By Sanja De Silva Jayatilleka –

Sanja De Silva Jayatilleka

UN Special Rapporteur Pablo de Greiff, currently on a two week visit to Sri Lanka, announced before his visit that he intends to “review the progress made thus far, to identify obstacles and bottlenecks in the implementation of the transitional justice and reform process”.

The Sri Lankan Foreign Ministry for its part issued a media release insisting that “Governments are not bound by the advice or recommendations of Special Rapporteurs” and that it was up to the Government of Sri Lanka to decide whether it will “draw on his knowledge, expertise and advice and consult him further in any manner.”

This sudden assertion of autonomy provoked a critical Editorial from a leading Sunday newspaper which alleged that the Ministry was “straining to allay growing public concern that this Government will capitulate before continuing international pressure”.

The Ministry claimed that the government can make its decision on his findings once Mr. Pablo de Greiff presents his report to the UNHRC “in September 2018”. However, it is unlikely that the Special Rapporteur would hold off presenting at least some of his conclusions until September next year, with the High Level Segment of the Human Rights Council, where all Special Rapporteurs make presentations, just a few months away in March 2018. Besides, Mr. de Greiff is scheduled to have the customary media briefing at the end of his visit on the 23^rd of this month at which he is likely to indicate at least some of his impressions.

A Special Rapporteur of the UN Human Rights Council commands considerable influence especially on the state representatives at the Council itself. Furthermore, when the world order today is no longer confined to sovereign states, and in fact contains influential civil society actors and other networks of experts which in turn impact the opinions of citizens and thereby the conduct of states, it is hardly the case that a country can be wholly independent of world public opinion.

Ensuring that Sri Lanka actively participates in the process of the visit of the Special Rapporteur so that as accurate a picture as possible is established by its full engagement, is the government’s responsibility. As was seen recently at the Human Rights Council, not countering false allegations by civil society participants hardly helped to promote a realistic picture of the conditions in Sri Lanka.

Since the recommendations of the Special Rapporteur will be informed by what he learns here, awaiting his report in September 2018 to evaluate his conclusions and recommendations for its benefit to Sri Lanka may be a less effective strategy than helping him reach them in a way that is of optimum use to Sri Lanka by affording him all possible assistance and access to the credible, substantive information that is already available in the state system.

The case for serious engagement with the Special Rapporteur while he is in Sri Lanka is enhanced when the subject deals with ‘massive or systematic human rights abuses’, which is what Transitional Justice (TJ) responds to. Since the government invited Mr. de Greiff to evaluate its progress in this area, it seems to have conceded that such abuse had in fact taken place. If it has not, it should then provide Mr. de Greiff with the material necessary in order for him to make an informed analysis, so as to better advise us on the course of action which “the Government considers beneficial to the people of Sri Lanka” as the Foreign Ministry has claimed.

In this effort, it is hoped that he has been given the Report of an official Commission which deals with the issue relevant to the mandate of the Special Rapporteur, and was tabled in parliament by the present Prime Minister himself.

That report, the 2^nd Mandate Report of the Paranagama Commission, was compiled with the advice of legal luminaries of international stature. It included a legal Advisory Council made up of Sir Desmond de Silva, QC (UK) as Chairman, with Professor Sir Geoffrey Nice, QC (UK), and Professor David M. Crane (USA).

The Advisory Council was supported by experts from around the world such as Mr. Rodney Dixon, QC (UK/ South Africa), Professor Michael Newton (USA, Vanderbilt University) who formerly served as the Senior Advisor to the United States Ambassador-at-Large for War Crimes, Commander William Fenrick (Canada), Professor Nina Jorgensen (Harvard and The Chinese University of Hong Kong) and Major General John Holmes DSO, OBE, MC (UK,  former Commanding Officer of the SAS) who provided an independent Military Report on the conflict.

The mandate of that Commission was extended by Government Gazette to include “facts and circumstances surrounding civilian loss of life and the question of the responsibility of any individual, group or institution for violations of international law during the conflict that ended in May 2009”.

When the Resolutions of the Human Rights Council and the statements of the Office of the High Commissioner for Human Rights rely heavily on the UN Secy-Gen’s PoE Report–the Darusman Report– and quote it as a source for their opinions, it is imperative that the Paranagama Commission 2^nd Mandate Report is made available by the Foreign Ministry to visiting experts from Geneva. The Paranagama report states that it aimed to analyze “the complex legal standards applicable to military operations such as those that occurred in the final phase of the Sri Lankan conflict and to apply them to the unique set of factual circumstances that presented itself during the relevant time period” and that “This exercise has not been adequately carried out in the existing report of the UN Secretary General’s Panel of Experts (Darusman Report)”.

It can confidently make such an evaluation, given the impressive legal expertise it had at its disposal in contrast to the Darusman panel which was not able to adhere to appropriate evidentiary standards. 

While the Special Rapporteur on Truth, Justice, Reparation and Non-Recurrence is concerned with all post-conflict situations with a victim-centered focus, it is the emphasis on Transitional Justice that is at issue. It is critical that the solutions fit the problem, as Pablo de Greiff himself has declared in his report on Transitional Justice to the Human Rights Council. The Paranagama Commission, after many months of investigations and serious engagement with the top legal experts has concluded that: “On the basis of the evidence available to this Commission and the prevailing law, the suggestion that the crime of genocide was or may have been committed during the final phase of the war is without foundation. While there may have been long standing practices of religious and racial discrimination carried out by various governments toward minorities, targeting such groups even if for discriminatory reasons is not sufficient to constitute genocide.”

Since the Special Rapporteur’s mandate according to the Foreign Ministry, seeks to promote “healing and reconciliation”, and is designed for “ALL victims of a situation of conflict and not one group or one community”, it is important that in his task of advising on policies of reconciliation, he is not misled on the conduct of one group or the other.

The value of the Paranagama Commission report is that for its 2nd Mandate it has reviewed a great deal of material already in the public domain. According to the report, “These sources have been both primary and secondary, including highly relevant reports such as the ‘Darusman Report’ (2011), the ‘LLRC Report’ (2011), the Report of the Secretary General’s Internal Review Panel on United Nations Action in Sri Lanka – 2012 (Petrie Report), the Sooka Report (2014) ‘An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009—2014’, the Reports to Congress by the US State Department (2009), reports by the International Crisis Group, Amnesty International, the University Teachers for Human Rights (Jaffna), Human Rights Watch, and many others.” It is unlikely that a more comprehensive and authoritative examination of the last phase of the war has been compiled thus far.

An indispensable critical inquiry by civil society into the last phase of the war pertinent to the Special Rapporteur’s mandate would be “The Third Narrative: Issues of Truth and Accountability” jointly published by Marga Institute and the Consortium of Humanitarian Agencies (CHA), the primary author of which is Dr. Godfrey Gunatilleke, distinguished civil servant and founder of the Marga Institute, which re-examined material available in the public domain including of satellite imagery of the conflict zone and contains detailed accounts of the movement of food and medicines to the conflict areas. The publication says it “attempts to grapple with issues of truth and accountability during the final stage of the war in Sri Lanka”.

It is important that in order to fulfill UN Special Rapporteur Pablo de Greiff’s mandate, the “Truth” dimension of it should be established as far as possible in order for the rest of the mandate of “Justice, Reparation and Non-Recurrence” to be effectively addressed. Sri Lanka’s war had its specificities. However, its many lessons are of enormous relevance to the world which is increasingly forced to deal with fanatical global terrorist militias and networks imposing sudden and apocalyptic suffering on innocent civilian populations around the globe. Princeton’s Emeritus Professor of International Law, Richard Falk, calls this phenomenon ‘Apocalyptic Globalization’, to describe its radical program “for restructuring political life on the basis of religious orthodoxy…which can also be interpreted as an approach to global governance” (Falk: 2004), an unpleasant reality with which all States have to contend.

Assessing Sri Lanka’s situation carefully in order to design an appropriate response to its current concerns while taking into account its progress and also being mindful of the danger of overstating the violations of international law as amounting to ‘massive or systematic abuse of human rights’, is likely to be the only guarantee of the successful implementation of the recommendations the Special Rapporteur. Enabling him to do so is the task of the Government, the Opposition and all others who are able to contribute.