UN role in Sri Lanka’s accountability process
Posted on February 6th, 2016

By Neville Ladduwahetty Courtesy The Island


After several contradictory statements from the President, the Prime Minister, and spokespersons, finally the Prime Minister has very correctly stated that the “Constitution does not permit foreign judges to sit in judgment” (The Island, February 2, 2016). Elaborating further, the PM stated: “If we are to permit foreign judges to sit in judgment then our Constitution has to be amended with the consent of the people at a referendum”. It would also need a 2/3 approval of Parliament.

This position should satisfy the provisions in paragraph 6 of the UN Resolution A/HRC/30/L.29 dated 29 September, 2015 that recognizes “the importance of participation in a Sri Lankan judicial mechanism, including special council’s office, of Commonwealth and other judges…”. Since the operative word in the above Resolution is “participation” the clarification by the PM was needed in view of calls by the US, UK and others, for foreign judges to sit in judgment during the proceedings. Considering the contradictory statements that have been made on this and other subjects, the concern of the public is that the Government would cave in under external pressure and retract its statement.

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According to paragraph 6 of the Resolution the purpose of the accountability process is “to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable”. As such, the “applicable” parties to the accountability process should be the Sri Lankan Government, the LTTE and their supporters both in Sri Lanka and outside, and the International Community, in particular the UN. Had these parties acted jointly in a decisive manner during the Armed Conflict they could have made a difference to the human rights and humanitarian law violations that are characteristically associated with such conflicts.

ROLE of the UN during the ARMED CONFLICT

The role of the UN during the final stages of the Armed Conflict when the LTTE held nearly 300,000 plus civilians hostage is contained in the “Report of the Secretary-General’s Internal Review Panel on United Nations Actions in Sri Lanka”. This report was prepared by a Panel Headed by Charles Petrie and three staff. Given below are some relevant extracts from this report:

1. “Some members of the diplomatic corps said that because the CHAP’s (Consolidated Humanitarian Appeals process) and other UN documents referred prominently to protection they assumed that the UN had a monitoring and response system to address attacks on civilians and other violations. The fact that protection was defined so broadly that it included a wide range of humanitarian actions obscured the very limited extent to which the UN’s protections actions actually served to protect people from the most serious attacks”(p.19).

2. “The UN, in headquarters and in Sri Lanka, did not appear to fully recognize the scope of its responsibility to respond to Government violations and did not realize until very late that its protection actions were largely empty”(p. 19).

3. “The UNCT (UN Country Team) leadership in Colombo had insufficient political expertise and experience in armed conflict, and in human rights and humanitarian law to deal with the extraordinary challenges that Sri Lanka presented. The UNHQ heads of agencies and departments, however, did not appear to recognize this. The senior-most position on the ground was ranked a D1. Several heads of UNCT entities in Colombo complained that the HQs of their respective agencies were not adequately seized of the evolving situation and did not provide policy and political support”. (p. 24).

4. “The events in Sri Lanka highlight the urgent need for the UN to update its strategy for engagement with Member States in situations where civilian populations caught up in the midst of armed conflicts are not protected in accordance with international human rights and humanitarian law”(p. 26)).

5. Subtitled “Systemic Failure”; “…the Panel’s report concludes that events in Sri Lanka mark a grave failure of the UN to adequately respond to early warnings and to the evolving situations during the final stages of the conflict and its aftermath, to the detriment of hundreds of thousands of civilians and in contradiction with their principles and responsibilities of the UN. The elements of what was a systemic failure can be distilled into the following: (i) a UN system that lacked an adequate and shared sense of responsibility for human rights violations; (ii) an incoherent internal UN crisis-management structure which failed to conceive and execute a coherent strategy in response to early warnings and subsequent international human rights and humanitarian law violations against civilians, and which did not exercise sufficient oversight for UN action in the field; (iii) the ineffective dispersal of UNHQ’s structures to coordinate UN action and to address international human rights and humanitarian law violations across several different UNHQ entities in Geneva and New York with overlapping mandates; (iv) a model for UN action in the field that was designed for development rather than conflict response; (v) the most senior position in the field graded at a D1 seniority that was below the heavy responsibilities required for the position, and a corps of senior staff that did not sufficiently include the armed conflict, political, human rights and international humanitarian law and related management experience to deal with the challenge Sri Lanka presented, and who were given insufficient support; (vi) inadequate political support from Member States as a whole, notwithstanding bilateral efforts from all regions, and inadequate efforts by the Secretariat to build such support; and (vii) a framework for a Member State engagement with international human rights and humanitarian law protection crises that was outdated and often unworkable, in part because it did not enable Member States to reach a sufficiently and a full political consensus on the situation and the UN response”(p. 29).

6. “The UN had been preparing a joint letter to the Government from heads of several UN departments and agencies raising concerns over the situation; the hope was to use their combined weight to advocate for the protection of civilians and humanitarian action. However, during the time needed to circulate the draft across the various entities involved, to make changes and redistribute the draft, the situation had evolved and participants agreed the letter needed updating. DPA (UN Department of Political Affairs) recalled the need for a “viable political framework” and common situation analysis and coordination among UN agencies, Participants discussed alternatives, other than road convoys, for delivering assistance” (p. 64).

The “Systemic Failures” listed above demonstrate the total inadequacy of the UN and its agencies to handle the unique circumstances associated with the Armed Conflict in Sri Lanka. Perhaps the reason for coming down hard on Sri Lanka is to cover up the UN’s own inadequacies and that of the International Community. However, for an inquiry to be credible it has to expose the serious inadequacies within the UN and its agencies; inadequacies that could have minimized or even prevented some of the violations by all parties. The fact that the UN was not equipped to handle the unprecedented circumstances associated with the Armed Conflict in Sri Lanka could very well have contributed considerably to the human rights and humanitarian law violations. Assessing the degree to which the UN and the International Community is accountable in this regard should also be addressed during the course of the proposed inquiry.

ROLE of the UN in POST- CONFLICT SRI LANKA

The UN is also responsible for several procedural flaws associated with its post-conflict engagement with Sri Lanka. These are presented below:

1. Following the joint statement between the Secretary-General of the UN and former President Rajapaksa on May 23, 2009, Sri Lanka was to undertake an “accountability process”. In keeping with this commitment Sri Lanka appointed the Lessons Learnt and Reconciliation Commission (LLRC) on May 15, 2010. Despite this, the UNSG appointed a Panel of Experts (PoE) on June 22, 2010 ; i.e., 5 weeks later.

Although the report of the PoE was meant for INTERNAL USE ONLY by the UNSG under the rules of the General Assembly, it found its way to the public domain. This is in total violation of the remit of the UN, and brings into question the professionalism and the credibility of the office of the UNSG.

2. Paragraph 10 of the Human Rights Council’s Resolution on Sri Lanka specifically states: “…the need for an international inquiry mechanism in the ABSENCE (emphasis added) of a credible national process…”. On July 14, 2014 a national process was initiated in the form of a Presidential Commission headed by Justice Paranagama under the 2nd mandate to look into allegations of war crimes and other violations of international law. Despite the fact that this Commission was assisted by 3 internationally eminent legal experts, the OHCHR set up “a special investigating team within the OHCHR in Geneva that came into operation in mid-August 2014 – i.e., 1 month AFTER the national process was initiated.

The measures adopted by the UN clearly demonstrate that they have violated their own commitments by initiating actions that should have been taken ONLY in the ABSENCE of initiatives by Sri Lanka. The measures resorted to by the UN and its agency the OHCHR violate concepts that are required to guide the work of the Council such as “impartiality, objectivity and non-selectivity, and cooperation with a view to enhancing the promotion and protection of human rights”; concepts that the OHCHR is expected to exercise as per paragraph 4 of the General Assembly Resolution that set up the Human Rights Council in 2006. The levels of unprofessionalism and misconduct reflect the degree to which the UN and its agencies are being manipulated; a fact that should be a matter of deep concern for all Member States.

CONCLUSION

The undertaking given in the Resolution of the UNSG and the UNHRC was that any inquiry into alleged violations should ONLY be undertaken in the absence of inquiries initiated by Sri Lanka. The UNSG and UNHRC both violated their respective undertakings. The most egregious act was the unofficial release of the Report of the UNSG appointed Panel of Experts report on Sri Lanka. This action was in complete violation of the remit granted to a UNSG by the General Assembly. The contents of this unofficial report that should NOT have seen the light of day except by the UNSG, have become the official source for other reports, the most specific being the arbitrary allegation of some “40,000 civilian deaths”.

The consequence of these actions was for Sri Lanka to be on the defensive to such an extent that Sri Lanka ended up co-sponsoring a UNHRC- initiated Resolution. All this was possible because Sri Lanka failed to bring to the attention of the UN and its agencies their inadequacies and abject failures to act decisively in Sri Lanka’s Armed Conflict. These systemic failures are highlighted in the Report of the Secretary General’s Internal Review Panel of United Nations Actions in Sri Lanka dated November 2012. Six specific systemic failures cited in the Report are quoted above.

These Systemic Failures should be a vital component of any “credible investigation”. What is revealing is the fact these failures prevented the UN and its agencies and the International Community from acting decisively to minimize or even to prevent human rights and humanitarian law violations. Therefore, the UN and the International Community who were closely engaged throughout the Armed Conflict should bear proportionate responsibility for any human rights and humanitarian law violations as well as omissions that may have occurred during the conflict. The most glaring example of collective responsibility relates to the delivery of humanitarian aid; a responsibility that has come to be solely tagged on to Sri Lanka despite the fact that it is not an obligation under rules of Armed Conflict, and furthermore, it was a task undertaken by a multiplicity of national and international agencies.

What is most disturbing is that after the experiences of Rwanda, and former Yugoslavia as well as the unimaginable tragedies in Iraq and Afghanistan, the UN still remains bogged down by its own system failures. As admitted by them, not only were unqualified persons assigned tasks that they were incapable of handling, but also the UN was weighed down by bureaucratic baggage that prevented it from fulfilling its assigned role in Sri Lanka. Instead of accepting its inabilities to cope with global tragedies it has duplicitously decided to hit on countries like Sri Lanka to cover up the UN’s own nakedness.

Notwithstanding all of the above it is very likely that Sri Lanka would not raise a hair to bring to the attention of the UNHRC, the fact that accountability is a shared responsibility. Sri Lanka is not likely to calmly and firmly say that whatever happened took place because the LTTE took 300,000 plus civilians hostage, and the UN and the International Community did not with all their might and influence compel the LTTE to release the civilians. Despite this justifiable collective responsibility Sri Lanka is not likely to take a principled stand, because of a misguided notion prevalent in Sri Lanka that the need to stay “engaged” with the UN and the West outweighs all other imperatives.

 

6 Responses to “UN role in Sri Lanka’s accountability process”

  1. nilwala Says:

    Some extremely important points in this article which hopefully is read by the Lankan Govt. team….

    Hope these Govt. representatives will have the SPINE to point out where the UN itself erred during the crucial months that are under survey and call for its own RESPONSIBILITY to be part of the ACCOUNTABILITY investigation.

  2. Ancient Sinhalaya Says:

    UNPatriotic party’s Buddhism destroying agenda is there from the inception of the party. There are myriad of evidence.
    But being famous for modayas, some traitor Sinhalese can’t see it. Or don’t want to know for their personal gains. UNPatriotic party’s anti Buddhist stance obviously come from aligning the country with the catholic west. So powerful west make Sri Lanka dance to their tune. So the catholic church rule Sri Lanka. Sinhalese Buddhists have no help. Not even from most of their spineless deshapaluwan. These deshapaluwan know some Sinhalese have short memories and tell them some diabolical lies and they will vote with their feet.

    UNPatriotic party opposed FREE education bill knowin it will benefit rural Buddhis population.
    We all know how UNPatriotic party brutally killed Buddhist jvpers and turned a blind eye to most tiger atrocities
    since hitler pira(mala)paharan, tamil selvean, etc. were catholics. Even after catholic tigers killed Buddhist monks, attack Sri Dalada Maligawa and Sri Maha Bodhi they were relucatant take drastic action. Instead they were rewarded with CFA and left them to their own devices in order to get too strong and eventually break the country and making a catholic country with the full blessing of the west.

    You can see this agenda clearly as they wanted to punish MR for scuppering this grand plan. So they set up UNHRC to
    skin him alive. Guess who was hell bent on punishing him. All staunchly catholic countries. Brasil, argentina, italy, uk, norway, uk, us, south korea etc. etc.. And look who opposed it. Almost all were muslim countries. Catholic church in Sri Lanka, kasippu joseph, em manure, archbishop two three etc, etc. Do you see the connection. Why none of them shed a tear for the Buddhists killed by catholic tigers of tamil drealam, and UNPatriotic BHEESHANA SAMAYA. Not even a crocodile tear. That’s how pathetic the plight of the Buddhists in Sri Lanka. This is the simple reason Sri Lanka should stay with the Chinese to keep the west and india away. When you are with the mighty Chinese nobody troubles you.
    They don’t want to break up Sri Lanka. They will develop the country at break neck speed in return for using our country’s strategic location in the indian ocean.

    But they say it’s Buddhist Sri Lanka. Then destroying it is much easier. Then all the spineless Sinhalese deshapaluwo very happy since they don’t have to utter a word in support of it. Now Buddhism has become so much weaker in Sri Lanka,
    catholic-run UNPatriotic party wants to bury it for good. They have the best man for the job. Token Buddhist, die hard
    catholic pol pot ponil. He got all the attributes for the job. He only takes orders from catholic church.

    Maru sira is the chief of defence staff. But who appoints the army chief. Pol pot ponil. Who is appointed? A catholic.
    Who he sees first? Of course, the most powerful man in Sri Lanka. Archbishop Malcolm. That’s how pathetic the state of affairs in so called Buddhist Sri Lanka. Maru sira didn’t want to go 72 miles to Kandy to see the bosses of Buddhists. He knows the pair of them are just two puppets like him with no back bones. So he rushed to vatican to see paap vahanse. Aappa vahanse visits paap vahanse.

    Now you see the catholic west and catholic church rule Sri Lanka. When you are with the catholic west this is what happens. But a lot of Sinhala modayas don’t care. Some of them can’t even understand this simple truth. Tamils, mussies and catholic Sinhalese always vote for the UNPatriotics and with a few Sinhala modayas they always rule.
    They know it so raping Sri Lanka, Sinhalese and Buddhism no problem for them. This time they do want to bury it for good. Buddhism gone from schools. Buddhism gone from the constitution.

    Do a google search for Sri Lanka’s underworld. UNPatriotic party pathalayin top the list.
    YAMA PALLANGE YAMA PALANAYA.

  3. nilwala Says:

    Friday Forum has dealt with Accountability on another website and it appears as though the feet of the Sinhala majority is what is being held to the fire.
    Let Accountability be the responsibility of ALL..
    Here are a few other factors that should be considered for JUSTICE to be the goal of ACCOUNTABILITY.

    Re: POST-WAR ACCOUNTABILITY: Hopefully, the victims on ALL sides will be shown the necessary compassion called for by the Friday Forum…and that includes:
    1. Survivors of the Central Bank Bombings and relatives of the dead
    2. Parents of Students killed at Fort Railway Station
    3. Relatives of Kebithigollawa massacre
    4. Families of 600 Police executed in Eastern Province
    5. Muslims evicted from Jaffna
    6. Sinhalese evicted from Jaffna
    7. Surviving families of all others who lost their lives due to land mines laid by the LTTE, and other suicide missions that were undertaken wherein innocent lives were lost.
    Hope the new Council of Eleven will show Justice to ALL of the victims.

  4. Fran Diaz Says:

    Agree with Nilwala !

  5. Susantha Wijesinghe Says:

    THANK YOU NEVILLE, FOR REFLECTING THIS ON LANKA WEB.

  6. Fran Diaz Says:

    Mr Ladduwahetty has consistently pointed out the anomalies in the UNHRC reports, for which we thank him.

    ———–

    Please permit me to digress a bit from the UNHRC reports, and address a related issue, the UNHRC’s attitude toward the Root Causes of the so called ethnic issues in Lanka.

    It is also pertinent to point out that sometimes, as in the case of Sri Lanka, biased persons such as Ms Navi Pillai have been assigned to the Sri Lanka’s HR issues. Ms Pillai was head of the UNHRC at the time the MR govt went to war with the LTTE. Ms Pillai, a person of South Indian (likely Tamil) extract, had in her UNHRC Report, accused Lanka of ‘Institutionalised Discrimination’ (ID) of Tamils in Lanka. Now, ID exists in Tamil Nadu, in the form of Caste. Dalit persons in Tamil Nadu have their Dalit status written on their birth certificates. In Lanka, this does not happen and there is no Institutionalised Discrimination of Tamils. In fact, there is no discrimination of Tamils at all. However, it is correct to say that Tamil Leaders encourage discrimination against the Sinhala people when they put forward a notion that they are against the Sinhala Language Act (SWRD, 1956). This was also followed by the Vadukoddai Resolution of 1976 opting for a separate state, Eelam, for Tamils only, through violence. Then, India trained the LTTE in the 1980s (JRJ, Cold War times) & also imposed the 13-A which, among other items, gives full language rights in Lanka to Tamils. What has the UNHRC to say to all this about Indian foreign imposed laws in Lanka ?

    Atrocities against Dalits go on daily in Tamil Nadu. The Caste System has existed in TN for over 3,000 yrs. Tamil Nadu has some 15 Million Dalits. An article in The Hindu stated that atrocities against Dalits are on the increase now. A policeman there stated that if persons who committed atrocities against Dalits of TN were jailed, half of TN would be in jails. Most of Lanka’s problems stem from the fact that Tamil folk who suffer there flee Tamil Nadu. Since Lanka has the Tamil language in place and is close to TN, they tend to flee to Lanka. Once in Lanka, conversions take place, mostly to Catholicism (or Christianity) some to Islam and Buddhism. Charitable Buddhism has accommodated at high costs as now Tamil Leaders of Lanka are demanding a separate state, Eelam.

    What is the UNHRC doing about the Dalit Caste issue in TN ? These are issues that matters greatly to the survival and wellbeing of Sri Lanka’s 20 Million people.

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