By Jehan Perera –

Jehan Perera

The appointment of a new UN High Commissioner for Human Rights, Zeid Ra’ad Al Husseinn, presents the Sri Lankan government with an opportunity to engage with the Office of the UN Human Rights Commissioner and to shed some of the negative baggage of the past.  The government’s relationship with the former UN Human Rights High Commissioner, Navanethem Pillay, was acrimonious and mistrustful.  It was bereft of the dialogue that could have helped to reconcile the differences that existed between the two sides.  The main area of dispute has been the question of an international investigation into whether war crimes took place in Sri Lanka.  The government would be hoping that the change at the top of the UN Human Rights Commission would mean that the UN investigation that has commenced might be stalled.

The appointment of an UN investigation team was not the former UN Human Rights Commissioner’s arbitrary decision.  It followed a vote by the 47 countries represented on the UN Human Rights Council. In March 2014, the majority of countries in that body approved a resolution that called for the establishment of a UN investigation into the last phase of Sri Lanka’s war to ascertain whether war crimes and other serious human rights violations took place and to recommend a course of follow up action. This being the situation, it is unlikely that the new Human Rights High Commissioner will be able to stop the investigation. The decision of a collective body will not be overridden by the personal preferences of those appointed to head that body. It is unlikely that the new UN Human Rights High Commissioner would reverse the course taken by his predecessor.

In his opening remarks, the new UN Human Rights High Commissioner, Zeid Ra’ad Al Hussein, has said that ‘Moreover, I attach great importance to the investigation on Sri Lanka mandated by this Council, on which OHCHR (Office of the High Commissioner for Human Rights) will report later in the session. I encourage the Sri Lankan authorities to cooperate with this process in the interests of justice and reconciliation. I am alarmed at threats currently being levelled against the human rights community in Sri Lanka, as well as prospective victims and witnesses. I also deplore recent incitement and violence against the country’s Muslim and Christian minorities.”  These words do not suggest any significant departure from the approach of the previous Human Rights High Commissioner, Navanethem Pillay.

Valuing Dialogue

However, an improved relationship with the new Human Rights Commissioner is possible if there is genuine dialogue.  Dialogue does not simply mean talking to the other with whom there is a problem to be resolved.  It also does not mean simply explaining one’s point of view to the other.  Dialogue also means listening to the other and seeking to understand the other’s point of view.  It also means looking beyond one’s own preferred solution without debunking the other’s preferred solution. Dialogue means finding a third way that is mutually acceptable to both sides.  This is unfortunately not how the Sri Lankan government has been thinking up to now. The government’s belief seems to be that the political mandate it gets by winning elections overrides all other considerations. The government’s approach to problem solving has been to present its own version of the problem and expect others to go along with it.

The government’s position with regard to the UN investigation into war crimes is to denounce it as an unjustified intrusion into the country’s sovereignty and to refuse to cooperate with it.  However, as the Office of the UN High Commissioner for Human Rights is part of the UN system, it is going to be harmful to Sri Lanka’s interests if its government is to go on a collision course with the UN system.  By its refusal to cooperate with the UN investigation, and denying entry visas to the investigation team, Sri Lanka is also undermining the UN system which was set up to preserve world order and peace.  This will not be an internationally acceptable course of action for Sri Lanka to follow. The government can seek to negotiate the terms on which the UN investigation is undertaken, but not by flatly rejecting and refusing to cooperate with it.   The government needs to take the opportunity presented by the appointment of a new High Commissioner for Human Rights who comes in with a fresh outlook and seek to dialogue with him on finding a third way.

It is not only with the Office of the UN High Commissioner for Human Rights that the Sri Lankan government has a new opportunity to engage in dialogue.   Another opportunity has also opened up with regard to resolving the vexed ethnic conflict within the country.   This is on account of the changes that have taken within India with the election of a new government.  The Indian government headed by Prime Minister Narendra Modi has taken a constructive position on the way forward for Sri Lanka to which it is prepared to give its support.  While it has not shifted from the long term Indian government position with regards to the devolution of power and the 13th Amendment to the Constitution, India has also urged the TNA to engage in dialogue with the Sri Lankan government and not to look for solutions from the international community.

Political Solution

The Indian government’s invitation to the TNA to meet with its top leaders and the visit of the TNA parliamentarians to India has highlighted India’s continuing interest in ensuring that a political solution to the ethnic conflict is found in Sri Lanka. This turn of events was not anticipated by the government, which was lulled into believing that the nationalism of the new Indian Prime Minister and ruling party would resonate well with the nationalism of the Sri Lankan leadership.  There was a misplaced hope within the Sri Lankan government that a nationalist India would side with a nationalist Sri Lanka and give a subordinate position to minority rights. This view was given credence by visiting Indian intellectuals who were deemed to be close advisors to the Indian government.

The encouragement that the TNA received from the Indian government to pursue a political solution based on the principle of devolution of power as found in the 13th Amendment to the Constitution, has pointed to the parameters of the possible solution. This is in conformity with the policy of earlier Indian governments. The Indo-Lanka Accord of 1987, the lives of Indian soldiers lost in the vain effort to disarm the LTTE and the implementation of the devolution of power to the provinces continue to be the drivers of Indian policy towards Sri Lanka. On the other hand, India has also made it clear to the TNA that the responsibility for arriving at a settlement with the Sri Lankan government cannot be shifted to either India or the international community. The message to the TNA has been that it will have to find a solution by engaging with the Sri Lankan government, and not be disengaging with it.

The many failures of Tamil parties over the past six decades since Independence to obtain a political solution in negotiations with the Sri Lankan government have induced them to place their reliance on external powers. Even today the hope of the Tamil political leadership appears to be to find the solution to their problems through international pressure. They have even gone to the extent of openly supporting the UN investigation into war crimes in Sri Lanka. But it is evident that such external pressures will be resisted by the Sri Lankan government which has long demonstrated its skill at mobilising the fears, indignation and anger of the Sinhalese majority on the harm to the national interest. Ironically, it seems that the greater the international pressure, the greater is the resistance to it from within Sri Lanka. Therefore if a solution that is mutually acceptable is to be achieved it will require dialogue between the government and TNA. The need for dialogue between the government and TNA on finding a third way corresponds to the need for such a dialogue between the government and the UN.