Sri Lanka War Crimes Investigation – Part 1
As we wait with bated breath as to the outcome of this very crucial UNHRC session, I can’t but help think that we may have finally turned the corner in our quest for an international inquiry. Rajapaksa has surely missed the final call for the establishment of any domestic inquiry mechanism, through lost opportunities and the culture of impunity.
On this the 25th Session of the UN Human Rights Council (UNHRC) one thing is obvious; the Sri Lankan President Mahinda Rajapaksa has done nothing; naught; zero; practically zilch to fulfill the expectations arising from UNHRC resolution at the 22nd session, the most important of which was “to conduct an independent and credible investigation into allegations of violations of international human rights and humanitarian law.”
This is confirmed in no uncertain terms by UN High Commissioner for Human Rights, Ms Navi Pillay in her advance written report prior to the sessions where she categorically states that, “the Government of Sri Lanka has yet to satisfy the call for such a domestic investigative mechanism:
“… the Government of Sri Lanka has yet to satisfy the call made by the Human Rights Council for a credible and independent investigation into the allegations of serious human rights violations that persist or to take the necessary steps to fulfil its legal obligations to ensure justice and redress.”
As a consequence, Pillay makes a well reasoned call for an international inquiry:
“The High Commissioner recommends that the Human Rights Council establish an international inquiry mechanism to further investigate the alleged violations of international human rights and humanitarian law and monitor any domestic accountability processes. OHCHR stands ready to assist in such a process.”
Having ignored almost all of the major recommendations contained in the resolution at the 22nd session, one would assume Rajapaksa has come to the end of the line as far as ultimatums are concerned. Finally it would seem the UNHRC could reach a tipping point on one critical issue, with more members coming all guns blazing in favour of an international inquiry of Rajapaksa’s own, his family’s, his government’s and army’s conduct of the war as well as that of the LTTE that led to the slaughter of tens of thousands of Tamil civilians, at the hands of the Sri Lankan government and army, amounting to war crimes, crimes against humanity and genocide.
Further to my premise that Rajapaksa has missed the final call to establish “a credible” domestic mechanism and deserves no further chances of escape, one thing that stands out is his utter disregard for the “time and space” he has been given so far to implement such a request. He has shown little appreciation, despite very grave allegations against him, for the always persuasive, less commanding and even less authoritative language used in the resolutions against his government, for example, where the term “encourage” was more often used than not, to coax him to adhere to the requests made of him; he has not been grateful for the less demanding and even less intrusive manner in which certain necessary interventions have been suggested, like providing technical assistance to help him to take steps to implement recommendations and or carry out legal obligations under international law: the last two resolutions against Sri Lanka have provided such assistance can be given “only in consultation and in concurrence” with his government; this, “sugar coated” approach to “respect Sri Lanka’s sovereignty,” became a norm with India’s successful dilution of the resolution tabled at the 19th session, similar to the policy of “non interference” cited in the very first pro-Sri Lanka resolution, the same attitude prevailing thereafter even on the resolution passed at the 22nd session.
Although it must be said the UNHRC has itself taken measured steps towards its call for accountability: From a “deeply disappointing” and “flawed” resolution congratulating the Rajapaksa government at a special session, soon after the war was over, for the passage of which the erstwhile Dayan Jayatilleka never stops taking credit for, ( in convincing the majority of members on the basis that Sri Lanka had fought a war against terrorism, having no qualms, that in reality, Sri Lanka had knowingly and indiscriminately shelled and killed innocent civilians after luring and entrapping them into government declared ‘no fire zones’ that should constitute genocide in a court of law) the UNHRC amidst pressure sought to right a wrong at the 19th session but did nor go far enough.
From there, under a US sponsored resolution the UNHRC made a leap in the opposite direction at the 19th session, calling for the implementation of the recommendations made by the Rajapaksa government appointed, Lesson Learned and Reconciliation Commission (LLRC) with an offer to provide OHCHR technical assistance only in consultation and with the concurrence of the Rajapaksa government.
It made far more progress at the 22nd session when it specifically called “upon the government to conduct an independent and credible investigation…,” although putting the onus on the Rajapaksa government to institute an inquiry. In real terms that would mean tthe perpetrators themselves, those of whom who orchestrated a genocide, would be judge and jury in their own crimes.
In a country where the rule of law has been compromised as seen by the way its own Chief Justice was unceremoniously ousted for doing her job, such a domestic inquiry even if it were to take place would not be credible!
On opening day judging by those who are scheduled to speak during the high level segments, Sri Lanka should be inundated with calls for an international inquiry. You should read Easwaran Rutnam’s article titled : “UNHRC 2014 War of Words Begin” for the Sunday Leader to read more about the proceedings, He describes the procedure and mentions the key speakers on the first day: Like Navi Pillay herself, making the opening statement, Samantha Powers, US Ambassador to the UN who will explain the new US sponsored resolution against Sri Lanka, Ministers, Hugo Swire who will be speaking for the UK, and Lynne Yelich who will be speaking for Canada and GL Peiris who will be responding for Sri Lanka. He goes on to elaborate on the strong opinions of those human rights groups waiting in the wings all very vigorously calling for an international inquiry.
We don’t know yet if Sri Lanka might have its delegation spin lies as it is usually prone to do in respect to compliance of resolution passed at the 22nd session. The UNHRC has no powers to enforce or compel compliance.
I would add Louise Arbour, head of the International Crisis Group whose OP-Ed titled, “Let the U.N. Unmask the Criminals of Sri Lanka’s War” to the list of human rights defenders who have added their voice in favour of an international inquiry:
“The Human Rights Council has an opportunity, and should seize it. A number of the council’s current member states — for instance Chile, Costa Rica, Botswana, South Africa, Sierra Leone, Morocco and Macedonia — have led on other human rights issues and should press the council on this one. Sri Lanka’s government is playing a waiting game, hoping the international community will lose interest, while also proffering the crude argument that reconciliation is attainable without justice. But the costs of doing something now would be very small compared with the years of strife that would be the likely result of letting impunity win in Sri Lanka.”
Prime Minister David Cameron‘s promise to openly push for an international inquiry has made a dent to the efforts of Conservative peer, Lord Naseby to protect Rajapaksa : “We would use our position in the UNHRC to push for an international investigation… if credible domestic accountability processes are not begun by March.” In that regard, UK’s position was explained in the House of Lords by Baroness Warsi: “…we have yet to see a meaningful, time-bound, independent, domestic-led political process with clear milestones…this resolution which goes further….calls for an independent inquiry which is one we are working on with our like-minded members ..It would be wrong for me to at this stage to predict how the voting would turn out but we have been working with a number of countries which have indicated strong support for the resolution.. we continue to work incredibly hard to make sure we get the resolution…”
It is speculated that Sri Lanka has its own plans to counter the strong push for an international inquiry. It has its own backers, some new ones like the Australian Prime Minister Tony Abbot.
There is also a talk that those known as ‘friends of Sri Lanka’ could bring their own resolution in support of Sri Lanka : In article titled: “Different Resolutions on Sri Lanka at UN Human Rights Council can Complicate Matters for India in Geneva” author N. Sathiya Moorthy discusses that possibility.
It would seem that Sri Lanka’s lobbying efforts via its many lobbying firms could have persuaded eleven US Senators of which ten were republicans to submit to the US Foreign Relations Committee a resolution calling on President Obama to adopt a “balanced policy” on Sri Lanka; the resolution calls on “..the US Government and the international community to assist the Government of Sri Lanka, with due regard to its sovereignty, stability, and security, in establishing domestic mechanisms to deal with any grievances arising from actions committed by both sides during and after the civil war in Sri Lanka, expressing support for the internal rebuilding, resettlement, and reconciliation within Sri Lanka that are necessary to ensure a lasting peace….”
Sri Lanka’s plans though not revealed officially at the time of writing this article can be somewhat fathomed by what Sri Lanka’s closest supporter, Lord Naseby stated at the UK- House of Lords on the 26th of February. Speaking to UK Foreign Office Minister, Baroness Warsi, Lord Naseby had some comments and questions to ask her.
It would appear that Sri Lanka has a few strategies up its sleeves according to what Naseby said: “…there are three things that have happened recently firstly, on war crimes for the Foreign and Commonwealth Office to study about the new evidence in the Tamil film ‘Last Phase’ secondly to read Professor Moor craft’s new book and thirdly in the book “corrupted journalism” there is new conclusive evidence that the two key independent female witnesses in the Channel 4 film making allegations were fully paid up members of the Tamil Tigers and secondly very briefly, will she now publish dispatches from our Military Attaché from Colombo who witnessed the last stages of the war and finally will she now encourage South Africa and Sri Lanka ..on their work on a truth and reconciliation committee.”
Not to my surprise I found details on the ‘Last Phase‘ in the Sri Lankan Defense Ministry website: The website describes the ‘Last Phase’ as, “a documentary which depicts the life of a female ex combatant who grew up as an orphan in an LTTE run orphanage that had also served as nursery for future recruits.” It claims the doc. was shown to a packed audience at the House of Lords in the UK Parliament.
It was also in the same website that I read that Prof. Moorcraft’s new book was titled, “Total Destruction of the Tamil Tigers” which I hadn’t heard of before.
As to Lord Naseby’s call for the UK to encourage a Truth and Reconciliation Committee, he must know that it cannot replace any criminal prosecutions of perpetrators of war crimes. Pillay I thought makes it absolutely clear that: “..any truth seeking mechanism… recommended by her in her previous report, that would ..build upon the recommendations of the Lessons Learnt and Reconciliation Commission…must fully comply with the State’s international legal obligations, and must be fully independent, including the selection of its members…notes that it would not be permissible for any truth mechanism to grant amnesties that prevent the prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes against humanity or gross violations of human rights (notice subtle mention of the G word), including gender-specific violations. A truth commission should consider seeking international support, for example special technical, legal and policy assistance, as well as the involvement of international investigators to assist the process. Lastly, any such truth commissions should be complemented by comprehensive and coherent transitional justice mechanisms and processes that include prosecution, reparations, vetting and other accountability or reform programmes.”
As to Lord Naseby’s allegation that Channel 4 had mislead the viewers by using Tamil Tiger members as witnesses in films, he should read, “The Uncorrupted Truth” a stinging but detailed rebuttal to Sri Lanka’s book, “Corrupted Journalism – Channel 4 and Sri Lanka” which makes the allegations. Channel 4’s Callum Macrae responds to every one of the untruths, propositions and smears contained in the book written under he says a “cloak of anonymity” and distributed first during CHOGM.
While Sri Lanka may have a game plan and an escape route to avoid international scrutiny, that which we may not fully know yet, the proposed US resolution might indeed pave the way for an International Investigation; Rajapaksa has surely missed the final call for the establishment of any domestic inquiry mechanism. We’ll know the outcome one way or the other before the 25th session of the UNHRC comes to a close. Whatever happens you can read it in part two of this article!