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OHCHR likely to play major role in war crimes probe
It went viral after a UN-based web outlet last Monday reported on the initial draft of a resolution the United States will move on Sri Lanka at the on-going Human Rights Council sessions in Geneva. Local and foreign media reproduced the four-page full text, posted as a cross reference to a report in the Inner City Press in New York. Some mistook the draft to be the final one and claimed it has already been handed over to the Council Secretariat. It is not so. Still in its infancy, the draft resolution was co-sponsored this week by the United Kingdom, Montenegro, Macedonia and Mauritius. More countries are to be added as co-sponsors. They would be both members and non-members of the UNHRC. The resolution itself is to undergo further minor structural changes as the US consults stakeholders who are supporting it, important among them, India. It is only thereafter that the formal resolution will be handed over to the Human Rights Council Secretariat. It will come up for debate on March 26.
Among the key speakers on that day will be Navi Pillay, High Commissioner for Human Rights, Peter Mulrean, Charge’d’ Affaires of the US mission in Geneva and Sri Lanka’s External Affairs Minister G.L. Peiris. The final vote on the latest US resolution will be on March 27. The crux of Monday’s Inner City Press report by its sole operator Matthew Russel Lee was that Samantha Power, US Ambassador to the United Nations, listed to appear at the Palais de Naciones in Geneva on Tuesday, had called off her visit to address the UNHRC. This was whilst speakers from Britain and Canada had already spoken on accountability issues in Sri Lanka the day before, he said. Lee claimed, “But at 4 pm on Monday when the marked up Sri Lanka resolution was tabled, its eight (sic) operative paragraph appeared to simply kick the can down the road again, asking for another update from the High Commissioner for Human Rights — who soon won’t be Navi Pillay anymore. Click here for draft as provided to Inner City Press.”
After a four year stint from September 1, 2008, Pillay won a two year extension of service which expires on August 31. Firstly, Samantha Power did not leave New York for Geneva in view of the developing explosive situation in Ukraine where Russian troops were feared set to move into the Crimean peninsula. Secondly, the formal US resolution has not yet been handed over though some of the speakers had made reference to Sri Lanka. Only the draft is being circulated.
These two aspects notwithstanding, the operative eighth paragraph in the draft resolution, Lee claims, though not correctly, “appeared to kick the can down the road” or simply told “watered down.” Yet, Lee’s report exclusively with the draft resolution included, spread like wild fire in a drought stricken forest. The British-based British Tamil Forum (BTF) screamed last Tuesday that “The insubstantial draft resolution…………has greatly disappointed and shocked the Tamil people, who are the primary victims of the ongoing conflict……. The resolution text effectively calls for more of the same: it requests another update by the Human Rights Commissioner in a year’s time and makes another call on Sri Lanka to launch a credible domestic inquiry — despite the Human Rights Commissioner herself declaring that Sri Lanka has no political will to investigate itself….” Its one-time ally, the Global Tamil Forum (GTF) concurred.
The Tamil National Alliance (TNA) hard-line Provincial Councillor Ananthi Shasheetharan told the Tamilnet website that “the international community has deceived the genocide affected Tamils in delivering international investigations.” She “also blamed TNA national list parliamentarian M.A. Sumanthiran for having instructed her to be silent at a crucial meeting with the representatives of 18 countries during her recent visit to Geneva,” the report said. Sumanthiran said in Colombo that he made the request since her husband late Elilan was a Tiger guerrilla cadre. He wanted to avoid any controversial remarks being made. The pro-Eelam website said quoting unnamed ‘activists’ that “the diaspora Tamils and Tamils of Tamil Nadu should not be carried away by the ‘media discourse’ in Colombo following the latest recommendations of the UN Human Rights High Commissioner Navanetham Pillay…… The latest phrase ‘international inquiry mechanism’ could also imply a process of questioning or fact-finding mission by UN Special Rapporteurs under the human rights regime of the UNHRC, which would only end up adding just another report to the existing piles of UN reports. Tamil lobbyists abroad should not deceive the masses by their misinterpretations of the terminology, the activists said.”
TNA leader Rajavarothayam Sampanthan joined Archbishop Desmond Tutu of South Africa, Yasmin Sooka (a member of the UN Secretary General’s Panel of Experts that probed Sri Lanka) and a group of others on Friday to urge in a statement that the UNHRC should “pass a resolution that will include a commitment to an independent international investigation in the form of a commission of inquiry in Sri Lanka.” Those remarks reflected the mood of the Tamil Diaspora and the TNA, the main political party representing Tamil interests in Sri Lanka. Their anger, as is clear, seemed to range over different reasons. For some, it was over the resolution allowing a domestic inquiry thus conceding more time to the Government, for others over fears that a probe may become “fact finding” and yet others like the TNA, over the need for a Commission of Inquiry.
Addressing the UNHRC's 25th sessions, External Affairs Minister G.L. Peiris rejects the Human Rights High Commissioner's report and her calls for an international probe on war crimes.
Those diverse reactions from Tamil quarters came as Britain’s Foreign Secretary William Hague told the British House of Commons on Tuesday: “The UN High Commissioner for Human Rights has reported that Sri Lanka has failed to ensure independent and credible investigations into past violations of international humanitarian and human rights law. She recommends establishing an independent international inquiry, and as the Minister of State, Foreign and Commonwealth Office, my right Hon. Friend the Member for East Devon (Hugo Swire) made clear yesterday at the Human Rights Council, the UK fully supports that view.”
In Colombo, some senior ministers in the Cabinet were overjoyed that the Government had pulled off a last-minute compromise. One of them named a senior Government personality, who was then abroad, for this ‘achievement.’ Yet others proclaimed there would now be no “international investigation.” This, no doubt, reflected a situation where even ministers were unaware of the exact goings on. There were many ministers who were telephoning the media to find out. In an unusually strong statement, the main opposition United National Party said, “the international action being called for today, is a consequence of the Rajapaksa Government’s paralysis on grave crimes committed in this country.” (See report elsewhere in this newspaper).
In reality, there was no US “backtracking” and no rabbits have been pulled off a hat by any UPFA Government leaders. That is notwithstanding apparent ambiguities in the draft which appear to be expressly tailored to have moderates, particularly India on board. Both Washington and New Delhi appear to have seen eye to eye on some key provisions in the draft. They also want to provide Sri Lanka what is being described in diplomatic circles as a fragile if not unrealistic “window of opportunity.” Such a move could even be a diplomatic entrapment. Yet, the draft fuelled widespread apprehensions that it is weak though it had sufficient teeth to bite hard on Sri Lanka. First to this operative clause (paragraph eight) in the draft:
“Welcomes the High Commissioner’s recommendations and conclusions on the need for an independent and credible international investigation in the absence of a credible national process with tangible results, and requests the Office of the High Commissioner to assess progress toward accountability and reconciliation, to monitor relevant national processes, and to investigate alleged violations and abuses of human rights and related crimes by both parties in Sri Lanka, with input from relevant special procedures mandate holders as appropriate, and to present an oral update to the Human Rights Council at its twenty-seventh session, and a comprehensive report followed by a discussion on the implementation of the present resolution at its twenty-eighth session.”
This operative paragraph expressly calls for an “international investigation” to be conducted by the Office of the High Commissioner for Human Rights with (paragraph 9) “relevant special procedures mandate holders to provide advice and technical assistance on implementing the above mentioned steps.” The Sunday Times (Political Commentary) revealed last week that the US resolution would welcome Human Rights High Commissioner Pillay’s recommendations for an international investigation and explained that the mechanism for the purpose was to be determined. Instead of micro managing the investigative process, the US draft has left it in the hands of the Human Rights Commissioner the choice from three different mechanisms that are in practice – the appointment of a Special Rapporteur or Rapporteurs, a Commission of Inquiry or a panel of independent experts. All three mechanisms come under the purview of the OHCHR. In accordance with the operative clause, the High Commissioner will be required to give an oral briefing to the UNHRC in September 2014 (27th session) and forward a “comprehensive report” at the 28th session in March 2015.
Another clause in the preamble in the same US draft also refers to an international investigation. It says, “Recalling the High Commissioner’s conclusion that national mechanisms have consistently failed to establish the truth and achieve justice and her recommendation that the Human Rights Council establish an international inquiry mechanism to further investigate the alleged violations of international human rights law and international humanitarian law and monitor any domestic accountability processes…”
There are of course some matters in the draft which are unclear, another factor that fuelled speculation over it being weakened. One such case is the scope of the investigation. It is still not clear whether this and any possible time line would be determined by the Council before a resolution is adopted. Another tricky issue is how the investigations could get under way in the absence in Sri Lanka of an Office of the High Commissioner for Human Rights (OHCHR). In the light of Sri Lanka’s rejection of the latest resolution, the Government will not allow Sri Lankan soil to be used. Thus, any international investigation would have to be outside the country and with no concurrence or support from it. It would be the Human Rights Commissioner’s office which would oversee the inquiry and keep Council members briefed in September this year and March next year. Thus, action, if any after the conclusion of an investigation, has to be determined by member countries in line with the Council’s mandate. That would turn out to be a long drawn but yet damaging process.
In her recommendations in the report to the current sessions — revealed exclusively in the Sunday Times (Political Commentary) of February 16 — Pillay called upon the Human Rights Council to “establish an international inquiry mechanism to further investigate the alleged violations of international human rights and humanitarian law and monitor any domestic accountability process.” The OHCHR, she said, stands ready to assist such a process. Pillay noted, “this can no longer be explained as a function of time or technical capacity, but that it is fundamentally a question of political will.”
The ‘window of opportunity’ for Sri Lanka, well informed diplomats in Geneva say, comes in the form of the resolution requiring the Human Rights Commissioner to “monitor any domestic accountability process” and the call to assess progress towards “reconciliation.” In doing so, and reporting to the Human Rights Council, the OHCHR would be empowered to inform the Council if and when Government of Sri Lanka does address issues in accordance with the different US resolutions. Such a carrot and stick move, they say, could enable the Human Rights Commissioner, if their office is satisfied, to express the need to halt or call off an international inquiry. A source added that “it all rests in the hands of the Government of Sri Lanka.” He said that such measures would not only relate to accountability issues but also more importantly to the Government’s reconciliation efforts that could rectify what are being described as “past mistakes.” Yet its practicality remains a critical question. That would mean that the Government would have to take a 360 degree turn, one which is unimaginable. Inevitably all these matters would now come under Human Rights Council scrutiny when the resolution is adopted.
External Affairs Minister Peiris who delivered the country’s national statement at the Council on Wednesday made clear the Government’s official position. He declared that the Government had rejected the impending resolution and the High Commissioner’s Report in its entirety. Thus, the question of a ‘window of opportunity’ does not arise where the Government is concerned. Pointing out that they are “fundamentally flawed,” he added: “These initiatives disregard the substantial progress made by the Government during the five years which have elapsed since the end of the thirty year war against terrorism. They also pay scant regard to the complexities and local nuances of a sensitive reconciliation process, while eroding confidence of the people of Sri Lanka by the constant changing of unjustifiable demands. Moreover, they persist in an attitude which is clearly disproportionate to the circumstances and inconsistent with the treatment of comparable situations. It is much to be regretted that the High Commissioner’s Report and those who exalt its virtues only seek to inflict harm on the reconciliation process by bringing about a polarization of the Sri Lankan society”
Peiris’ response to the call for investigations into alleged war crimes said: “The First Part of the Army Court of Inquiry (COI), investigating allegations on civilian casualties concluded in February 2013. The inquiry concluded that instances of shelling referred to in the LLRC Report were not caused by the Sri Lanka Army and that civilian casualties may have occurred due to unlawful acts by the LTTE. These acts include targeting civilians fleeing to the safety of Army-held areas and likely routes of escape, dropping of artillery rounds fired by ill-trained LTTE gunners on to civilian concentrations. The COI has indicated that further evidence, if presented, will be examined. The Court of Inquiry appointed by the Army is now addressing the second part of their mandate, comprising the Channel 4 allegations, which commenced in March 2013. The identification of potential witnesses is currently in progress and, once identified, they would be formally called as witnesses.”
It is noteworthy that the US draft resolution contains references to two significant matters which have been repeatedly raised by New Delhi with the Sri Lanka Government. Here are the two: (1) “Calling upon the Government of Sri Lanka to fulfil its public commitments, including on the devolution of political authority which is integral to reconciliation and the full enjoyment of human rights by all members of its population.” (2) “Encourages the Government of Sri Lanka to provide the Northern Provincial Council and its Chief Minister with the resources and authority necessary to govern, as required by the 13th Amendment of Sri Lanka’s Constitution.”
An authoritative source said, “This way India is ensuring in a quid pro quo with the US that the commitments given to New Delhi by Colombo with regard to Tamil issues are enshrined in the resolution in exchange for its support.” That way India expects to keep the issues in international focus thus preserving its clout to raise issue at a later occasion. That is particularly in the event of a Government move to veer away from what New Delhi perceives are assurances already given to it. This is particularly with regard to the implementation of the 13th Amendment to the Constitution and related issues as well as the call to the Government to “fulfil its public commitments, including on the devolution of political authority…..” As a consequence of this, the UPFA Government’s previously declared positions on devolution of power including the implementation of the 13th Amendment to the Constitution would come under an indefinite Human Rights Council purview.
The provision in the draft to “monitor relevant national processes” both holds and binds Sri Lanka Government to an indefinite procedural involvement by the UN High Commissioner for Human Rights, when the resolution is adopted. This is more so, when it comes to some bilateral issues with India where the Government thinking is now at variance with that of New Delhi. The Office of the Human Rights Commissioner could ask that the Government of Sri Lanka use the offices of “relevant special procedure mandate holders” or complain thereafter to the Council that its requests were not heeded.
In the light of this, it is not surprising that Indian Prime Minister Manmohan Singh during talks with President Rajapaksa on the sidelines of the BIMSTEC summit in Naypyidav, Myanmar, raised issue over the working of the Northern Provincial Council. These councils are the outcome of the 13th Amendment which India brokered back in 1987. Premier Singh sought to know the relations between the Central Government and the NPC. The move came in the backdrop of the TNA, which holds the majority in the Council, resolving to remove the Northern Province Governor as well as to demand the transfer of the NPC Chief Secretary. The TNA has accused the Government of not heeding its requests and protested that it does not receive the resources to function. A Government source said Northern Province Governor retired Major General G.A. Chandrasiri would not have his term extended when it expires next month. Instead, the source said, Rajapaksa would consult the TNA before naming a successor. He is also considering other changes, the source added. The two leaders also discussed the vexed issue of Tamil Nadu fishermen poaching in Sri Lankan waters. Earlier, Rajapaksa had briefed Premier Singh on the National Plan of Action based on the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC).
The Prime Minister of India did not provide assurances to President Rajapaksa on how India would vote on the upcoming UNHRC resolution. “There was no substantive discussion on the draft resolution. Given that it has important implications for both Sri Lanka and India, it was felt that the two sides should remain in touch on the issue,” India’s External Affairs Ministry spokesperson Syed Akbaruddin told reporters after the talks. External Affairs Minister Salman Khurshid, was quoted in Indian media reports as telling journalists on board the Prime Minister’s flight back to New Delhi, that President Rajapaksa had been “courteous, sensitive and forthcoming.” Minister Khurshid was to later reveal in New Delhi that President Rajapaksa raised the issue of Mauritius, a close ally of India, co-sponsoring the US resolution.
Besides those issues of considerable concern to India, it is clear that the draft US resolution has been built on the two previous ones in 2012 and 2013. Three new and significant elements have been added this time to the preamble. They are:
“Reaffirming also that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable,”
“Welcomes the oral update of 25 September 2013 and the report of 24 February 2014 of the Office of the United Nations High Commissioner for Human Rights on promoting reconciliation and accountability in Sri Lanka and the recommendations and conclusions contained therein, including on the establishment of a truth-seeking mechanism and national reparations policy as an integral part of a more comprehensive and inclusive approach to transitional justice.”
“Urges the Government of Sri Lanka to investigate all attacks, by individual and groups, on temples, mosques, and churches and to take steps to prevent future attacks; and calls on the Government of Sri Lanka to investigate and hold accountable perpetrators of attacks on places of worship, journalists, human rights defenders, members of religious minority groups, and other members of civil society.”
Reported attacks on places of worship, particularly those used by Muslims as well as their business establishments, formed the subject of a heated discussion when ministers met for their weekly meeting on February 28. An angry President Rajapaksa was to call upon Justice Minister Rauff Hakeem, leader of the Sri Lanka Muslim Congress to “get out” if he could not stay in the Government. Rajapaksa accused Hakeem of “betraying the country” after Minister Champika Ranawaka raised issue. He complained that the Sri Lanka Muslim Congress (SLMC) had handed over a detailed report addressed to Human Rights Commissioner Pillay. Hakeem denied he personally did so since he was a Minister in the Cabinet.
However, the SLMC, it has now transpired, did forward a report. Ahead of her arrival in Sri Lanka in September last year, its General Secretary Hassen Ali had contacted the UN Office in Colombo and sought an appointment for a party delegation to meet Pillay. When the request did not materialise, the party’s report listing out a number of issues affecting the Muslim community was handed over to the UN office to be forwarded to Pillay. Minister Ranawaka produced the copy of this report before ministers and charged that it was improper for a constituent partner of the UPFA to do so. The report forwarded by the SLMC had been formulated by the Muslim Peace Secretariat, one that was set up during the Norwegian brokered ceasefire between then UNP Government and the Liberation Tigers of Tamil Eelam (LTTE). It had contained accounts of attacks on Muslims, their business establishments and a number of other allegations.
After the furore at the ministerial meeting, the SLMC ‘high command’ met at its Kompannaveediya office – Darus Salaam – on Thursday night. Hakeem giving a lengthy explanation, said it was not uncommon for him to have arguments with President Rajapaksa at ministerial meetings. In fact he had telephoned him on Saturday (March 1) morning but could not reach since the President was away in Anuradhapura. When he had called back, Hakeem said, he was in the shower. Hence, he had not been able to speak. President Rajapaksa, however, made up for it on Thursday night. At the state banquet to visiting Afghanistan President Hamid Karzai at ‘Temple Trees’, he saw Hakeem had turned up. He called him, patted him on the shoulder and introduced him to Karzai as “this is my Justice Minister.” In view of President Karzai’s visit, Thursday’s ministerial meeting was put off for Friday. It began after a ceremony where a cake was cut to mark the 42nd birthday of Minister Wimal Weerawansa.
On Saturday morning (the day after the ministerial meeting the week before), Hakeem told the ‘high command’ meeting that Minister Basil Rajapaksa had telephoned him to advise that he should not be overly concerned. It was followed by Minister Dullas Allahapperuma who rang from Matara with a similar message. Even businessman Tiru Nadesan, who was in Singapore, had called asking him not to take any precipitate action. He had said that President Rajapaksa was concerned. Also calling to express President Rajapaksa’s concern, he said, was UPFA national list parliamentarian A.H.M. Azwer. Hakeem told the ‘high command’ he had planned no such action after the spat and added that as Minister he had defended the Government over the war crimes issue. As a party representing Muslim interests, he argued, that General Secretary Hassen Ali and others had to take up issue.
Hakeem’s comments came as the National Shoora Council, All Ceylon Jamiathul Ulema and the Muslim Council of Sri Lanka forwarded a memorandum to External Affairs Minister Peiris. It was a follow up of a meeting with members of the Council, a consultative body of different organisations, held at Peiris’ residence after it was arranged by Colonel Suresh Sally, Director General of Military Intelligence (DGMI). Taking note of Peiris’ remarks that their views on Muslim concerns should not be used by others in their campaign against Sri Lanka in Geneva or elsewhere, the memorandum listed a number of issues.
The Sri Lanka delegation to the UNHRC in Geneva, interesting enough, was not announced by the Ministry of External Affairs but by Sri Lanka’s Permanent Mission in Geneva. Delegation members, according a news release from it, are G.L. Peiris (leader), Sajin de Vass Gunawardena (Monitoring MP, Ministry of External Affairs), Ambassador Ravinatha Ariyasinha, Chandima Wickremesinghe, Senior Assistant Secretary to the President, Fathuma Mafusa, Assistant Director/West Division and Counter Terrorism Unit of the MEA, Additional Solicitors General Jayantha Jayasuriya and W.J. Shavindra Fernando, Deputy Solicitors General A.H.M.D. Nawaz and A. Nerin R. Pulle, Minister in the Sri Lanka Mission in Qatar, Sithara Azard Khan and Shashikala Premawardhane, Senior Assistant Secretary to the Ministry of Defence.
The news release adds: “Leader of the House and Minister of Irrigation and Water Resources Management Nimal Siripala de Silva, and Minister of Plantation Industries Mahinda Samarasinghe, who will be in Geneva to participate in the 130th Inter Parliamentary Union (IPU) Assembly and related meetings, will join the Sri Lanka delegation from 15-21 and 9 -21 March, respectively, in briefing regional groups of member countries to the UN in Geneva on developments relating to Sri Lanka.”
Besides the Sri Lanka delegation, staff at the Government Press is working overtime on another operation. Different books on Human Rights, Rehabilitation, articles written by academics on democracy in Sri Lanka, the implementation of various programmes listed in Mahinda Chinthana (Thoughts of Mahinda) are now in print. They will be air lifted to Geneva for distribution among the delegates. Whether these will help ward off a third US resolution, when the conduct of Sri Lanka’s foreign policy has failed miserably in the past years, remains a critical question. That will not be of concern except among discerning Sri Lankans in their country and abroad. Peiris, who has charted the controversial course on foreign policy matters, could always say that they are a “disproportionate” lot.