By Dayan Jayatilleka –

Dr. Dayan Jayatilleka

I write to refute a statement made with direct reference to me, by Foreign Minister Mangala Samaraweera in the course of his response to former President Rajapaksa in the newspapers of Monday August 1st 2016 under the caption “Enough is Enough”.

I have no intention of replying to Minister Samaraweera’s counter-critique of President Rajapaksa’s critical remarks on the structure of the Office of Missing Persons. However, as a student of comparative international politics I cannot help but note that Minister Samaraweera’s model of the OMP derives from contexts that are very different to that of Sri Lanka and thus has little relevance to us. The OMP derives from mechanisms for investigation into persons missing under military juntas in Latin America or mechanisms set up, also mainly in Latin America, in consequence of negotiated settlements arrived at, usually with external mediation/facilitation, between guerrilla movements and incumbent regimes.

Sri Lanka’s context is drastically different, i.e. that of a democratic state, with democratically elected governments, and whose legitimate armed forces fought a war strictly within its borders, against a terrorist enemy and won an outright victory. In no such context has there been a mechanism structured as the OMP is.

Nowhere in Asia, in the aftermath of war or even transitions from prolonged military regimes, has a mechanism such as the OMP been set up. Quite apart from Asia, even in liberal democratic Spain, an EU and NATO member, there isn’t anything remotely like the OMP to investigate into disappearances during the Civil War.

One cannot help but point out that the morally laudable and ethically necessary quest –from any humanistic and humanitarian perspective–for closure for the families and loved ones of missing persons, has already been carried out by the Maxwell Paranagama Commission. Any lacuna could have addressed by a renewed and modified mandate for that Commission. One fails to grasp the logic of the new structure, the OMP.

That said, may I move on to the point made with direct reference to me by the Hon. Minister. He writes:

“This was also evident when he [President Mahinda Rajapaksa] and UN Secretary-General Ban-Ki Moon agreed to an accountability process in their 2009 Joint Communique, which was later made into a formal commitment to the entire international community via the 2009 Geneva resolution when Dayan Jayatilleka was Sri Lanka’s ambassador in Geneva.”

To use diplomatic language, I shall content myself by saying that the Honorable Minister’s statement is entirely without foundation in fact and fails to either correspond with empirical reality or accord with logic.

A smidgeon of logic alone should make Minister Samaraweera wonder why the resolutions moved by the US in the UNHRC on Sri Lanka in 2012, 2013, 2014 and 2015, made no mention whatsoever to the Resolution of May 2009. Surely, if Minister Samaraweera were right and he is grappling with a legacy of President Rajapaksa’s and my commitments to the international community in May 2009, then the subsequent resolutions, all of which commence with a preamble establishing continuity and locating itself in an institutional context, should have made some reference to the UNHRC resolution of May 2009. The fact that they do not, make amply clear to any logical mind, that there is no continuity with the UNHRC resolution of May 2009.

Foreign Minister Samaraweera and his Prime Minister must stop telling untruths on the public record that President Mahinda Rajapaksa agreed to an accountability mechanism-they sometimes say an international investigation – in his May 23, 2009 Joint Statement with Ban Ki Moon and later in the May 2009 Resolution in favor of Sri Lanka which obtained a near-two thirds majority in the UN Human Right Council.

The “understandings contained therein” (in that Joint Statement) were that the Government would take unspecified measures to address grievances regarding an accountability process with regard to human rights and humanitarian law violations. It merely and blandly stated that the “Government will take measures to address those grievances”. This is hardly a smoking gun! There is no statement to the effect that “the UN S-G and the Government of Sri Lanka agreed” on any accountability approach or measures. There is no evidence of any commitment to an accountability mechanism, domestic, international or hybrid. Indeed it is a semantic model of anodyne diplomatic ambiguity.

Our victory in the vote in May 2009 did not put or retain Sri Lanka on the agenda of the UN HRC. The EU driven Special Session did, but our diplomatic victory removed it from the agenda and there was no further action mandated– not even the need to report back to the Council.

That is why even Callum Macrae of Channel 4 laments as late as November 2014 that “…the Rajapaksa regime pulled off a stunning coup when it gained 29 votes for a resolution congratulating them on their “victory”.

The LLRC and the Disappearances Commission are the measures that the previous Government took, as promised, to address those grievances. That Government’s lapse was in failing to fully implement the LLRC report. That is pretty much all the new government had to do. The return of Sri Lanka to the UN HRC agenda has therefore to be sourced in the actions or inactions – the sins of commission and omission– in the years following the UNHRC success of May 2009, i.e. the post-war years. It has nothing to do with the UNHRC resolution of May 2009.

*Dr. Dayan Jayatilleka was a Vice President of the UN Human Rights Council, elected to represent the Asian Region in 2007-2008.