By Laksiri Fernando –

Dr. Laksiri Fernando

Long awaited or speculated UNHRC investigation on war crimes and human rights violations is now on. It may be too early, or too late. It may be too sensitive or even counterproductive in a sense to the cause of reconciliation in the immediate future. But it is something that the government cannot simply reject or ignore. It’s a UN investigation.

The government had every ‘right’ to oppose the UNHRC resolution last March, however mistaken the reasons or the claims must have been. But when the resolution was carried, and when the investigation panel is appointed, there is no meaning in further browbeating. There is no point in counting the abstentions. They didn’t vote for the government. At least the Government must critically or conditionally cooperate with the investigation, if the government believes that no wrong had been committed by the soldiers or no wrong orders had been issued by the commanders, including the top decision makers.

Most importantly, if the government is refusing to cooperate with the investigation, who is going to defend the ‘accused’ on the side of the armed forces? Even the worst criminal should have a defense. The government is also missing a golden opportunity to expose the atrocities of the LTTE and bring the perpetrators into book, some of who may be living still. Why hesitate? Is it because, some of the perpetrators are with the government now? An ostrich approach is not going to work.

Ostrich Approach

Noncooperation may be easy. It may even bag some additional votes of the hapless citizens in the immediate elections. It may raise the ‘adrinalin’ spurts of some politicians to feel great or heroic. They even might do some stupid things like ‘fast-unto-death’ or even ‘self-immolation’ or most probably persuade their blind supporters to do so.

But noncooperation on this investigation is a betrayal. It’s a betrayal of the country, betrayal of the disciplined and professional soldiers (not the culprits), and even a betrayal of the peace that the country has achieved by defeating the ruthless LTTE. If the President has done something good and useful by 2009, then he is undoing and reversing them now. It’s a shame and a tragedy. What the noncooperation might establish is that the whole army is the same, the whole government is the same and the whole country is the same.

If the President had conducted immediate investigations into the alleged crimes and violations committed by the soldiers after the conclusion of the war in May 2009, as promised to the UN Secretary General, most of these problems and a UN investigation could have been avoided. After all, the President is responsible for the armed forces. It is almost certain that most of the present information on direct violations was available by then.

It is normal that when the investigations are delayed, and delayed, there could be resistance from the armed forces. Then it is difficult to investigate or punish. The numbers of the armed forces are obviously high. Proportionally, one of the largest armies in the world. A civilian government however should not succumbed to that military pressure. Otherwise, the things might develop into a military rule, a quasi-military rule or a semi-military rule.

However, such pressure or resistance from the army was not there at the beginning. There was a strong backing for the government from the people. By conducting investigations, some commotion could have emerged from the extreme sections within the UPFA, but that would not have been a major issue for the government or for its stability. The President should have relied more on the Army Commander and not his brother. At least a rift between the two should have been avoided. Then what could have led to the present sad situation are probably ‘triumphalism’ and the lack of commitment to truth, justice and fair play.

The government could have easily balanced the army investigations with prosecuting the LTTE perpetrators. All could have even been done in the South African style, through ‘Truth and Reconciliation.’ Now it is too late for a credible internal process. I am here not talking about in detail the political measures that the government could/should have initiated. But holding of speedy elections for the NPC, implementation of the 13^th Amendment, negotiations with the TNA on the above and other matters, could have gone a long way in reconciliation. On the external front, the government should not have alienated India.

If Prof. G. L. Peiris, as a key player of the present game, has thought or given the dead rope that all might be hunky dory after the LLRC, it was wrong. Then the recommendations ironically boomerang on them. The key recommendations are still not being implemented. The report showed to what extent the enlightened or professional thinking in the country differed from the government thinking.

One may say that all the above are on the hindsight, it’s a postscript and a postmortem. However, there’s still an escape route for the government if they wish to pursue. That is also the right thing to do. That is to cooperate with the UN investigation. That can be done critically to balance any adverse effects or even as a ‘face saving’ measure.

What does critical cooperation mean? It means conditional cooperation, keeping the right to criticize or differ, but cooperating on all investigative matters. It also means a commitment to find the truth, and act upon the findings, but perhaps differ on the measures to be taken for the sake of reconciliation and harmony in the country.

Treaty Obligations

Noncooperation is a clear breach of Treaty Obligations on the part of the government. It may have serious repercussions on the government and even on the people of the country. That is why it is also a ‘Great Betrayal’ of the country and the people.

There are two countries who have deviated or attempted to deviate from the treaty obligations particularly in respect of the UNHRC in recent times, Israel and North Korea. But at least Israel has now come into the fold after some humiliation. In 2012/13, when the UNHRC wanted to investigate the Jewish settlements in the West Bank, the Israel refused to cooperate and even boycotted the Universal Periodic Review (UPR). But then it had to come around and participated.

Similarly, when the UNHRC investigators wanted to visit the West Bank for the investigation, the visas were initially refused but then they had to be allowed. Even the US, their biggest ally, wanted Israel to oblige. Israel however has a bigger muscle and their international backers are more sophisticated. When they came back to the UNHRC fold, they negotiated and even won some concessions. Sri Lanka may want to emulate Israel. It appears to be the new style! But could Sri Lanka do that? The backers are very weak at least in diplomacy.

There was a credible story circulating in Geneva in the late 1980s. When Sri Lanka became severely bashed at the UN Human Rights Commission those days, after 1983, President JR became so upset he wanted to leave the UN! Only wise counsel of our eminent diplomats prevented the debacle. But it appears that nothing similar is available today.

UNHRC conducted an investigation on North Korea in 2013. Kim Jong Un refused cooperation. The investigation nevertheless went ahead. Whatever the protests that they organized inside the country didn’t work. The head of the investigation was most respected Justice Michael Kirby. The report of the investigation was submitted this March to the UNHRC. What were the main conclusions? To report many of the violations to the International Criminal Court (ICC) for action. It is interesting note that the outgoing HR Commissioner, Navi Pillay, made the following remark on North Korea just after her remarks on Sri Lanka at the 26^th Session of the UNHRC on 10 June.

OHCHR has also been active in follow up to the Council’s resolution on the Democratic People’s Republic of Korea. I am encouraged by support from many Security Council members for formal consideration of the Commission of Inquiry’s report and its referral to the International Criminal Court.

If Sri Lanka wants to see an ‘unbiased’ report from the UNHRC, it should cooperate. In the case of North Korea there was only one side, the government. But in the case of Sri Lanka there were two sides, the government and the LTTE. Who perpetrated the most is a matter for investigation. I am not saying that the appointed members of the investigating panel are biased, far from it, but any investigation has to depend largely on the evidence placed before the investigators. Therefore, if the government does not cooperate, who is going to submit the atrocities committed by the LTTE? Of course the investigators will dig out as much as possible what the LTTE has committed. But as much as possible. Therefore, noncooperation of the government might lead to an imbalance in evidence.

Failure of Diplomacy

There is a complete failure of diplomacy in Sri Lanka. The government’s refusal to cooperate, announced through its Ambassador in Geneva to the UNHRC on 10 June, just after Ms. Pillay’s opening address, was nothing but a repetition of what the government was saying at the last session in March. Even those who abstained last time might not favor Sri Lanka’s childish stubbornness or refusal.

In addition, while repeating the accusations against the outgoing High Commissioner and the Commission’s staff of bias against Sri Lanka, the Ambassador has questioned the “credibility of the coordinator appointed for the investigation,” who is Ms. Sandra Beidas from UK and a Senior UN Staffer with the OHCHR. This does not appear very professional. It is quite similar to Sri Lanka’s political brick- batting. If there had been some concerns about the composition of the investigation panel, or the personnel, those matters should have been settled through negotiations, diplomatically.

Some of the newspapers in Sri Lanka are full of unsavory stories not only of Beidas but also about much respected Chief Investigator, Justice (Ms.) Dame Silvia Cartwright from New Zealand. She is of the caliber of Justice Michael Kirby, I would say. She also has served as the Governor of New Zealand between 2001 and 2006. Her ‘sin’ perhaps was to serve as one of the two international judges of the Cambodian Tribunal on War Crimes. She was once ‘accused of bias’ by the defense lawyer of Ian Sary who was one of the main killers of the Pol Pot regime. No further explanation is necessary.

Sandra Beidas, being a UN human rights staffer, had come under more criticisms previously in Somalia and recently in South Sudan. She in fact was expelled from South Sudan as a PNG (persona non grata) during her investigations. The reasons are obvious. It may be true that some of the HR staffers at the UN are hardheaded. That is a reality that Sri Lanka should have to live with. The gap between the UN human rights standards and the local perceptions on human rights are obviously considerable.

We need to stop the cycles of violence, killings, denial of truth and violations of human rights with the help of the UN or not. Wasn’t that the reason why Mahinda Rajapaksa went to the UN in late 1980s. No one would say the UN is perfect. However, it is simply unfortunate if people, of all communities, are insensitive to the issues of human rights. Perhaps the repeated cycles of past violence and violations have dehumanized our minds.

Reference to Parliament

One last thing. The President has announced that the government will ask Parliament to decide whether the UN investigators should be allowed to the country or not to conduct the investigations, adding that one has already made a request. He has also mentioned “Parliament is the people’s representative.”

When the government announced to the UNHRC early this week, through the Ambassador, that it will not cooperate, did the government ask Parliament? Obviously not. Then why asking Parliament about visas now? Perhaps the government is shivering. Perhaps, the government wants to put the opposition, particularly the UNP, on the back foot. The answer is however clear, the government should cooperate with the UN investigation, if necessary critically. If any investigator wants to visit the country and conduct investigations, he or she should be allowed to visit. Otherwise it is again a breach of treaty obligations.

The following was what William W. Park (Professor of Law, Boston University), an expert on the subject, stated in his Treaty Obligations and National Law (2006), referring to the Article 23 of the “Vienna Convention on the Law of Treaties.”

According to rules of international law, neither a constitutional mandate nor the enactment of a statute provides an excuse for a treaty violation. Prevailing opinion holds that an act wrongful under the law of nations remains so even if a nation’s internal law deems otherwise.

As far as I understand, or can interpret, this also means that a blanket decision by Parliament on noncooperation or to refuse visas without basis would not allow the breach of treaty obligations under the UN Charter and/or the procedures of the UNHRC. Of course the UNHRC rules oblige the OHCHR to seek cooperation of the concerned member state/s. That is exactly what they are asking for. The refusal of that, obviously is a breach of treaty obligations and even defy commonsense.