By Austin Fernando –

I wish to deal with some aspects of ongoing internationalization of the Sri Lankan crisis. In the past there had been the likes such as  the Ceasefire Agreement, Rajiv-JRJ Accord, etc. All these have created demands from Sri Lanka –then and now- for good governance, political solutions, adherence to humanitarian and human rights laws. Government spokespersons however react that Sri Lanka has not erred and need no international lessons for governance and rule of law. Concurrently, the government successfully, efficiently and effectively uses ‘internationalization demands’ to bolster its popularity, highlighting threats to sovereignty and West generated ‘regime change’.

Misinterpreted Joint Statement initiating internationalization

Let me start with the Joint Statement at the conclusion of United Nation Secretary General’s (UNSG’s) visit to Sri Lanka, (23-5-2009). It had eight main commitments. The last is the most quoted ‘agreement’ of Sri Lanka’s “strongest commitment to the promotion and protection of human rights in keeping with international human rights standards and Sri Lanka’s international obligations” for which the “UNSG underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law.” The current outcomes in Geneva stemmed from this “agreement.”

Consequentially, the Panel of Experts (POE) was appointed and its Report is mandated by the UNSG. POE’s first Terms of Reference (TOR) says “The UNSG has decided to establish a POE to advise him on the implementation of the said commitment with respect to the final stages of the war.” But the Joint Statement does not speak anywhere of the “final stages of the war”. Was this deviation challenged by the Government? True, the POE was challenged on ‘content  issues’, e.g. on numbers, events, personalities etc., especially by the Ministry of Defense (MOD), but, not on the unexplained deviation.

Taking this deviation the POE Report also repeats the narrowed down “final stages of the armed conflict” as inquiry focus (e.g.  Paragraph 5 – 1 of the POE Report).

UNSG would not have deviated from an Agreement with a member country Head of State without due agreement of the latter. If the President has agreed for such time barring, crying for spilt milk is nonsensical. If not, challenging the very foundation of the POE Report should have started immediately. Who should be responsible for initiation of biased internationalization?

Quest for international solutions

The often heard argument from government is that the country has ‘indigenous solutions’. Instead of endorsing or challenging, I revert to the POE Report and quote the following events.

(1)    The POE Chairman Marzuki Darusman wrote on 17-9-2010 (Annex 2. 1 of POE Report) to Sri Lankan Ambassador Palitha Kohona of the appointment of the POE, mentioning that the POE was to “provide him (UNSG) with advice on an accountability process with respect to the final stages of the war.” This “final stages of war” (later converted to ‘war crimes’) stance was not challenged by the Sri Lankan Mission as per POE Report and this ‘no-adverse response’ would have been considered by the UNSG’s Secretariat, as acceptance of its POE Mandate to investigate in to accountability “with respect to the final stages of the war.”

(2)    If the limited time frame did not exist POE focus would have even tallied with what theGovernment of Sri Lanka (GOSL) argues out now as requiring spread over a longer duration of the conflict.

(3)    Incidentally, Major General Shavendra Silva wrote (7-1-2011) to Vijay Nambiar (POE Report Annex 2.11) that the “GOSL does not accept any “mandate” or “terms of reference” which have been drawn up unilaterally,” insinuating that the President’s blessings had not been obtained for time-barring.  Nevertheless, we have missed around 3.75 months to protest proactively and vehemently (before the POE completed its assignment) on unilateral time-barring, harping on the difference between the Joint Statement contents and UNSG’s Mandate to the POE.

Who should take responsibility for not challenging the initiation of biased deviation?

Playing second fiddle to Internationals

When the POE was invited to appear before the Lessons Learnt and Reconciliation Commission (LLRC), the POE used a shrewd method not to be seen as secondary to the LLRC. It communicated to the Sri Lankan Mission on    28-1-2011 seeking explanations from GOSL on (a) Issues for consultation with the LLRC; and, (b) Issues for consultation with Relevant Government Officials. In them, the time-bar or ‘war crimes’ was not mentioned at all. Either the POE played down the issue or as said earlier considered GOSL’s unchallenged acceptance of time-barring. It must be noted that the most interested parties on ‘the final stages of the war’ were the Tamil political parties, the affected, Diaspora, internationals and humanitarian organizations.

When Minister GL Peiris responded (15-2-2011) it was clear that the President tasked the Presidential Secretariat (Annex 2.15.1 POE Report) to respond to UN. How can we absolve GOSL, when Minister Peiris stated that Presidential Secretariat was tasked by the President to respond the UNSG? Mentioning of “our close relationship with UN” and UNSG’s “own goodwill and support” could be considered appropriate diplomacy and courtesy. Nevertheless, wasn’t GOSL accepting the POE Mandate as it was, because the two questionnaires were seeking elucidatory information to suit its Mandate, irrespective of Major General Shavendra Silva rejecting acceptance weeks before? Short memories or the left hand not knowing what the right does!

Under these circumstances finding scapegoats for the ill effects of internationalization cannot be squarely laid on others. The Tamil politicians/ Parties, Diaspora, International and domestic non-governmental and human rights organizations contributed a lot for negative internationalization, but it was not their monopoly. In this background finding (with difficulty) indigenous solutions can be questioned, because as a country we cannot expect problem solving in isolation, having calmly committed internationalizing the crisis.

South African Truth and Reconciliation Commission (TRC)

Now the GOSL is experimenting on another international model.  The President said in ‘Sri Lanka: Reconciling and Rebuilding’ that he was ready to accept a South African style TRC.  When asked whether he would appoint a TRC or if he was saying that there were commissions already in place, he replied: “No, no we are going to have it. We will, we will. There are other commissions also. We want to know how much actually…that the people also come and give evidence there. Meanwhile we are, we want to appoint this commission too. We have seen how Mandela did and we want to study that. When I was in the opposition I started this process.”

With all due respect to the President I may say he appeared too detached, because TRC is serious business. To prove the seriousness I may quote my evidence at the LLRC.  I said:

“I quote the preamble to Act No. 34 of 1995 Promotion of National Unity and Reconciliation 1995 in South Africa.  When you listen to this you will see how we should look at this problem. I quote from the Preamble.

“To provide for the investigation and the establishment of as complete a picture as possible of the nature, causes and extent of gross violations of human rights committed during the period from 1^st March 1960 to the cut-off date contemplated in the Constitution, within or outside the Republic, emanating from the conflicts of the past, and the fate or whereabouts of the victims of such violations;  the granting of amnesty to persons who will make full disclosure of all the relevant facts relating to acts associated with the political objective committed in the course of the conflict of the past during the said period; affording victims an opportunity to relate the violations they suffered; the taking of measures aimed at the granting of reparation to, and the rehabilitation and the restoration of the human and the civil dignity of victims of violation of human rights; reporting to the nation about such violations and victims; the making of recommendations aimed at the prevention of the Commission of gross violations of human rights; and for the said purposes to provide for the establishment of a Truth and Reconciliation Commission, a Committee on Human Rights Violations, a Committee on Amnesty and a Committee on Reparation and Rehabilitation; and to confer certain powers on assigned certain functions to and impose certain duties upon that Commission and those Committees; and to provide for matters connected therewith.”

“I don’t find the words ‘human rights’ in the Gazette Notification. Once again I say that to this Commission. But every time I open a web site or an office online news sheet, I see human rights as a great concern for foreign governmental, multilateral organizations like the UN.  May be that their contentions are wrong, yet they are clamoring.  It is a pity that concerns on violations of human rights by others are not so badly discussed. Can we find some solution for this ever nagging problem? It may be by establishment of human rights respecting institutions, mechanisms as one could surmise from the above.”

(Emphasis added by the writer.)

The last paragraph of my evidence is appropriately applicable even now!

One may have to be calculatedly objective (See the emphasized sections.) before establishing a TRC. It has a legal process, as observed from the South African experience. It will have critics. Like the White community in South Africa there could be non-cooperation from certain groups.

The TRC was set up in terms of a legal instrument, i.e. Promotion of National Unity and Reconciliation Act, No. 34 of 1995. It had an integrated action focus with other commissions and committees. The mandate of the TRC was to bear witness to, record and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, as well as reparation and rehabilitation. These are novel interventions for Sri Lanka.

The hearings started in 1996 and reports started flowing in after 1998. But the time schedules offered to Sri Lanka by the internationals (British Prime Minster Cameron for example) are immediate. The time schedules sought by the GOSL are rejected by internationals. The Indian External Affairs Minister’s response that 30-year war should not be an excuse for waiting another thirty years to reconcile was snubbing long duration implementing schedules, lately enunciated by amiable Lalith Weeratunga, President’s Secretary. Amnesty for example requires legal changes and an ‘attitudinal revolution’. These cannot be achieved overnight.

I recall writing an article in The Island (10-6-2010), “Learn Reconciliation from the South African Old Lady!” quoting an African lady’s moving experience at the TRC,  promoting forgiveness as a means for reconciliation,. The contrary response appeared, ostensibly justifying hatred and revenge, with another quote from the TRC proceedings:  “We are saying Justice must be done especially when we’ve got a government, waited for more than 10 years to take action against the criminals.” In our case the 10 years have changed to 30 years for many! The President when he promised a TRC (likely meant to ‘market’ Sri Lanka to US Senators and officials) must have been invariably aware of this parallel thinking in the Sri Lankan community.

The TRC according to Bishop Desmond Tutu was a “court like body established by the South African Government in 1995 to help heal the country and bring about a reconciliation of its people by uncovering the truth about human rights violations that had occurred during the period of apartheid where emphasis was on gathering evidence and uncovering information—from both victims and perpetrators—and not on prosecuting individuals for past crimes, which is how the commission mainly differed from the Nuremberg Trials that prosecuted Nazis after second World War.”

If this is what the GOSL and President wish, it may for posterity reflect what Bishop Tutu said. (TRC Reports in Volume 1 Chapter 1 (paragraphs 27).

27.   ….However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured on them so they can heal. This is not to be obsessed with the past. It is to take care that the past is properly dealt with for the sake of the future.

Are we there? Are not we- all parties- obsessed with the past?

I do not know whether the LLRC was for a TRC. When I gave evidence before the LLRC I believed in all earnestness and true conviction and suggested following the TRC model (of course with appropriate revisions). It was with interest on reconciliation.

But, I was disillusioned, frustrated and shocked that the LLRC Report had mentioned the word ‘truth’ only 12 times, reconciliation 222 times and truth and reconciliation- none! The institution Truth and Reconciliation Commission” and South Africa are never mentioned in the LLRC Report! So, suddenly why this indecent hurry when there are complications and (rightly or wrongly) criticisms of not implementing the reported LLRC Recommendations? This may open space for GOSL critics to suggest hidden intentions for the TRC exploration.

In that context, no wonder Parliamentarian MA Sumanthiran suspiciously say: “Now with the impending resolution in Geneva the Government is trying to show interest in the South African efforts in reconciliation and show to the international community they are keen on reconciliation.” His contention seems to be that ‘GOSL tries buying time!’

 LLRC motivating internationalization

If one runs through the LLRC Report  it is found that issues such as the British Channel 4 video (9. 39), killing of French non-governmental organization personnel in Muttur (5. 163), killing of students in Trincomalee (5. 163)  to name a few are recommended for investigation to establish the truth or otherwise of the allegations. One cannot expect international interest dwindling on such issues, due partly to ‘ownership’ of the issue, irrespective of Lord Naseby and Mr. Mundy types standing with the GOSL.

On the other hand, Sri Lankan Tamils have taken up some issues mentioned in the LLRC directly with UNSG’s Office (e.g. Trincomalee killings).  Issues raised at the LLRC such as missing persons, disappearances, resettlement, lands etc. have become important issues raised with international dignitaries (e.g. Prime Minster Cameron, Ambassadors Rapp, Biswal). One should not overlook the fact that all leading embassies have their intelligence units keeping ears directly to the ground and hence not always believing what the GOSL spokespersons say.

For explanation purposes I may take the cases of Missing Persons, although issues like Armed Groups, Disappearances, Resettlement, and Torture etc. have international repercussions. LLRC Report under section 5. 37 and 9.49 states that the Commission emphasizes that the relatives of missing persons shall have the right to know the whereabouts of their loved ones and they also have the right to know the truth about what happened to such persons, and to bring the matter to closure.  This will also enable them to seek appropriate legal remedies including compensation, for which internationally acclaimed systems exist. Therefore, when delays occur irrespective of Commissions and Censuses, it excites internationals. I recall distributing to the Commissioners literature in respect of reparation, resettlement, compensation, rehabilitation etc., acceptable to the UN too. Since there are UN Conventions, Resolutions, reparation systems, Committees etc. using them for quick action will bear better international responses.

Conclusion

I have selected a few issues that have become so conspicuous regarding international interests. But there are more that are incorporated in the Joint Statement and otherwise demanded too, such as political solutions and raised with large enthusiasm like civilian killings. All these should be given due consideration as human tragedies needing humanitarian responses, irrespective of politics. But, who is the politician, advisor or party man who would recommend such? Who is the international not having a political stake?

For this apolitical action is required. It is not only from the government end, but from the Opposition groups and especially the Tamil political groups, and those countries that support the causes of both sides. The correct path is, as Bishop Tutu envisioned, “to take care that the past is properly dealt with for the sake of the future.”