REPORT ON SRI LANKA BY THE BAN KI-MOON ADVISORY PANEL

The three-member panel appointed by UN Secretary-General Ban Ki Moon to advise him on alleged human rights violations and accountability issues in Sri Lanka during the last phase of the war against the Liberation Tigers of Tamil Eelam organization handed over its report on April 12th. It is expected that the UN Secretary-General will publicise the contents in due course. At the time of this article being written the report was yet to be made public.

Sections of the media notably some wire services have gone to town describing the report as the “UN  Report” and as the “UN War crimes report”. Wittingly or unwittingly  this  media “spin” has bestowed upon the report a degree of importance which it may not deserve in the final analysis. It has to be pointed out in this respect that the report in question is neither a UN report nor a war crimes report.

The official UN press release of June 22nd 2010  that announced the appointment of this panel stated then as follows –“The Secretary-General has appointed a panel of Experts that will advise him on the issue of accountability with regard to any alleged violations of international human rights and humanitarian law during the final stages of the conflict in Sri Lanka”.

ADVISORY

It could be seen therefore that this panel of experts is only an advisory body to Ban Ki Moon. Although appointed by the  UN Secretary-General it is technically not a UN Panel. The report it has prepared may have been commissioned by the UNSG, but it is not a UN report.

Likewise some of its contents may very well relate to the alleged  or real war crimes but that does not make it a war crimes report. It is at best an advisory report authorised and procured by the UN Secretary-General. It’s  terms of reference at the time of  appointment  as  outlined in the official press communiqué were –

“The panel will advise the Secretary-General on the implementation of the commitment on human rights accountability made in the Joint Statement issued by President [Mahinda] Rajapaksa of Sri Lanka and the Secretary-General during the latter’s visit to Sri Lanka in May 2009. It will look into the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka. It will be available as a resource to Sri Lankan authorities should they wish to avail themselves of its expertise in implementing the commitment”

The official statement further said “In the conduct of its mandate, the panel hopes to cooperate with concerned officials in Sri Lanka. It is expected to complete its advisory responsibilities within four months of the commencement of its work.The Secretary-General remains convinced that accountability is an essential foundation for durable peace and reconciliation in Sri Lanka. Through the panel the Secretary-General expects to enable the United Nations to make a constructive contribution in this regard”.

The three members of the panel were Marzuki Darusman ( Indonesia), Chair; Yasmin Sooka ( South Africa); and Steven Ratner ( United States).

CONTROVERSY

Whatever the expectations of Ban Ki Moon it is an undeniable fact that the circumstances leading to the appointment of the panel and the course of events afterwards have been enmeshed  in controversy. The situation may very well worsen after the contents of the report are revealed.

There is every likelihood that some leading western nations would take the lead in exerting pressure on the UN to follow up the release of the report with further action against Sri Lanka. This effort would be backed by some reputed international human rights organizations, Tamil Diaspora groups and certain sections of the global media.

The Government of President Mahinda Rajapaksa would resist these moves resolutely and refuse to give in. Whatever their differences with the Rajapaksa regime the majority of the Sri Lankan nation would be in solidarity with their president and government in this particular show of defiance. Even the opposition parties are very likely to concur with the Govt in this.

It is not difficult to decipher the logic in this nationalist stance. The initiative taken by Ban Ki Moon to get Sri Lanka to establish a process of accountability regarding allegations of human rights violations, crimes against humanity and war crimes has been opposed bitterly in Sri Lanka.

Sri Lanka registered its disapproval in very strong terms when the panel was appointed by the UN Secretary-General. It refused to cooperate with the panel. Moreover a protest demonstration was launched by cabinet minister and National freedom front leader Wimal Weerawansa opposite the UN office in Colombo at that time.Weerawansa himself went on a “fast unto death” then.

SCENARIO

The UN feared a replay of that scenario when the panel report was released. On March 31st the UN in Colombo held a “drill” of sorts to educate their employees on how to conduct themselves if and when a crisis situation occurred again.

Moreover the official handing over of the report too was delayed. Although the report was ready in March itself the release was put off  to coincide with the festive season in Sri Lanka during the Sinhala-Tamil new year in April. It was calculated that the holiday mood would prevent rapid mobilisation of demonstrators.

So far there have been no protests but there is every chance that they would be launched if and when the report is publicised or when the “avuruddhu jolliya” is over. However no protests are likely if the Government clamps down for reasons of its own.

As expected the Government has rejected the report. The External Ministry issued a terse statement upon receipt of the report. It stated as follows – “The Government of Sri Lanka has received a copy of the report of the Secretary General’s Panel of Experts on accountability in Sri Lanka. The Government finds this report fundamentally flawed in many respects. Among other deficiencies, the report is based on patently biased material which is presented without any verification. The Government will, in due course, comment in detail on the contents of the report”.

It appears that even the Foreign Ministry officials would issue their studied critique of the report only after new year celebrations are over. The haste displayed by ministry officials in issuing the statement is visible in the omission of UN in the reference to Secretary-General. It simply says Secretary-General and not UN Secretary-General.

DISCLOSURE

While the Government frowned upon it, International Human Rights organizations hailed the report as a welcome development. They expressed  full support and full disclosure of  details.

“Sri Lankans must be allowed to see the panel’s findings. The report concerns a critical period in their recent history and they deserve to read it in full,” said Sam Zarifi, Amnesty International’s Asia-Pacific director. “Ban Ki-moon said that ‘accountability is an essential foundation for durable peace and reconciliation in Sri Lanka.’ He must stick to his word — accounting for violations committed in the recent conflict is the first step to future reconciliation.”

 “Secretary-General Ban’s creation of a panel of experts and his decision to make the report public show that the UN has not forgotten Sri Lanka’s war victims,” said Brad Adams, Asia director at Human Rights Watch. “In the face of two years of stonewalling by the government, the public release of this report will help move justice forward in Sri Lanka.” “The government has opposed the panel of experts from the beginning and has done nothing to suggest its position has changed,” Adams said. “UN members that care about justice for grave crimes should now make sure that they show all possible support for Ban’s efforts.”

As stated before the Sri Lankan Government has been against the appointment of a panel by the UN Secretary-General and condemned it as being unnecessary and unwarranted. Ban Ki Moon however stated that the Colombo Government had agreed in principle to this move. Colombo however denied this flatly.

UN Secretary-General Ban Ki Moon was under strong pressure by Human Rights agencies and the overseas Tamil lobbyists to intervene and stop the fighting during the last stages of the conflict. The Secretary-General did not do so presumably because the western nations and India wanted the LTTE to be finished off at that point of time.

CASUALTIES

Ban Ki Moon visited Sri Lanka after the war was over. He flew over the Mullivaaikkaal area where the final phase of fighting occurred. Upon his return he told the media that there would have been a lot of civilian casualties as a large population had been trapped in a small area where intense fighting had taken place.

After meeting with President Rajapaksa a joint statement was issued on May 23rd 2009. It is this statement that is cited by UN circles as proof that the Sri Lankan Government had agreed to the setting up of a mechanism ensuring accountability. That statement despite its length is reproduced in full below because of it’s importance –

“Following is the joint statement by the Government of Sri Lanka and the United Nations at the conclusion of UN Secretary-General Ban Ki-Moon’s visit to Sri Lanka on 23 May:

At the invitation of Mahinda Rajapaksa, President of Sri Lanka, the Secretary-General of the United Nations, Ban Ki-Moon, paid a visit to Sri Lanka.  During the course of his visit, he held talks with the President, Foreign Minister as well as other senior leaders of Sri Lanka. During his stay, he also consulted other relevant stakeholders, members of international humanitarian agencies and civil society. The Secretary-General visited the internally displaced persons (IDP) sites at Vavuniya and overflew the conflict area, near Mullaitivu that was the scene of the conflict.

President Rajapaksa welcomed the Secretary-General as the highest dignitary to visit Sri Lanka in the post-conflict phase.  This was a reflection of the close cooperation between Sri Lanka and the United Nations as well as Sri Lanka’s commitment to work with the United Nations in the future.

CHALLENGES

President Rajapaksa and Secretary-General Ban Ki-Moon agreed that following the end of operations against the Liberation Tigers of Tamil Eelam (LTTE), Sri Lanka had entered a new post-conflict beginning. In this context, the Government of Sri Lanka faced many immediate and long-term challenges relating to issues of relief, rehabilitation, resettlement and reconciliation. While addressing these critical issues, it was agreed that the new situation offered opportunities for long-term development of the north and for re-establishing democratic institutions and electoral politics after 2 ½ decades. The Government expressed its commitment to ensure the economic and political empowerment of the people of the north through its programmes.  

President Rajapaksa and the Secretary-General agreed that addressing the aspirations and grievances of all communities and working towards a lasting political solution was fundamental to ensuring long-term socio-economic development. The Secretary-General welcomed the assurance of the President of Sri Lanka contained in his statement in Parliament on 19 May 2009 that a national solution acceptable to all sections of people will be evolved. President Rajapaksa expressed his firm resolve to proceed with the implementation of the 13th Amendment, as well as to begin a broader dialogue with all parties, including the Tamil parties in the new circumstances, to further enhance this process and to bring about lasting peace and development in Sri Lanka.

President Rajapaksa and Secretary-General Ban Ki-Moon discussed a series of areas in which the United Nations will assist the ongoing efforts of the Government of Sri Lanka in addressing the future challenges and opportunities.  

With regard to IDPs, the United Nations will continue to provide humanitarian assistance to the IDPs now in Vavuniya and Jaffna. The Government will continue to provide access to humanitarian agencies. The Government will expedite the necessary basic and civil infrastructure as well as means of livelihood necessary for the IDPs to resume their normal lives at the earliest. The Secretary-General welcomed the announcement by the Government expressing its intention to dismantle the welfare villages at the earliest, as outlined in the Plan to resettle the bulk of IDPs and call for its early implementation.  

The Government seeks the cooperation of the international community in mine clearing, which is an essential prerequisite to expediting the early return of IDPs.

ASSISTANCE

The Secretary-General called for donor assistance towards the Common Humanitarian Action Plan (CHAP) jointly launched by the Government of Sri Lanka and the United Nations, which supports the relief, shelter and humanitarian needs of those in IDP sites.  President Rajapaksa and the Secretary-General recognized the large number of former child soldiers forcibly recruited by the LTTE as an important issue in the post-conflict context.  President Rajapaksa reiterated his firm policy of zero tolerance in relation to child recruitment. In cooperation with the United Nations Children’s Fund (UNICEF), child-friendly procedures have been established for their “release and surrender” and rehabilitation in Protective Accommodation Centres.  The objective of the rehabilitation process presently underway is to reintegrate former child soldiers into society as productive citizens. The Secretary-General expressed satisfaction on the progress already made by the Government in cooperation with UNICEF and encouraged Sri Lanka to adopt similar policies and procedures relating to former child soldiers in the north.

President Rajapaksa informed the Secretary-General regarding ongoing initiatives relating to rehabilitation and reintegration of ex-combatants. In addition to the ongoing work by the Office of the Commissioner General for Rehabilitation, a National Framework for the Integration of Ex-combatants into Civilian Life is under preparation, with the assistance of the United Nations and other international organizations.  

Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances”.

This then is the full text of the joint statement. An in depth perusal of the joint statement reveals that no explicit or concrete assurance or pledge had been given by Sri Lanka that an accountability mechanism as envisaged by Ban Ki-Moon would be set up. The relevant passage in this case is the final paragraph.

It states that Sri Lanka reiterates its commitment to promotion of human rights in keeping with international human rights standards and Lanka’s international obligations. According to the paragraph the Secretary-General underlined the importance of an accountability process for addressing humanitarian and human rights law. It then says the Government would take measures to address those grievances.

ACCOUNTABILITY

It can be seen from this that the Sri Lankan Government is on firm footing when it says it never agreed to the setting up of an international accountability process or mechanism. The joint statement has vague references but there is no categorical assertion to that effect. Given the Rajapaksa regime’s uncompromising adherence towards the sovereignty of Sri Lanka it does not seem possible that the President consented to international intrusion. In any case the wording of the joint statement does not support the claim that the setting up of an accountability mechanism had been agreed upon and has been recorded in the statement.

What happened however was that initially the UN and western nations like the USA wanted Sri Lanka to set up its own mechanism to investigate the final phase of war, identify possible war crimes and penalise those responsible if any. But Sri Lanka took up a diametrically opposite position in this regard.

The official position of Sri Lanka on the question of  possible human rights violations and war crimes has been  that of a vehement denial. Colombo has taken up the stance that no such violation or crime had been committed. In an eloquent expression of this viewpoint President Rajapaksa stated that the soldiers had fought with a weapon in one hand and the human rights charter in the other. Setting up an accountability mechanism would be a contradiction of this position.

Moreover the Sri Lankan armed forces were the victors in the war. They had defeated a powerful organization condemned worldwide as terrorist. Setting up an accountability process to inquire into their conduct during the final phase of the war amounted to the victors being treated as the vanquished and being meted out “victor’s justice” was the dominant feeling in the Colombo corridors of power. Also the armed forces had acquired “heroic” status after the war and any perceived attempt to tarnish their image would be resented by the people at large.

Besides the war victory had boosted the popularity of Mahinda Rajapaksa immensely. It was on the strength of the war victory that the United People’s Freedom Alliance won the Presidential election and routed the opposition in Parliamentary and Local authority polls. Against such a backdrop it would have been political suicide for him to agree to such an international probe. Even a domestic investigation would have had political repercussions. Also such a move could have triggered off a revolt within the armed forces.

UNREALISTIC

Under these circumstances it was extremely unrealistic of the UN and some western nations to expect President Rajapaksa’s agreement to the setting up of an accountability process. Given the dimensions of the intricate Sri Lankan situation it just was not possible. Even a future UNP president will not be able to probe the conduct of the armed forces without risking popular unrest and political hara-kiri.

This does not mean that Ban Ki-Moon was at fault for seeking an accountability process. It only means that the political environment in Sri Lanka is currently not conducive to such expectations. That “parippu”cannot be boiled in this “thanneer”.

In such a situation there was a behind the scenes tussle on the issue. The UN tried its best with the backing of some western nations to make Sri Lanka set up an accountability process. This was resisted by the Rajapaksa regime.

It must be noted that India did not subscribe to these moves at that time. India wanted Sri Lanka to put the war behind and get on with rehabilitation, reconstruction, development and political settlement. The UN and some western nations continued to emphasise the importance of accountability as a pre-requisite to ethnic reconciliation and national unity. In spite of persistent efforts by Ban Ki-Moon to get Sri Lanka to set up its own accountability process, President Rajapaksa did not oblige. Finally a disappointed UN Secretary-General decided to appoint his own panel to “advise” him in this respect. As Ban Ki-Moon went ahead with his plans despite opposition by the Sri Lankan Government, the excreta collided with the oscillator.

(To be continued)…

DBS Jeyaraj can be reached at

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