By Jehan Perera –
The government’s decision to invite three eminent international legal experts on human rights and war crimes to advise its Commission of Inquiry into Missing Persons was unexpected. It caught even senior cabinet ministers by surprise. The government had been steadfast in denying that serious human rights violations and war crimes took place from the commencement of such allegations more than five years ago. So far all inquiries conducted by the government have reaffirmed the government’s position that no such offenses took place. But as those have been a case of the military investigating the military and exonerating the military, the inquiries have not been internationally credible. The appointment of the independent UN investigative team to probe into these matters following the resolution passed by the UN Human Rights Council in March of this year appears to have jolted the government to reconsider its past position.
It is noteworthy that the UNHRC resolution of March 2014 had two operative parts to it. The first was to call for an investigation into the past by the Sri Lankan government that met with international standards. The second was to call for the Office of the UN Human Rights Commissioner to commence an independent investigation if the Sri Lankan government failed to carry out such an investigation itself. The appointment of the experts and expanding of the mandate of the Commission comes after the Office of the High Commissioner for Human Rights launched its own investigation on the war and appointed three experts, also of the highest international calibre and credibility, to oversee the probe. Now by appointing its own three member advisory panel, the government seems to be striving to operationalise the first part of the UNHRC resolution with the hope of diminishing the need for the implementation of the second part.
The government appointed advisory panel is of the highest competence and credibility. Its three members are Sir Desmond de Silva, Queen’s Counsel, a prominent British lawyer and a former Chief War Crimes Prosecutor at the UN Tribunal for Sierra Leone, who is also of Sri Lankan origin and will be Chairman; Professor Sir Geoffrey Nice, a British lawyer who headed the trial of Slobodan Milosevic at the international tribunal for the former Yugoslavia in the Hague; and Professor David Crane of the United States who was the Chief Prosecutor of the Special Court for Sierra Leone, and who indicted, among others, the then Liberian President Charles Taylor. In revamping the mandate and term of reference of the Commission on Missing Persons, the government has reserved the right to expand the numbers in the advisory panel which is a possible point of controversy if future appointments are less credible.
The three international experts will serve on an Advisory Council to the Commission of Inquiry to advise it, at their request, on matters pertaining to the work of the Commission. In addition, the government has expanded the mandate of the Commission on Missing Persons to include the facts and circumstances regarding the loss of civilian life during the war, and whether any person, group or institution directly or indirectly bears responsibility in this regard by reason of a violation or violations of international humanitarian law or international human rights law. Also to inquire whether the adherence to or neglect of the principles of distinction, military necessity and proportionality under the laws of armed conflict and international humanitarian law, by the Sri Lankan armed forces and whether the LTTE as a non-state actor was subject to international humanitarian law in the conduct of its military operations.
The question is whether the Commission on Missing Persons which had a more restricted mandate will be able to cope with the much wider mandate that has now been cast upon them. So far they have been doing their investigations with quiet determination. The Commission held several sittings to cover the districts of Jaffna, Kilinochchi, Mulaithivu and Batticaloa and has received over 19,000 complaints. However, those who are skeptical about the government’s motivations in appointing the advisory panel would remember the experience of another commission of inquiry in the past. This was the International Independent Eminent Group of Persons (IIEGP) which was appointed in 2007 to advise the Commission of Inquiry into Serious Human Rights Violations. The IIGEP, comprising of 11 members was invited by the President to observe the investigations and inquiries of the Commission of Inquiry, in order to ensure transparency and observance of international norms and standards. The IIGEP terminated its operations after a year citing lack of progress in the investigations. There is no doubt that the government would be mindful of this debacle and the higher stakes that exist at this time, with a parallel independent UN investigation taking place.
There is another matter that the government needs to consider seriously. This is whether it can deal in compartments with different issues, and achieve international standards in looking at the past while failing to reach those standards in dealing with issues of governance within the country at the present time. Since the end of the war, impunity has been most marked in regard to violence and harassment against the Muslim community and undertaken by groups that are seen as allied to the government. The government has also been restricting the freedom of civil society groups in a manner that goes counter to international standards. Most significant of all is its failure to stand by its commitments with regard to the devolution of power. This is a serious problem as a reconciliation process cannot run on parallel tracks, where internationally the government shows itself to be a in a reconciliatory mode, while within the country there is confrontation and antagonism. The situation on the ground will be seen by all who are interested in Sri Lanka and will undermine their belief in the sincerity of the reconciliation process.
There was anticipation of a breakthrough in the reconciliation process following the visit to Sri Lanka of South African special envoy Cyril Ramaphosa. However, the government failed to show any shift in its approach to addressing the issue of national reconciliation. No sooner did Mr Ramaphosa leave Sri Lanka that the government extended the term of the Governor of the Northern Province, although the TNA has been consistently asking for a replacement who will cooperate with the Chief Minister and the Northern Provincial Council instead of acting in opposition to them. The reappointment of the Governor of the Northern Province is seen by some of the key actors in the international community as a violation of a pledge given to them by the government. In particular, when President Rajapaksa pledged to hold elections to the Northern Provincial Council he also gave assurances that he would appoint a new Governor. He delivered on one part of the promise but not on the other.
In the aftermath of the Ramaphosa visit there has been no publicly visible manifestation of the spirit of accommodation or goodwill that is necessary for any reconciliation process. The role of South Africa would be to ensure that there will be fair play to all sides, not only targeting the government. Such a partnership with South Africa in pursuing the path of truth and reconciliation can go a considerable part of the way to support a nationally driven process of truth and reconciliation that feeds into international investigations. The only item of discussion between the government and Mr Ramaphosa that has become public from the government side is that the government requested him to persuade the TNA to join the PSC process. The Ministry of External Affairs website stated that “The government asked Mr. Ramaphosa during his visit to Sri Lanka to convince the TNA of the importance of participating in the PSC process for a solution to the national question.”
The PSC remains the government’s chosen mechanism to pursue a political solution to the national question. The government remains adamant in its position that only a discussion by all political parties represented in Parliament can lead to a political solution. However, the opposition parties that are presently boycotting the PSC remain unconvinced that it will lead to a solution being found. They are mindful of the fate of the All Parties Representatives Conference (APRC) that lasted nearly three years between July 2006 and June 2009 and held 128 sessions. But the final report has not yet been officially released, nor has any action been taken on it. If South Africa is able to facilitate a revision in the terms and mandate of the PSC to enable the TNA and other opposition parties to participate in it, there could be a breakthrough. In line with the government’s appointment of an expert panel to advise the Commission of Inquiry, there could be another expert panel that is established to advise the PSC.