Govt. initiative makes OHCHR probe redundant
Posted on July 25th, 2014

By Neville Ladduwahetty

It is clear from the text of the UNHRC Resolution A/HRC/25/L.1/Rev.1 of March 26, 2014 cited below that the expanded mandate of the Presidential Commission to Investigate into Complaints Regarding Missing Persons would make any investigation by the Office of the High Commissioner for Human Rights (OHCHR) redundant.

Paragraph 2 of the text to UNHRC Resolution “Calls upon the Government of Sri Lanka to conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law…”

Paragraph 10 and 10 (b) of the text states:

” … the need for an international inquiry mechanism in the absence of a credible national process…requests the Office of the High Commissioner…To undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes…”

It is apparent from the foregoing that an investigation by the OHCHR would be warranted ONLY in the absence of an investigation by the Government of Sri Lanka. Furthermore, that an investigation by the OHCHR would be different from that by the Government of Sri Lanka because the former is expected to investigate into violations ONLY of international human rights law, while the latter is expected to investigate violations of BOTH international human rights law and international humanitarian law. Recognizing the fact that both the Government of Sri Lanka and the OHCHR are expected to address accountability, it is inconceivable how investigations conducted by two vastly different standards for judging accountability could come to common conclusions.

INVESTIGATION BY THE OHCHR

It is reported that the OHCHR has set in place “an independent and credible” investigation mechanism and that investigations are underway. However, the degree of credibility is highly questionable due to the following reasons:

1. The remit to the inquiring body is not made public. Consequently, the lack of transparency is not in keeping with norms and practices adopted for an “independent and credible” investigating mechanism.

2. Except for the name of the coordinator, the composition of the investing team has not been revealed. Consequently it is not possible to evaluate whether they possess the required credentials and competencies to carryout their assigned tasks. Under the circumstances, the evidence they gather and the conclusions they reach could very well be suspect and lack objectivity. Holding anyone accountable based on such dubious standards is unacceptable.

3. It is reported that the 3 member advisory panel is expected to vouch for the integrity of the investigating team. Without credentials, competencies and background being made public, to rely on the panel to vouch for the team’s integrity is unacceptable.

INVESTIGATION BY THE GOVERNMENT PANEL

The investigation planned by the Government of Sri Lanka is both credible and comprehensive judging from the expanded mandate, the caliber of the Advisory panel that would guide the investigation, as well as for the following reasons:

1. The 3 member Advisory panel appointed by the Government to assist the Presidential Commission to Investigate into Complaints Regarding Missing Persons under an expanded mandate consists of Rt. Hon. Sir Desmond de Silva, QC (Chairman), Sir Geoffrey Nice QC, and Prof. David Crane. They are high-profile lawyers and academics who are internationally recognized not only for their imminence in their respective fields of expertise, but also for their first hand experience acquired by prosecuting crimes in countries that had experienced serious conflict- related violations.

2. The remit to the Advisory panel is specific and issued as a Proclamation by the President and Gazetted on July 15, 2014.

3. The remit is expected to address the issues raised in paragraph 4.359 of the LLRC Report.

4. The key elements of the expanded remit are:

A. i. “The principal facts and circumstances that led to the loss of civilian life during the internal armed conflict that ended on the 19th May 2009, whether any person, group or institution directly or indirectly bears responsibility in this regard by reason of a violation or violations of international humanitarian law or international human rights law”.

A. ii. “Whether such loss of civilian life is capable of constituting collateral damage of a kind that occurs in the prosecution of proportionate attacks against targeted military objectives in armed conflicts and is expressly recognized under the laws of armed conflict and international humanitarian law, and whether such civilian casualties were either the deliberate or unintended consequences of the rules of engagement during the said armed conflict in Sri Lanka”.

A. iii. “The adherence to or neglect of the principles of distinction, military necessity and proportionality under the laws of armed conflict and international humanitarian law, by the Sri Lankan Armed forces”.

A. iv. “Whether the LTTE as a non-state actor was subject to international humanitarian law in the conduct of its military operations”.

A. v. “The use by the LTTE of civilians as human shields and the extent to which such action constitutes a violation of international humanitarian law or international human rights law, and did or may have significantly contributed to the loss of civilian life”.

B. “The recruitment of child soldiers by the LTTE or illegal armed groups-affiliated with the LTTE or any political party in violation of international humanitarian law and international human rights law”.

C. “International criminal activities of the LTTE and the application of financial and other resources obtained through such illegal activities in the prosecution of the conventional and guerilla war in Sri Lanka by the LTTE”.

D. “The suicide attacks by the LTTE using child soldiers and other combatants under the direct orders of the leader of the LTTE, Velupillai Prabhakaran or any person acting on his behalf, and the culpability of such actions under international humanitarian law or international human rights law”.

GROUNDS FOR REDUNDANCY

The preamble to Resolution A/HRC/25/L.1/Rev.1 requires “States to comply with their relevant obligations to prosecute those responsible for gross violations of human rights and serious violations of international humanitarian law constituting crimes under international law with a view to and impunity”.

The preamble also states that it is ONLY in the event NATIONAL MECHANISMS FAIL (emphasis added) “that the Human Rights Council establish an international inquiry mechanism to further investigate the alleged violations of international human rights law and international humanitarian law…”.

In view of the conceptual framework set out in the preamble of the UNHRC Resolution cited above, grounds for redundancy are:

1. As stated in the preamble the initiative taken by the Government of Sri Lanka to meet obligations of a State to investigate violations of international law would make investigations by the OHCHR redundant.

2. The investigations by the OHCHR are less comprehensive because its scope is limited ONLY to violations of international human rights law.

3. The investigations by the Presidential Commission would have the potential to be more comprehensive because its scope covers violations of international humanitarian law and international human rights law.

4. Investigations based on vastly different criteria would arrive at conclusions that are likely to be divergent thereby causing confusion with adverse effects on reconciliation.

5. The fact that the investigating team appointed by the OHCHR would be assisted by relevant experts and special procedure mandate holders while the 3 member Advisory panel are intended to vouch for their integrity bring into serious question the credentials and competencies of the team and the quality of their conclusions.

CONCLUSION

The premise reflected in the UNHRC Resolution is that investigations into violations are conducted first by the State concerned, and it is ONLY in the absence of such an investigation that the OHCHR intervenes. In view of the Government’s initiative primacy of place should therefore be given to the State concerned which in this instance is the Government of Sri Lanka. If the spirit of the resolution is to be retained, any ongoing investigations by the OHCHR should be suspended, and every encouragement should be given to the efforts of the Government of Sri Lanka. Permitting parallel investigations to take place simultaneously would cause confusion and irreparably damage the reconciliation processes underway.

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