Coping with the UN Panel through engagement and remedial measures

by Jehan Perera

(March 08, Colombo, Sri Lanka Guardian) Unknown to the general public the government recently sent a high powered delegation to meet the panel set up by UN Secretary General Ban Ki-moon to advise him on the implementation of the government’s commitment to have accountability on the issue of any human rights violations in the last phase of the war. The government was upfront and open about the meeting that its high powered delegation with the UN Secretary General, but not with the meeting that took place with the three members of the UN panel. The government delegation consisted of the Foreign Secretary, Attorney General and Sri Lanka’s Permanent Representative to the UN and his deputy.

When the UN Secretary General first made known his intention of appointing a panel of advisors, the government vehemently objected to it arguing that the country had its own internal processes to ensure human rights and accountability for any possible human rights violations. The government also denied that there were any serious human rights violations on its part during the war. During the period of war, the government held that it was carrying out a humanitarian operation to rescue civilians trapped and used as hostages by the LTTE. The government was also insistent that it had issued strict directives to the military to have zero tolerance for civilian casualties.

Even today, nearly two years after the end of the war which ended with the decimation of the LTTE and its leadership, the government continues to hold to its position that the war was humanitarian in its motivation and conduct. Speaking at the 60th anniversary of the establishment of the Sri Lanka Airforce, President Mahinda Rajapaksa said, "We will not sell out the humanitarian operation. I proudly say that we will not allow the victory to be forgotten." By re-affirming the humanitarian aspect of the military campaign, it is likely that the President was sending a message to his audience in Sri Lanka that there was nothing that merited an international investigation into how the war was conducted.

Mistaken judgment

The government’s desire to be secretive with the Sri Lankan people about the meeting with the UN panel could also be on account of its concern about loss of credibility with its nationalist voter base. When the UN panel was named there were strident criticisms of both its mandate and composition by government leaders and the state media. Although each of them was eminent in their own right, they were lambasted as being biased, anti Sri Lanka and pro LTTE. Leaders of the government also publicly declared that they would not cooperate with the UN panel or permit them to enter Sri Lanka. Even when the government finally agreed to issue visas to visit Sri Lanka, it added a condition that they could come only to give evidence before the government-appointed Lessons Learnt and Reconciliation Commission.

The most recent developments and the secret meeting at the UN indicate that the government’s decision not to cooperate with the UN panel was a mistake. Ironically it appears that President Rajapaksa’s own judgment was initially a different one, which was subsequently changed. Towards the end of last year, when President Rajapaksa went for the UN General Assembly meeting, UN Secretary General Ban Ki-moon announced that after long discussions with the President agreement had been reached on sending the UN panel to Sri Lanka in pursuance of its mandate. It was only subsequently that the government insisted that the UN panel would only be let in to give evidence before the government’s Lessons Learnt and Reconciliation Commission.

The meeting that the government delegation had with the UN panel in New York appears to have been a successful one and given the government a breathing space. If nothing else, the face to face meeting between the government representatives and the UN panel would have had the result of broadening the perspective of the panel members. The meeting also seems to have given the panel members cause to rethink their positions. The UN panel was expected to issue its report to the UN Secretary General last week, but now it has decided to postpone the issuance of the report by two to three weeks. This gives the government an opportunity to take further corrective action by way of constructive engagement with the UN panel.

Strategic failure

Prior to the meeting in New York, those who opposed any interaction with the UN panel argued that a meeting with them would give it legitimacy. Now by having its high powered delegation meet with them the government has vitiated this argument. If the member of the panel were to actually visit Sri Lanka it is likely that they would be impressed by the post-war developments in the country. They would also be able to speak to a wide range of actors from all walks of life, including politicians, religious clergy, business persons, civil society activist and members of the international community in Sri Lanka and obtain a well rounded view of post-war developments that would place the period of war in its proper context.

Unfortunately, by effectively preventing the UN panel from visiting Sri Lanka and meeting with anyone they wished to meet, the government also prevented them from getting a well rounded view of Sri Lanka as it is today. Due to their inability to visit Sri Lanka, the view of the members of the UN panel have been entirely made by what they read on the news sites, and meetings with expatriate Sri Lankans and human rights groups outside who have their own perspectives and strongly held opinions. The power of these groups to influence foreign policy of governments abroad and the UN itself can be seen in the recent resolutions in both the United Kingdom and the United States to set up an independent international commission of inquiry into what transpired during Sri Lanka’s war.

The resolution passed unanimously by the Senate of the United States, "(1) Commends the UN Secretary General Ban Ki-moon for creating the three member panel to advise the Secretary General on the implementation of the commitment of the Government of Sri Lanka to human rights accountability; (2) Calls on the Government of Sri Lanka, the international community and the United Nations to establish an independent international accountability mechanism to look into reports of war crimes, crimes against humanity and other human rights violations…" With the failure of its strategy of disengagement on the issue of human rights now manifest, the government needs to come up with a better strategy of engagement to deal with this challenge. An option for the government to consider would be to issue an invitation to the UN panel to visit Sri Lanka.

Better option

Another option that the government could follow would be to improve the lives of all those who are today living and suffering as victims of war, and to ensure that the past will never happen again. This indeed is the most important mandate of the Lessons Learnt and Reconciliation Commission. There are several inter related actions that the government can take to achieve these objectives. It must devote more resources to provide more humanitarian assistance to the war affected people most of who are bereft of resources. It must also improve its adherence to human rights and find an acceptable solution to the ethnic conflict instead of denying that one exists.

The UN panel will probably not be satisfied with a governmental response that is forward looking only. They will continue to advise the UN Secretary General about the government’s commitment to accountability for human rights violations in the past. On the other hand, the governments that constitute the United Nations are generally respectful of other governments. At the present time Sri Lanka has strong support from countries such as China and Russia in the UN Security Council. But this support cannot be taken for granted as events in relation to Libya have demonstrated.The UN Security Council’s unanimous resolution referring Libya to the International Criminal Court sends a strong signal that no government-to-government relationship can be considered permanent.

As the end of the war nears its second year the Tamil ethnic minority remains deeply disenchanted. They feel more vulnerable to the concentration of power in the hands of a few political leaders in the government who are from the ethnic majority. Their despair encourages the Tamil Diaspora even more to continue to lobby against Sri Lanka and its government. If the government were to take the remedial measures the situation can change for the better. It is possible that other governments which are the main source of power in the international system may become more willing to ease the pressure on a Sri Lankan government that is striving to bring reconstruction, reconciliation and a sustainable political solution to its people.