A string of diplomatic blunders saw a resolution on Sri Lanka being adopted at the UN Human Rights Council in Geneva two weeks ago.
A return to the route that brought the country under the microscope of the international community leaves behind a trail. The first international focus came when UN Secretary General Ban Ki-moon established a three-member panel of experts to examine accountability issues. It related to the separatist war that ended with the military defeat of Tiger guerrillas. In essence, the trio examined alleged war crimes by both the guerrillas and Sri Lankan troops and brought out damning indictments. Whether they are right or wrong is another question.
Officially, the government of Sri Lanka took up the position that it did not recognise the UN panel. None other than the country’s External Affairs Minister G.L. Peiris declared that it was an advisory body that was tasked by the UN Secretary General and therefore had no sanction from the world body. Once again, whether that is right or wrong is another question. Nevertheless an official Sri Lanka delegation representing the government of Sri Lanka and headed by then Attorney General (and now Cabinet advisor) Mohan Peiris secretly testified before the Commission. It became public only after an exclusive revelation in the front-page of the Sunday Times. Formal confirmation came when UN panel’s report was made public.
When issues arising from the UN PoE (panel of experts) report became the subject of discussion, both in Sri Lanka and worldwide, the government took up the position that they were being addressed. That was by the Lessons Learnt and Reconciliation Commission (LLRC) which was quickly created by the government in almost a desperate bid to ward off any international mechanism to investigate allegations of war crimes. The PoE report contains an important document in this regard. That is a letter written by External Affairs Minister Peiris. He tells the UN PoE that there should be "seamless connectivity" between what the UN panel of experts were doing and what the LLRC had undertaken. This letter has two significant connotations – one is that the government of Sri Lanka has recognised the UN PoE. That is by the country’s External Affairs Minister no less acknowledging the link in the work undertaken by them and the LLRC. The other is that the LLRC is acknowledged as the government’s own mechanism to address issues that were in focus.
LLRC Chairman C.R. de Silva presenting the LLRC report to President Rajapaksa in December last year
But now, some ministers have questioned the validity of the LLRC’s recommendations in its final report. This is by arguing that according to some unidentified experts, the Commission has gone much beyond its mandate. That contradictions by ministers come by dozens and have created so much confusion on any issue has become a hallmark of the government. Yet, External Affairs Minister Peiris has declared in Parliament that the government will implement the LLRC recommendations. He says it won’t be done in toto, and that nowhere else in the word is it done that way. That is almost like a red herring. The fact is that nobody either in this country or abroad is asking the government to do so in toto. They only want to know if and when, and what parts of the LLRC report has the government agreed to implement.
In retrospect, that indeed is what the US-backed resolution called for. Though Sri Lanka delegation leader Mahinda Samarasinghe articulated the same position in his address to the UNHRC, the many contradictory statements have placed the government in the dock. Tragically that has become the government’s own enemy. Its credibility is now being brought to question.
The UNHRC session in Geneva is over but not the issues for Sri Lanka. The focus has somewhat shifted to the US capital, Washington DC, from where the resolution against Sri Lanka originated. In February this year, among visitors to Colombo was Stephen J. Rapp, Ambassador-at-Large in the Office of Global Criminal Justice at the Department of State.
On Wednesday, he presented to the US Congress his report. He said in his report that the government (of Sri Lanka) should establish an independent mechanism to investigate "credible allegations which the LLRC failed to address". He adds, "Each investigation should be independent of government influence and transparent, and provide adequate witness protection".
Here are relevant extracts of Rapp’s five-page report to the Congress:
The Government of Sri Lanka publicly released the Lessons Learnt and Reconciliation Commission’s (LLRC) final report on December 16, 2011. The report called for investigations into, and possible prosecutions for, specific instances of reported cases of deliberate attacks on civilians by Sri Lankan Security Forces, reports of enforced disappearances, and reports of mistreatment of LTTE detainees. The LLRC’s recommendations related to demilitarization, freedom of expression, land reforms, and rule of law issues are also particularly significant. If fully implemented, these recommendations could provide the Government of Sri Lanka with an opportunity to promote national reconciliation and assist in revitalizing many of Sri Lanka’s democratic institutions. However, the report fails to adequately address allegations that LTTE cadres and Sri Lankan Security Forces violated IHL (international humanitarian laws) and IHRL(international human rights laws) during the final months of the conflict.
The LLRC report expressed concern that its recommendations, like those put forward by similar commissions before it, would not be implemented by the Government of Sri Lanka, specifically pointing to the lack of implementation of its September 2010 interim recommendations. Since the LLRC report was released, culpable individuals have not been identified by a credible mechanism, and no one has been held to account. The Government of Sri Lanka also informed the Department of State that it created a cabinet sub-committee to develop a plan to implement the LLRC recommendations. The constitution and work-plan of that sub-committee are not yet known. Further, the Sri Lankan government informed the Department of State that the Sri Lankan Army has constituted a five-person court of inquiry headed by a Major General to investigate the specific allegations identified in the LLRC report. Subsequent media articles report that the court of inquiry will also review video material depicting summary executions by Sri Lankan forces. According to government officials, the court can refer the cases of culpable individuals to the Attorney General for prosecution. The Sri Lankan Army also formed a board of inquiry to provide recommendations for military reform based on the LLRC findings.
Several Government of Sri Lanka interlocutors also informed Department of State officials that the Sri Lankan Attorney General was actively reviewing an undefined set of allegations to determine whether sufficient evidence exists to bring criminal charges.
Relating to detention, according to information provided by the Government of Sri Lanka to the Department of State, as of February 10, there were 228 individuals in detention under investigation and 892 individuals in rehabilitation. The government permits international humanitarian organizations access to some detention facilities where former LTTE combatants are detained, including the facility in Boosa, where approximately 200 detainees are held. The government denies that detention facilities operated by military intelligence exist. Humanitarian organizations are not allowed to visit suspected illegal detention facilities operated by paramilitary groups. International humanitarian organizations have only been allowed to visit detainees in rehabilitation facilities upon release.
On March 22, the UN Human Rights Council (HRC) adopted a declaratory resolution that notes with concern that the LLRC report does not adequately address serious allegations of violations of international law and, among other things, calls upon the Government of Sri Lanka to implement the constructive recommendations made in the LRRC report.
While this report draws attention to open questions regarding allegations of violations of IHL and IHRL, it is not meant to be a legal determination confirming any of those allegations.
December 16, 2011, the government publically released the LLRC’s final report. The report makes significant observations and recommendations with respect to the origins of the conflict, land reforms, restitution, and other efforts to reconcile the ethnic communities of Sri Lanka. The report also suggests that the government investigate specific allegations of direct attacks on civilians, launch a full investigation into reports of enforced disappearances and abductions, fund an independent investigation into the veracity of videos showing summary executions, and investigate allegations of detainee abuse, torture, and summary execution. However, the LLRC’s recommendations fail to adequately address accountability for violation of IHL and IHRL by government security forces and LTTE cadres during the conflict.
While the Commission’s report identifies eight cases of alleged attacks against civilians by Sri Lankan security forces, it only calls for further investigation of three of them. This stands in stark contrast to the vast number of credible allegations examined in the PoE report and the 208 instances of harm to civilians or civilian objects identified in the Department of State’s 2009 Report to Congress. While the Government of Sri Lanka’s public statements indicate it maintained a policy of "zero civilian casualties" and the only civilian deaths occurred during crossfire, the PoE estimated that civilian casualties in the final months of the conflict ranged from 10,000 to 40,000. This strongly suggests the need for further investigations.
The LLRC report also inadequately addresses allegations of government shelling on civilians in "No Fire Zones" (NFZs), a series of three protected areas unilaterally declared by the government. The LLRC report concludes that although civilian casualties occurred, the security forces did not deliberately target civilians and "there appears to have been a bona fide expectation that an attack on LTTE gun positions would make a relevant and proportional contribution to the objective of the military attack involved."
Reports from the PoE and the UN directly contradict these conclusions. Moreover, the LLRC report raises but does not resolve questions about why the Government of Sri Lanka created additional NFZs after becoming cognizant that the LTTE would exploit such zones to launch attacks, to which the government would respond, putting civilians at risk. More needs to be done to investigate why the government decided to create subsequent NFZs.
While the LLRC recognized that hospitals and other humanitarian objects were shelled, it concluded that the security forces did not deliberately target these objects and that the context of the shelling was a "confused picture." In contrast, the PoE report concluded that security forces repeatedly shelled humanitarian objects whose locations they knew due to reports from the UN and ICRC. These allegations implicate grave breaches of IHL and merit further investigation. The LLRC and PoE reports both address the supply of humanitarian aid to the conflict zone. Although only the PoE concluded that the government deliberately underestimated the number of civilians in the conflict zone, both reports call for an investigation into the flow of medical supplies.
The LLRC report also fails to critically analyze or investigate the "white flag" incident, in which high-level LTTE leaders were allegedly shot despite assurances from the Government of Sri Lanka that they could safely surrender. While the circumstances surrounding the incident remain uncertain, the PoE concluded that the LTTE leadership intended to surrender. However, the LLRC only mentioned the above incident briefly, citing testimonies that dismiss the allegations. The Department of State does not take a position regarding the allegations concerning this incident but notes that the discrepancy between the PoE and LLRC reports merits further investigation.
The report therefore, concentrates on the last stages of the war against the LTTE aspect of the LLRC report, and while referring to contradictions between the UN PoE report and the LLRC report, is at pains to say that they haven’t come to any legal conclusions on who is right. The report concludes with some pontification on truth, justice for victims, accountability and a reference to Sri Lanka as a "long time friend".
Rapp has also forwarded a Factual Supplement to the Sri Lanka Report to the Congress. Here is the introduction:
The United States recognizes a State’s inherent right to defend itself from armed attacks, including those by non-state actors such as terrorist groups. In the context of a non-international armed conflict – that is, an armed conflict that is not between states – common article 3 of the Geneva conventions of 1949 provides basic treatment protections to all individuals not taking part in hostilities, including civilians and detained members of the Armed Forces. Its core requirements are that individuals not taking part in hostilities must be treated humanely and without "adverse distinction" based on race, religion, or similar criteria. To this end, the article prohibits murder; cruel treatment; torture; the taking of hostages; outrages upon personal dignity; and the passing of sentences without judgment by a court providing recognized guarantees. Sri Lanka is neither a party nor a signatory to the Additional Protocol II to the Geneva Conventions, which includes more detailed rules relevant to non-international conflicts than those set forth in, article 3.
As with the two previous reports, our assessment of investigations undertaken by the Government of Sri Lanka (GSL) and international bodies is mindful of Sri Lanka’s pertinent international obligations. For example, Sri Lanka is a State Party to the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and the 1949 Geneva Conventions. In addition, Sri Lanka is subject to relevant customary international law obligations, which in the area of international humanitarian law include the principles of distinction and proportionality, which are intended to protect innocent civilians from harm.
The principle of distinction holds that civilians and civilian objects (such as hospitals and schools) shall not be the object of direct attack, though civilians lose this immunity if they directly participate in hostilities. The principle of proportionality prohibits attacks that may cause incidental loss of life, injury, or damage to civilians that would be excessive in relation to the direct military advantage anticipated. The civilian population must not be used to shield military objectives or operations from attack, and parties must take all practicable precautions, taking into account military and humanitarian considerations, to minimize incidental death, injury and damage to civilians.
EFFORTS AT ACCOUNTABILITY
There are a variety of ways in which a government may undertake effective investigations and other accountability processes. While some international law conventions call for criminalization of certain human rights violations and serious violations of IHL, other routine administrative and special investigative processes, such as commissions of inquiry (COI), can play an important role in establishing a factual record of events. Although COIs and other investigative bodies are often implemented at the national level, in some instances governments seek international participation to bring specialized expertise into, and help foster public confidence in, so-called "hybrid" investigations.
Fully internationalized processes undertaken without the relevant government’s consent have generally been pursued by the international community only when the State concerned lacks the capacity, political will, or both, to undertake an independent, credible, and effective inquiry. In the case of serious violations of IHL and human rights, including the type of atrocities alleged to have occurred in the final months of the conflict in Sri Lanka, however, such commissions do not obviate the need for criminal investigation and, if appropriate, prosecutions.
Whether domestic, international, or hybrid, investigative processes should operate consistent with best practices derived from extensive experience in order to be both credible and effective. There are several key criteria for evaluating the adequacy of a COI, including: independence and competence; adequate mandate and authority; witness and COI protection; adequate resources; a public report; and a timely and transparent government response.
This week’s developments in Washington DC show that the issues related to Sri Lanka will not go away but persist. This would mean that the government would have to formulate a studied approach to the issues in question.
Of greater significance in this regard is the impending visit to Washington by External Affairs Minister Peiris. He is scheduled to have a meeting with the Secretary of State, Hillary Clinton, on May 18. An earlier date given before the UNHRC sessions was not accepted by Peiris on the footing, according to him, that it would have given the wrong impression that there was acquiescence on the part of Sri Lanka to the resolution that was being sponsored by the US in Geneva. Then, an April date given could not be accepted as Peiris has to accompany President Mahinda Rajapaksa to Korea. The question is whether he would undertake the May visit in the light of the commitments he would have to make. There is the possibility that the conclusion of his visit would see a joint statement by the United States and Sri Lanka. If at all so, would Peiris be in a position to make official commitments on behalf of the government, particularly so in the light of the recommendations Rapp has made to the US Congress. On an earlier visit to New Delhi in 2011, Peiris agreed to a joint statement that embarrassed his own President by calling on the government of Sri Lanka to engage in "genuine" reconciliation.
This week, in Parliament, the opposition called for a debate on the Geneva vote against Sri Lanka. Few opposition legislators made studied comments on the fallout from the anti-Sri Lanka resolution that was passed. They, however, took the opportunity to hit at President Rajapaksa on a different front.
Two United National Party (UNP) MPs, one-time Foreign Minister Mangala Samaraweera and Badulla district MP Harin Fernando (who once when asked who his ideal politician was, had said it was the President) dusted some old Hansards (records of parliamentary proceedings) to show that it was Rajapaksa, as a young opposition MP who first went to Geneva to internationalise the human rights records of incumbent Sri Lankan governments.
They quoted from a speech Rajapaksa made in Parliament on October 25,1990;
The government responded by saying that at the time Rajapaksa went to Geneva things were so bad in the country, but the argument did not really hold. The opposition succeeded in getting its message across that what was sauce for the goose was sauce for the gander and that it was about time the government stopped labelling those who opposed the government’s human rights record as "traitors".
The debate also confirmed that there was a sharp rift among the two Sri Lankan Ministers who were to spearhead the country’s defence at Geneva. Plantation Minister and President’s Special Envoy Mahinda Samarasinghe was not even present at the debate having gone to Uganda with a parliamentary delegation. Then, when an opposition MP asked if Samarasinghe’s premature and ill-timed statement that India would vote with Sri Lanka had triggered protests in Tamil Nadu that in turn forced the central government in New Delhi to vote against Sri Lanka, Peiris refrained from defending his cabinet colleague and said he could not comment. Mangala Samaraweera rubbed it in by saying that debating Geneva without Samarasinghe was like Hamlet without the Prince of Denmark.
In the midst of the debate on the country’s foreign policy, the Ministry of External Affairs was rocked by a missive going out to the country’s Ambassador in Paris, Dr. Dayan Jayatillake widely considered one of the more efficient envoys serving the country, and a loose cannon. The Ministry chargesheeted him for purchases and renovation work to his residence and permitting an embassy staffer to stay in a hotel, both incurring very high expenses at the taxpayers’ cost. Suddenly, the Ministry had woken up to excessive spending of taxpayers’ money.
U.S. Ambassador-at-Large Stephen J. Rapp
Not someone to keep quiet, Jayatillake has gone to the media with his side of the story, publicly criticising the Ministry for the defeat in Geneva and accusing a coterie in the Ministry of gunning for him. His critics claim that Jayatillake has spent lavishly on furniture and on a one-time Assistant Government Agent who is now in the embassy for his long period of stay in a hotel instead of moving into an apartment. Those who support the political appointee envoy say that this is a move that had its antecedents with the Geneva vote where Jayatillake was boasting about the victory over an anti-Sri Lanka resolution in 2009 when he was Ambassador in Geneva, and that it was a ‘palace coup’ to embarrass Peiris as Jayatillake is considered a Peiris loyalist.
The fact that the Ministry is riddled with in-fighting is a public secret. In Geneva, not only were the two Ministers, Peiris and Samarasinghe, under-cutting each other, but the officials were at each other’s throats. There were dog fights and cat fights. All this, while taking on the challenge of defeating the anti-Sri Lanka resolution by the powerful US. Unable to bring some stability to the Ministry, Peiris has taken flight to the Maldives on an official visit, and some believe a possible extended Avurudhu holiday.
One silver lining, however, has come in the form of the visit of Lord Naseby, PC Baron of Sandy (in Bedfordshire) and Chairman of the All Party Parliamentary Group on Sri Lanka in the British Parliament. Lord Naseby has been a long-time friend of Sri Lanka and has been impressed by the progress made by Sri Lanka since the end of the ‘war’ in 2009, both in terms of reconciliation efforts and economic development.
He had been in the country just prior to the conclusion of the conflict, and this time he visited Jaffna, Kilinochchi, Boosa and other places to see for himself what was happening. He met the Rajapaksa brothers, Mahinda and Gotabaya, on Thursday and says that he will, on his return to Britain, prepare a dossier on what’s happening in Sri Lanka and circulate it to all the MPs in the House of Commons and the House of Lords.
He was happy to note that he could contest the figures trotted out by then British Foreign Secretary David Miliband about the high number of civilian deaths that occurred during the last stages of the ‘war’ in 2009 and that he had figures even from the UN that pointed to a very much fewer numbers of civilians killed during this period.
But he was concerned that the Sri Lankan government would have to take cognizance of the need to implement the LLRC report, especially post Geneva. When he asked President Rajapaksa about the implementation of the 13th Amendment (after he had met an all-party delegation in the Sri Lankan Parliament), the President had told him that he had put the issue before a Parliamentary Select Committee to decide on what parts of the 13th Amendment could be implemented.