To Washington now
More details emerge of infighting within foreign office; Dayan Jayatilleke's case the latest drama
cludes with some pontification on truth, justice for victims, accountability and a reference to Sri Lanka as a "long time friend".
Rapp has also forwarded a Factual Supplement to the Sri Lanka Report to the Congress. Here is the introduction:
The United States recognizes a State's inherent right to defend itself from armed attacks, including those by nonstate actors such as terrorist groups. In the context of a non-international armed conflict - that is, an armed conflict that is not between states - common article 3 of the Geneva conventions of 1949 provides basic treatment protections to all individuals not taking part in hostilities, including civilians and detained members of the Armed Forces. Its core requirements are that individuals not taking part in hostilities must be treated humanely and without "adverse distinction" based on race, religion, or similar criteria. To this end, the article prohibits murder; cruel treatment; torture; the taking of hostages; outrages upon personal dignity; and the passing of sentences without judgment by a court providing recognized guarantees. Sri Lanka is neither a party nor a signatory to the Additional Protocol II to the Geneva Conventions, which includes more detailed rules relevant to noninternational conflicts than those set forth in, article 3.
As with the two previous reports, our assessment of investigations undertaken by the Government of Sri Lanka (GSL) and international bodies is mindful of Sri Lanka's pertinent international obligations. For example, Sri Lanka is a State Party to the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and the 1949 Geneva Conventions. In addition, Sri Lanka is subject to relevant customary international law obligations, which in the area of international humanitarian law include the principles of distinction and proportionality, which are intended to protect innocent civilians from harm. The principle of distinction holds that civilians and civilian objects (such as hospitals and schools) shall not be the object of direct attack, though civilians lose this immunity if they directly participate in hostilities. The principle of proportionality prohibits attacks that may cause incidental loss of life, injury, or damage to civilians that would be excessive in relation to the direct military advantage anticipated. The civilian population must not be used to shield military objectives or operations from attack, and parties must take all practicable precautions, taking into account military and humanitarian considerations, to minimize incidental death, injury and damage to civilians.
There are a variety of ways in which a government may undertake effective investigations and other accountability processes. While some international law conventions call for criminalization of certain human rights violations and serious violations of IHL, other routine administrative and special investigative processes, such as commissions of inquiry (COI), can play an important role in establishing a factual record of events. Although COIS and other investigative bodies are often implemented at the national level, in some instances governments seek international participation to bring specialized expertise into, and help foster public confidence in, socalled "hybrid" investigations. Fully internationalized processes undertaken without the relevant government's consent have generally been pursued by the international community only when the State concerned lacks the capacity, political will, or both, to undertake an independent, credible, and effective inquiry. In the case of serious violations of IHL and human rights, including the type of atrocities alleged to have occurred in the final months of the conflict in Sri Lanka, however, such commissions do not obviate the need for criminal investigation and, if appropriate, prosecutions.
Whether domestic, international, or hybrid, investigative processes should operate consistent with best practices derived from extensive experience in order to be both credible and effective. There are several key criteria for evaluating the adequacy of a COI, including: independence and competence; adequate mandate and authority; witness and COI protection; adequate resources; a public report; and a timely and transparent government response.
(Full text of the statement can be accessed on www.sundaytimes.lk)
This week's developments in Washington DC show that the issues related to Sri Lanka will not go away but persist. This would mean that the government would have to formulate a studied approach to the issues in question.
Of greater significance in this regard is the impending visit to Washington by External Affairs Minister Peiris. He is scheduled to have a meeting with the Secretary of State, Hillary Clinton, on May 18. An earlier date given before the UNHRC sessions was not accepted by Peiris on the footing, according to him, that it would have given the wrong impression that there was acquiescence on the part of Sri Lanka to the resolution that was being sponsored by the US in Geneva. Then, an April date given could not be accepted as Peiris has to accompany President Mahinda Rajapaksa to Korea. The question is whether he would undertake the May visit in the light of the commitments he would have to make. There is the possibility that the conclusion of his visit would see a joint statement by the United States and Sri Lanka. If at all so, would Peiris be in a position to make official commitments on behalf of the government, particularly so in the light of the recommendations Rapp has made to the US Congress. On an earlier visit to New Delhi in 2011, Peiris agreed to a joint statement that embarrassed his own President by calling on the government of Sri Lanka to engage in "genuine" reconciliation.
This week, in Parliament, the opposition called for a debate on the Geneva vote against Sri Lanka. Few opposition legislators made studied comments on the fallout from the anti-sri Lanka resolution that was passed. They, however, took the opportunity to hit at President Rajapaksa on a different front.
Two United National Party (UNP) MPS, one-time Foreign Minister Mangala Samaraweera and Badulla district MP Harin Fernando (who once when asked who his ideal politician was, had said it was the President) dusted some old Hansards (records of parliamentary proceedings) to show that it was Rajapaksa, as a young opposition MP who first went to Geneva to internationalise the human rights records of incumbent Sri Lankan governments.
They quoted from a speech Rajapaksa made in Parliament on October 25,1990;
Order please. Hon. Minister please sit down. Please do not disturb. We have to continue with this debate.
The government responded by saying that at the time Rajapaksa went to Geneva things were so bad in the country, but the argument did not really hold. The opposition succeeded in getting its message across that what was sauce for the goose was sauce for the gander and that it was about time the government stopped labelling those who opposed the government's human rights record as "traitors".
The debate also confirmed that there was a sharp rift among the two Sri Lankan Ministers who were to spearhead the country's defence at Geneva. Plantation Minister and President's Special Envoy Mahinda Samarasinghe was not even present at the debate having gone to Uganda with a parliamentary delegation. Then, when an opposition MP asked if Samarasinghe's premature and illtimed statement that India would vote with Sri Lanka had triggered protests in Tamil Nadu that in turn forced the central government in New Delhi to vote against Sri Lanka, Peiris refrained from defending his cabinet colleague and said he could not comment. Mangala Samaraweera rubbed it in by saying that debating Geneva without Samarasinghe was like Hamlet without the Prince of Denmark.
In the midst of the debate on the country's foreign policy, the Ministry of External Affairs was rocked by a missive going out to the country's Ambassador in Paris, Dr. Dayan Jayatillake widely considered one of the more efficient envoys serving the country, and a loose cannon. The Ministry chargesheeted him for purchases and renovation work to his residence and permitting an embassy staffer to stay in a hotel, both incurring very high expenses at the taxpayers' cost. Suddenly, the Ministry had woken up to excessive spending of taxpayers' money.
Not someone to keep quiet, Jayatillake has gone to the media with his side of the story, publicly criticising the Ministry for the defeat in Geneva and accusing a coterie in the Ministry of gunning for him. His critics claim that Jayatillake has spent lavishly on furniture and on a one-time Assistant Government Agent who is now in the embassy for his long period of stay in a hotel instead of moving into an apartment. Those who support the political appointee envoy say that this is a move that had its antecedents with the Geneva vote where Jayatillake was boasting about the victory over an anti-sri Lanka resolution in 2009 when he was Ambassador in Geneva, and that it was a 'palace coup' to embarrass Peiris as Jayatillake is considered a Peiris loyalist.
The fact that the Ministry is riddled with in-fighting is a public secret. In Geneva, not only were the two Ministers, Peiris and Samarasinghe, under-cutting each other, but the officials were at each other's throats. There were dog fights and cat fights. All this, while taking on the challenge of defeating the anti-sri Lanka resolution by the powerful US. Unable to bring some stability to the Ministry, Peiris has taken flight to the Maldives on an official visit, and some believe a possible extended Avurudhu holiday.
One silver lining, however, has come in the form of the visit of Lord Naseby, PC Baron of Sandy (in Bedfordshire) and Chairman of the All Party Parliamentary Group on Sri Lanka in the British Parliament. Lord Naseby has been a long-time friend of Sri Lanka and has been impressed by the progress made by Sri Lanka since the end of the 'war' in 2009, both in terms of reconciliation efforts and economic development.
He had been in the country just prior to the conclusion of the conflict, and this time he visited Jaffna, Kilinochchi, Boosa and other places to see for himself what was happening. He met the Rajapaksa brothers, Mahinda and Gotabaya, on Thursday and says that he will, on his return to Britain, prepare a dossier on what's happening in Sri Lanka and circulate it to all the MPS in the House of Commons and the House of Lords.
He was happy to note that he could contest the figures trotted out by then British Foreign Secretary David Miliband about the high number of civilian deaths that occurred during the last stages of the 'war' in 2009 and that he had figures even from the UN that pointed to a very much fewer numbers of civilians killed during this period.
But he was concerned that the Sri Lankan government would have to take cognizance of the need to implement the LLRC report, especially post Geneva. When he asked President Rajapaksa about the implementation of the 13th Amendment (after he had met an all-party delegation in the Sri Lankan Parliament), the President had told him that he had put the issue before a Parliamentary Select Committee to decide on what parts of the 13th Amendment could be implemented.
Lord Naseby had then politely told President Rajapaksa "in my country when we want something delayed, we put it before a Parliamentary Select Committee", to which Rajapaksa had guffawed and said "No, no, I won't do that".