by Austin Fernando
The writer is former Defence Secretary
(January 08, Colombo, Sri Lanka Guardian) During the last few weeks media institutions, commentators and political spokespersons have discussed the United Nations Secretary General’s (UNSG’s) Panel’s visit to Sri Lanka to ‘share’ information with the Lessons Learnt and Reconciliation Commission (LLRC). The fast changing and conflicting statements make it difficult to track them. So much so, by the time this article is published two days after writing, the stances of the parties could change along with my conclusions!
Panel mandates
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| Austin Fernando |
UN SG’s Panel
The UN SG’s Panel is to "advise him on how he should be proceeding with the investigation on violation of Human Rights and Humanitarian Law during the last stages of war on Tamils in 2009." It focuses on human rights. This Panel pre-empts that there had been time framed rights violations deserving investigations. It speaks of violations against ‘Tamils’ and not against ‘terrorists’ or any other, while the government argues that Liberation Tigers (LTTE) violated rights during the ‘last stages of war’, and not the Military.
The focussed timeframe of the UN Panel is therefore politically more injurious to Government of Sri Lanka (GOSL), because there is none remaining from the LTTE, accountable for any crimes committed. Hence, GOSL’s reactions on the appointment of the Panel are not surprising on the ground of simple faultfinding of one party to the conflict.
GOSL’s Panel
The GOSL’s Panel was established to inquire in to the failure of the Ceasefire Agreement (CFA) of Ranil Wickremesinghe Government, sequential events up to 19th May 2009, those responsible, lessons learnt restitution/reconciliation methodologies, prevent recurrence of conflict and create national unity. Since LLRC is not addressing the immediate concerns of the affected in the main (i.e. CFA being given priority), it is not surprising to observe negative reactions from humanitarian rights groups.
Conflict of interests
While giving evidence before the LLRC, quoting the preamble of Act No. 34 of 1995 Promotion of National Unity and Reconciliation 1995 in South Africa, I pointed out that under a conflict situation South Africa provided for the investigation and the establishment of as complete a picture as possible of the-
(a) nature, causes and extent of gross violations of human rights committed during a decided period;
(b) granting of amnesty to persons making full disclosure of all the relevant facts relating to acts in the course of the conflict
(c) affording victims an opportunity to relate the violations they suffered
(d) taking of measures aimed at the granting of reparation to, and the rehabilitation and the restoration of the human and the civil dignity of victims of violation of human rights
(e) reporting to the nation about such violations and victims
(f) making recommendations to prevent commission of violations of human rights, and,
(g) for the said purposes to provide for the establishment of:
(i) Truth and Reconciliation Commission
(ii)Committee on Human Rights Violations
(iii)Committee on Amnesty
(iv)Committee on Reparation and Rehabilitation; and to confer certain powers, functions and duties to these institutions.
These fit into the humanitarian rights groups’ interests. I remember telling the LLRC that the words ‘human rights’ are not in the LLRC’s gazetted mandate.
One may ascertain from the above that the UN Panel is limited in scope and definitely dissimilar to the LLRC, and sharing information between the two will be therefore mismatching.
Additionally, the Panels really exhibit more contradictions in interests than similarities (e.g. timeframes, UN’s international membership versus GOSL’s pure Sri Lankan membership, UN’s concern over immediate past events versus GOSL’s concerns of past and futuristic events). Though the decision to share information generically equalizes the two Panels, these contradictions of interests should dissuade information sharing.
However, Minister Rambukwelle has publicly stated (Rivira 26-12-2010) that sharing will be on an agreed framework and external inquiries will not be permitted. Meantime, UN Spokesperson Farhan Haq has said that no specifics were known regarding the Panel’s performance. These are contradictory statements, exhibiting loose planning of a serious issue.
"The UN SG’s Panel has reiterated that it would not only talk to LLRC" Farhan Haq had said adding "…. It is not the case that the panel would only talk to the LLRC. The panel made clear to me that their work is broader than simply dealing with the LLRC…." The GOSL made a statement that the UN SG’s Panel "will not be permitted to carry out investigations, record evidence or visit places of their choice without prior government approval." Again, conflicting interests appear. Does that mean that getting approval is still open? Or, is it that government would disapprove any UN request and expect negative highlighting in the UN Panel Report?
Interpreting "sharing" decision
The initial outcome of the sharing decision is the mutual acceptance of mandates of both Panels. This is abhorred, vilified and rejected by the Diaspora, LTTE remnants and some human rights organizations. The latter who vehemently complained of LLRC’s inadequacies when invited to give evidence face indirect defeat if the UN Panel meets the LLRC. If it is victory for GOSL, one cannot explain why some in the government oppose a dialogue.
When the UN decided to establish a Panel, it was booed here with harsh words and a ‘fast unto death’. Booing was a habit as seen when John Holmes or Louis Arbour or Navaneetha Pillai made references to Sri Lanka. However, Prof. GL Pieris stated "This is politically unacceptable to Sri Lanka and at this stage would be premature." Now, with the sharing decision, the question lingers "Has the UN Panel reached maturity?"
When questions on what agreements or understanding were reached about with whom the Panel will speak; and with whom in the GOSL did SG or the UN speak before the announcement of the sharing decision, (especially when Prof Pieris has later said that he learned of it in the media) are asked and UN did not answer straight, it is difficult to avoid criticisms of lacking transparency.
Seeing the displeasure orchestrated by some Tamil Diaspora spokespersons one may conclude that the proposed dialogue may be advantageous to the GOSL. Really, are they showing displeasure to motivate furtherance of the move by the GOSL, hoping that it could boomerang on GOSL later? One has to be cautious of shows of displeasure! No wonder Ambassador Godage cautioned not to put the noose round the neck by accommodating SG’s Panel! (Irida Divayina 2-1-2011)
If the UN Panel is accepted as an ‘international inquiry’, the sharing decision could be the stepping stone for followed up enhanced demands for international inquiry, if it reports against the GOSL. Contrarily, a favourable report for the GOSL will invalidate Diaspora criticisms, as the UN is the apex international organization to intervene. How confident is GOSL to receive a favourable report is the issue.
Recently the local media reported that there had been 1,100 representations reaching the UN Panel, though unconfirmed by UN. From the tone of the report they appeared unfavourable to the GOSL. Since the sharing decision is consequential to such representations, do we welcome it?
These questions may be lingering in the minds of Minister Wimal Weerawansa and his outspoken literary laureate Dr Gunadasa Amarasekara, Minister Weerawansa’s proxy former parliamentarian Piyasiri Wijenayaka, when they make threatening and adverse comments against the visit of the UN Panel.
UN Panel and Sarath Fonseka
From the statements of GOSL spokespersons it appears that Sarath Fonseka will not meet the Panel. If he asks for an opportunity and gets refused it will give the Diaspora an opportunity to piggyback Fonseka on good governance principles and embarrass the UN and GOSL, thus affecting UN credibility.
If an opportunity is granted, Fonseka will certainly speak in favour of the military, especially to disappoint those who pictured him a ‘traitor’. It will politically benefit him. If Fonseka lets down anyone, and the UN Panel with any other purported evidence (like Channel 4 videos and affidavits) follows suit to pin some in authority as suspects, it will directly implicate the GOSL and force GOSL to defend its name, making the country subservient, irrespective of all noises of LLRC’s superiority. Ambassador Godage seems to be right!
The Opposition is fishing in troubled waters demanding an opportunity for Sarath Fonseka to meet the Panel. If the UN Panel Report were to be favourable to GOSL after Fonseka meeting the Panel, it will bail him out of treachery and elevate his image. If he is not allowed to speak and something adverse appears in the report, Fonseka may say that the "saviour of the military" was not permitted to speak on military’s behalf. If after meeting the UN Panel an adverse report is published Fonseka will say that he could not save those who have committed unforgiveable crimes, even after his positive interventions. Whichever way the wind blows it will be advantageous for Fonseka.
What will be the outcome if someone speaks against Fonseka to the UN Panel, which will on a ‘cause of natural justice of being heard’ entitles Fonseka to explain? If this opportunity is afforded he might utilize it to create trouble to his enemies in the government on ‘grounds of self-defence’.
Further, Fonseka supporters may if they wish try to manipulate the UN Panel to demand a meeting with him, which could cause all abovementioned problems. Cannot Wikileaks naming him along with the other government authorities be used to commence such?
The GOSL will not appreciate these dangerous scenarios and hence may prevent Fonseka speaking to the Panel and be cautious not to drag him in to the inquiry through devious routes. On this ground too GOSL should be happy if the UN Panel does not visit Sri Lanka.
UNP and the UN Panel
One UNP spokesperson said that LLRC was only time consuming and an ‘attention diverting effort’ by the government while another said that international inquiry is unnecessary. Another said that the government should share their side of the story with the UN Panel and Sarath Fonseka should also be allowed to share his experiences and any international investigation surrounding war crimes in Sri Lanka was applicable. The UNP’s Secretary General said that it would have been the latter’s personal opinion. Such uncertainty in the leading Opposition Party does not exhibit consensual politics.
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