HR battle: From Geneva
Ambassador Stephen J. Rapp raps Government in report to US Congress
Astring of diplomatic blunders saw a resolution on Sri Lanka being adopted at the UN Human Rights Council in Geneva two weeks ago.
return to the route that brought the country under the microscope of the international community leaves behind a trail. The first international focus came when UN Secretary General Ban Ki-moon established a three-member panel of experts to examine accountability issues. It related to the separatist war that ended with the military defeat of Tiger guerrillas. In essence, the trio examined alleged war crimes by both the guerrillas and Sri Lankan troops and brought out damning indictments. Whether they are right or wrong is another question.
Officially, the government of Sri Lanka took up the position that it did not recognise the UN panel. None other than the country's External Affairs Minister G.L. Peiris declared that it was an advisory body that was tasked by the UN Secretary General and therefore had no sanction from the world body. Once again, whether that is right or wrong is another question. Nevertheless an official Sri Lanka delegation representing the government of Sri Lanka and headed by then Attorney General (and now Cabinet advisor) Mohan Peiris secretly testified before the Commission. It became public only after an exclusive revelation in the front-page of the Sunday Times.formal confirmation came when UN panel's report was made public.
When issues arising from the UN POE (panel of experts) report became the subject of discussion, both in Sri Lanka and worldwide, the government took up the position that they were being addressed. That was by the Lessons Learnt and Reconciliation Commission (LLRC) which was quickly created by the government in almost a desperate bid to ward off any international mechanism to investigate allegations of war crimes. The POE report contains an important document in this regard. That is a letter written by External Affairs Minister Peiris. He tells the UN POE that there should be "seamless connectivity" between what the UN panel of experts were doing and what the LLRC had undertaken. This letter has two significant connotations - one is that the government of Sri Lanka has recognised the UN POE. That is by the country's External Affairs Minister no less acknowledging the link in the work undertaken by them and the LLRC. The other is that the LLRC is acknowledged as the government's own mechanism to address issues that were in focus.
But now, some ministers have questioned the validity of the LLRC'S recommendations in its final report. This is by arguing that according to some unidentified experts, the Commission has gone much beyond its mandate. That contradictions by ministers come by dozens and have created so much confusion on any issue has become a hallmark of the government. Yet, External Affairs Minister Peiris has declared in Parliament that the government will implement the LLRC recommendations. He says it won't be done in toto, and that nowhere else in the word is it done that way. That is almost like a red herring. The fact is that nobody either in this country or abroad is asking the government to do so in toto. They only want to know if and when, and what parts of the LLRC report has the government agreed to implement.
In retrospect, that indeed is what the Us-backed resolution called for. Though Sri Lanka delegation leader Mahinda Samarasinghe articulated the same position in his address to the UNHRC, the many contradictory statements have placed the government in the dock. Tragically that has become the government's own enemy. Its credibility is now being brought to question.
The UNHRC session in Geneva is over but not the issues for Sri Lanka. The focus has somewhat shifted to the US capital, Washington DC, from where the resolution against Sri Lanka originated. In February this year, among visitors to Colombo was Stephen J. Rapp, Ambassador-atLarge in the Office of Global Criminal Justice at the Department of State.
On Wednesday, he presented to the US Congress his report. He said in his report that the government (of Sri Lanka) should establish an independent mechanism to investigate "credible allegations which the LLRC failed to address". He adds, "Each investigation should be independent of government influence and transparent, and provide adequate witness protection".
Here are relevant extracts of Rapp's five-page report to the Congress:
The Government of Sri Lanka publicly released the Lessons Learnt and Reconciliation Commission's (LLRC) final report on December 16, 2011. The report called for investigations into, and possible prosecutions for, specific instances of reported cases of deliberate attacks on civilians by Sri Lankan Security Forces, reports of enforced disappearances, and reports of mistreatment of LTTE detainees. The LLRC'S recommendations related to demilitarization, freedom of expression, land reforms, and rule of law issues are also particularly significant. If fully implemented, these recommendations could provide the Government of Sri Lanka with an opportunity to promote national reconciliation and assist in revitalizing many of Sri Lanka's democratic institutions. However, the report fails to adequately address allegations that LTTE cadres and Sri Lankan Security Forces violated IHL (international humanitarian laws) and Ihrl(international human rights laws) during the final months of the conflict.
The LLRC report expressed concern that its recommendations, like those put forward by similar commissions before it, would not be implemented by the Government of Sri Lanka, specifically pointing to the lack of implementation of its September 2010 interim recommendations. Since the LLRC report was released, culpable individuals have not been identified by a credible mechanism, and no one has been held to account. The Government of Sri Lanka also informed the Department of State that it created a cabinet sub-committee to develop a plan to implement the LLRC recommendations. The constitution and work-plan of that subcommittee are not yet known. Further, the Sri Lankan government informed the Department of State that the Sri Lankan Army has constituted a fiveperson court of inquiry headed by a Major General to investigate the specific allegations identified in the LLRC report. Subsequent media articles report that the court of inquiry will also review video material depicting summary executions by Sri Lankan forces. According to government officials, the court can refer the cases of culpable individuals to the Attorney General for prosecution. The Sri Lankan Army also formed a board of inquiry to provide recommendations for military reform based on the LLRC findings.
Several Government of Sri Lanka interlocutors also informed Department of State officials that the Sri Lankan Attorney General was actively reviewing an undefined set of allegations to determine whether sufficient evidence exists to bring criminal charges.
Relating to detention, according to information provided by the Government of Sri Lanka to the Department of State, as of February 10, there were 228 individuals in detention under investigation and 892 individuals in rehabilitation. The government permits international humanitarian organizations access to some detention facilities where former LTTE combatants are detained, including the facility in Boosa, where approximately 200 detainees are held. The government denies that detention facilities operated by military intelligence exist. Humanitarian organizations are not allowed to visit suspected illegal detention facilities operated by paramilitary groups. International humanitarian organizations have only been allowed to visit detainees in rehabilitation facilities upon release.
On March 22, the UN Human Rights Council (HRC) adopted a declaratory resolution that notes with concern that the LLRC report does not adequately address serious allegations of violations of international law and, among other things, calls upon the Government of Sri Lanka to implement the constructive recommendations made in the LRRC report.
While this report draws attention to open questions regarding allegations of violations of IHL and IHRL, it is not meant to be a legal determination confirming any of those allegations.
December 16, 2011, the government publically released the LLRC'S final report. The report makes significant observations and recommendations with respect to the origins of the conflict, land reforms, restitution, and other efforts to reconcile the ethnic communities of Sri Lanka. The report also suggests that the government investigate specific allegations of direct attacks on civilians, launch a full investigation into reports of enforced disappearances and abductions, fund an independent investigation into the veracity of videos showing summary executions, and investigate allegations of detainee abuse, torture, and summary execution. However, the LLRC'S recommendations fail to adequately address accountability for violation of IHL and IHRL by government security forces and LTTE cadres during the conflict.
While the Commission's report identifies eight cases of alleged attacks against civilians by Sri Lankan security forces, it only calls for further investigation of three of them. This stands in stark contrast to the vast number of credible allegations examined in the POE report and the 208 instances of harm to civilians or civilian objects identified in the Department of State's 2009 Report to Congress. While the Government of Sri Lanka's public statements indicate it maintained a policy of "zero civilian casualties" and the only civilian deaths occurred during crossfire, the POE estimated that civilian casualties in the final months of the conflict ranged from 10,000 to 40,000. This strongly suggests the need for further investigations.
The LLRC report also inadequately addresses allegations of government shelling on civilians in "No Fire Zones" (NFZS), a series of three protected areas unilaterally declared by the govern- ment. The LLRC report concludes that although civilian casualties occurred, the security forces did not deliberately target civilians and "there appears to have been a bona fide expectation that an attack on LTTE gun positions would make a relevant and proportional contribution to the objective of the military attack involved."
Reports from the POE and the UN directly contradict these conclusions. Moreover, the LLRC report raises but does not resolve questions about why the Government of Sri Lanka created additional NFZS after becoming cognizant that the LTTE would exploit such zones to launch attacks, to which the government would respond, putting civilians at risk. More needs to be done to investigate why the government decided to create subsequent NFZS.
While the LLRC recognized that hospitals and other humanitarian objects were shelled, it concluded that the security forces did not deliberately target these objects and that the context of the shelling was a "confused picture." In contrast, the POE report concluded that security forces repeatedly shelled humanitarian objects whose locations they knew due to reports from the UN and ICRC. These allegations implicate grave breaches of IHL and merit further investigation. The LLRC and POE reports both address the supply of humanitarian aid to the conflict zone. Although only the POE concluded that the government deliberately underestimated the number of civilians in the conflict zone, both reports call for an investigation into the flow of medical supplies.
The LLRC report also fails to critically analyze or investigate the "white flag" incident, in which high-level LTTE leaders were allegedly shot despite assurances from the Government of Sri Lanka that they could safely surrender. While the circumstances surrounding the incident remain uncertain, the POE concluded that the LTTE leadership intended to surrender. However, the LLRC only mentioned the above incident briefly, citing testimonies that dismiss the allegations. The Department of State does not take a position regarding the allegations concerning this incident but notes that the discrepancy between the POE and LLRC reports merits further investigation.
(The full text of the report to the US Congress can be accessed on our website; www.sundaytimes.lk)
The report therefore, concentrates on the last stages of the war against the LTTE aspect of the LLRC report, and while referring to contradictions between the UN POE report and the LLRC report, is at pains to say that they haven't come to any legal conclusions on who is right. The report con-