the Supreme Prosecutors
Office of Japan; Chair of the Board of Directors, the Trust Fund for Victims,
International Criminal Court; Former United Nations international Judge at the
Cambodia Khmer Rouge Trials, the Supreme Court Chamber; Former Professor of
UNAFEI (United Nations Asia and Far East Institute for the Prevention of Crime
and Treatment of Offenders), Former Visiting Professor of the University of
Tokyo; Former Counsel, Office of the General Counsel, Asian Development Bank: http://www.dailymirror.lk/
2017-11-08 13:33:01
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