By Neville Ladduwahetty Courtesy The Island

March 26, 2017, 7:39 pm

Although the separatist armed conflict ended in May 2009, the first UNHRC Resolution on “Promoting reconciliation and accountability in Sri Lanka” was in April 2012. This was followed by Resolutions in March 2013; March 2014 and September 2015. However, the Resolution of September 2015 is markedly different to all previous Resolutions as explained below.

The Resolution of 2012 contains only three paragraphs. It essentially calls on the Government of Sri Lanka to develop an action plan to “implement the constructive recommendations made in the report of the Lessons Learnt and Reconciliation Commission” and also to “address alleged violations of international law”.

The Resolution of 2013 with 6 paragraphs is an expanded version of the Resolution of 2012. While reiterating the need to implement the constructive recommendations in the LLRC Report, the Resolution for the first time refers to the need “to conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law, as applicable”.

The Resolution of 2014 has become expanded to 12 paragraphs. The first 3 paragraphs repeat provisions in the 2013 Resolution. However, except for the reference to the ability for Provincial Councils “to operate effectively, in accordance with the 13th amendment to the Constitution of Sri Lanka”, the remaining 9 paragraphs refer mostly to the procedural matters.

The Resolution of 2015 on the other hand, is sharply different to all preceding Resolutions. The reason for this paradigm shift needs to be explored, particularly in the light of the fact that one would have expected the UNHRC to go easy on the new administration following the ‘regime change’ orchestrated by international handlers as a part of their geostrategic interests.

BACKGROUND to the SEPTEMBER 2015 UNHRC RESOLUTION

The reason for the dramatic change in the 2015 Resolution is because of the confluence of both geostrategic and national interests. From a geostrategic perspective both the US and India were deeply apprehensive about the creeping role of Sri Lanka in China’s ‘One road and one belt policy’. These developments coupled with developments in the South China seas and the US policy of ‘Pivot to Asia’, caused a foothold in the Indian Ocean to become a compelling necessity. However, since the relationship of the former administration in Sri Lanka and that in China were serving mutually self serving interests, and were an impediment to US/India gaining a foothold in the island, the first ingredient in implementing the geostrategic interests of US/India, was ‘regime change’.

Although ‘regime change’ was primarily to serve US interests, the Sri Lankan beneficiaries of the regime change were not to get a free lunch. The cost of the lunch was reflected in the vastly revamped Resolution of 2015 that immediately followed regime change. Without realizing the complexities involved in meeting the commitments in the Resolution, the Sri Lankan beneficiaries of regime change saw the Resolution as an opportunity to contain their political opponents. The exploitation of the political situation in Sri Lanka is reflected in the statements in the Resolution that state without any ambiguity that the proposals were initiated by the Sri Lankan Government; a fact that was accepted by the latter with “appreciation”. This fact is highlighted in The Island Editorial of March 21, 2017.

The relevant Paragraph 6 of the 2015 Resolution states: “…notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable: affirms that a credible judicial process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirm in this regard the importance of participation in a Sri Lankan judicial mechanism, including special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators”.

The focus of the Government thus far has been objections to the participation of foreign judges, but no question has been raised about “defence lawyers and authorized prosecutors and investigators”. Also, the imperatives of Paragraph 4 that states: “…also welcomes in this regard the proposal by the Government to establish a commission for truth, justice, reconciliation and non-recurrence, an office of missing persons and an office for reparations, further welcomes the willingness of the Government to give each mechanism the freedom to obtain financial, material and technical assistance from international partners, including the Office of the High Commissioner; and affirms that these commitments, if implemented fully and credibly, will help to advance accountability for serious crimes by all sides and to achieve reconciliation”, have not been addressed.

These two Paragraphs address issues relating to accountability and post conflict measures considered necessary to promote reconciliation. Both state unequivocally that they are “proposals by the Government”. The President and the Prime Minister have realized rather late in the day that the engagement of “foreign judges” in the judicial process would undoubtedly involve Constitutional changes requiring a 2/3 approval by Parliament and approval by the People at a Referendum. No comment has been made thus far as to whether constitutional changes would be required to meet other provisions as well.

Furthermore, the provision by the Government to give the proposed mechanisms to promote reconciliation outlined in Paragraph 4, such as “the freedom to obtain financial, material and technical assistance from international partners”, would also involve amending existing Legislation. Considering the delays associated with the Bill relating to the Office of Missing Persons, and the fact that there has been no movement on the judicial mechanism, there is a strong possibility that what could realistically be achieved in the next two years would only be to set in place the necessary arrangements. While this could be considered an achievement it could be concluded with certainty that nothing meaningful would be achieved in respect of outcomes by judicial mechanisms and reconciliation.

The inevitable outcome of this would be to internationalize the entire process with accountability being handled by an International Tribunal. How to prevent such developments from overwhelming Sri Lanka is now the challenge to the Sri Lankan nation.

ACCOUNTABILITY for the 2015 RESOLUTION

Several questions arise including:

1. Who should be held accountable for undertaking to commit the country to the degree reflected in the Resolution?

2. Who should be held accountable for deciding to co-sponsor the Resolution?

3. Who should be held accountable if Government fails to meet the commitments undertaken over the extended period and for the consequences that could follow?

By focusing only on foreign judges, the Government has lost sight of the other issues cited in Paragraphs 4 and 6 that require as much attention if the commitments undertaken are to be implemented. Some of these provisions are certain to warrant new Legislation of a nature that could involve seeking special majorities of Parliament and the People. If the Government was ignorant of the complexities involved when it co-sponsored the Resolution it only reflects the level of its incompetence, which is unacceptable. On the other hand, if the compulsion to co-sponsor was to buy time in the hope that it could be “shaped up” later, as is being done with regard to foreign judges, trivializes the status of the members in the Human Rights Council; a notion that the Council should find offensive.

Whatever the reasons for the present predicament those responsible for the dilemma should be held accountable for “willingly” and voluntarily committing the country to fulfill commitments in the Resolution. Accountability should not only be confined only to those engaged in the conflict but also extended to those responsible for subjecting the country to unprecedented challenges.

HARD CHOICES

The choice for Sri Lanka is either to implement the provisions in the Resolution sufficiently modified as NOT to require constitutional or Legislative changes, meaning through existing arrangements, or to implement the provisions in the Resolution only after making the required Constitutional and Legislative changes.

Either choice would have supporters and objectors. Opting for the former has a better chance of achieving some tangible results within the two year time-frame. On the other hand, opting for the latter would mean delays in dealing with constitutional and Legislative issues at the cost of achieving results. There is no doubt that the former option would contribute more towards reconciliation than the latter option. However, it must be appreciated that while the former option involves coming to an understanding with the Council, the latter option is totally an in-house matter. Each has its own imperatives.

There is however, a third option. That is for the status quo to remain as far as accountability is concerned and seriously and genuinely focus on missing persons and reparations under existing provisions. The initial response would be to reject it outright. However, on careful consideration this option has considerable merit for the following reasons:

1. The time-frame should be the same as that covered by the LLRC, which is February 2002 to May 2009.

2. That the conflict was a “non-international armed conflict”. As such the security forces and the LTTE are recognized as EQUAL parties to the conflict and are EQUALLY responsible for the safety of the civilians under their respective charge, under rules of International Humanitarian Law (IHL) which, as the Resolution states are “applicable”.

Consequently, there would be violations committed by individuals and violations committed as part of military strategy. If there is justiciable evidence relating to individual violations, charges could be initiated now without waiting for formal judicial mechanisms. On the other hand, any violations committed as part of military strategy from February 2002 to May 2009 should be assessed in the context of IHL. Such an assessment could be undertaken with the evidence that already exists in several reports.

3. The LTTE violated acts prohibited under rules of IHL when they took >350,000 civilians hostage. The LTTE also violated principles of ‘Distinction’ and consequently compromised the principle of ‘Proportionality’ when they shed their uniforms and compelled civilians to render material support during the conflict. Clearly, the LTTE adopted these strategies for the sake of their own survival.

4. For the security forces, it was a matter of self defense and for militarily defeating the LTTE. Separating the civilians from combatants was part of the SL military strategy. Therefore, the deliberate killing of non-combatants had no SL military gain. In fact protecting civilians meant encouraging them to move to Government controlled areas, thus isolating the LTTE.

5. The charge that Humanitarian Aid was denied should be rejected on the grounds that parties to an armed conflict are ONLY required to provide access for others to provide such assistance under rules of IHL. In fact, no military is expected to feed the enemy it hopes to defeat. Despite this, there is a considerable body of evidence that the SL Government did supply humanitarian aid; a fact witnessed by International partners including Co-chairs.

The facts presented above would be what would emerge during any accountability or truth seeking exercise. These facts are already known and are detailed in the several reports relating to the final stages of the armed conflict. Therefore, engaging in another formal truth seeking exercise or a judicial process would only mean formalizing what is already known and declaring that the LTTE violated acts prohibited under rules of IHL. Such a formal declaration, although indisputable would be bitterly received by the Tamil people and their leaders, with consequences on reconciliation.

On the other hand, every encouragement should be given for those with justiciable evidence to present them to a body designated for that specific purpose. However, evidence based simply on the credibility of the source is unacceptable, because in this day and age such sources do not exist. All of this means that proposals in the Resolution for truth-seeking and a judicial process would only amount to going through motions without any meaningfully significant outcomes. Therefore, engaging in such a meaningless exercise would only lead to more disappointment and frustration; a reaction that would not be helpful to promote reconciliation.

CONCLUSION

The first UNHRC Resolution on Sri Lanka titled “Promoting reconciliation and accountability in Sri Lanka”, was in 2012. This was followed by expanded Resolutions in every subsequent year. However, the Resolution in 2015 reflects a paradigm shift in respect of scale and scope. The reason for this dramatic shift is commonly believed to be the price the beneficiaries pay, when installation of a new regime of the choosing of the US and its Western allies is involved. “Regime change” in Sri Lanka was to gain a foothold in the island in order to contain the creeping influence of China in the Indian Ocean arising from China’s ‘One road one belt’ policy. In such a background, one would have expected the US in particular to go easy on the demands on Sri Lanka’s reconciliation and accountability processes.

However, this did not happen. Instead, a heavy price was demanded from the local beneficiaries of ‘regime change’. The local beneficiaries in turn saw the demands as a convenient means of containing their political opponents, not realizing the complexities in the small print in the Resolution. Today, the Government is waking up to the single issue of foreign judges, not realizing that Constitutional and Legislative changes would be involved if other provisions in the Resolution are to be met.

Strengthened by the recommendation of the Muththetuwegama Task Force that foreign judges should head the judicial process, the High Commissioner for Human Rights is insisting that foreign judges should be an integral component of the accountability process. As stated by both the President and the Prime Minister, the incorporation of foreign judges would require a 2/3 approval by Parliament and also by the People at a referendum. Since other provisions in the Resolution could very well require similar special majorities there should be a national campaign demanding that the opportunity should be seized to subject the entire Resolution to a National Referendum.

There is a possibility that the outcomes of such a referendum would reflect divisions between the North and the South. Such differences could exist even if the referendum is limited only to foreign judges. Since this affects the whole nation, it is obligatory on the part of the Government to seek the views of the People on the 2015 Resolution through a national referendum. If the People of Sri Lanka reject the Resolution the International Community cannot ignore the will of the People. Such an outcome would enable Sri Lanka to develop its own brand to achieve reconciliation because at the end of the day, for peace to endure, Reconciliation has to be among the People of Sri Lanka.

It is only the People who can take back Sri Lanka.

Neville Ladduwahetty

March 23, 2017