Between the two drafts

Requests that the Government of Sri Lanka present a comprehensive action plan as ‘expeditiously as possible’ detailing the steps

IN Sathiya Moorthy

ndependent of the voting on the Us-sponsored resolution at the UNHRC, the process itself has gained greater momentum than in the past. The world, and not just individual nations, is looking at Sri Lanka ,and not just and necessarily at ‘accountability issues’. Down the months, and not waiting for years, they will be holding Sri Lanka accountable to its own commitments, and not those now being authored by external and at times extraneous forces.

Between the inaugural of the 19 session in February and now during the run-up to voting at Geneva, the US has modified the Sri Lanka resolution draft considerably. The changes are as much in concept and content as in form. To the extent, it reads like the kind of ‘compromise’ document the US claimed it had with Sri Lanka but Colombo flatly denied.

From Preamble to specific clauses in the drafts, there are noticeable and welcome changes -- if one were keen on conciliation in and with Sri Lanka, and not taking on a confrontationist approach. On the former, the Sri Lankan State has to adopt an unemotional, diplomatic approach that is pragmatic and practicable, too. The latter would have unhelpful, and thus counter-productive.

The Preamble now does not ‘express’ any ‘serious disappointment’ that Sri Lanka has “not fulfilled its relevant legal obligations and stated commitment to address serious allegations of violations of international law by initiating ‘credible and independent investigations and prosecutions’ of those responsible for such violations”. Instead, the Preamble continues to ‘note’ with “concern that the LLRC Report does not adequately address serious allegations of violations of international law”.

For a Government in Colombo, living by the day, as much on its promises as on the criticisms that it faces, the amended American version does not refer any more to further ‘investigations and prosecutions’ , be it in the Preamble or in the body of the text. Translated, it could mean that for now at least, Sri Lankans can heave a sigh that the world is not targeting individuals and institutions involved in ‘war victory’ , and thus the nation’s stability and thus sovereignty.

In this context, UNP Opposition Leader Ranil Wickremesinghe’s timely reminder about the non-applicability of the jurisdiction of the International Criminal Court to Sri Lankans, too makes a difference. As Prime Minister during the war-years, he had refused to sign the ‘Rome Declaration’ to facilitate the process. A US district judge, while dismissing a suit against President Mahinda Rajapaksa, as he is a Head of State, has however left enough meat in her judgment, for the future to be concerned.

The verbal jugglery is more noticeable elsewhere. Having commended the LLRC process, and urging the Government to ‘implement the constructive recommendations in the LLRC Report’, the draft now wants Colombo “additionally to take immediate steps to fulfil its relevant legal obligations and (stated) commitment” -and not “to take all necessary additional steps…to initiate independent ‘actions’ to ensure justice, equity, accountability and reconciliation for all Sri Lankans”.

It is a noble thought, based on the spirit of what the Sri Lankan State and the Government of the day have volunteered on the one hand, and duty-bound to do, otherwise. In doing so, the American authors of the resolution also seem to have acknowledged the Sri Lankan argument that the Government needed time, and cannot be rushed (through) to implement the LLRC Report.

It is thus that the new draft “requests that the Government of Sri Lanka present a comprehensive action plan as ‘expeditiously as possible’ detailing the steps” taken on the LLRC Report. It does not tie down the Government to report back at the 20th session of the UNHRC, six months down the line.

Otherwise, the draft has since conferred a shared responsibility to report back, on the UN High Commissioner for Human Rights, even while putting the clock forward by a year, the 22nd session of the UNHRC due in September 2013. This is more than the time that the Government had sought when it suggested that the Council could address the LLRC implementation aspects when it took up the once-in-four-year Universal Periodic Review of HR in the country, at the September session this year.

The question however would remain for Sri Lanka to be convinced that by giving it a longer deadline the West was not seeking to keep ‘accountability’ alive on the agenda at Geneva eternally, and would not return to forgotten themes on this score after it had met the current commitments. Otherwise too, the resolution continues to refer to the need for Sri Lanka to obtain ‘technical assistance’ from the UN Human Rights Commissioner, and act on such ‘advice’, without obviously outlining what shape such assistance and advice would take.

Where does it all leave Sri Lanka? For starters, neither of the drafts thus far has referred to the ‘Darusmann Report’. The latter process thus seemed to have been initiated only for Sri Lanka to do the LLRC act in the first place, that too after SecretaryGeneral Ban Ki-moon felt that earlier commitments had not been kept.

The new draft is a ‘compromise’ of a kind, though not involving Sri Lanka. It does not refer to extraneous processes and extrapolated documents. Instead, the draft now confines itself exclusively to processes initiated by the Sri Lankan Government, namely the LLRC, and the commitments made by Colombo, based on the outcome of those very processes.

It is easy for the hawks in Colombo to press further on the UNHRC front ,beat drums if victorious, but beat the hearts, otherwise, blaming the world for Sri Lanka’s reverses. Pragmatism demands otherwise, and pragmatism is what diplomacy as politics is all about. Now that the count-down for the vote has begun, Colombo should be thinking about the ‘day-after’ and plan for that day. Celebrations and street-protests have stopped impressing the local population years after the war victory.

Such demonstrations have never bothered the international community, Sri Lanka’s supporters in the comity of nations included. They have gone always by substance, not just form. For, nations that now back Sri Lanka at the UNHRC and elsewhere too will hold Colombo ‘ accountable’ to its current commitments at Geneva on the LLRC, though not to anything extraneous or extraordinary. They would recall it another day, even in other venues and avenues - and act accordingly.