UNOHCHR Report calls for justice and accountability

by Manjula Fernando

Action against LTTE financiers and other international operatives will be an integral part of the criminal investigation recommended in the OHCHR Report. The OHCHR Special Spokesperson, Ravina Shamdasani called upon everyone in Sri Lanka should study the Report in depth. "This is a Report for the people of Sri Lanka. We want the people to understand the findings, understand the analysis and in that context to look at the recommendations" .

Special Spokesperson for the Office of the UN Human Rights High Commissioner, Ravina Shamdasani.  Pic by Manjula Fernando

The Special Spokesperson for the Office of the UN Human Rights High Commissioner, Ravina Shamdasani, said action against LTTE financiers and other international operatives will be an integral part of the criminal investigation that the High Commissioner had proposed through the recommended Special Hybrid Court.

Shamdasani was in Colombo during the release of the Report of the High Commissioner on Sri Lanka and the Sunday Observer met her at the UN compound, the day the report was made public in Geneva.

Excerpts of the interview,

Q: Can the consensus resolution by the US override the recommendations of the Human Rights High Commissioner ? Can they ask members of the Council to support a domestic mechanism to probe allegations of war crimes in place of a Hybrid Special Court?

A:It was the Human Rights Council and the States, which mandated this investigation. They asked us to investigate serious allegations of human rights and to continue to monitor the situation including the justice and accountability process. This is what we have done.

On the basis of our findings, the High Commissioner has made recommendations which suit the findings as well as the current situation in Sri Lanka. These have been independently considered and we hope the States will agree with us and will move forward in keeping with the High Commissioner's recommendations.

Q: The High Commissioner has recognised that there have been violations perpetrated by the LTTE as well as the paramilitary forces. Will there be any action against those people?

A:Absolutely, we are calling for justice and accountability on all sides no matter, who the perpetrators are regardless of their positions in society and government . We have documented violations by both sides- the LTTE, paramilitary groups and the government.

The report talks about serious violations, these are not new to Sri Lanka, they are described in detail in the Report. Children being forcefully recruited on their way to school, being snatched away from their parents and assassinations are some of the most shocking findings. There are also allegations of sexual violence and torture - about rooms set up in detention centres that are designated for the use of torture. Special instruments that were created to conduct sexual torture on people.

We are asking for accountability on all sides. It doesn't matter what the political affiliation is.

Q: In a situation where most of the LTTE leaders who perpetrated alleged war crimes have perished in the final battles, will there be action against the LTTE international financiers, etc ?

A:Yes, in some cases the quest for justice and accountability have been hampered because many of the LTTE leadership are either dead or have disappeared at the end of the conflict. That does seriously hamper and infringes on the victim's right to justice. But having said that, there was a case recently in the Hague where fund-raisers for the LTTE were found guilty, their crimes, even though it was fund-raising, were associated with war crimes.

There's a lot that can be done. If you are looking at a systemic approach to justice rather than just looking for individual perpetrators who were responsible for individual violation.

You go through the structure and tackle the financiers, the commanders, the people who created the policies which were designed to commit violations of international human rights and humanitarian law.

Because this is such a complex process, we think it is important for it to have an international component, the Sri Lankan justice system has not in the past handled crimes of an international nature.

Q: With regard to the state actors, will there be action against the political leadership also ?

A:The command responsibility will extend to people who gave orders for a certain policy to be carried out which would violate international laws, it's not limited to just military operatives, it could be political operatives as well.

Q: People expected names to be listed in the Report. Why did it fall short of that?

No it did not fall short, in fact this was meant to be a human rights investigation, not a criminal investigation, we should be the first to respect human rights of all, the presumption of innocence is there.

So we could not attribute individual criminal responsibility to a named person in this Report. But there is evidence here which can be used to initiate proper criminal investigation, proper prosecutorial investigations, cross examination of witnesses and all of that.

Q: Will these cases be referred to the ICC at any point ?

A:As I said, the High Commissioner's recommendations are based on the findings of the Report as well as the current context, and given all of that, he decided the best way forward at this point in time, is the creation of the hybrid special court.

So this is where we stand right now. Sri Lanka is at a point where, there's a lot of hope and we are also encouraged by the signs that we are seeing with the new government, and we would like everyone to seize this opportunity, to seize this momentum and take it forward so that we don't need to talk about what further measures would be taken if there is no compliance, if there is lack of progress on this, Let's not even talk about that, let's focus on the hopeful situation that we are in right now. And build on that momentum.

Q: Now that the High Commissioner's Report is public, what will be the next sequence of steps?

A:The report was released today, it was shared with the government a few days in advance. But of course we need to give them time to really study the recommendations. Their first response has been a positive one, a one of engagement.

First of all we are calling everyone in Sri Lanka, irrespective of their ethnic background and political affiliations, to study this Report in depth. This is a Report for the people of Sri Lanka. We want the people to understand the findings, understand the analysis and on that context to look at the recommendations.

The next step following that would be implementation of the recommendations. This is really a call for speedy action, to conduct the reforms that are necessary - be it legal reforms, institutional reforms - and establishment of this court, the truth seeking and truth telling mechanism. The implementation should be done properly in consultation with the people who are most affected by it.

The victims on all sides of the conflict need to be involved in the design of the mechanisms because then they will have ownership over it, they will have faith in the process and they will speak. Then you are talking about true justice and accountability.

Q: Are we talking about a panel of judges, sitting and inviting people to come and testify and put together another report or is it going to be a criminal investigation?

A:The next step should be a criminal investigation to establish individual criminal responsibility at all levels including through the command structure as well. On the exact design of the mechanism as I said is a matter that needs to be sorted out through consultation. So we've made a broad recommendation saying what we think is indispensable, that there needs to be a special court integrating international judges, prosecutors and investigators. The exact details will have to be worked out in consultation with all the stake holders.

Q: What will be the sort of punishment meted out to those found guilty, will it involve prison terms, etc?

A:There are many different models that had been used for the commission of serious international crime, like war crimes and crimes against humanity.

There has to be proper judicial process and results of that need to be based on rule of law, so yes prison terms, etc. But parallel to that there also needs to be a truth seeking and a reconciliation process.

Q: The imprisonments, if at all will be in Sri Lanka, is it?

Then again it has to be decided in the future.

Q: Has the OHCHR verified the profiles of the victims and witnesses who were involved in the investigation because there are claims that some of those people were stage managed ?

A:We are experienced at conducting such investigations, we have done investigations with or without the cooperation of the government in different parts of the world. And we have a very stringent methodology, where we have somebody making an allegation, a lot of allegations were made that did not make it to this report, because we were unable to verify them.

Whatever details are in the report, have been corroborated. Unfortunately, we did not have access to the country. We received, I think 3000 written submissions and we had access to unpublished reports, both government and others. We had access to satellite imagery to photographs and we got forensic specialists to look at the photos and videos to analyse them for us. And we also conducted interviews. So whatever victims and witnesses claim has to be corroborated and backed. And that's the information that you find in the report.

Q: Do you think the US resolution on Lanka, which initially proposed to support a domestic inquiry by the Sri Lankan government on outstanding accountability issues will now have a different approach ?

We very much hope so. We hope that they will understand the High Commissioner's recommendations are based on findings of fact, and legal analysis and good understanding of the current context, so we hope that will be recognized and that these recommendations be fully endorsed.

Q: The UN Human Rights High Commissioner has proposed to set up a permanent Human Rights office in Colombo. What will be the role of this office ?

One of the recommendations in the High Commissioner's Report is that the Sri Lankan Government invite the OHCHR to set up an office here, that's quite an important recommendation, because where ever we are present, in different parts of the world our presence on the ground really makes a difference. We are able to advise, on issues, law reforms, institutional reforms, all of this with the government's engagement and support.

We are also able to conduct training, for example for the police on how to make sure that their interrogation methods are in line with human rights laws and not use torture and give practical tools on how to avoid that. So there is a lot that can be achieved.