By Jehan Perera –

Jehan Perera

The international human rights community’s determination to pursue with its probe into alleged war crimes in the last phase of Sri Lanka’s civil war is widely seen within Sri Lanka as evidence of prejudice against the country.  However, what has happened to the Sri Lankan government must not be seen in isolation from international developments.  Some of Britain’s most senior military and political figures now face a war crimes inquiry as the International Criminal Court (ICC) announced it would make a “preliminary examination” into claims of “systemic” abuse by British forces in Iraq.  More than 400 individual cases are cited, representing “thousands of allegations of mistreatment amounting to war crimes of torture or cruel, inhuman or degrading treatment.”  In a statement on its website, the ICC said “The new information received by the Office alleges the responsibility of officials of the United Kingdom for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008.”

The British government has sought to downplay these allegations but at the same time affirmed that they will conduct their own investigations. The Attorney General has said that the government “completely rejects” claims that British forces had been responsible for systemic abuse and pledged to do “whatever is necessary” to show any allegations were being dealt with within the British justice system. He described British soldiers as ”some of the best in the world” and said “the vast majority” of the armed forces “operate to the highest standards, in line with both domestic and international law.”  At the same time the Attorney General indicated willingness to cooperate with the ICC investigation saying “I will provide the office of the prosecutor with whatever is necessary to demonstrate that British justice is following its proper course.”

It is three years late now, but Sri Lanka still has an opportunity to regain the initiative with regard to investigating the past.  The third and most recent resolution of the UN Human Rights Council on Sri Lanka had two provisions in it for addressing the issue of accountability for the end phase of the country’s three decade long war.  First it called on the Sri Lankan government to conduct a credible domestic investigation into the matter. At the same time it also made reference to the two previous resolutions that made the same call, and noted that progress was not satisfactory.   Therefore, it was only as a second option, that the UNHRC resolution called on the Office of the High Commissioner for Human Rights (OHCHR) to conduct its own independent investigation.

UN Probe

UN Human Rights Commissioner Navaneethem Pillay who is due to retire shortly noted that her office had “put in place a staff team that will be supported by several experts and Special Procedures Mandate Holders to conduct the comprehensive investigation to advance accountability and thus reconciliation.”  The response of the Sri Lankan government to the UN Human Rights Commissioner’s request to cooperate with this team and facilitate their visit to Sri Lanka has been entirely negative.   The Sri Lankan Mission in Geneva issued a strongly worded statement giving the government’s reasons for its rejection of the UN investigation.  Among the reasons it set out was that the UN resolution challenged the sovereignty and independence of Sri Lanka and also violated the principle of international law that national remedies needed to be exhausted before resorting to international mechanisms.

The statement also raised questions about the suitability of some of the persons appointed to conduct the investigation.  The government has the experience of Ms Pillay’s own visit to Sri Lanka in September last year.  It ended acrimoniously and the report she gave was very critical of the governance and human rights situations in the country.  She has now requested the Sri Lankan government for its cooperation in taking this investigation forward.  It is unlikely that Sri Lanka can successfully invoke either bias or national sovereignty as valid reasons to reject the UN Resolution.  All States who are members of the UN are required to follow the Rule of Law and uphold human rights.   It is obligatory on the UN and its agencies to investigate allegations of violations of  human  rights and war crimes for otherwise the UN Charter will be a mere piece of paper to be left to individual States to follow or not.  At the very least, they need to demonstrate that there is a credible domestic process of investigation that has not yet been exhausted.  This appears to be the British approach in dealing with its own war crimes allegations.

Indeed, it is this approach that the opposition parties in Sri Lanka are demanding of the government.  They are calling on it to conduct a credible domestic investigation in which case they will give their support in Parliament to promoting it as an alternative to the UN investigation.  The JVP has said that if, within three months, the government is willing to investigate and report on several incidents which have occurred in the past few years because they have violated both human and democratic rights of the people, it is willing to support the government’s resolution in Parliament.  On the other hand, the UNP has called on the government to cooperate with the UN investigation saying that blanket refusal to engage with the team of UN appointed investigators is akin to admitting guilt and depriving itself of an opportunity to make its case.   If the government is prepared to accept these proposals of the opposition parties, they could move to a position that is similar to the British government’s response to the ICC.

Government Approach

However, in an attempt to gain greater political consensus for its rejectionist position, the ruling party under the leadership of President Mahinda Rajapaksa has decided to turn over the final decision on whether to cooperate with the investigation to Parliament.   The government’s stance has been made clear.  The Leader of the House, Minister Nimal Siripala de Silva handed over a resolution to Speaker Chamal Rajapaksa for a debate next week, opposing the UNHRC-appointed international panel from coming to Sri Lanka to probe alleged war crimes.  The resolution states that “This Parliament should oppose the International Inquiry envisaged by the UNHRC office as such an inquiry will harm the reconciliation, reconstruction and rehabilitation process and peace in Sri Lanka and also damage the sovereignty and integrity of the country.”

As the government has a 2/3 majority in Parliament, the outcome is a foregone conclusion.   It appears that the government’s motivation to take the issue before Parliament is for reasons of domestic politics.  Although the government leadership would be aware of the ramifications of the UN probe, its priority at the present time would be on elections which are anticipated within the next several months.  In winning elections the government has utilized the power of nationalism to the maximum.  Even now its members are challenging the opposition to show if they are traitors or patriots with regard to the UN probe.  During the period of the war, and its immediate aftermath, the government was able to rally nationalism to its side to ensure the defeat of the LTTE.  The resolutions of the UN Human Rights Council and now the investigation to be conducted by the Office of the High Commissioner for Human Rights has presented the government with yet another opportunity to mobilize the power of nationalism on its behalf.

On the other hand, the government also needs to consider the implications of a rejection of the UN investigation.   This will be akin to an ex-parte judgment in a court of law.  Ex-parte judgments are invariably in favour of the side that participates in the court proceedings.  They also tend to go strongly against the party that refuses to participate whose views are not heard.   The danger for the government will be that the ex-parte judgment of this investigating team will outlive the term of office of the government. The government may win the next election, but the damage to the country’s long term interests must also be recognized.  Sri Lanka is a part of the international system that it will be defying.    In a time of confusion there is a need to go back to first principles.  There is a need for all parties involved in the investigation to conduct their affairs with an open mind and in a spirit of goodwill.  This is the only way in which intractable and difficult problems may be resolved.  It is to be hoped that Parliament chooses the path of cooperation with the international community and the UN system rather than that of confrontation.