What next at UNHRC: Govt. ponders its options
Sunday, September 20, 2015
Days ahead of the official release of the report on alleged war crimes by troops and Tiger guerrillas, the United Nations Human Rights High Commissioner Zeid Ra’ad Al Hussein and Foreign Minister Mangala Samaraweera were in regular telephone contact.
In one such phone call from Geneva to Samaraweera in Colombo, Zeid said the investigation report of the OHCHR (Office of the High Commissioner for Human Rights), tagged the OISL, would be made available to the Government of Sri Lanka five days ahead of the official release. He said his immediate concern was the need to maintain strict secrecy of the contents until they were made public, officially.
After a lengthy discussion, the duo agreed there would be no reference to the OISL report even in their own conversations. The exercise of transmitting a sealed copy from Geneva to Colombo, printed on watermark paper, was code named “Operation Hot Potato.” Zeid said he had made only two such copies from the original report. He was retaining one. A member of the Human Rights High Commissioner’s Secretariat was hand carrying the other to Colombo. Samaraweera received a message last Thursday that the “hot potato” was arriving the next day.
At 8.45 am on Friday (September 11) the emissary arrived at the Bandaranaike International Airport in Emirates flight EK 650 from Dubai. In view of the hurry, he was not given time to travel to Colombo and hand over the sealed package containing the 261 page report. Samaraweera had sent an official from his own office to collect the report and make a beeline to the Foreign Ministry where he was waiting.
When his staffer arrived, Samaraweera stripped open the sealed package and read part three – the chapter dealing with “principal findings of OHCHR investigations on Sri Lanka (OISL).” This is while officials, including Foreign Secretary Chitranganee Wagiswara, Maheshini Colonne, Director UN at the Foreign Ministry and Ravinatha Aryasinha, Permanent Representative to the UN in Geneva watched. The latter had been summoned to Colombo for consultations only days earlier.
“It’s not as hot as we anticipated, not a hot potato. It is not blood curdling and the report has not mentioned any names,” Samaraweera declared. He opined the OISL report was more “a narrative” and as declared therein, was a “human rights investigation and not a criminal one.” He made a string of phone calls after the discussion.
The result was a high level noon meeting on Friday chaired by President Maithripala Sirisena. Prime Minister Ranil Wickremesinghe, former President Chandrika Bandaranaike Kumaratunga and Justice Minister Wijeyadasa Rajapakshe took part. Here again, Samaraweera briefed them on the highlights of the OISL report. Later the same night, the Foreign Minister, the Justice Minister and Eastern Province Governor Austin Fernando flew to Geneva for the 30th sessions of the Human Rights Council.
On Sunday, ahead of the sessions beginning the next day (Monday), Samaraweera together with Rajapakshe met High Commissioner Zeid. He had returned to Geneva only that day from the United States. This meeting was followed by another with Keith Harper, the United States Permanent Representative to the UN in Geneva. Thus, when Samaraweera spoke at the ‘high level’ segment where Ministers make statements, he was able to address some concerns raised in the OISL report even before it became public. He gave details of how the Government has evolved measures for setting up “independent, credible and empowered mechanisms for truth seeking, justice, reparations and guarantees of non-recurrence” within the framework of the Constitution. However, a more important task awaits him. When the OISL report is debated on September 30 by the UNHRC, it would fall on him to explain the different measures the Government proposed in the wake of the OISL report. For this purpose, he is to place a road map.
Wednesday’s developments
However, when the report was released officially at 10.30 am Wednesday in Geneva and worldwide through the OHCHR website, the findings of three experts became the focal point of attention. The trio were Marti Ahtisaari, former President of Finland, Dame Sylvia Cartwright, former High Court Judge of New Zealand and Asma Jehangir, former President of the Human Rights Commission of Pakistan. Their findings were in two parts: (1) The 261 page overarching Report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on Promoting Reconciliation, Accountability and Human Rights; (2) An accompanying report of 19 pages of the OHCHR Investigation on Sri Lanka.
With the release of the report, UNHRC chief Zeid said in Geneva that the OISL has identified patterns of grave violations in Sri Lanka between 2002 and 2011, strongly indicating that war crimes and crimes against humanity were most likely committed by both sides to the conflict. (This period also covers the final stages of the separatist war in May 2009). He said it has laid bare “the horrific level of violations and abuses that occurred in Sri Lanka, including indiscriminate shelling, extrajudicial killings, enforced disappearances, harrowing accounts of torture and sexual violence, recruitment of children and other grave crimes.” He added, “Importantly, the report reveals violations that are among the most serious crimes of concern to the international community as a whole.” Some of the more important highlights in the report are listed briefly in the later paragraphs.
Even if Foreign Minister Samaraweera did not believe the OISL report was not a “hot potato,” at least one key recommendation has turned out to be exactly that. High Commissioner Zeid declared that “for accountability to be achieved in Sri Lanka, it will require more than a domestic mechanism.” He pointed out that “Sri Lanka should draw on the lessons learnt and good practices of other countries that have succeeded with hybrid special courts, integrating international judges, prosecutors, lawyers and investigators. Such a mechanism will be essential to give confidence to all Sri Lankans, in particular the victims, in the independence and impartiality of the process, particularly given the politicization and highly polarized environment in Sri Lanka. OHCHR stands ready to continue providing its advice and technical assistance in the design of such a mechanism.”
Zeid noted that the Government’s move for a “credible domestic inquiry” was welcome, ‘but it needs to convince a very sceptical audience – Sri Lankan and international – that it is determined to show results. Prosecuting a few emblematic cases will not be sufficient; Sri Lanka needs to address the patterns of serious human rights violations and other international crimes that have caused such suffering for all communities over decades if it is to prevent them haunting its future.” It is quite clear that the UN High Commissioner took note of the Government’s move for a “credible domestic inquiry” only during the six month deferral in tabling the report at the UNHRC at Sri Lanka’s request. As is clear, the shape and form of such “hybrid special courts” is still not defined in clear terms with only an offer of UNHRC assistance to “design such a mechanism.”
Cabinet takes up OISL report
The OISL report formed the subject of main discussion after the ministers cleared some twenty different cabinet memoranda at their weekly meeting on Wednesday night. After Foreign Minister Samaraweera briefed his colleagues, ministers expressed different views. Wide media coverage of claims by Udaya Gammanpila (UPFA – Colombo District) that he would introduce a private members motion calling for amnesty to troops who may be indicted for alleged war crimes came in for severe criticism. It was pointed out that there was no basis for such claims since no such thing has happened. It was alleged that his remarks were aimed at rousing communal passions. President Maithripala Sirisena was to make an important revelation. He said he had credible information that a former political leader, a former top official, a former Commander of the Army and two MPs who held extremist views were engaged in a campaign to provoke the security forces over the issues before the UNHRC. He gave their names. He said he was aware of what was going on and added that he would not hesitate to take tough and deterrent action against them. He said he had no tolerance for such activity.
Sirisena, who will address the 70th sessions of the UN General Assembly in New York later this month, is also to refer in his speech to the measures the Government would adopt on the OISL report. He is leading a 30-member team. It will include Foreign Minister Samaraweera, Justice Minister Rajapakshe, Rehabilitation, Resettlement and Hindu Religious Affairs Minister D.M. Swaminathan, Skills Development and Vocational Training Minister Mahinda Samarasinghe, Northern Province Governor H.M.G.S. Palihakkara and Eastern Province Governor Austin Fernando. Others in the delegation are officials and members of the personal security detail. Sirisena has also been invited together with select world leaders by President Barack Obama for an event related to the use of military in peace keeping roles. The Government wants to seek a larger share for the Sri Lankan military.
There was a distraction when some ministers raised issue over recent investigations. This included the Avant Garde case and that of Tiger guerrilla procurement division leader, Kumaran Pathmanathan. Criticism was levelled at officials of the Attorney General’s Department. Among those who spoke were Champika Ranawaka, Rajitha Senaratne, Sajith Premadasa, Ravi Karunanayake and Mangala Samaraweera.
The day following the ministerial meeting, different remarks by Government personalities were to cause confusion. One was by Health Minister and now a Government spokesperson (after Media Minister Gayantha Karunatilleke was named first). Responding to questions from the BBC, he said “our stand on the alleged war crimes is that we must hold an internationally acceptable local inquiry. As a country we are not ready to agree on international inquiries. A domestic inquiry on the international standards. That is our position. That is what we have agreed with our European friends and the US and other countries”. Senaratne told the weekly media briefing Thursday at the Department of Information that he hopes that the reference to “international roles” would be omitted by the UNHRC. Former Deputy Foreign Minister Ajith Perera told a local website, “United Nations Human Rights Commission released the report on Sri Lanka and recommended to appoint an international hybrid court. UN Human Rights Commissioner is permitted to make comments according to the Commission’s report but it is not necessary for Sri Lanka to accept it. I personally oppose the international experts and organisation’s interference in the internal matters of this country.” Perera has now been advised not to make such remarks.
Sampanthan raises credibility issue
However, the official position was articulated at a news conference by Foreign Minister Samaraweera. He said that a “credible domestic mechanism” would be set up, at least by January next year, to probe OISL findings. Two of the main stakeholders have already rejected the notion of a “credible domestic inquiry.” Rajavarothayam Sampanthan, leader of the Tamil National Alliance (TNA), re-iterated yesterday that “an entirely domestic process has no credibility. We know what happened to the Udalagama Commission, the killing of five students in Trincomalee and the 17 aid workers in Mutur. The IIGEP (International Independent Group of Eminent Persons) appointed to assist the Commission that probed matters withdrew from its mandate stating that the Sri Lanka Government did not have the political will or commitment to investigate grave human rights violations in keeping with international norms and standards.” British based Global Tamil Forum spokesperson Suren Surendiran said, “A purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises.” He said the GTF supports the establishment of a “hybrid” Special Court, integrating international judges, prosecutors, lawyers and investigators. The Forum was formally acknowledged as a stakeholder by President Sirisena when he met a delegation over a meal in London at his hotel, the Park Lane Hilton. This took place when he, as chair in office, attended the Commonwealth Day ceremonies in London in March. The event was kept a closely guarded secret, and was first revealed during a television talk show by the then Deputy Foreign Minister. On the other hand, Anura Kumara Dissanayake, leader of the Janatha Vimukthi Peramuna (JVP) told the Sunday Times, “We are opposed to the setting up of hybrid special courts. We are of the view that the investigations should be through a domestic mechanism.”
The Government’s proposal for a local mechanism was earlier endorsed by the United States which agreed to move a joint resolution towards this end together with Sri Lanka. The first draft was due to come up for consultation with other UNHRC members last Thursday (September 17) but the event has been put off for September 23. This is said to be at the request of Britain, Canada and the European Union, according to diplomatic sources. These sources said that both the State Department in Washington and the Foreign and Commonwealth Office in London had informed Minister Samaraweera that they preferred the “hybrid special courts” in the light of the OHCHR recommendation.
Though not explicitly, this new position of the United States is spelt out in a five-page draft US resolution, now being circulated amongst UNHRC members. A copy obtained by the Sunday Times shows that this draft does not define whether it should be a “domestic mechanism” or a “hybrid special courts.” Nevertheless, it calls upon the Government to “to involve international investigators, prosecutors and judges in Sri Lanka’s justice processes” which is what the OHCHR says is the core of the “hybrid special courts.” The resolution “… takes note with appreciation the Government of Sri Lanka’s proposal to establish a Judicial Mechanism with Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; and affirms that credible transitional justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and calls upon the Government of Sri Lanka, to involve international investigators, prosecutors and judges in Sri Lanka’s justice processes….” There is every possibility that this draft would undergo changes as the US consults other member Governments of the UNHRC. Details of the draft US resolution appear as a report in our front page today.
Charges in OISL report
Does the Government’s move to set up a “credible domestic inquiry” mechanism reject or exclude the possibility of “hybrid special courts” being set up? Foreign Minister Samaraweera provided the answer in an interview with the Sunday Times. See box story on this page. He said: “This is also one of the possibilities we have to explore… We have not closed our doors on any of these ideas. Finally whatever we do is not merely to satisfy a few of us. It must be a credible mechanism which is acceptable to all parties concerned….”
Among the more important matters that would come under probe, highlighted in the OISL report are:
On the basis of information obtained by OISL there are reasonable grounds to believe the Sri Lankan security forces and paramilitary groups associated with them were implicated in unlawful killings carried out in a widespread manner against civilians and other protected persons. Tamil politicians, humanitarian workers and journalists were particularly targeted during certain periods, but ordinary civilians were also among the victims. There appears to have been discernible pattern of killings, for instance in the vicinity of security force checkpoints and military bases, and also of individuals while in custody of the security forces. If established before a court of law, these may amount, depending on the circumstances, to war crimes and/or crimes against humanity.
OISL also gathered information that gives reasonable grounds to believe that the LTTE also unlawfully killed Tamils, Muslims and Sinhalese civilians perceived to hold sympathies contrary to the LTTE. The LTTE targeted rival Tamil political parties, suspected informants and dissenting Tamils including political figures, public officials and academic, as well as members of rival paramilitary groups. Civilians were among the many killed or injured by LTTE indiscriminate bombings and claymore mine attacks. Depending on the circumstances, if confirmed by a court of law, these may amount to war crimes and/or crimes against humanity.
On the basis of the information obtained by OISL, there are reasonable grounds to believe that acts of torture were committed on a widespread or systematic scale. This breaches the absolute prohibition of torture, and Sri Lanka’s international treaties and customary obligations. If established before a court of law, these acts of torture may, depending on the circumstances, amount to crimes against humanity and/or war crimes.
OISL notes with grave concerns the repeated shelling of hospitals in the Wanni. Hospitals and other medical units and personnel enjoying special protection under IHL (International Humanitarian Law) and cannot be made objects of attacks. Their protection does not cease unless these are used to commit hostile acts, outside their humanitarian function. The recurrence of such shelling, despite the fact that the security forces were aware of the exact location of hospitals raises serious doubts that these attacks were accidental. Other civilian facilities in the NFZ (No Fire Zone) were also impacted, notably humanitarian facilities and food distribution centres. The information available to OISL indicates that in none of the incidents reviewed were there any grounds that could have reasonably led the security forces to determine that these facilities were used for military purposes. These facilities therefore maintain their civilian character and could not be directly targeted. Directing attacks against civilian objects and/or against civilians not taking direct part in hostilities is a serious violation of international humanitarian law and, depending on the circumstances, may amount to a war crime.
OISL’s findings indicate that there are reasonable grounds to believe that the LTTE had a clear high level policy of preventing civilians from leaving the Wanni, thereby unlawfully interfering with their liberty of movement. The information also shows that the policy hardened from January 2009 although the specific instructions as to how LTTE cadres should prevent anyone from leaving need to be clarified. Nevertheless, the information gathered indicates that a number of individuals including several children, were shot dead, injured or beaten by LTTE cadres as they tried to leave, in contravention of their right to life and physical integrity. These acts may amount to direct attacks on civilians not taking direct part in hostilities, in violation of international humanitarian law. If established before a court of law, and depending on the circumstances, such conduct may amount to a war crime.
OISL has reasonable grounds to believe that the Government knew or had reasons to know the real humanitarian needs of the civilian population in the concerned areas, including from its own Government Agents on the ground, and yet imposed severe restrictions on the passage of relief and the freedom of movement of humanitarian personnel. This apparently resulted in depriving the civilian population in the Wanni of basic foodstuffs and medical supplies essential to survival. If established by a court of law, these acts and omissions point to violations of international humanitarian law, which, depending on the circumstances, may amount to the use of starvation of the civilian population as a method of warfare, which is prohibited under international humanitarian law. Such conduct, if proven in a court of law, and depending on the circumstances, may constitute a war crime.
What next: UNHRC spokesperson explains
What next at the UNHRC in Geneva, now that the OISL report is out? Its spokesperson Rupert Colville responded in an e-mail to the Sunday Times, “It will take time for everyone to digest the contents of such a big report covering such a range of issues occurring over a nine-year period. Obviously we hope that the 47 states that make up the Human Rights Council will take the recommendations in this report very seriously, but we are not in a position to predict what they decide to do. We understand that some States are likely to submit a draft resolution in the next few days. So that will be an important next step.” Asked about the September 30 debate, he replied “Yes, certainly there will be a debate. If there is draft resolution in play by that time, various scenarios are possible: either it could be passed by consensus, or — if the 47 States cannot all agree on a text — it may be put to a vote.”
There is no gainsaying that there is a need to probe some of the serious issues that have been raised. Such matters have still not been proved in a court of law. The alleged war crimes highlighted are not something peculiar only to Sri Lanka. Even troops of superpowers, some backing the probe in Sri Lanka, have been indicted, though, admittedly, few and far between. However, their plus point is that such instances, whenever highlighted, have been mostly probed and perpetrators brought to book. What is insulting to Sri Lankans is another aspect. It has taken three eminent personalities, at the request of the UNHRC, to proffer advice on national security issues like for example the downsizing the military. Of course they argue that the size and power were causes for abuses. Yet, 67 years after independence, that such a request should come from a trio to a sovereign nation however small it is and not rightly from an elected Government is, to say the least, disconcerting. The war, now under UNHRC probe, is over. Peace has not arrived yet. Who could best discern threat factors, a UN team or the Sri Lankan Government? The question will continue to linger.
Sunday Times