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by Bandu de Silva
Terms of reference –Contradictions?
(April 22, Colombo, Sri Lanka Guardian) The terms of reference dated 10 October 2010, given to the expert panel in fact stated very clearly, that the panel was only to advise the Secretary General and that it was not an investigative or even a fact finding body. As will be discussed, the Panel’s Report (Recommendation No.4) that the independent mechanism recommended should collect and safeguard ‘for appropriate future use’ the information provided to it including information gathered by the panel and other bodies of the United Nations System” accords it a different complexion. It means it calls for recognition of a “special status” for its own findings. So, it is clear that the Panel’s Report itself is to become part of the “UN Process/ mechanism” proposed to be set up. (Recommendations 2and 3). That lays bare the lie about the objective of commissioning the Advisory Panel. GOSL’s suspicions have been vindicated.
Nature of Panel’s Consultation
The manner in which the Panel set about its ‘advisory’ role like receiving representations from interested parties, the very public discussion of what the panel was doing etc. has raised doubts as to whether the nature of proceedings of the panel went beyond the advisory role announced. The details so far disclosed in leaked reports point to a full scale investigation, though one-sided, and based on questionable evidence having taken place. From Recommendation No.4 referred to above it seems that receiving representations and recording them had been done with an objective in mind.
Status of the Panel Report
The above circumstances, namely, deviation from accepted procedure in appointing Advisory panels and the nature of proceedings/consultations as well as the choice of members of the panel raise questions about the official status of the Panel Report. This is a fair exchange granted that an Advisory Panel personally selected by the UNSG carries no sanction of the representative bodies like the General Assembly and the Security Council and even of doubtful credentials and its constituent members are reasonably alleged having conflicting interests compared to the sovereign State of Sri Lanka which is a proven respectable member of the UN.
Considering that the Panel itself has cast aspersions on the GOSL’s process of investigation and states that its independence and impartiality is compromised by its composition and deep-seated conflicts of Interests of some of its members”. (See Executive Summary, Sunday Times, April, 17, 2011), the reservations entertained about the bona fides of the three members of the UNSG’s panel can be considered equally reasonable.
Panel’s perception of the LLRC
The Panel Report acknowledges at the outset that “LLRC represents a potentially useful opportunity to begin a national dialogue on Sri Lanka’s conflict saying that “the need for such a dialogue is illustrated by the large numbers of people, particularly victims, who have come forward on their own initiative and brought to speak with the Commission” but observes that it “fails to satisfy key international standards of independence and impartiality”. One of the reasons, as pointed out above, is that impartiality is compromised by appointment of persons with conflicting interests.
It further observes that “the mandate of LLRC, as well as its work and methodology to date, are not tailored to investigating allegations of serious violations of international humanitarian and human rights law, or to examining the root causes of the decades-long ethnic conflict” and “instead of these they “focus strongly on the wide notion of political responsibility mentioned above, which forms part of the flawed and partial concept of accountability put forth by the Government”.
The Report goes on to say that the work to date demonstrates that the LLRC has not conducted genuine truth-seeking about what happened in the final stages of the armed conflict, not sought to investigate systematically and impartially the allegations of serious violations on both sides of the war, not employed an approach that treats victims with full respect for their dignity and their suffering, and not provided the necessary protection for witnesses, even in circumstances of actual personal risk.
A further emphasis is clearly on the culpability of certain LTTE cadre; the Government’s plan, in this regard, contemplates rehabilitation for the majority and lenient sentences for the "hardcore" among surviving LTTE cadre. The Report considers that the Government’s two-pronged notion of accountability, as explained to the Panel – this points to there having been discussions between the government and the Panel - focusing on the responsibility of past Governments and of the LTTE, does not envisage a serious examination of the Government’s decisions and conduct in prosecuting the final stages of the war or the aftermath, nor of the violations of law that may have occurred as a result.
The Panel has thereafter concluded that the Government’s notion of accountability is not in accordance with international standards; and unless the Government “genuinely addresses the allegations of violations committed by both sides and places the rights and dignity of the victims of the conflict at the centre of its approach to accountability, its measures will fall dramatically short of international expectations”.
As such, despite the initial acknowledgement of the usefulness of the LLRC – a point stated more emphatically by spokespersons of the US Government – the Panel Report does not agree with the principle on which the GOSL has stated that it is seeking to balance reconciliation and accountability, with an emphasis on “restorative justice”. The UN Advisory Report asserts that the “choice between restorative and retributive justice presents a false dichotomy ” and insists that “both are required”. Moreover, in the Panel’s view, the Government’s notion of restorative justice itself is flawed “because it substitutes a vague notion of the political responsibility of past Government policies and their failure to protect citizens from terrorism for genuine, victim-centred accountability focused on truth, justice and reparations”.
“Restorative: and :Retributive” justice
The issues of “restorative and retributive justice” are mere opinions on which one may agree or disagree. They are also opinions constructed, in this case, within the confined space of the war during its very last phase without taking into consideration of the situation in the country imposed by terrorism over a period of two and half decades. That leaves a wide gap in perceptions.
In this country, it has to be appreciated that at least a process has been initiated whether it will meet the so called (undefined) “international standards” or not. As admitted by the Panel, “……the very fact that the large numbers of people, particularly victims, had come forward on their own initiative and brought to speak with the Commission” itself should point to wide acceptance of the country that a credible process could emerge out of the process of the LLRC.
The international standards are only vaguely described in the Panel Report as “……those standards and comparative experiences to discern how effectively it allows victims of the final stages of the war to realize their rights to truth, justice and reparations.” The Panel’s own observation that it does not advocate a “one-size-fits-all” formula or importation of foreign model formula and that it recognizes the need for accountability process to be defined based on national assessment……” in itself is an admission that there are no laid down “international standards”.
The process commenced by the GOSL could even be the beginning. A start has to be made somewhere. The Truth Commission of South Africa has still failed to deliver on some of its recommendations. Countries should be encouraged to subscribe to approach accountability taking their respective country circumstances, socio-cultural and political priorities of territorial integrity and sovereignty into account. (The need for local variation of criteria has been recognized in the Panel’s report itself, Vide, the reference to the statement that the “Panel does not advocate a "one-size-fits-all" formula or the importation of foreign models for accountability; rather it recognizes the need for accountability processes to be defined based on national assessments, involving broad citizen participation, needs and aspirations”).
The initial response of the US as expressed by Ambassador Butenis and even more recently by Assistant Secretary Blake was encouraging though the latter introduced a caveat which points to a convergence with the UN Panel’s recommendation as if Blake had a premonition of what was to follow (Wasn’t the Panel Report already compiled then?).
What the Panel Report itself indicates then is that there are no clearly defined international standards to emulate or chose from and the Report itself calls for application of “comparative experiences.” Considering that each country situation and socio-cultural situations are different variations have to be expected. During the Desert Storm War alone, the U.S. and NATO allies bombed Iraqi cities and villages and saw to nearly a million children dying through starvation and malnutrition as a result of application of economic sanctions. Such inhuman situations in which the former UNSG remained observing stoic silence is unthinkable in situations like in Sri Lanka with her different sense of cultural values. There was no case of “”All Laws being Silent in War” here as a former US Chief Justice quoted during WW II.
The Panel’s obvious bias in coming to conclusions is revealed all round. It would suffice for the present to draw attention to how it accuses the GOSL “deliberately underestimating the number of civilians so as to restrict the quantity of food and medicine going to the LTTE controlled area” (Conclusion No.3).
Conclusion No.3. Restricting Food and Medicine
As against the Panel’s report trying to make out that humanitarian assistance was denied to people caught up in the war zone by “the government by “deliberately underestimating the number of civilians so as to restrict the quantity of food and medicine going to the LTTE controlled area” (Conclusion No.3), it is but blatant mischief on the part of members of the Panel to suggest that GOSL deliberately deprived a section of its population of essential medicine and food. That mischief is committed by raking up a point about the numbers of civilians caught up in the war zone presented in GOSL’s reports as constituting around 100,000 (plus). Other sources point out that in January 2009, even the Indians with information sources open to them (Their medical teams were working in the area) underestimated the number of civilians held by the LTTE so much so that the Indian External Affairs Minister, Pranabh Mukherjee issued a press statement in New Delhi giving the number of civilians held by the LTTE as ‘150,000 plus’. On the 20th March 2009, the estimate of civilians under LTTE control was given by Niel Buhne, the UN Resident and Humanitarian Coordinator as 120,000 to 180,000. But rubbishing all these estimates finally a whopping 290,000 ultimately ended up in the IDP camps! That showed how uncertain the statistics were, not that GOSL was deliberately issuing lower figures to “restrict” the supply of food and medicine.
It has been claimed that all humanitarian assistance to the Vanni, as one saw was a very transparent affair conducted by a body called the Consultative Committee on Humanitarian Assistance (CCHA) which was made up of high government officials (e.g. Defence Secretary), some Ambassadors and all INGO and humanitarian organization representatives, like the UN and ICRC were involved. Have any one of them contradicted their role in humanitarian assistance? The Panel Report speaks of obstacles placed on the ICRC ships which were transporting food and medicines to the affected areas. As the Report itself admits, there was a fierce war being fought there and one cannot expect normal conditions to apply.
It is true that there were difficulties in the final phase. The Indian External Affairs Minister acknowledged these difficulties in his statement in the Indian Parliament when he stated "There are reports that over 70,000 civilians are trapped in the conflict zone (again the figure was too low) and there is an acute shortage of food, water and medicines…" That was in the final phase. The difficulties were acknowledged even by the present Advisory Panel report itself, when it states that though the UN had moved their international staff out of the Vanni at the end of September 2008, it continued to run weekly food convoys into the Vanni. One such convoy had gone to Puthukudirippu with 50 lorries and seven international UN staff on the 16th January 2009. They had offloaded their cargo but had not been able to move back due to fighting further up the road they had taken. On the 21st January, all the international staff had gone back to Vavuniya except for two who had decided to stay back with the Tamil UN staff who were not allowed to leave with the convoy.
This allegation contained in the Panel’s Report of humanitarian assistance being denied to people caught up in the war zone by “the government by “deliberately underestimating the number of civilians so as to restrict the quantity of food and medicine going to the LTTE controlled area” (Conclusion No.3), is then a sad and even perverse misstatement given the above circumstances and can brings no credit to the compilers of the Report.
The methodology is certainly at fault if it not mischief or dereliction of responsibility. Here is no situation as that arose in Iraq where the US and her allies deprived Iraqi children of sustenance and sent millions of them to the grave through starvation/malnutrition while the then UNSG was helplessly looking on! Now a UN Panel Report is raising technicalities to establish a case of “deliberate” deprivation of civilians in the Vanni of food and medicine!
Accountability issue
This was the issue that concerned the UNSG from the beginning. This theme took centre stage in the discussions he had with President Rajapaksa and the Joint Communiqué issued after his visit to the island. The following mandate issued to the Panel made this quite clear:
“The Secretary-General remains convinced that accountability is an essential foundation for durable peace and reconciliation in Sri Lanka. Through the panel the Secretary-General expects to enable the United Nations to make a constructive contribution in this regard”. But the Report goes on to assert that “accountability for serious violations of international humanitarian or human rights law is not a matter of choice or policy; it is a duty under domestic and international law…... These credibly alleged violations demand a serious investigation and the prosecution of those responsible….. If proven, those most responsible, including Sri Lanka Army commanders and senior Government officials, as well as military and civilian LTTE leaders, would bear criminal liability for international crimes”.
The Report goes to explain further “At the same time, accountability goes beyond the investigation and prosecution of serious crimes that have been committed; rather it is a broad process that addressed the political, legal and moral responsibility of individuals and institutions for past violations of human rights and dignity. Consistent with the international standards mentioned above, accountability necessarily includes the achievement of truth, justice and reparations for victims. Accountability also requires an official acknowledgment by the State of its role and responsibility in violating the rights of its citizens, when that has occurred. In keeping with United Nations policy, the Panel does not advocate a "one-size-fits-all" formula or the importation of foreign models for accountability; rather it recognizes the need for accountability processes to be defined based on national assessments, involving broad citizen participation, needs and aspirations”.
“Nonetheless, any national process must still meet international standards. Sri Lanka approach to accountability should, thus, be assessed against those standards and comparative experiences to discern how effectively it allows victims of the final stages of the war to realize their rights to truth, justice and reparations”.
It should be observed that the principles emphasized here should be of universal application and cannot be confined to a particular country situation. It would seem appropriate for the General Assembly to adopt such norms as universal ones for the guidance of member countries. The best test of the validity of the assertion is its application by the UN in different situations, if not in the past, at least in more recent times, like in Iraq and now in Afghanistan and Libya. It cannot be said that these other wars were fought with full transparency either. If there had been no evidence of such universal application of norms now cited as applicable in the case of Sri Lanka, the motives as well as modes of approach become highly suspect. It points to a case of exclusive application.
In the context, the whole gamut of the exercise including the mandate, the bona fides of personnel chosen for the UN Advisory Panel need to come under close scrutiny. As stated earlier, if the panel Report could point the finger at the choice of commissioners for the LLRC, it should expect the same criteria, even more so, to its own (UNSG’s) selection of members of the Advisory Panel. The point will not be elaborated here as it has been done by others. For example, the Editor of “ The Island” newspaper in more than one issue including today’s (April 18 2011) Editorial pointed out that two members of the UNSG’s Panel are “viscerally prejudiced against Sri Lanka and the third member is heavily dependent on E/U funding”. These are very serious situations, even more serious than the Panel’s own remarks about the composition of the LLRC that “it is compromised by its composition and deep-seated conflicts of Interests of some of its members”.
Legitimacy
Just as much as UNSG’s right to commission and seek advice from an Advisory Panel may not be questioned if such procedure was universally applied by him, and though the present SG may go on record for his rather unusual initiative without a mandate from the Security Council, General Assembly, or the Human Right Council, the Panel’s recommendation seeks to fortify the SG’s position by getting the Human Rights Council to reconsider its May 2009 Special Session resolution regarding Sri Lanka in the light of the Panel’s report. (The decision of the Human Rights Council was that no investigation was necessary into allegations of war crimes in Sri Lanka.). This then forms the crux of the matter. That is the short term plan. The Panel submits that the H/R Council should reconsider the earlier Resolution of May 2009. That is the immediate objective of the Panel Report.
If one looks at from the prospects of legitimizing the SC’s stand for a call for an international accountability mechanism, the Panel’s recommendation for a ‘revision’ of the Resolution of 2009 has prospects of acceptance by UNSG. That will also shift the responsibility from his office to the Human Rights Council. With the dimmed prospects of a Security Council move, it is from such a fountain of authority as the H/R Council that other states like the U.S. and other lobbies which are pressing for an international mechanism could draw renewed strength to prosecute their action. The H/R Council then provides the best source/alibi in the present context, for countries like the U.S. to base their own strategies without compromising bi-lateral relations.
Will the Advisory Panel’s Report then occupy the centre stage at the next round of the H/R Council at Geneva Sri Lanka? That is a situation the lobbyists for an international investigation would be looking forward to. Even otherwise, the Panel Report, though very much flawed, has prospects of being used [unofficially] as an “upgraded” document carrying the [false] imprint of a UN document by interested parties to muster support for a revision of the stand taken by the H/R Council in May 2009. If what now seems to be a joint endeavour (“conspiracy” as Cardinal Malcom Ranjith is reported to have told The Island” newspaper) succeeds in using the Panel’s Report to press for a revision of the 2009 Human Rights Council Resolution on Sri Lanka the impact it could have through chain reaction and an intense activity and tension could be expected in the H/R Council. Sri Lanka might not find the task easily cut out for her this time. This is where the GOSL should seriously concentrate its efforts.
At the same time, as discussed above, UNSG cannot now escape the obligation of applying the same standard to other global situations as existing now in Afghanistan and Libya. Mr. Ban ki-Moon’s personal honesty will be judged on that performance but will he rise to the occasion to demand a balanced judgment which will not isolate Sri Lanka? Will he be willing to sacrifice the prospects of a running a second five year term for principles by alienating the US and the West by shying away from taking action on the Panel Report? Even if he goes ahead, there is the risk of a Soviet/Chinese Veto hanging over his head like the Sword of Damocles. The record so far is that UNSG has become a paw in the hands of powerful lobbyist in respect of the Sri Lankan issue. The scenario is fraught with difficulties not only for GOSL but also for Ban-ki-Moon’s second term prospects.
But things may not be that simple. Both Russia and China may not want to use the Veto against Moon just over the way he is handling the Sri Lankan issue. These two countries also have their own issues over human rights and humanitarian issues. Besides, there has to be an alternate candidate, even a ‘surprise’ one in view, who could be a more acceptable alternative. It is also still Asia’s claim given that previous SG’s ran a second term except Boutros Ghali who was not favoured by U.S. Then the African group claimed it was their turn and produced Kofi Annan. There is no such consensus in Asia. In the final analysis, all circumstances may favour Moon and he could be expected to continue doing paper work for the US and the West on regime change in Libya and closing the UN’s book on Afghanistan just as the UN did on Iraq. That is while accommodating the Russians and the Chinese in handling their issues. Then what about Sri Lanka? It would be in Moon’s interest as well as overall circumstances to shift the centre of gravity to Geneva. That is the place to watch!
Click here to read part one
Concluded
[Writer’s Profile: The writer was a former member of the Sri Lankan Foreign Service with nearly four decades of diplomatic service. He was Sri Lankan Ambassador to France and UNESCO and WTO with concurrent accreditation to Switzerland, Spain and the Vatican and later the first resident Ambassador in Iran. He has served as a diplomat in China, Germany, Australia, Japan, France (twice) and Iran and was the senior-most Sri Lankan diplomat at the time of his retirement. He has represented Sri Lanka in many international Conferences hosted by the UN and UNESCO]
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