(Sri Lanka Guardian) The issue that must take centre stage at Sri Lanka’s Universal Periodic Review (UPR) scheduled for 1st November 2012 should be the question of Sri Lanka’s accountability for War Crimes and Crimes against Humanity, bearing in mind the period under review is from 2008 to 2012, covering the critical period before, during and after the war in Sri Lanka.
The major players involved in Sri Lanka’s review process must be ready to meet the issue head on.
In the light of Sri Lanka’s pathetic ‘National Report’ submitted for the UPR, it is imperative that Sri Lanka’s UPR includes a serious debate on the question of War Crimes that took place in Sri Lanka in the set period under review. This notwithstanding the resolution passed at the 19th session now proven with hindsight to be woefully inadequate in addressing the issue of accountability for War Crimes, for nowhere in the ‘National Report’ has Sri Lanka come up with a substantial and precise action plan to address the issue of accountability or the establishment of a credible domestic mechanism to investigate senior military and political leaders for War Crimes.
The ‘National Report’ reads like fiction and deserves to be consigned to fiction and not for consideration at the UPR, being definitely at odds with submissions made by members of the Civil Society to the UPR (both the ‘National Report’ and Civil Society submissions can be read at the OHCHR website: http://www.ohchr.org ) and other recent reports in the public domain for example the situation report released by the Commission for Peace and Justice of the Diocese of Jaffna (CJPDJ, not to mention, the letter Bishop Rayappu Joseph wrote recently to Sri Lankan President Rajapakse, raising serious concerns about the ground situation in the North and East of Sri Lanka.
The UN Panel of Experts report hasn’t been yet seriously addressed at the UN to give credence to the serious indictment contained in it that Sri Lankan government shelling caused more than 40,000 civilian deaths: The UN Panel in looking at “accountability” found "credible allegations", they said “if proven, indicated that war crimes and crimes against humanity were committed by the Sri Lankan military and the LTTE,” and that “as many as 40,000 civilians may have been killed in the final months of the civil war, most as a result of government shelling,” concluding that what took place was "a very different version of the final stages of the war than that maintained to this day by the Government of Sri Lanka," (Sri Lanka falsely claiming at the outset it pursued a policy of zero civilian casualty) and that “the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace.”
Credible allegations such as these provide a sound basis for an independent investigation; that which prompted US Ambassador Patricia Butenis to send a secret diplomatic cable to the US State Department that stated “the responsibility for many of the alleged crimes rests with the country’s senior civilian and military leadership, including President Rajapaksa, his brothers and General Fonseka,” as leaked by Wiki Leaks.
Nothing concrete has happened after the resolution at the 19th session to raise hopes that Sri Lanka is ready to halt the culture of impunity that has become a hallmark of the current regime; promises made towards establishing a proper domestic investigation haven’t been satisfactorily delivered; steps taken in that direction have neither come up to expectations nor is it living up to international standards.
Reference to a ‘Board of Inquiry’ and a ‘Court of Inquiry’ at the ‘National Report’ is imprecise and short on detail and point to the army investigating its own even for civilian casualties: “…. the Sri Lanka Army has commenced investigations, firstly, by appointing a Board of Inquiry to study the LLRC recommendations and formulate a viable action plan to implement the recommendations that are relevant to the Army and, secondly, a Court of Inquiry has been appointed to investigate allegations of civilian casualties and the Channel 4 story, irrespective of whether the video footage was genuine or not. The Sri Lanka Navy has also initiated similar measures. These boards have commenced work and several witnesses have testified.”
Other than planning to let the military to investigate its own, no provision has been made or articulated in the ‘National Report’ for investigation and trial of senior military and political leaders for war crimes, those at the top of the hierarchy who allegedly gave the orders and with whose full knowledge the shelling and executions were carried out? Will justice be served by holding a few lower rank minions responsible for this unthinkable mass murder of innocent people while President Rajapakse, Gotabaya Rajapakse, Sarath Fonseka and the likes of Shavendra De Silva Deputy Permanent Representative to the UN can never be investigated, not even outside Sri Lanka? So far two War Crimes cases against Rajapaksa in the US courts have been set aside on the advice of the State Department on grounds of immunity enjoyed by them.
The ‘National Report’ refers to the cases of 5 students and the 17 aid workers who were killed execution style only to mention that the Attorney General has referred the case back to the Inspector-General of Police for further investigation to determine whether a prima facie case exists in either.
The effectiveness or otherwise of the UPR process hangs on the integrity of all the players and India more so, known for rescuing Sri Lanka time and time again; India is not only playing a vital role in the whole review process as a member of the Troika of Rapporteurs together with Benin and Spain, India may also, barring a few other countries, have the key probably to exposing the skeletons in Sri Lanka’s cupboard.
Will India, a major player at this UPR process, act by its conscience or let Sri Lanka off the hook once again? Second guessing the report card HRC will finally give Sri Lanka on its human rights record and what India’s role and input will be in the whole process, is naturally a matter for discussion especially due to India’s past failings to grab the bull by the horn. And so will India be playing a mere secretarial role in the Troika worse still, will India falter and be an impediment to HRC reaching a credible outcome? The answer to this intriguing conundrum escapes most people.
All three members of the Troika voted for a US sponsored resolution at the 19th session of the HRC against Sri Lanka; however India was responsible for toning it down. It is hoped Benin and Spain, along with the Office of the High Commissioner for Human Rights (OHCHR), the working group composed of HRC members selected also by lots, can provide the right balance and influence for a satisfactory outcome that’s more constructive in the end, towards making Sri Lanka accountable for War Crimes.
It’s relevant to study the UPR process to appreciate the importance of India’s responsibility in making Sri Lanka come clean with its actions: especially during the final stages of the war in May of 2009 and lend itself to independent scrutiny.
The UPR is a kind of performance evaluation exercise, covering the last four years of Sri Lanka’s human rights record vis-à-vis its treaty obligations, conventions and the whole body of International human rights and humanitarian law: on the violations committed, accountability or lack there of and measures of redress undertaken; conducted under auspices of the United Nations Human Rights Council (HRC) assisted by the Office of the United Nations High Commissioner for Human Rights (OHCHR) and a Troika (selected by the drawing of lots) composed of India, Benin and Spain.
The Troika is entrusted with the task among other, of liaising with Sri Lanka on its submissions, reviewing and reporting on the interactive process concluded at the working group level (working group consisting of HRC members and selected also by drawing lots) and ultimately writing the ‘review report’ with the assistance of the OHCHR for debate at the following HRC plenary sessions on November 5th where an ‘Outcome Report’ will be adopted after final inputs are made by all interested 192 UN member countries and “Civil Society organizations and National Human Rights Institutions with ECOSOC status.”
The Troika is not merely a coordinator that Sri Lanka would like to claim it is. It’s not there only to write reports but it is there also to determine the contents of the reports, both the ‘Review Report’ and the ‘Outcome Report’ and can point out where the ‘National Report’ falls short, demanding more from the ‘National Government’, it can direct the discussion at working group level to making it vibrant, more honest, pointed and result oriented.
Mahinda Samarasinghe, minister of Plantations Industries who is expected to lead the Sri Lankan team to the UPR sounded sheepishly confident when he said the “UPR is a constructive engagement of countries, both members and non members of the Human Rights Council. It’s a peer review, whereas the resolution process is more a political one,” hoping the UPR is going to be a breeze for Sri Lanka.
No country must seek to undermine the objectives of the UPR mechanism, the high point of the changes to the old ineffective Human Rights Commission that necessitated the creation of the new Human Rights Council, the stated principles and goals of which are laid out by the OHCHR website which reminds “States of their responsibility to fully respect and implement all human rights and fundamental freedoms. The ultimate aim of this new mechanism is to improve the human rights situation in all countries and address human rights violations wherever they occur.”
It is crucially important for a body such as the HRC, with a unique new mechanism to hold to account offending governments to get down to work to complete the review process of Sri Lanka, the country under review and be prepared at its plenary sessions to adopt a final ‘Outcome Report’ which specifically recommends the creation of a more credible international independent inquiry towards ultimately establishing the truth and identifying the perpetrators.
It must get down to work both in the interest of justice for the victims and to finding those responsible for the mass killing of innocent civilians, the numbers of which are hither to unknown and need determination, the urgency borne out by the enormity of the numbers alleged, that may even be far more that 40,000, considering that Bishop Rayappu Joseph still maintains 146,679 people are still un accounted for, the documentary evidence of which he says he has submitted to the LLRC. Sri Lanka is trying debase the Bishop’s allegations by conducting a census which can be manipulated and therefore of little merit.
Will India demonstrate a bias in favour of Sri Lanka – like it did to dilute the final text of the resolution “promoting reconciliation and accountability in Sri Lanka”, at the 19th sessions of the HRC, pushing through an amendment that allowed Sri Lanka to refuse advise or any form of technical assistance with respect to implementing the provisions contained in it? “India worked behind the scenes in toning down the US-sponsored resolution against Sri Lanka at the UN Human Rights Council… ,” reported The Hindustan Times. In other words citing the first draft to be “an intrusion” on Sri Lanka’s sovereignty, India changed the draft making among other, the provision that any advice or technical assistance (under the auspicious of the UN) would be provided “in consultation with and the concurrence of the government of Sri Lanka.” Did we hear it right? Is India repeating Sri Lanka’s rhetoric on sovereignty to fuel the cycle of impunity that prevails in Sri Lanka? Is India preparing for a repeat of its previous performance in this UPR process as it did in the resolution thereby defeating the whole purpose of the UPR? It’s hoped it wont.
The UN hierarchy must right a wrong and salvage its growing reputation that its decisions are more political than humanitarian.
In an article titled “Independent Report on Sri Lanka and United Nations Human Rights Violations” Julian Vigo the author interviews UN workers who were posted in Sri Lanka before they were expelled by the Sri Lankan government who give a damming testimony on Sri Lanka and the United Nations Senior officials and its hierarchy and on how the two colluded and were silent on acts of genocide that were committed. Small sections of the article have been extracted and given here in bullet points:
“Many of these former United Nations workers whom I interviewed state unequivocally that UNICEF maintained its silence during most of the final months of the conflict where the total mortality rate is estimated between 80,000 and 100,000. While some of my sources maintain that remaining silent while witnessing abuses and receiving reports of human rights abuses is not outright collaboration with the government forces, they categorically agree that UNICEF and UNHCR did nothing to speak out and use the power of the General Secretary or the media to denounce these acts. Instead, UNICEF congratulated the Sri Lankan government for its work at the end of the conflict. The inaction of the UNHCR and UNICEF spurred Profeta to resign her position. However Profeta was not alone as she was joined by Grove and five other sources with whom I have spoken many of whom resigned their posts, stating they could not ethically continue working in a capacity which was creating civilian deaths.”
“Every UN staff member whom I interviewed sees various options that the UN could have chosen in order to respond to the human rights abuses rather than remain in silence, the posture that dominated the United Nations in the final months of the conflict. While each UN staff member acknowledges the importance of advocacy within the country, they were unanimous in their beliefs that the United Nations did not do enough and enabled a situation of human rights abuses to include, according to many, genocide.”
· “Of the twelve participants eight questioned if the UN were not complicit with the Sri Lankan government by virtue of its silence the human rights abuses mentioned here and its complicity with the starvation tactics used by the government of those in the Vanni. This is definitely a question which needs to be addressed for there is reason to believe that the UN’s failure to act made it an accomplice in the Sri Lankan government’s human rights abuses and possibly various acts of genocide.”
Julian Vego in her critic of the UN concludes that changes need to be made in the UN: “There seems to be no doubt that changes need to be made within these agencies not to mention within the hierarchy of the United Nations which has demonstrated itself in Sri Lanka as an organisation which makes decisions that are often more political than in the interest of the people it ostensibly serves,” which further validates the need for OHCHR to do its job right.
The onus rests on Navi Pillai and OHCHR to guide the UPR process in the right direction; to feed the right information for a more honest debate at the working group and plenary level for Sri Lanka’s UPR not to become another white wash.
None of the players must try to defuse the otherwise rough edges and give Sri Lanka an easy ride, giving it the luxury of time on the excuse that it needs “time” for delivery on its promises: “time” for political reconciliation; “time” for implementing the LLRC recommendations; “time” for a home grown solution to accountability? In giving it that luxury of time no where is Sri Lanka being compelled to conduct an investigation that would be wide ranging to include top ranking military and political leaders including President Rajapakse.
The UPR must serve its purpose. War Crimes – the unsolved Mass killing and human rights abuses that took place in Sri Lanka which the UN workers themselves say, “are acts of Genocide”, orchestrated and accomplished by the Rajapakse regime whilst the UN was turning its back, will hang like a millstone round the UN’s, India’s, HRC’s and the General Assembly’s neck if Sri Lanka’s UPR does not result in anything tangible leading to an independent, international investigation.
– Usha S Sri-Skanda-Rajah