By Jehan Perera –

Jehan Perera

It cannot be coincidental that hardly two weeks after the UN Human Rights Commissioner named the team that would investigate past human rights violations in Sri Lanka, the South African reconciliation initiative is also moving forward again.  There was a pause for a while, but once again there is an appearance of movement.  A high powered South African delegation headed by its Deputy President Cyril Ramaphosa is expected to be in the country in the next few days.   This was a visit that was expected to take place in June.  But the visit was kept in the background, perhaps due to the protests raised against any South African or foreign mediation by nationalist coalition allies of the government.  However, the appointment of the three experts to advice and guide the investigating team appears to have jolted the government to once again present the South African initiative as an alternative.

The main difference between the South African and UN initiatives is that they look at past with a different emphasis.  The South African initiative is explicitly meant to promote reconciliation as its first priority.  It combines an ascertaining of the truth about the past with the pursuit of political reform that is based on the lessons learnt from the past.  On the other hand, the UN investigation has its main objective as being to ascertain the past so that those who have committed wrongs and serious crimes could be held accountable and brought to justice. The government’s concern is to protect those of its political and military leaderships who can face punishment by international tribunals. It is unacceptable to the government that those who led the war against the LTTE, which resulted in unexpected success, should be punished after having defeated the LTTE in battle.

The appointment of three experts to assist the team of UN investigators has been a major step in the UN-led accountability process.  The government’s decision at this time has been to reject this accountability process as violative of the country’s sovereignty and also its national pride.  A more basic cause would also be the concern that the international investigating mechanism would consist of persons who were biased against the Sri Lankan government position. The governmental refusal to cooperate with the UN investigation is indicative of a likely denial of permission to the investigative team to enter the country. However, this will not stop the investigation from taking place.  If it cannot take place within the country, it will take place from outside it.  The three experts selected by the Office of the Commissioner of Human Rights are mainly expected to play a supportive and advisory role and provide advice and guidance as well as independent verification throughout the investigation.

Peacemaking Experts

UN High Commissioner for Human Rights, Navanethem Pillay has stated, “I am proud that three such distinguished experts have agreed to assist this important and challenging investigation. Each of them brings not only great experience and expertise, but the highest standards of integrity, independence, impartiality and objectivity to this task.”   The experts are Martti Ahtisaari of Finland, Silvia Cartwright of New Zealand and Asma Jahangir of Pakistan.   Mr Ahtisaari was a president of Finland, one of the most peaceful countries in the world, which during the long period of the Cold War learnt to coexist as a neighbor to the Soviet Union even though its heart lay with the Western democracies.  Mr Ahtisaari was awarded the Nobel Peace Prize on account of his mediation in the Aceh conflict in Indonesia.  The separatist war waged by rebels in Aceh came to an end through a negotiated political settlement, and therefore spared Indonesia the bitter aftermath of a military solution.  Those who are peace makers are not oriented towards looking at the past for the purpose of punishment but rather to reconcile.

Ms Jahangir, who has been the head of Pakistan’s Human Rights Commission has had a long association with Sri Lanka due to the long friendship and collaboration she enjoyed with Dr Neelan Tiruchelvam.   Highly educated and cosmopolitan, Dr Tiruchelvam was a bridge between Sri Lanka and the international community.  He also sought to be a bridge between the government and opposition, and was one of the co-architects with Prof G L Peiris of the political package that was presented by the then government as the solution to the ethnic conflict.  This earned Dr Tiruchelvam the enmity of the LTTE who wished for a separate state, and not for a solution within a united Sri Lanka, and he was assassinated by the LTTE.  There is little reason to believe that Ms Jahangir would be influenced by those who supported such LTTE terrorism.

Sri Lanka is a country that is deeply embedded in the international community, and has signed virtually every one of the UN and other international treaties and covenants.  In addition, it is dependent on the international community for its imports and exports which account for the larger part of its national income.  Therefore it would be ill advised for any government to believe that it can fight against the UN or any one of its elected assemblies, which is what the Human Rights Council is.  It needs to find a way to cooperate with the UN investigation.  Perhaps a model can be found in the way it has been collaborating in recent months with the UN within Sri Lanka on the issue of humanitarian work.

An Example

For the past year the government has been working cooperatively with the UN and international humanitarian agencies working within the country to conduct a joint needs assessment on humanitarian needs of war-affected people.  The Joint Needs Assessment that has been conducted since last year by the government in collaboration with the UN Humanitarian Office in Sri Lanka together with other international organizations working within the country is in the process of coming to fruition.  It has been an example of a carefully designed structured collaboration that is intended to ascertain the situation on the ground with regard to war victims and the post-war difficulties they experience and what can be done.  It shows that the government and international community can work together for the common interest when decisions are taken together.

The outcomes of these surveys have provided very detailed information that would enable an appropriate response to address the people’s needs.  These surveys have assessed the needs in areas such as food, water, sanitation, housing, livelihoods, education and child protection.  The preliminary results provided evidence that the urgent humanitarian crisis was over for 90 percent of those who were war-affected.  This has been to the credit of the government.  The Joint Needs Assessment will show the gaps that need to be filled so that all the war-affected people can finally be taken care of and be the mark of a responsible government.

In the current context it is commendable that the JNA was carried out because there was some uncertainty towards the end of last year and the beginning of this year regarding its viability. In conducting the Joint Needs Assessment, the government and UN were able to negotiate that there should be a shared responsibility for the outcome.  The field assessment process comprised several activities which included preparatory work that had to be done prior to the commencement of field activities.  The major task was the development and appraisal of the questionnaires by both parties.  The entire exercise was under the control of the two co-chairs of the steering committee representing the government and UN. The principle of shared responsibility was accepted.  It suggests the way forward to the government in dealing with the issue of post-war accountability which is the one that is most troubling to the government.

The principle of international law is that it gives priority to national legal processes as the first resort, before matters can come before international tribunals.  But for this principle to operate there must be a credible national mechanism. This is what the South African initiative can provide.  The government can establish a credible national investigation in partnership with the international community. The positive experience of the Joint Needs Assessment may increase the confidence of the government that it can work in partnership with UN fact finding bodies.  On the other hand, a total rejection of the UN investigation will make the government vulnerable to a one-sided and ex-parte judgment that will be very likely be unfavourable to it and pave the way for punitive actions, including economic, political and personal sanctions, which will not at all be in Sri Lanka’s larger interests.