Can We Disagree With The Report Of The UNHCHR And On What Grounds?

By Laksiri Fernando -February 17, 2013

Dr Laksiri Fernando

The much awaited report of the UN High Commissioner for Human Rights on Sri Lanka is out now in anticipation of a debate and a resolution in the Human Rights Council soon on ‘reconciliation and accountability’ issues. It is a short report of 18 pages with a brief summary and 8 recommendations. The conclusions are equally important. Although it is formally a report of the Office of the High Commissioner, it is good as a report of the High Commissioner or the UN. This article only focuses on conclusions and recommendations of the report.

Conclusions of the Report

There are few conclusions that it has clearly made. First is that “Achieving reconciliation following decades of violence and mistrust is challenging in any context, but is only possible through a genuine, consultative and inclusive process that addresses the grievances of all those affected by the conflict, in an environment where the rule of law and human rights for all are respected.”

This conclusion is self-explanatory and does not need much comment except that it has clearly indicated some blame on the government that the present process obviously is questionable in its “genuine, consultative and inclusive” character. The ‘challenging part of reconciliation’ might be the most agreeable by all parties given the ‘decades of violence and also mistrust,’ but the accountability is not.

It was very recently that a mass grave was uncovered in Matale (in the Central Province) with possible 200 skeletons that date back to late 1970s. The JVP has claimed that over a half a dozen of other mass graves are in existence, so far uncovered and unaccounted for. If that was possible in the South, it is common sense that more could have been possible in the North during a more fierce battle. Therefore, the accountability issue that the UN has been raising since the Secretary General’s visit to Sri Lanka in May 2009 has much validity. If the government does not willing to take up this matter into cognizance it is imperative on the part of the civil society and the opposition political parties to pressure the government or otherwise a proper reconciliation might not be possible in the foreseeable future. In a context where even the atrocities during the World War II are still uncovered and justice called for, the accountability issues in Sri Lanka are not going to disappear.

The second conclusion is much known and is in respect of the LLRC report. It is almost customary for the UN to talk about the LLRC with certain qualifications and says “While the Lessons Learnt and Reconciliation Commission had some limitations, it nonetheless made significant and far-reaching recommendations for reconciliation and strengthening the rule of law.” The report particularly appreciates the LLRC taking up the fundamental issue of strengthening the rule of law which is lacking in the country. The government’s complete disregard for its implementation has been clearly shown by the way the much controversial impeachment against the Chief Justice was handled.

While noting that “The Government therefore has a unique opportunity to build upon the Commission’s work and findings to move towards a more all-encompassing and comprehensive policy on accountability and reconciliation” the report makes its operational conclusion as follows.

“Unfortunately, however, the Government has made commitments to only some of the Commission’s recommendations, and has not adequately engaged civil society to support this process. The steps taken by the Government to investigate allegations of serious violations of human rights further have also been inconclusive, and lack the independence and impartiality required to inspire confidence.”

It is a known secret that the government was trying its best to suppress the recommendations and even the report of the LLRC, as it did in the case of the APRC. If not for the pressure from the UN, by now the LLRC recommendations would have been only a matter of academic interest. Still the report is beyond the reach of the ordinary people without it being translated into Sinhala or Tamil. It is only a report of 388 pages though. It was also a mistake on the part of the LLRC not to produce the report in all three languages although understandably the commission was constrained by time and resources. Therefore the conclusion of the UN report that the government has lost or disregarded the “unique opportunity to build upon the Commission’s work and findings to move towards a more all-encompassing and comprehensive policy on accountability and reconciliation” is extremely a valid conclusion.

Equally true is the fact that the “Government has made commitments to only some of the Commission’s recommendations, and has not adequately engaged civil society to support this process.” This is amply confirmed by a recent article by Jehan Perera (The Island, 11 February 2013) who has said that “For a still unexplained reason only about 80 of the LLRC recommendations numbering over 160 have been mentioned in the government’s action plan. Only 3 of the 18 LLRC recommendations that called for participation by civil society have been included in the government’s action plan.”

Recommendations

It is on the basis of the above conclusions, written in extremely a diplomatic language, that the UN report has made 8 key recommendations to the government of Sri Lanka. First pertains to the assistance offered in the HR Commissioner’s letter dated 26 November 2012 and urging the government to still give positive consideration. The reason is that although the Minister of External Affairs has replied this letter (17 December 2012), but instead of accepting the offer has requested the Commissioner to visit the country and assess the ground situation herself. It should be noted that the November letter was sent after an assessment made by a technical mission in September 13 to 21. Therefore, it is possible to construe that the letter sent by the Minister is a devious attempt at avoidance of responsibility and/or cooperation.

There is no question that the matters identified for technical assistance by the UN or cooperation between the UN and Sri Lanka are quite far reaching. They pertain to what can be called ‘human rights based approach to transitional justice,’ and one could further say, ‘of the South African type,’ if we need any example or elaboration. In the case of South Africa, however, it was an internal initiative and an internal execution. This could have happened in Sri Lanka if not for the ‘ethnic bigotry’ and ‘authoritarian pigheadedness’ of the Rajapaksa regime. The LLRC was a good opportunity that is now lost. Even some of the members of the commission could have been involved in the implementation process utilizing their expertise and experience. Now the situation is different and it is possible that the next resolution of the UNHRC might prescribe the technical assistance as mandatory. The four areas identified for this technical assistance are (1) the right to truth (2) criminal justice and accountability (3) legal and institutional reforms and (4) the right to a remedy and reparation.

From the wording of the recommendations it appears that the government cannot any longer circumvent what might evolve as (at least partially) an ‘international investigation into war crimes.’ The two sub-sections of the first recommendation say the following.

1. The establishment of a truth-seeking mechanism as an integral part of a more comprehensive and inclusive approach to transitional justice;

2. Criminal and forensic investigations to review relevant case files and advise on additional lines of inquiry to resolve outstanding cases in accordance with international standards. (My emphasis).

It is obvious that if the above (i) and (ii) are implemented, then the identified perpetrators should be legally prosecuted. The other recommendations are also of far reaching implications seeking proper justice in a context of prevailing impunity. Numbered in alphabetical order, the recommendation (b) pertains to compelling the government “to invite special procedure mandate holders with outstanding requests to make country visits” pursuant to the UNHRC resolution 19/2 of March 2012. There seems to be eight outstanding requests from mandate holders and for none the government has given its agreement. These mandate holders are the special representatives, experts or rapporteurs on minority issues; freedom of peaceful assembly and of association; freedom of opinion and expression; extrajudicial, summary or arbitrary executions; enforced or involuntary disappearances; human rights defenders; independence of judges and lawyers; and discrimination against women in law and practice.

In the history of the Human Rights Council since 2006 or the previous Commission since 1946, no country had so far dishonored this much of mandate requests (8 in number) at a given point of time. This in itself shows the shameful disregard and contempt for international human rights and human rights obligations on the part of the government which would definitely generate condemnation from many members and of course largely the Western countries, if that can be an excuse.

The recommendation (c) is in respect of the implementation of the LLRC report and to urge the government to “hold public and inclusive consultations on the national plan of action…with a view to revising and expanding its scope and clarifying commitments and responsibilities.” This is self-explanatory.

While the recommendation (d) requests the government to “appoint a special commissioner of investigation into disappearances” pursuant to the LLRC recommendation on the subject, the recommendation (e) quite poignantly urge the government to “open proceedings of military courts of inquiry and future trials of LTTE detainees to independent observers to increase public confidence, and allow proceedings to be evaluated in line with international standards.”

It is a known fact that the so-called army appointed inquiry into alleged violations and even the matters referred to in by Channel 4 reports has gone into oblivion. It is more than a year now. It is these proceedings if any among others that the UN asks the government to open for independent observers. Instead, the army has now come up with the Army Board Report on LLRC Recommendations quite confusing the whole process of LLRC implementation. This intervention by the army on the LLRC implementation clearly shows the shift of power from civilian authorities to armed forces in many areas and in this case the so-called reconciliation. Could an army handled or intervened reconciliation process credible (?) is the question. The report also shows the emerging army intervention in political matters.

UNHCHR also wants the government to “publish the final report of the presidential commission of inquiry 2006 to allow the evidence gathered to be evaluated and accept international assistance to resolve outstanding cases” in its recommendation (f). While this shows the present misgivings on the part of the human rights community and the UN about the reliability of government actions, it urges the government to be consistent in its promised obligations.

It is in a broader context of long term and sustainable action for reconciliation that the final two recommendations (g) and (h) are formulated. The first calls to “take further steps in demilitarization and devolution to involve minority communities fully in decision-making processes” and the second urges the government to “engage civil society and minority community representatives in dialogue on appropriate forms of commemoration and memorialization that will advance inclusion and reconciliation.” It would be difficult for anyone with reason to disagree with the final two recommendations although verbal commitments on the part of the government would grossly be inadequate.

Conclusion

From a human rights point of view, there is hardly any objection that could be mounted against the conclusions or recommendations of the UNHCHR Report on ‘reconciliation and accountability’ in Sri Lanka, even after considering the ‘sovereignty argument.’ Sovereignty argument may be valid (1) if the recommendations go against the interests of the country and the people, or (2) if there is any sinister move behind the recommendations to ‘intervene’ in legislative, executive or judicial functions of the country in the domestic sphere.

As we have discussed above, the recommendations are aimed at promoting reconciliation and accountability and at present expediting the process as it is very clear that the government is dragging its feet and sending mixed signals as to its declared commitments. The government cannot deny that it has agreed upon ‘not only reconciliation but also accountability’ to our own people and the international community. I recollect what thePresident told Parliament on 19 May 2009 in his ‘victory speech’ that “our soldiers were fighting against terrorism, the gun in one hand and the human rights declaration in the other.” If that was the case, any breaches by the soldiers or the commanders should be investigated without any delay. This is an important ingredient in reconciliation and this is the paramount interest of the country at present.

It is completely a spurious argument that there is a conspiracy behind the moves by the UN or its human rights agencies. The source of this ‘conspiracy mentality’ might be the lack of understanding of international human rights and its operations or mere contempt of them. Some bureaucrats in Colombo might be reluctant to openly interact with UN officials for some cultural reasons but all of them are not Westerners! Personal complexes however should not interfere in these matters. Whatever the reason, to dishonor 8 requests from UN mandate holders apart from the Minister of External Affairs (a professor of law!) himself trying to circumvent a request from the High Commissioner would not augur well for the country.

Sri Lanka has been an important member of the UN since 1955. The country receives considerable technical and other assistance from various organizations and agencies of the UN such as the WHO, UNDP, UNESCO, UNICEF, ILO etc. If Sri Lanka can abide by the labor standards of the ILO, why cannot it abide by the human rights standards of the UNHRC? If Sri Lanka can receive technical assistance from other UN agencies, why cannot it receive technical assistance from the OHCHR? The truth may be the appalling human rights record of the present government.