By Jehan Perera –

Jehan Perera

The government has been trying to convince itself and the general population that its position will prevail at the forthcoming session of the UN Human Rights Council in Geneva.  Some of this requires a stretch of the imagination and is meant to give temporary comfort.  The state media gave wide publicity to a purported decision of the Australian government not to back an independent international investigation into alleged war crimes during the Sri Lankan civil war. However Australia is not a member of the UNHRC this year, and is therefore not entitled to vote.  A reading of the text of the Australian Foreign Minister Julie Bishop’s statement conveys a different message.  She chose her words carefully to say that “Any future formal investigation would need to be agreed by the international community and would be a matter for relevant bodies at the time.”

The government has also been emphasizing the importance of the role of China and Russia in swaying the outcome of the UNHRC deliberations on Sri Lanka.  However, whether these two countries can really determine the outcome in favour of Sri Lanka is doubtful.  The vote in Geneva last year went against the Sri Lankan government by 25 to 13 with 8 abstentions.    On this occasion, the United States, the United Kingdom and Canada have made it clear they are committed to a resolution that goes beyond the one that was ratified last year.  The question is whether the Sri Lankan government can convince the countries in the middle.  In attempting to win over these uncommitted countries the government is relying heavily on its implementation of the recommendations of the Lessons Learnt and Reconciliation Commission, which was one of the two main requirements of last year’s resolution.

The government has asserted that 85 percent of the LLRC recommendations have been implemented or in the process of being implemented.  Even if the government is able to be convincing on this score, the second requirement of last year’s resolution remains unfulfilled.  This was to commence a credible and independent investigation into the allegations of serious human rights violations and war crimes that took place in the last phase of the war.  The LLRC which is what the government sought to put forward as its alternative to such an investigation, was not mandated to investigate war crimes.  It was not provided with the machinery for such an investigation.  Therefore it did not do its own investigations, but recommended that several incidents should be investigated.

Growing Pressure

In the absence of any initiative on the part of the government to investigate the allegations of war crimes though a credible and independent domestic mechanism, the demand for an international investigation grows.  The issue of war crimes committed in the closing stages of Sri Lanka’s war has been discussed internationally for the past five years.  Even before the war ended there were concerns expressed internationally about civilian casualties.  This is what prompted visits to Sri Lanka by many international leaders in the closing stages of the war in early 2009, including the Foreign Ministers of India, the United Kingdom and France.   The end phase of the war, which occurred shortly after the election of President Barack Obama in the United States, also became a test case for the new foreign policy direction of the new President.

One of President Obama’s key election pledges was that he would restore the moral standing of the United States in world affairs.  During the previous decade the moral standing of the United States, and its commitment to global human rights, had been undermined by some of the actions of his predecessor, President George Bush.  The active role of the United States in taking up the cause of international human rights in Sri Lanka is at least in part due to this background.  Today, the United States is playing the lead role in calling for a credible investigation into the allegations of human rights violations and war crimes.  It is leading the group of countries that seek to pass a resolution in the UN Human Rights Council that will compel the Sri Lankan government to investigate the past.

The decisive turning point for the Sri Lankan government was its failure to follow through on the resolution of the UN Human Rights Council in 2009.  This was an occasion, a high point in the diplomatic success of Sri Lanka, where the government turned the tables on the Western countries and appealed to the majority of third world and other uncommitted countries to give it a chance to prove itself.  In particular, the government promised to move forward without delay in healing the wounds of war in the country, specifically resettling the displaced persons and in finding a political solution to the ethnic conflict.  The implementation of the 13th Amendment to the Constitution which established devolved provincial governments stood at the centre of this promise.  The majority of countries in the UNHRC at that time were prepared to give Sri Lanka the time and space it wanted.

The failure of the government to convince the international community that it had indeed made progress on the UNHRC resolution of 2009 is the second reason for today’s dire situation, and has led to the matter not getting off the agenda of the UN system.  In both 2012 and 2013 the UNHRC resolutions grew stronger and more adverse to the government.  Once a matter gets on the agenda of a meeting, it will come up again and again until it is dealt with to the satisfaction of the group that is meeting.  The same holds true for the UNHRC.  As a result the Sri Lankan government is left with no choice but to deal with the issue of an independent and credible investigation, as it will not go away on its own.   The government’s position has got further weakened by the resolutions passed by the Northern Provincial Council that call for international investigation into the war crimes that took place in the last phase of the war.

Proactive Approach

The Northern Provincial Council, which was recently elected in September 2013, represents the people who were caught up in the last phase of the war.  Therefore, its position would have a considerable impact in strengthening the call for an international probe.  The issue is not so much about how well the government has been caring for these war-affected people and engaging in political reform, which is what the LLRC is mostly about.  The issue is whether war crimes took place or not, and whether the government has carried out an independent and credible investigation into them.  So far the government has only ordered investigations by military tribunals which, after their investigations, have exonerated the military on all counts and blamed the LTTE for war crimes, which would certainly be the case.  But the international community is not in agreement that such investigations meet the desired standards of independence and credibility.

On the other hand, no government of any country would like foreigners to judge how they fought a war.  The practice over the centuries and globally is to judge the losers and never the winners.  In particular, the punishment of those who won a war that hardly anyone thought was winnable is anathema to the Sri Lankan government.  The government’s opposition to an international investigation is based on its apprehension that the findings will be used to punish those who fought the war against the LTTE at the risk of their lives.  But today the international demand for an independent investigation has grown too powerful to resist.  This international demand has now been supplemented by the demand from within the country, most notably from the Northern Provincial Council.  In these circumstances it is best for the government to be proactive about a credible and independent investigation.

In these circumstances, the best option is a Truth and Reconciliation Commission on the lines of the one that South African used.  It called for the full truth to be known, not with the motive of punishing wrongdoers, but with the motive of promoting healing and reconciliation. The South African government has expressed its readiness to assist in this regard, but only if some important conditions are met.  If is to be a domestic mechanism it is essential that the TNA should also agree to the mechanism, and be a part of it and formulate its mandate. The second condition is that the TRC should be part of a larger process of change envisaged by the LLRC report in which there will be a political solution to the ethnic conflict and the establishment of independent institutions, including a police and judiciary which the Tamil people, and indeed the population at large, can trust.  Such a “LLRC Plus” is the way forward, in which the government, TNA and international community can work together as partners.  This is the only viable option open to Sri Lanka.