SL NOT LATE FOR AN ALTERNATIVE AGREEMENT
The UNHRC’s proposed international probe into Sri Lanka’s alleged human rights abuses, purportedly committed during the period covered by the Lessons Learnt and Reconciliation Commission (LLRC), is likely to get underway in June 2014. Accordingly, the setting up of the required mechanism will be announced by the end of May, paving the way for a full-fledged inquiry. According to the US-backed resolution adopted on May 27 in Geneva by the UNHRC, the Office of the Human Rights Commissioner (OHCHR) has been mandated to carry out the investigation, which UN sources confirm, will be carried out by a team of experts who are well-versed in international humanitarian law and with proven track records of conducting similar probes elsewhere. There are two main opinions circulating around the UNHRC members with regard to the proposed international inquiry. They are the place of investigation and the mechanism to be adopted in this inquiry. When the resolution was passed in March the Ministry of Foreign Affairs categorically rejected the call for an international probe and claimed that Sri Lanka will not cooperate with such a mechanism and India, Pakistan, Bangladesh and the Maldives - Sri Lanka’s closest neighbours have also come out strongly against the proposed international probe, calling it intrusive and a violation of the island’s sovereignty. The Foreign Secretary of India said that India abstained from voting on the resolution as it was “extremely intrusive” and that New Delhi has always been against any countryspecific resolution in the UNHRC.
Further, he repeatedly stated that “The last two resolutions called upon the Sri Lankan government to look into the issue and to work toward reconciliation. This year the resolution was extremely intrusive. It proposed an international mechanism, an open-ended international mechanism, and in our minds we do not want such an intrusive mechanism”. The Indian envoy at the UNHRC immediately before the voting was concluded said “we are, therefore, concerned that the resolution has the potential to hinder the efforts of the country rather than contribute constructively to its efforts, and hence inadvertently complicate the situation”.
Later the Gover nment Spokesman said that Sri Lanka will closely monitor the United Nations’ Panel of Experts (POE) and those they are going to talk to in Sri Lanka, if the government decides to give the panel permission to visit Sri Lanka and warned that if the Panel of Experts works contrary to the government’s plans and activities, then serious questions would be raised on their presence in the Island. He further stated, “We reject the resolution, we reject the POE if they work contrary to the government’s position, we reject the final report they would deliver to the UN with or without visiting Sri Lanka”. “We will raise questions about their visit and all depends on what they are going to say to all those questions we raise”.
Finally there was another recent statement that legal action will be taken domestically against anyone who gives evidence to the panel of experts in such an international inquiry. Therefore analysing these statements it can be concluded that Sri Lanka has not yet taken a firm decision to ban the panel of experts visiting conflict affected areas.
When the resolution was passed in March the Ministry of Foreign Affairs categorically rejected the call for an international probe and claimed that Sri Lanka will not co-operate with such a mechanism and India, Pakistan, Bangladesh and Maldives - Sri Lanka’s closest neighbours have also come out strongly against the proposed international probe, calling it intrusive and a violation of the island’s sovereignty
If Sri Lanka takes a firm decision in the near future not to grant permission for the panel to visit the country or conflict-affected areas then we must have a good alternative negotiated agreement to combat the international inquiry and to win the hearts of those who voted “No” and those who “abstained” when the UN resolution was passed. Specifically we must appreciate the Indian stance at the UNHRC.
As a result of this Sri Lanka released all Indian fishermen who were arrested for violating the law of the sea, unconditionally. Further this sudden decision shocked Jayalalithaa’s Thamilnadu state Government. On the one hand these statements clearly show the position of the SL government in relation to the international investigation. On the other hand the UN Secretary General Ban Ki-moon called upon Sri Lanka to engage ‘constructively’ and to cooperate with the UN’s human rights body to give effect to the resolution calling for an international inquiry into alleged war crimes committed during the final stages of the country’s civil war and OHCHR is hardly getting ready with the preliminary work and setting up of the terms of reference of the inquiry. Further they have already urged the Sri Lanka government to co-operate with the resolution because they know that without visiting the conflict-affected areas mentioned as the North and East it is valueless and the final report may be challenged prima facie for its credibility. Here, to co-operate means OHCHR expects from Sri Lanka to grant permission for the appointed Panel of Experts and their staff members to visit the conflict - affected areas during the period of hostilities in Sri Lanka, analyse and monitor the relevant documents, photograph the alleged places, interview the list of witnesses and any other person revealed at these interviews in the war-affected communities, to allow international journalists and TV crews to visit Sri Lanka from time to time without any barriers, to observe those critical places and finally to set up an office in Sri Lanka to facilitate the whole episode. For this OHCHR has passed a massive budget.
Analysing this scenario one can conclude that when preparing the Terms of Reference for this inquiry the OHCHR should consult and positively negotiate with the SL government. Otherwise it will be arbitrary and lack accountability. Similarly OHCHR must consult and seek the views of the SL government with regard to its panel members. Otherwise it will be biased if they appoint them only by themselves. The best example is the recently concluded Sierra-Leon probe where the UN consulted the Sierra-Leon government when preparing and finalising the TOR and appointing judges for the Tribunal. After successful negotiation with the SierraLeon government the UN managed to get the service of learned Serra-Leon senior judges for the Tribunal and the final report was very productive and internationally accepted.
When this process is planned at OHCHR, SL must explore viable alternatives to negotiate with the OHCHR for the passed resolution and still it is not too late. There are four possible and practical alternative negotiation agreements. The first one is to set up an independent comprehensive and credible national investigative mechanism to provide justice and accountability (internal inquiry) or a fact finding mission by self to investigate the recommendations given by the LLRC and this commission may comprise local and international judges. In this regard at least SL can now appoint a commissioner to assist the Attorney-General to expedite the investigations on disappearances and missing persons to show our good faith.
The second is to appoint a Truth and Post-Reconciliation Commission like in the countries of South Africa or Uganda but the Sri Lanka issue is totally different to those countries because Sri Lanka is the only country which defeated terrorism completely and there was no genocide like in Ruwanda and Sierra-Leon. But we can learn from these commissions and set up a model that can suit our own requirements authentically which in return could be accepted inter- nationally.
A good remark was made by the South African envoy at the UNHRC at the last voting was that they abstained at a time even when there was a strong campaign by South African former Chairman, Truth and Reconciliation Commission and other experts to appoint an International Inquiry against Sri Lanka backing the US sponsored resolution.
The third is to accelerate the LLRC Recommendations, National reconciliation, National Human Rights action Plan, Millennium development goals and to carry out the voluntarily accepted Universal Periodic Recommendations.
The fourth and the last like in the case of Northern Ireland is to be active in seeking redress or remedies for violation through court inquiries and inquests (including amicus curiae), public inquires and research. In Sri Lanka there is example of cases such as the 1971 insurrection period [King v Wijesooriya], the famous Kataragama Beauty queen rape and murder case in High Courts. Likewise in Jordan v UK (2001) is set a precedent at the European Court of Human Rights on the four essential elements of an effective investigation; it must be independent, prompt, and open to public scrutiny, capable of leading to the identification and punishment of those responsible. It was also made clear that the State must involve the victim’s next of kin.
Analysing the four alternative options currently the best available alternative agreement for the proposed International Investigation is the internal inquiry (Domestic Inquiry). If the International inquiry is appointed the panel has to submit a report to the UNHRC in March 2015 explaining the progress of the inquiry.