UN-Geneva and a human rights probe :

A Sri Lankan solution for Sri Lanka's future

by Jehan Perera

The initial public reaction to the UN war crimes report has been muted. When the government asked for a postponement of the release of the report, which was originally scheduled to be released in March of this year, it was because it feared that the political storm it might kick up would be injurious to its electoral prospects at the general elections held in August. The response within the country to the publication of the predecessor UN report on war crimes published in 2011 (the Darusman Report) was highly nationalist. It was attacked by the then government and its leaders from the day it appeared.

The former government and media made it appear that the publication of the Darusman report was a national catastrophe and the people needed to unite behind the government to tackle this threat from the international community.

By way of contrast, and for the time being, the media coverage of the latest UN Report on the country has been largely factual and without an overt display of nationalist passion and emotion that might have been expected. There has been a summary and description of the contents of the report that would educate the general public rather than mobilize them to political action. Initial comments by government leaders and political commentators indicate that there is a sense that the report is not as bad or one-sided as was expected.

President Maithripala Sirisena has said that the UN report is a thousand times less damaging than was expected. He has also claimed the political credit for this saying it is due to the improved international image of the country, and the confidence that the international community had in the government due to its measures it had taken to alleviate the sufferings of the Tamil people, including returning of land.

Likewise Prime Minister Ranil Wickremesinghe has pointed out that the much anticipated naming and shaming of Sri Lanka's political and military leaders did not happen due to the new government's effort. Previously there was a strong rumour that over 40 such persons would be named and shamed. This rumour was floated prior to the general election in August.

Instead several LTTE leaders have been named, but most of them are not alive. Sections of the report also detail the serious nature of the violations committed by the LTTE, not least its unprecedented action of taking over 300,000 civilians hostage and holding them as human shields and shooting those who sought to flee the last battles that were taking place in their midst.

Sober approach

If the former government had permitted the UN investigative team to visit Sri Lanka, they would have been able to get a more rounded view of what had happened in the country from those who had suffered at the hands of the LTTE. Due to the former government's refusal to permit the UN team to visit Sri Lanka, most of the information they could collect came from outside Sri Lanka, and from the Tamil Diaspora and international organizations.

The most encouraging feature of the present time is the rational attitude being taken by the present government to the contentious issues of the war's last phase. Their confidence that they can deal with the issues of the past is manifested in their pronouncements that the latest UN report is fairer and more balanced than could have been anticipated.

The government's sober approach appears to have induced a similar sober approach on the part of the general population to the issue of possible war crimes of the past. As a result the space has opened up for rational dialogue within the country as to what needs to be done to heal the past wounds and unite to face the challenges of the future.

There is agreement that the past needs to be investigated, and the only question is by whom it should be investigated. There is today a convergence of mind on the part of most people that the truth of the past being ascertained is better for the wellbeing of the country than being worse. Accordingly the political opposition to the government has been unable to generate immediate resistance to the government's proposals for the dealing with the past.

Foreign Minister Mangala Samaraweera addressing the UNHRC in Geneva laid down the parameters of the government's plan for the future in terms of dealing with these immediate issues and set out a four part structure:"The ideas that the Government has evolved for setting up independent, credible and empowered mechanisms for truth seeking, justice, reparations and guarantees of non-recurrence within the framework of the Constitution include the following:

-For truth seeking, the establishment by statute, of two mechanisms:

(i) a Commission for Truth, Justice, Reconciliation and Non-recurrence to be evolved in consultation with the relevant authorities of South Africa. This mechanism is envisaged as having a dual structure: a 'Compassionate Council' composed of religious dignitaries from all major religions in the country and a structure composed of Commissioners.

(ii) an Office on Missing Persons based on the principle of the families' right to know, to be set up by statute with expertise from the ICRC, and in line with internationally accepted standards.

-On the Right to Justice, what is being proposed is for a Judicial Mechanism with a Special Counsel to be set up by Statute.

-On the Right to Reparations, an Office for Reparations to be set up by statute to facilitate the implementation of recommendations relating to reparations made by the proposed Commission on Truth, Justice, Reconciliation and Non-recurrence, the Office of the Missing Persons, the LLRC and any other entity."

Greater need

The government has developed a complex and well thought out mechanism that will be led by Sri Lankans although it will be supported by the international community. However, the Tamil political movement in Sri Lanka and in the Diaspora is virtually unanimous that the follow up to the report of the UN investigative team should also be an international mechanism. They have expressed their rejection of a domestic or Sri Lankan mechanism. Their experience is that the latter mechanisms have never yielded a positive result.

Therefore winning the acceptance of the Tamil political movement for the Sri Lankan-led mechanisms envisaged by the government is going to prove to be very difficult. The UN report itself calls for greater international involvement through participation by international judges and investigators in uncovering Sri Lanka's past and in passing judgments on it. The greater need is for the government to discuss its plans with the Tamil people and their representatives and obtain their consent for it. The UN Secretary General, Ban ki-Moon, has welcomed the commitment of the Sri Lankan government to consult all stakeholders in designing the mechanisms to address the issues of the past.

The most important challenge for the future in terms of problem solving and healing the past will be to strengthen an introspective perspective that builds empathy for 'the other' rather than to engage in fault-finding of the other and to gloss over the contribution of one's own side to the conflict. The civil society and religious clergy who are closest to the ethos of the people and play the role of counselors, guides and educators need to be empowered by the government in their role to bring the community together.

In doing this they also need to be made more fully aware of the issues arising from the past, and the different options for truth, justice and reconciliation that are available internationally to address them within the framework of the government's proposed mechanism for truth, justice, reconciliation and non-recurrence.

So far the government has not given a clear answer to the proposal in the UN report for a hybrid court. It will be difficult for the government to accept this recommendation to have international judges, lawyers, prosecutors and investigators involved in a hybrid court to be specially established.

Investigative mechanism

Prime Minister Wickremesinghe has said that the appointment of the proposed investigative mechanism would be the prerogative of the Sri Lankan government. The task of any national government is to ensure that its systems are strong enough to look after governance in the country. If they are not strong, they need to be strengthened with internal capacity building.

Getting international personnel to be decision makers within its structures of governance will expose the government to political criticism that it is abdicating its responsibilities. The hybrid mechanism urged by the UN gives an appearance of imposition that can generate resistance simply on the grounds that it is externally imposed.

The previous decade saw the power of ethnic nationalism demonstrated time and again at elections. Now that it is on the wane, it would be politically unwise to permit the defeated ethno-populist politicians to stage a comeback using the UN report and its perceived threat to national sovereignty.

The previous government was taking the country on a destructive course of increased ethnic and religious polarization, and was breaking down institutions of governance through the over-centralisation of power.

The change of regime needs to be protected by the people of Sri Lanka and by the international community by strengthening the capacity of the Sirisena-Wickremesinghe government to perform its tasks to the required standards and, in the longer term, to work towards a political solution in which the ethnic minorities see themselves as equal and empowered citizens of a united country.