D.B.S Jeyaraj Column on UN Report & Sri Lanka
A diplomatic tussle is going on at present between the United Nations Secretary General (UNSG) and the Government of President Mahinda Rajapaksa over the release of the report compiled by the three-member advisory panel appointed by Ban Ki moon. This is not a fresh development but only an extension of the “cold war” that has been continuing ever since Ban Ki-moon visited Sri Lanka after the war against the Liberation Tigers of Tamil Eelam (LTTE) was concluded.
The UN SG along with influential western nations has been trying hard to get Sri Lanka to set up an accountability mechanism and conduct inquiries into the final phase of the war. The Government of President Mahinda Rajapaksa for reasons of its own has been resisting such efforts strenuously.
Despite this stance adopted by Sri Lanka, past events display a seeming lack of cohesion on the part of Colombo in dealing with the issue. It appears that Sri Lanka had no clear consistent policy on this matter and often see-sawed between rigid and flexible postures in this regard.
The high watermark in Sri Lanka’s diplomatic prowess was the victory it achieved in Geneva at the UN Human Rights Council conclave in May 2009. Sri Lanka with the help of friendly nations not only defended itself effectively against a resolution brought against it but succeeded in getting a “counter resolution” favourable to it passed.
That resolution described as the “Geneva consensus” was carried by twenty-nine votes to twelve with five abstentions in the council comprising forty – six member states. The architect of that diplomatic achievement was Sri Lanka’s envoy to the UN in Geneva, Dr. Dayan Jayatilleka. However, in a baffling move, Dr. Jayatilleka was recalled to Colombo within weeks of that diplomatic triumph.
Dr. Jayatilleka was also responsible for resisting UN pressures on Sri Lanka and stridently articulating the viewpoint of Colombo in the corridors and halls of Geneva. One recalls the cutting remark made by Dr. Jayatilleka to former UN Human Rights chief Louise Arbour when she kept on pressing Sri Lanka to agree to the setting up of a UN field office on Human rights in the Island as was done in Nepal. Dr.Jayatilleka asked Arbour “Which part of “NO” do you not understand”?
The flamboyant Dr. Jayatilleka with his ebullient mode of expression kept the Lankan flag flying at Diplomatic fora without complying to international diktat. All UN’ efforts to compel Colombo to set up an accountability mechanism were rebuffed by him. But things changed particularly after his recall.
It was our representative at the UN in New York, HMGS Palihakkara who first agreed to consider the appointment of a domestic accountability mechanism at a UN basement discussion. This consent to consider a domestic accountability mechanism was apparently made to Susan Rice the US representative at the UN.
In fairness to Mr.Palihakkara, it must be said that the seasoned diplomat made such a decision only as the best option available in a tricky situation. This was a time when strong moves were afoot to place Sri Lanka on the agenda of the UN security council. Although Sri Lanka’s friends Russia and China could always veto any adverse resolution there was no way in which they could have prevented the Sri Lankan issue being placed on the agenda and being discussed.
It was this prospect which perhaps made Palihakkara resort to the option of agreeing to consider a domestic accountability mechanism. This was a hard choice made with the best interests of the country at heart. On the one hand it prevented Sri Lanka being placed on the UN security council’s agenda and undermined pressures to launch an international probe on the other.
The flexibility displayed by the Sri Lankan ambassador to the UN at New York was a departure from the rigidity adopted by the Sri Lankan ambassador to the UN at Geneva. Whatever the merits of this move the “consent” given was a boost to the international community pressuring Colombo. It also indicated that Colombo did not possess a precise strategy on the matter and was resorting to ad hoc tactical moves whenever suitable.
The Rajapaksa regime however did not give in readily to pressures on the setting up of a domestic accountability mechanism despite the view expressed by Palihakkara in NY. It continued to procrastinate. This delay was in a sense typical of a stratagem followed by President Rajapaksa in dealing with certain types of situations. It is best described in Sinhala “Porunduwela Enda;passa balamu” (Promise and come; we’ll see later)
This resistance was annoying perhaps to Ban Ki moon who was beginning to get impatient. In March 2010 the UN Secy –Gen announced his decision to appoint an advisory panel to delve into the final phase of war in Sri Lanka and submit a report to him.
This sparked off heated protests from Colombo. A legalistic position was taken that the UN SecyGen had no authority or mandate to appoint a commission of this type as the UN Security Council or General Council had not sanctioned it. Ban Ki moon countered it by saying this was not a UN panel but only an advisory panel responsible to him.
After weeks of exchanges both private and public the Sri Lankan Govt announced the appointment of a commission in May 2010.Its terms of reference however were different to what was specifically being demanded. The Lessons Learnt and Reconciliation Commission (LLRC) was to go into events from the cessation of hostilities accord in 2002 between the United National Party (UNP) led Govt and the LTTE up to the end of the war in May 2009.
On May 6, 2010, the Sri Lankan government announced that it will establish a commission to report on the lessons learned from the conflict and reconciliation efforts. In a statement posted on the government’s website, the government announced that “there will be the [sic] search for any violations of internationally accepted norms of conduct in such conflict situations, and the circumstances that may have led to such actions, and identify any persons or groups responsible for such acts.” The statement said nothing about holding such persons accountable under Sri Lankan criminal law or what other steps would be taken against those found to have been acting in violation of Sri Lankan or international law.
On May 10, the US ambassador to the United Nations, Susan Rice, welcomed Sri Lanka’s intention to establish a commission on the war and listed several criteria that would need to be met for the commission to play a valuable role in advancing accountability for violations of international humanitarian law.
These criteria included independence, the impartiality and competence of the members, a proper mandate, adequate and effective protection for witnesses, adequate resources, and serious government consideration of the commission’s recommendations.
International Human Rights monitoring agencies such as the Amnesty International, Human Rights Watch and International Crisis Group were sceptical and critical from the start. They declined an invitation by the LLRC to testify before it. These agencies opined that the LLRC was structurally flawed and functionally impaired and was more an attempt to deflect international criticism than genuinely investigate rights abuse allegations.
On May 28th 2010, Sri Lankan External Affairs Minister Prof. GL Peiris met US Secretary of State Hillary Clinton and impressed upon her the fact that the LLRC was the best mechanism for domestic accountability available under prevailing circumstances and assured Washington that an independent report would be forthcoming. Human Rights Watch however wrote to Clinton urging her to not let Sri Lanka continue with its climate of impunity.
Despite these moves and counter moves the LLRC did not commence sittings for quite a while. This lethargy was shed when Ban Ki-moon in a controversial move went ahead with his earlier intention of appointing an advisory panel.
The official UN press release of June 22nd 2010 that announced the appointment of this panel stated 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
Its 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).The highly respected Darusman was a former Indonesian Attorney –General.He had also been the UN special rights investigator for North Korea. Yasmin Sooka was a former member of the commission that investigated apartheid atrocities in South Africa. Steven Ratner is an American lawyer and author of a book on the struggle among nations to hold people accountable for human rights abuses.
The appointment of the advisory panel was met with stiff opposition by Sri Lanka. The appointment of Darusman as chair was particularly controversial. President Rajapaksa had earlier in 2006 appointed a commission of inquiry to probe fifteen cases of alleged human rights violations.
Rajapaksa also appointed a panel of international experts to observe proceedings of the Presidential Commission of inquiry. This panel comprising ten persons was called the International Independent Group of Eminent Persons (IIGEP). Darusman was a prominent member of the IIGEP panel. The Sri Lankan Attorney–General at that time was Chitha Ranjan de Silva(CR de Silva).
Darusman had objected to some aspects of the conduct of CR de Silva during proceedings. The Attorney-General’s conduct was cited as the main reason for the IIGEP to pull out of proceedings. Apparently Darusman was the driving force behind the pull – out from monitoring the inquiry proceedings.The IIGEP stated that it had “not been able to conclude…that the proceedings of the Commission have been transparent or have satisfied basic international norms and standards.”
Now the very same Darusman was chair of the advisory panel. By a quirk of fate the head of the LLRC was none other than CR de Silva. The one time prop forward who captained the Royal College Rugby team in 1968 is known in rugger circles as “Bulla”.
Nominating Darusman was perceived as a deliberate move by Ban Ki moon. Darusman was suspected (unfairly perhaps)of being partial and against Sri Lanka on account of his role in IIGEP proceedings. Likewise the other two members were also vilified as being partisan.Sooka because of her African National Congress connections was seen as being pro-LTTE. Ratner was seen as prejudiced against Sri Lanka due to some of his writings in his book.
What was lost on those castigating Darusman, Sooka and Ratner as not being impartial was the fact that by the same yardstick the same charges could be laid out against the LLRC chairman and some other members also because they too had held or were holding official posts and thus could be deemed as not being impartial.
Such slandering on flimsy grounds is unacceptable. The members of both the LLRC and the Ki moon advisory panel are persons of integrity whose independence and impartiality deserves respect unless and until proved otherwise.
The announcement that an advisory panel had been appointed by Ban Ki-moon triggered off a wave of protests in Sri Lanka. National Freedom Front (NFF)leader and Cabinet minister Wimal Weerawansa spearheaded demonstrations opposite the UN office in Colombo. While Weerawansa embarked on a “fast unto death” campaign demanding that the UN backtrack other demonstrators burned Ban Ki moon’s effigy. Demonstrators blocked entry and exit to the UN premises.When conscientious Police officers tried to stop this obstruction they were berated and allegedly reprimanded by higher authorities.
Weerawansa’s fast was called off after three days without his demand being granted. Apparently his health was decaying and President Rajapaksa himself asked him to call it off and symbolically ended it by giving Weerawansa water to drink.
The boisterous manner in which the protest was held and the rowdy behaviour of some demonstrators had a negative effect internationally. Earlier there was considerable sympathy for Sri Lanka among UN member states notably the non – aligned movement. These feelings however began dissipating after the Weerawansa led demonstration.
Ban Ki-moon however continued to emphasize that this panel was only an advisory body set up to advise him and that it was not an official investigative body set up by the UN. He reiterated that the report was only to advise him and nothing further.
In spite of these assertions the Sri Lankan Govt vehemently opposed the move and declined to cooperate with the UN Secy Gen in this. Sri Lanka refused to acknowledge the panel and refused to grant visas for the panellists to visit Sri Lanka.
Consequent to the protests against the panel the LLRC also geared up for action. The LLRC that had been nominated in May began to conduct proceedings in July 2010.Likewise the advisory panel appointed in June commenced work in September 2010. Richard Bennet the former head of the UN field mission in Nepal functioned as secretary to the panel.
Sri Lanka’s dismissal of the panel and strong views articulated conveyed the initial impression that the Island nation was going to stand firm on the matter. But as time went on it appeared that the Govt was not of a singular mindset on this. There seemed to be both hawkish and dovish tendencies within the establishment. While one school of thought wanted a confrontational attitude the other opted for a conciliatory approach.As a result there were conflicting signals.
On one occasion the Govt that had decided not to grant visas to the Darusman panel members was prepared to revise its stance. It was ready to allow the trio to come to Sri Lanka and observe LLRC proceedings. The panellists were also to be allowed to meet civil society representatives and political leaders. But they would not be able to hold investigations or conduct parallel sittings or participate in LLRC sessions apart from observing.
Predictably, these moves evoked a storm of protest from Weerawansa and others who had protested strongly against the panel being set up. Allowing the panellists into Sri Lanka was tantamount to tacit recognition they argued. The Govt was now in a quandary. But the crisis died down when Darusman and Sooka refused to attend LLRC sittings as mere observers. They wanted a more vibrant role. When this was ruled out the panel declined to visit Sri Lanka.
Another incident demonstrating the vacillating mindset of the Govt was in late February this year. A four member team representing Sri Lanka held a secret meeting with the Darusman,Sooka, Ratner and Bennet in New York. Also present was Lynn Pascoe the UN under secretary for Political affairs. Pascoe had apparently brokered the meeting.
The Sri Lankan team comprised former External Affairs Ministry Secretary Romesh Jayasinghe, Attorney General Mohan Peiris, Sri Lanka’s permanent representative to the UN in New York Palitha Kohona and deputy permanent representative Shavendra Silva. The Sri Lankan delegation had also met with Ban Ki moon earlier in a publicized meeting. Subsequently Prof. GL Peiris confirmed at a press conference in London that a Lankan delegation had indeed met the panel. No further details were disclosed.
To be continued on Monday
DBS Jeyaraj can be reached on