By Neville Ladduwahetty  Courtesy Island

It is reported that the US Assistant Secretary of State, Nisha Biswal, is so ‘upbeat’ about the mechanism adopted by the Government for a Domestic Inquiry Mechanism into accountability and reconciliation issues relating to the final phases of the conflict, that the US would sponsor a resolution supporting the Domestic Inquiry Mechanism at the next session of the UN Human Rights Council. (The Daily News. August 28. 2015). The report also states that Assistant Secretary of State for Democracy, Human Rights and Labour, Tom Malinowski, speaking to reporters had stated: “The United States will sponsor another resolution at the UN Human Rights Council in September and we are not going to walk away from this process of encouraging reform and change after September. We very much hope that with the changes after January 8, the new government will work with us and work with the United Nations on a real process of accountability and reconciliation. The international community will remain involved in that process. It will continue to monitor that process. And as much as we are hopeful about the promises that the new government had made,we will judge it not by its promises but by its actions and achievements”.

Assistant Secretary Malinowski further stated: “The important thing is that there be a judicial process that is credible to the people of Sri Lanka and to the international community. For that process to be credible, I don’t think it has to be a completely international process, but it does have to be independent of political leadership. It has to be led by people who are trusted by the minority community and it should have some degree of international involvement, even if it is a domestic process organized under the laws of Sri Lanka”.

COMMENTS by GOVERNMENT of SRI LANKA

A report in The Daily News of August 29, 2015 states: Justice Minister Wijayadasa Rajapakshe yesterday assured that the domestic inquiry mechanism which the government will set up to investigate alleged war crimes in the country would not be a hybrid mechanism.

“The investigations into alleged war crime abuses will be conducted solely by the government of Sri Lanka. It will not have any participation from the United Nations Human Rights Council (UNHRC),” the minister said.

A former diplomat recently said over television that if the domestic inquiry was going to be carried out jointly with the support of the UNHRC, it will be a hybrid investigation.

Minister Rajapakshe said: “I must say that it will not be a hybrid investigation. It will be a credible investigation which will be acceptable to all- the local and the international community.”

2014 UNHRC RESOLUTION on SRI LANKA- Adopted March 27, 2014

A/HRC/25/L.1/Rev.1- Clause 10 states:

10. Takes note of the recommendations and conclusions of the High Commissioner regarding ongoing human rights violations and the need for an international inquiry mechanism in the absence of a credible national process with tangible results, and requests the Office of the High Commissioner:

(a) To monitor the human rights situation in Sri Lanka and to continue to assess progress on relevant national processes;

(b) To undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission, and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedures mandate holders;

OBSERVATIONS

1. According to the US, the Domestic Inquiry mechanism “should have some degree of international involvement”. This is contradicted by the Government of Sri Lanka. According to the Government of Sri Lanka the Domestic Inquiry “will be conducted solely by the government of Sri Lanka”.

In the light of such contradictions it isbest that documents relating to the Domestic Inquiry mechanism developed by the Government are published.

2. Clause 10 of the 2014 UNHRC Resolution sponsored by the US states: “the need for an international inquiry mechanism in the absence of a credible national process with tangible results”. In keeping with the remit of the resolution,a national inquiry was initiated on August 15, 2013, with JusticeParanagama as Chairman and its scope extended on July 15, 2014,to cover violation of International Humanitarian Law relating to Armed Conflict by retaining an expert international panel headed by Sir Desmond de Silva QC, to advice the Paranagama Commission. Despite the initiative taken by the Government,the UNHRC arbitrarily initiated an international inquiry nearly a year later presumably having determined that the national inquiry was not “sufficiently credible”.

Such unilateral actions brings into question the very credibility of the UNHRC institution and its purpose.

Therefore, it is vital that the Paranagama Commission report is published.

3. The current US position for a Domestic Inquiry is a complete reversal from that taken earlier. The US appears to be confident that it would be able to convince the 23 members of the Human Rights Council who supported the resolution for an international inquiry, the need for such complete reversals. Such confidence reflects not only the influence of the US in the Council but also the absolute servility of sovereign states that make up the Human Rights Council, because theUS has to find 23 members of the Human Rights Council to support the new initiative for a Domestic Inquiry. These circumstances demonstrate that the Human Rights Council is nothing but a tool in the great game of geopolitics of the powerful nations.

CONCLUSION

Whether the US succeeds or not in gaining support for a Domestic Inquiry it has to be admitted that issues of accountability have already been addressed by the following:

(a) The Panel of Experts appointed by the UN Secretary General.

(b) The Lessons Learnt and Reconciliation Commission (LLRC)

(c) The international inquiry by the UNHRC

(d) The Domestic Inquiry by the Paranagama Commission

The US is confident that “the new Government would work with the UN on a ‘real process’ of accountability and reconciliation”. Since assessment of what is a “real process” is highly subjective it could be concluded with certainty that even after a fresh Domestic Inquiry, issues of accountability would NOT meet the expectations of most. This was the experience with the LLRC. One of the main sources for dissatisfaction would be how the evidence gathered is interpreted, because interpretations of evidence are dependent on the context in which they are evaluated. Therefore, a fresh Domestic Inquiry would only add to existing evidence. But what is needed is a determination of the context in which the evidence is evaluated. For instance, the same evidence could be interpreted in the context of a conflict between a State and a non-state actor, or as an Armed Conflict as determined by the Tribunal for former Yugoslavia. By way of example, shortfalls in the supply of humanitarian aid during the conflict would be a human rights violation if the context of the conflict is between a State and a non-state actor, while there would be no obligation to supply humanitarian aid if the context is that of an Armed Conflict.

Under the circumstances, sufficient evidence exists between the 4 inquiries already conducted to determine issues of accountability. What needs to be done is to determine the CONTEXT in which to evaluate that evidence. For such an exercise, no further inquiries either domestic or international are needed. Such an approach would bring closure to issues of accountability leaving room and space to focus fully on reconciliation,complexities of which the US lives with on a daily basis even after 150 years after its Civil War.