War violations probe is Sri Lanka's decision

Says Prince Zeid who believes victims on all sides must have faith in mechanism :

Prince Zeid Ra'ad Al Hussein, United Nations High Commissioner for Human Rights, may have been relieved that the kind of Sri Lankan hospitality that his delegation received during his visit here last week was quite unlike the abusive 'welcome' extended by some pro-government activist groups and ministers of the previous government when his predecessor, Ms. Navi Pillay, visited Sri Lanka. Indeed, at the press briefing in Colombo at the end of his visit, Prince Zeid remarked on it. Interestingly, the demonstration outside the gates of the UN compound in Colombo, the venue of his media briefing, was not by a group against the UN delegation but a group of Sri Lankans who wanted to meet the delegation and share their human rights issues. In an interview with the Sunday Observer (also telecast on Rupavahini TV), the UN Human Rights chief addressed the thorny issue of a 'hybrid court' and explained that the Geneva Resolution did not stipulate any such requirement but only made recommendations.

by Lakshman Gunasekara

Q. How satisfied are you as the United Nations monitor of the Sri Lankan process on the progress so far - is Sri Lanka adequately on track to implement the recommendations of the UN Human Rights Council Resolution?

A. There has been progress. But, I think that everyone will say - and I think even the Government would say - that there has not been positive change at the rate that people would like. There are a variety of reasons : some of which has to do simply with time.

The Government has only had its current parliamentary majority for the last few months. And it has been attempting to move these issues forward in a very difficult political climate. What has happened of course - and I think that all Sri Lankans feel this - is that there has been a change and so the expectations have been high as to where this change ought to lead. And because time is required until we can see all the pieces coming together, the frustrations are growing.

Q. A major issue, which has a lot of worries in Sri Lanka, is the so-called 'war crimes' investigation. I note that in your press conference just now, you clarified that the UN is not using the term 'war crime' to describe the Sri Lankan situation. How far do you think that that particular inquiry process has gone here? Do you see that the Government is taking concrete steps in evolving a mechanism for such investigation and prosecution? And is there a compulsion or fixed requirement - formally and legally in terms of international law - on the part of the government under the Geneva Resolution, to meet certain stipulations in the Resolution for international participation in this inquiry and prosecution mechanism?

A. The Resolution adopted by the Human Rights Council is a reflection of Sri Lanka's position more generally to look back at its past, to examine its past, as a means of opening a new chapter for the future based on reconciliation, mutual respect and harmony. Then the international community can fully embrace Sri Lanka and the economy of Sri Lanka can be given an enormous boost.

In terms of the early steps being taken here, well, there is thinking being done. Certainly it has to be merged together because there has to be a consultative process with all the victims' communities.

And out of that, I hope that there will be an examination of the evidence that we have put together but also what is available to the Sri Lankan government and then see where deeper investigations merit and perhaps prosecutions at a later stage. We are at the very early stages of this.

The important thing is that the State is moving in the right direction. And, however, slow it may seem and frustrating to many, I think that it is recognised that there is a difference between Sri Lanka in 2015 and Sri Lanka of only a few years ago.

Q. Does that mean the nature and degree of international participation by judicial or forensic experts, is dependent entirely upon Sri Lanka's internal deliberations and consensus or is there a fixed bottom line stipulated by the Resolution?

A. The recommendation is that Sri Lanka ought to consider international participation.

And the belief is that the victims' communities - and we have said this in our report - will likely not agree on anything else. Ultimately, it is a decision for the Sri Lankan government to take - in discussions that it will undertake with all communities.

So, the recommendation from us still remains the same. The position of the Sri Lankan government has been articulated. But clearly there is a consultative process that must take place; discussions must take place; and then the right steps taken.

We feel that, if decades of impunity are reversed, and Sri Lanka does take the courageous steps to confront its past as the President has said it would do, we feel that Sri Lanka could really set an example for many other countries who similarly have been through conflicts or, are in a post-conflict phase, and are grappling with these particular questions.

And, I can tell you that the reception to the singing of the national anthem in the two languages was such that it was very warm. I think that all of Sri Lanka's friends in the international community would, if they have not already done so, applaud this gesture.

Q. To understand the Geneva implementing parameters more simply: would you say that, in the internal consultative process of designing the investigative mechanism, if, among the bulk of the actors, including the victims, there is a kind of consensus and agreement on this, then, a largely localised mechanism is feasible?

A. It is all up to what the victims should decide. For anyone who has a lost a family member in the conflict on any side, if they feel that in the end there is a mechanism or apparatus that is impartial and discharging its functions and they have confidence in that then I think all of us will feel that this is a mechanism that will work and work for the benefit of all Sri Lankans.

Q. If we look at the charges of gross human rights violations - and there are enough reports of atrocities - very often, simplistically, people think that the armed forces must be held accountable for this. But the armed forces are ultimately the tool of the State, the political leadership. To what degree does the envisaged UN process bring into bearing the political leadership of the country who ultimately take the responsibility in directing the armed forces? How much should the weight of the accusations lie there?

A. The UN report examined gross human rights violations and we believe, by going through the evidence available, that there was reason to believe that it merited further investigation and, that, quite possibly it met the threshold of international crimes.

In other words, there was sufficient organisation and planning. It is up to a criminal investigation to make the determinations on individual responsibility.

So the investigations we made were basically human rights investigations. We don't go into the actions of individuals. A criminal investigation will look at individual criminal responsibility and, will be in a position, at a later stage, to answer the very question that you have raised as to what level will it reach and, who is ultimately considered to be responsible. So we are not there yet. The important thing though, is that there is determination to end the overall culture of impunity.

Q. You disclosed in your press conference earlier that you had also met a victim of rape by the armed forces in an incident that goes back many decades to a previous episode of insurgency and counter-insurgency about which complaints have been made to the UN Human Rights Council. Does this mean that in addition to your gesture of sympathy, there is an openness to violations of human rights going further back?

A. The mandate that I have is not time-bound. We look at violations throughout the world that can go back in historical terms as well.

The point that I made in meeting this lady is that her personal experience is so real and so immediate for her. It would suggest that once Sri Lanka starts to engage with its past - however difficult some of it is going to be - those people who have long been waiting for answers will have them honoured and there will be some relief and justice.

Q. With regard to the reconciliation process: have you looked at the political processes also under way for constitutional reform that will also address the larger issue of settling the ethnic conflict? Is that part of your mandate?

A. Some of the gestures of reconciliation such as the singing of the national anthem in two languages - I hope that these are not just a passing thing and will become permanent.

We did not really go in to this in any detail because we are a human rights office and there are other bodies in the UN family that deal more with such political matters. But we did have a brief discussion and I listened very carefully, but I am not privy to the details of negotiations that may ensue.