Council battle over ‘hybrid’ vs ‘credible domestic’ probe :

Lanka close to consensus in Geneva

The 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.

Backsliding

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 terrorists.

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 the Government.

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 government.

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 the UNHRC.

Watered down

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 crimes.

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 reconciliation.

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.

‘Hybrid’ debate

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 complicated situation.

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.

Consensus resolution

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 mechanisms.

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 afternoon.

“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.

Shift

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 OHCHR.

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 added.

Crisis Group

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 international stakeholders.