By Dharisha Bastians –

Dharisha Bastians

Months of anticipation for human rights campaigners, the Tamil Diaspora communities and the country’s main Tamil party ended in an anti-climax when despite international pledges and dire warnings, the US draft resolution at the Human Rights Council released Monday failed to call for an international inquiry into alleged war crimes in Sri Lanka. Many of these groups have rejected the resolution outright as being weak and ineffectual, but the real tragedy is that the Sri Lankan Government fails to see the opening the draft provides for resuming engagement with those players it now credits as being hostile states. And despite the criticism, the resolution’s call for the investigation by the Office of the High Commissioner for Human Rights into violations in Sri Lanka, offers the clearest indication yet that the clock on engagement is fast running out

Three days after the 25^th Session of the Human Rights Council opened in Geneva, some might say President Mahinda Rajapaksa whose Government is being accused of major crimes during the war, has already achieved a massive victory.

After months of dire warnings, threats and much finger wagging, the first draft of the US sponsored resolution makes no reference to the establishment of an international investigation into allegations of war crimes in Sri Lanka.

The exclusion of the ‘international inquiry’ clause in the resolution’s initial text goes to prove what the Rajapaksa Administration has known all along – that the international community’s bark is much worse than its bite, irate human rights activists said, after the first text was officially submitted to the Council at 4 p.m. Geneva time on Monday (3).

The initial draft of the third US backed resolution on Sri Lanka, first revealed exclusively in Daily FT’s lead story on Tuesday (4) and likely to be adopted by the Council later this month is significantly stronger in language than the two that have preceded it in 2012 and 2013. Ongoing attacks on religious minorities, the transparency failure in the probe into the murder of three unarmed civilians during a protest for clean water in Weliweriya in August 2013 feature significantly in the draft resolution, indications that the spotlight not only remains on the Sri Lankan human rights situation five years after the end of the war, but that the focus is not limited to war time abuses. And while the 2013 resolution attempted to hold Sri Lanka to its promise that elections for the Northern Provincial Council would be held by September last year, the 2014 version now calls on the Government of Sri Lanka to ‘provide the Northern Provincial Council with the resources and authority to govern’ in accordance with the 13^th Amendment to the Constitution.

The inclusion of the recommendation is significant.

Problems with the NPC

Since his election to office with an overwhelming majority in the September 2013 election, Chief Minister C.V. Wigneswaran has a single battle-cry. The former Supreme Court Justice insists that Colombo is blockading the TNA-led Council in every way, permitting the Northern Governor – a presidential appointment – and a heavily entrenched provincial bureaucracy to call all the shots in the formerly embattled region.  Wigneswaran tells visiting dignitaries and diplomats with much angst, that the Council has been reduced to a body that passes non-binding resolutions on issues fundamental to the political rights of his people, despite the great expectations with which it was swept into power. When External Affairs Minister G.L. Peiris presented Sri Lanka’s National Statement at the UNHRC’s High Level Session in Geneva yesterday, he made special reference to Tuesday’s grand re-opening of the railway line between the former LTTE stronghold of Kilinochchi and the town of Pallai. The ruling administration often references the phase-by-phase reconstruction of the rail connection to Jaffna, and legitimately so, as an important step in re-linking the south of the country to the north after decades of war had severed the connection. Pallai was a bustling railway station pre-war, and on Tuesday it became the first the first station to be re-linked in the Jaffna District, the cultural heartland of Sri Lankan Tamils. In every way the symbolism of post-conflict reconciliation, reconnection and rebuilding associated with the opening of the station is inescapable. The project was undertaken by an Indian company with the full backing of the Indian Government that is strongly supportive of the Northern Provincial Council. It is deeply mystifying therefore that the Government failed to invite the Northern Province Chief Minister to Tuesday’s opening. . The guest of honour was UPFA Minister Douglas Devananda, a man whose party the people of the North vehemently rejected in last year’s election.

The move makes it clear that the ruling regime is loathe to share the credit for post-war development with the TNA, that is a major thorn in its side politically. But the blatant snub is also an apt illustration of how the Rajapaksa administration confuses its post-war priorities, prizing physical reconstruction over healing and reconciling hearts and minds across the ethnic divide. The exclusion of Wigneswaran also belies the Government’s claim, most recently made before the UNHRC in its response to High Commissioner Pillay’s damning report on Sri Lanka that the Government was working in cooperation with the Northern Provincial Council.

Far from abstract therefore, the US resolution is dealing explicitly and minutely with political issues facing the Tamil community on the ground, in real time.

No kudos for resolution

But that has won Washington and its co-sponsors no kudos from the Tamil community in Sri Lanka or the vocal Tamil Diaspora communities that are hungry for action overseas. The British Tamils Forum, a major lobby group in the UK has openly condemned the resolution as being weak, and their sentiments were echoed by the Tamil National Alliance’s more nationalist sections last afternoon. Addressing a press conference, TNA Jaffna District MP Suresh Premachandran charged that the resolution in no way addressed the heart-cries of the Tamil people. Making a strange argument, the TNA MP alleged that the US Government was focused on regime change in Sri Lanka and was seeking to win favour with the Sinhalese majority to achieve this goal, resulting in a watered down resolution. Human rights activists worldwide are critiquing the draft resolution as weak in tenor and just another ‘holding resolution’ that will afford the Sri Lankan Government further time and allow the global appetite for action in Sri Lanka to wane as the months and years wear on.

From the Government of Sri Lanka’s perspective, each of these groups – Rights watchdogs, Tamil Diaspora and the TNA are the enemy. Ironically, these are the same groups the Government credits with conspiring against Sri Lanka and pushing powerful nations of the world to act against a small island nation that did the unthinkable and defeated a ruthless terrorist outfit. It defies logic therefore that the Sri Lankan Government will soon join the chorus of critics of the latest US resolution – for vastly different reasons. All indications are that Sri Lanka will reject the resolution outright – despite the fact that it is universally acknowledged that in its first draft at least, the document has gifted Sri Lanka another year to work on its outstanding post-war issues. The resolution stresses cooperation, strongly supports a truth seeking process to address allegations of abuse and opens a further window for the Government to actively engage with sponsors and supporters of the resolution on dealing with the concerns outlined in a credible and internationally acceptable way.  Judging from Minister Peiris’ speech, which alleged bias and intrusion by Pillay and rubbished the report she presented to the Council following her fact finding mission in Sri Lanka, engagement is off the table. For too long, Sri Lanka’s foreign policy has focused on belligerence against perceived enemies. It is a habit that is proving hard to break. Worse still, it may be blinding the regime to opportunities being laid squarely at its door.

Despite the initial criticism however, the draft resolution released on Monday also makes it clear that the clock on international engagement and the world community’s appetite for stonewalling by the Sri Lankan Government is fast running out. The most significant clause of the draft resolution appears on its fourth and final page. The eighth recommendation of 10 included in the draft resolution requests the Office of the High Commissioner of Human Rights (OHCHR) “to investigate alleged violations and abuses of human rights and related crimes by both parties in Sri Lanka, with input from relevant special procedures mandate holders as appropriate.”

OHCHR Inquiry

The Office of the High Commissioner is being called upon to report on progress of this investigation and other monitoring and assessments to the Human Rights Council orally at the 27^th Session in September 2014. A comprehensive report of the OHCHR findings is to be presented before the Council and followed by a discussion in March 2015. In her address before the Council on Tuesday (4), US Under Secretary of State for Civilian Security, Democracy and Human Rights confirmed the resolution was calling for a probe by Pillay’s Office, into both allegations about war time abuses and more recent violations. “In 2012 and again last year, this council urged the Government of Sri Lanka to launch an independent investigation into the deaths of thousands of civilians during that country’s terrible civil war. To date the Government has refused,” the US official told the Council.

When calls began to mount over the need to establish an international mechanism to look into alleged war crimes in Sri Lanka, the big question before the international community was what form the inquiry could take. For UNHRC led investigations, two options were before the co-sponsors of the resolution on Sri Lanka. The first, more well known and understood option is the Commission of Inquiry mechanism. Commissions of Inquiry have most recently been conducted in Syria and North Korea, the findings of which are before this Council session. Commissions of Inquiry take months to constitute, once approved by the 47 member Human Rights Council and comprise independent investigators and experts with the power to summon witnesses and gather evidence. The resourcing and funding of such Commissions must be borne by UN member states, therefore Council members must deem the exercise emergent and dire in order to approve the magnitude of costs involved in the process. The more desirable option in the case of Sri Lanka, both in terms of the fact that it would more easily achieve consensus within the Council and because it was less intrusive from the Government’s perspective, was the OHCHR inquiry mechanism. A probe by Pillay’s Office would be easier to set up, cost-effective and would not imply great deviance from the 2013 resolution which called for a fact finding mission by the High Commissioner.

Weak resolution: HR activists

According to human rights activists, the draft resolution is weak in its current format because it does not explicitly call for an OHCHR inquiry, even though the process is implied and reinforced by Sewall’s remarks to the Council. The clause leaves room for the Pillay-led inquiry, but perhaps only in the absence of the Government’s continued refusal to address the allegations through a domestic process. The good news for the Sri Lankan Government is that the draft resolution may be diluted in terms of language and action required in the next three weeks before the vote is taken, in order to allow its adoption by a broad majority of the Council.

The draft resolution also provides the Sri Lankan Government with significant leverage by its strong backing for a truth seeking mechanism to deal with allegations that have arisen about the last days of the war. The reference is code for a South African style Truth and Reconciliation Commission (TRC) that the Sri Lankan Government is toying with establishing especially in the run up to the March sessions in Geneva. Hopes were rising in the past few weeks about a South Africa assisted TRC in Sri Lanka, especially after the ruling African National Congress appointed Cyril Ramaphosa as its special envoy to Sri Lanka. A Government delegation led by Leader of the House Nimal Siripala De Silva has also just returned from a visit to South Africa, presumably to “explore” TRC type options. The two moves were widely believed to indicate that the South African Government was willing to work with Sri Lanka on a truth telling process. Relations between the two countries have been robust after South African President Jacob Zuma attended the Commonwealth summit in Colombo despite the controversy surrounding the meeting.

South Africa and the TRC

At the UNHRC, where the US resolution will come up for a vote on 28 March, South Africa’s support is crucial for Sri Lanka. The votes of several other African states, including Namibia (a new UNHRC member for 2014), Botswana and Burkina Faso will hinge on South Africa’s decision on the US resolution. Sri Lanka’s cooperation with South Africa on a TRC process, will almost guarantee that the ANC will side with Colombo in Geneva this year, against the US move. The appointment of Ramaphosa, informed sources say is significant because the ANC Deputy President is tipped to be South Africa’s next president, after Zuma concludes his next term. The ANC is keen to boost Ramaphosa’s international profile ahead of that development, resulting in his appointment as envoy to both Sri Lanka and South Sudan.

The sticking point for the Rajapaksa Government however, is that the ANC will insist on a credible process if it is to assist Sri Lanka with a TRC. In fact, if the process adopted by Sri Lanka is found to be inadequate or prejudiced in any form, the ANC was likely to both criticise the process and repudiate it publicly, sources said.

It is unclear if it was these considerations that prompted the strange pronouncement from Arun Thambimuttu, the SLFP organiser for Batticaloa and member of the Government delegation to South Africa, that discussion in Pretoria had revealed there were more differences than commonalities between the post conflict situations in Sri Lanka and South Africa. Thambimuttu’s declaration was buttressed by Minister Peiris, who was also present at the presidential interaction with foreign correspondents based in Colombo at Temple Trees last Friday (28). The Minister said the delegation to South Africa had focused on sharing experiences, steering clear of committing on whether the Government was decided on a TRC. The Government is keen to keep the promise of the TRC alive, at least to ensure it does not lose South Africa’s crucial support at the Council.  But it would prefer not to firmly commit to a truth seeking process, in case it finds it is backed into a corner. The regime learnt what it considers a brutal lesson several years ago with the LLRC which was established to ward off international pressure, only to find that the Commission’s report was pounced upon by the Western lobby that insisted on its recommendations being implemented in successive UNHRC resolutions.

Strange developments

While progress on backroom discussions between South Africa and Colombo remains unclear, South African Minister for International Relations and Cooperation Emily Nkoana-Mashabane excluded a reference to Sri Lanka in the delivered version of her speech to the UNHRC’s High Level Segment on Tuesday. In the text of her speech, uploaded on the UNHRC website shortly after it was delivered the Minister said it was important to allow Sri Lankans to find each other and out of this, find solutions that are durable for their country.  “We as South Africans also had to find each other and consequently find our own solution to our own problem. This is our wish for the people of Sri Lanka,” the document uploaded on the website said. However, in her oral presentation, Nkoana-Mashabane omitted the reference to Sri Lanka altogether. Oddly, the exclusion coincided with a call by South African Archbishop Emeritus of Cape Town, and Nobel Peace Laureate Desmond Tutu for an international investigation into alleged war crimes in Sri Lanka. Tutu, a member of The Elders, a grouping of global leaders working to foster peace and human rights which was founded by Nelson Mandela, said only an international commission of inquiry, established by the March 2014 resolution at the UNHRC would put Sri Lanka on the path to justice and reconciliation. “The biggest issue Sri Lanka faces is a systemic lack of respect for the rights of its citizens, particularly – but not exclusively – its minority citizens. This is rooted in a culture of impunity that is in turn rooted in a failure to hold to account those, on both sides, who committed some of the worst atrocities this century,” Tutu said in an open letter to the UNHRC released yesterday.

Tutu’s public call puts the South African Government in a supremely awkward position with regard to the Sri Lanka issue. Desmond Tutu, a tireless anti-apartheid activist and peace-campaigner is widely regarded as South Africa’s moral conscience. As South Africa comes to its own economically 20 years post-conflict, spiritual leaders like Tutu strive to  keep the ANC true to the founding values of the South African constitution drawn up post- Apartheid. When the ANC bowed to pressure from China and turned down a visa request for the Dalai Lama in 2011, Tutu railed against the Government, threatening to pray for its downfall for betraying the values upon which the rainbow nation formed in 1994.. The ANC’s decision to back a regime that Tutu and others have come to regard as major violators of its peoples’ freedoms and an oppressor of minorities, may provoke a similar outcry. As the debate rages about whether the ANC is deviating from Mandela’s vision for South Africa by allying with purported oppressors, the party’s approach to Sri Lanka will be a crucial indicator for its critics.

All this notwithstanding, South Africa’s vote at the UNHRC will be a crucial litmus test of the kind of support US resolutions will be able to muster going forward.

The way Saudi Arabia swings with regard the US resolution will also be an important indicator as to whether allegations of the Government’s patronage of anti-Islamic groups in Sri Lanka is resonating with sections of the Arabic world. So far, there are no indications of the Islamic bloc switching allegiances on the basis of discrimination against the minority Muslim population in the island. But ironically, even as religious freedom features heavily in the debate over Sri Lanka at the UNHRC, the Gangodawila Magistrate on Tuesday (4), shut down a small mosque operating in Kadawatha Road, Dehiwala. Mosque trustees attempting to file a motion against the injunction yesterday were turned down by the magistrate. Its belligerent diplomacy and emphatic rejection of mounting evidence about the final phase of the war has already cost the Government the Western liberal bloc. Will Mahinda Rajapaksa, champion of the people of Palestine, also sacrifice the key support of the Islamic bloc, so crucial as Sri Lanka faces off with world powers at the UNHRC, by plying the expedient path of Sinhala-Buddhist hegemonic politics?

Courtesy Daily FT