Council battle over ‘hybrid’ vs ‘credible domestic’
Lanka close to consensus in Geneva
outcome of the early stages of the 30th session of the UN Human Rights
Council in Geneva, Switzerland, can only be construed as a pyrrhic
victory for Sri Lanka after its diplomatic cadre had waged an arduous
battle at the Council over the past five years.
It all began on the eve of May 27, 2009, when the 11th session of the
UNHRC adopted a resolution on assistance to Sri Lanka in the promotion
and protection of human rights in which the Council urged the Government
to continue strengthening its activities to ensure that there was no
discrimination against ethnic minorities in the enjoyment of the full
range of human rights.
The Council also commended the measures taken by the Government to
address the urgent needs of the internally displaced persons. At the
time the resolution was passed, Dr. Dayan Jayatilleke, who is now a key
ideologue of the ultra-nationalist, pro-Rajapaksa camp, was up front at
the Council session as Sri Lanka’s Permanent Representative to Geneva.
In the resolution, which was adopted by a vote of 29 in favour, 12
against and six abstentions, the Council urged the international
community to cooperate with the Government of Sri Lanka in the
reconstruction efforts, by increasing financial assistance, including
Official Development Assistance, to help the country fight poverty and
underdevelopment and continue to ensure the promotion and protection of
human rights for all, including economic, social and cultural rights.
Sri Lanka, speaking at the session as the concerned country, said the
Special Session had been canvassed for several weeks because they wanted
to address the situation of civilians who had been trapped by
That situation had been transformed totally and radically. There were
no longer any civilians trapped in the crossfire in a conflict zone. It
was argued, therefore, no rationale for this Special Session with a
regular session just a few days away. That resolution was not a blank
cheque for the Government of Sri Lanka.
After that Geneva session, however, the Sri Lankan government, led by
former President Mahinda Rajapaksa, had no qualms about backsliding on
its assurances and commitments to the international community. No action
was taken in the direction of meaningful reconciliation and a sense of
pique prevailed among different ethnic and religious communities in the
country due to the influence of some extremist elements partly backed by
At the same time, India was exerting pressure on the government as
former President Rajapaksa promised a ‘13th Amendment Plus’ solution to
the North and the East problem during the discussions he had with high
profile officials of the Indian government. Moreover, Rajapaksa promised
UN Secretary General Ban ki Moon a few days after the end of war that he
would conduct a probe internally to ascertain whether war crimes had
been committed during the final stages of the war.
The domestic inquiry, promised by the Rajapaksas, never saw the light
of day and as a result, the international community, especially the UN,
became utterly disappointed over the conduct of the Sri Lankan
Resolution after resolution was presented against the Sri Lankan
government at the UNHRC sessions calling for accountability and measures
towards reconciliation. Their main demand for the Sri Lankan government
was to implement the recommendations of the Lessons Learnt and
Reconciliation Commission (LLRC), a body appointed by former President
Mahinda Rajapaksa. But no progress was made by the Sri Lankan government
and this inaction plunged the country into a precarious situation.
Sri Lanka lost support of a sizable proportion of Western nations and
there were possibilities of travel bans and economic sanctions. It was
against this backdrop that the Office of the High Commissioner for Human
Rights (OHCHR) was entrusted with the task of preparing a report on
alleged war crimes on Sri Lanka to be presented at the March session of
There were strong indications from the very outset that the OHCHR
report on Sri Lanka would be a damning one as the previous government
refused to cooperate with the international community on the
reconciliation and accountability front. The first version of the
report, which was prepared to be presented to the March session of the
council, was a severe indictment on the Sri Lankan government and it
highlighted specific instances where international humanitarian laws
were violated during the final phase of the war in Sri Lanka.
There was strong speculation that the report would contain a list of
42 political leaders and military bigwigs as those responsible for war
In fact, President Sirisena, through diplomatic channels, got to know
some of the draft content of the OHCHR war crimes report. When he
addressed a UPFA group meeting a few weeks before the Parliamentary
election, he told his MPs that serious challenges would arise on the war
crimes front as a list of names had been included in the report. On the
other hand, former President Rajapaksa, eager to come back to power,
raged during election meetings that his name had been included in the
list knowing that it would pander to chauvinistic sentiments among some
sections of his electorate.
However, the report that was presented to the 30th session of the
UNHRC session was a watered down one. It was ‘watered down’ as the
international community was satisfied with certain measures adopted by
the new government over the past nine months to bring about national
No blank cheque
But, that does not in any way mean that the OHCHR has given a blank
cheque for Sri Lanka in its future steps towards national reconciliation
and accountability. The core message sent out to the Sri Lankan
government by the UNHRC is that Sri Lanka will not be able to move away
from the international scrutiny in its future endeavours in this regard.
That is a reality that the Sri Lankan government will have to live with
at least for another 18 months.
Although the UN OHCHR, launching the OHCHR war crimes report on Sri
Lanka, called for a hybrid judicial mechanism to investigate alleged war
crimes during the final phase of war, the Report has yet to be
considered and accepted by the Human Rights Council now in session. It
is the Council resolution, when adopted, that will indicate the path Sri
Lanka should take.
There is still room for negotiations and Sri Lanka still has the
opportunity to garner the support of the UNHRC member nations for a
credible domestic mechanism that has a specific timeframe.
The Human Rights High Commissioner’s recommendation for a ‘hybrid’
judicial mechanism became a hot topic among political circles in Colombo
over the past few days. Two mainstream political parties, the UNP and
the SLFP, greeted the recommendation with mixed reactions as they knew
the inclusion of international judges in local probe would result in a
On the other hand, the Tamil National Alliance, the largest Tamil
party in the country, was in favour of the OHCHR’s ‘hybrid’
recommendation as they said it was a step in the direction of an
impartial investigation. In fact, TNA Parliamentarian M.A. Sumanthiran,
who is presently in Geneva, held a separate discussion in this regard
with the High Commissioner on Thursday, on the sidelines of the 30th
session of the council.
At the same time, some minor political groups attempted to paint a
flawed picture about the whole inquiry process, dubbing it as a move to
betray “war heroes” who crushed the LTTE militarily in 2009. UPFA
Parliamentarian and Leader of the Pivithuru Hela Urumaya party, Udaya
Gammanpila, said he would push for an Indemnity Bill in Parliament as a
Private Member’s Bill to protect whom he termed as ‘war heroes’. On the
other hand, ultra-nationalist political activist and writer, Dr.
Gunadasa Amarasekera, a close ally of Wimal Weerawansa, claimed that had
the government been tied down to an international inquiry, both China
and Russia would have ‘rescued’ Sri Lanka at the UN Security Council.
“By agreeing to a local inquiry,” these activists claimed, “the
government has trapped security forces in a mire of some sort.”
It was crystal clear that these opposition elements were deliberately
turning a blind eye to the negative consequences of an Indemnity Act at
this juncture – such a move would imply an acknowledgment of ‘crimes’
even before they have been proven! At the same time, the argument about
Russian and Chinese support at the Security Council, does not hold water
because them UN Geneva process is not linked to the Security Council.
Speaking to the Sri Lankan media a day after the release of the OHCHR
report, Foreign Minister Mangala Samaraweera unveiled Sri Lanka’s plans
for a four-tier domestic investigation.
The Sri Lankan Foreign Minister, who led the Sri Lankan delegation to
Geneva last week, said the domestic mechanism will be implemented within
18 months, after finalizing it in January, 2016.
The four tiers mentioned by the Foreign Minister are: a Commission
for Truth, Justice, Reconciliation and Non-recurrence comprising a
‘Compassionate Council’ composed of religious dignitaries from all major
religions in the country and, a body of Commissioners; an Office on
Missing Persons based on the principle of the families’ right to know
about their kin to be set up with expertise from the ICRC; and, a
Judicial mechanism with a Special Counsel that would be empowered to
take criminal action.
The Foreign Minister also said Sri Lanka planned to have the
consultation processes on the domestic inquiry mechanism under way by
the second week of October. The consultations are scheduled to conclude
by the end of January to facilitate the establishment of the proposed
At the same press conference, Samaraweera expressed confidence that
the majority of UNHRC member nations would support Sri Lanka’s stance on
a domestic inquiry mechanism, accepting the framework presented by the
Sri Lankan government.
Referring to the ongoing UNHRC sessions, Samaraweera said it was
likely that a joint statement supported by an overwhelming majority of
countries will be presented backing Sri Lanka’s proposals and rationale,
at the end of the sessions. It will come as a consensus resolution
supporting a credible domestic inquiry by the Sri Lankan government.
Sri Lanka’s position with regard to the ‘domestic inquiry’ concept
was clarified by President Maithripala Sirisena, Prime Minister Ranil
Wickremesinghe and Justice Minister Wijeyadasa Rajapakshe when they
addressed heads of national news media at President’s House on Friday
“Initially it was Mahinda Rajapaksa who agreed to a domestic inquiry
when the United Nations Secretary General Ban ki Moon visited Sri Lanka
a few days after the end of Eelam war. The resolution worked out by
Dayan Jayatilleke, our permanent representative in Geneva at the time,
bound Sri Lanka to such a probe and he managed to obtain a resolution in
favour of that,” Minister Rajapakshe explained.
“ The present UN report is a softer one owing to the efforts of the
present government. Soon after the January 8 victory we took steps to
redress the grievances of the people in the North and the East who
suffered as a result of the long-drawn conflict. We set up a
Presidential Task Force under the stewardship of former President
Chandrika Bandaranaike Kumaratunga and an office for reconciliation. If
we had not won on January 8, the country would have faced a grave
situation,” the President added.
“The best government to resolve this issue is a government without
Mahinda Rajapaksa. If he had been there, matters would have dragged on
into a worse situation.
There are some anti-social elements who are trying to disrupt the
prevailing peaceful situation in the country. They are trying to make
mileage out of the present situation,” he argued. He appealed to the
State and private media to be circumspect in their reportage of the
Geneva process, so as not arouse emotions.
“Our stand is to have a domestic inquiry. And we have to think how we
should formulate it. There were two options: one was to have an
international inquiry or to hold a domestic inquiry.
We have to take one of the two. We can’t avoid this situation. If we
try to do that, we can’t face the United Nations. Our stand is to have a
domestic inquiry,” the President said, explaining the government’s
position on the matter.
Prime Minister Ranil Wickremesinghe, who sat alongside President
Maithripala Sirisena at Friday’s media interaction, said the government
wished to hold discussions with other political parties with regard to
the domestic mechanism. That process, he said, would follow the release
of the Maxwell Paranagama and Udalagama commissions of inquiry reports.
This column, last week, exclusively revealed that reports of Maxwell
Paranagama and Udalagama commissions will be tabled in Parliament to
coincide with the UNHRC session in Gemeva.
The Paranagama Commission report was handed over to President
Maithripala Sirisena by its chairman, Maxwell Paranagama, a retired High
Court judge, three weeks ago and, it mainly deals with issues related to
violations of international humanitarian law or ‘war crimes’ allegedly
committed by both parties and the recommendations to prevent a
repetition. Awaited is the report of the commission headed by retired
Justice Nissanka Udalagama which probed the killings of 17 NGO workers
just months before the commencement of the final phase of the military
offensive against the LTTE.
“More than anything, the two commission reports will prove that the
domestic mechanisms of the country are able to deal with complicated and
sensitive issues such as war crimes, human rights violations and
international humanitarian law violations. They will, in all likelihood,
be presented to Parliament during the last week of September before the
conclusion of the 30th session of the UNHRC. They will restore the
international community’s faith in domestic mechanisms. That will, in
return, result in a major shift in their opinion,” a top level
government spokesman told the Sunday Observer on Friday.
However, it is unrealistic to believe that the Sri Lankan government
will be able to conduct the domestic investigation without the support
of its international stakeholders. An important signal in this regard
was given by Samaraweera when he addressed the opening day of the 30th
session of the UNHRC session where he said the local mechanisms would be
evolved and designed through a wide process of consultations involving
all stakeholders, including victims. Moreover, each mechanism is
envisaged to have the freedom to obtain assistance, financial, material
and technical, from Sri Lanka’s international partners including the UN
Sri Lanka’s response to the OHCHR Report was commended by UN
Secretary General Ban Ki Moon who said he was “encouraged by the
response of, and commitment expressed by, the government of Sri Lanka
and the Opposition to consult widely with all stakeholders and take
meaningful action to address these issues.”
The UN Secretary General’s statement was a key indication that the
international community was moving towards a consensus on Sri Lanka’s
domestic inquiry mechanism. The UN Secretary General also said he hoped
the Report’s recommendations would support the government’s efforts in
“a genuine and credible process of accountability and reconciliation
that meets international standards”.
“The victims of all communities, their families and the Sri Lankan
nation itself demand no less than a full and proper reckoning,” he also
The majority of international human rights organizations commended
the recommendations of the OHCHR report, stating the government should
fully cooperate in implementation. However, there are certain
international NGOs which continue to advocate for some level of
international participation in Sri Lanka’s human rights investigation
and accountability process. Among them is the International Crisis Group
which has suggested certain areas that the UNHRC members should focus on
when adopting a resolution on Sri Lanka.
The International Crisis Group said, Human Rights Council members
should seek consensus on a new resolution that:
endorses a Sri Lankan government commitment to make the legal reforms
needed to effectively prosecute international crimes, including by
incorporating war crimes, crimes against humanity and command
responsibility into domestic law;
endorses reforms and confidence-building measures promised in the Sri
Lankan Foreign Minister’s September14 speech, as well as a commitment to
immediately cease all harassment of victims and activists by security
forces; mandates significant international participation in all stages
of the domestic accountability processes as recommended by the OHCHR
report: investigation, prosecution, trials and appeals, protection of
witness and victims and preservation of evidence; establishes a
well-resourced and staffed OHCHR office in Colombo to support, in
coordination with the UN Special Rapporteur on Truth and Justice, the
government’s promised public consultation process and to advise on the
implementation of the government’s package of transitional justice
mechanisms; and mandates formal Council review of the implementation and
effectiveness of all domestic truth, reconciliation and accountability
mechanisms in September 2016 and 2017, in addition to reporting by the
High Commissioner in March 2016 on the government’s initial actions.
All these signs prove that the UN Human Rights Council’s stance, over
the next two weeks, will shift from a ‘hybrid court’ system to that of a
‘credible domestic mechanism’ that has active engagement with