Negating the need for an external mechanism

| by Jehan Perera

( March 06, 2012, Colombo, Sri Lanka Guardian) In the aftermath of the last phase of the war that ended in the military defeat of the LTTE, government leaders considered the "Sri Lankan Model" of overcoming terrorism to be one that the world could emulate. An international conference was held in Colombo that was attended by military strategists from around the world. The prestigious Wall Street Journal published in the United States went to the extent of arguing that there was a two-word response to those who claimed that terrorism could not be militarily vanquished. Those two words were "Sri Lanka." But in a gradual shift over the past three years since the end phase of the war, Sri Lanka is looking to become an international example of internationally determined limits of civilian casualties in fighting internal wars in particular.

At the present time the US-sponsored draft resolution regarding Sri Lanka before the UN’s Human Rights Council in Geneva is in three parts. First, the draft resolution acknowledges the constructive recommendations in terms of post-war reconciliation made by the Lessons Learnt and Reconciliation Commission appointed by President Mahinda Rajapaksa. Second, it requests the Sri Lankan government to periodically report back to the international community regarding the progress made in implementing these recommendations.

Third, the draft resolution advocates the setting up of a mechanism by which the UN and the international community can offer assistance to the government in implementing these recommendations and monitoring the progress.

The Sri Lankan government’s position is that little over two months have elapsed since the LLRC made its recommendations and it is too soon to bring its implementation of these recommendations to the notice of the international community. On the other hand, critics of the government point to the fact that the government has not yet even appointed a task force or executive body mandated to oversee the implementation of the recommendations. Instead there have been some ad hoc responses that the government could claim to be responses to the LLRC. These include the setting up of military inquiries into issues of accountability and appointing a police commission to oversee the functioning of the police.

However, a closer inspection of what has been done so far by the government in terms of implementing the LLRC recommendations will reveal that the preliminary response of the government fails to give adequate attention to the spirit of the recommendations when put into practice. What the LLRC specifically called for was independent inquiries and independent commissions which are not what the government has established. The desire of the LLRC was clearly to see a fundamental change in the approach of the government and of the entire polity, to issues of governance and rule of law, which is well captured in its statement that what the country needs is the Rule of Law and not the rule of men.

GLOBAL DIVIDE

The first week of discussions at the UN Human Rights Council in Geneva show a clear division of world powers on the proposed resolution on Sri Lanka.

The US-sponsored resolution is being backed by the EU and several European countries have made their positions known that they are not satisfied with Sri Lanka’s internal processes aimed at post-war accountability and reconciliation. On the other hand, several non-Western countries have disagreed with the proposed US resolution. These include Russia, China, the Non Aligned Movement and the Organisation of Islamic States.

Many country representatives at the Geneva discussions have opposed selective international intervention into the internal processes of sovereign countries and have expressed the desire to give Sri Lanka more time to heal the wounds of war. There is more at stake in the debate in Geneva than Sri Lanka’s internal processes of accountability and reconciliation. Russia’s Deputy Minister of Foreign Affairs, Gennady M. Gatilov alleged that an attempt was being made to monopolize accountability issues and exploit them as instruments of pressure by selectively imposing human rights monitoring at their discretion depending on their political conjuncture.

South African Deputy Minister of International Relations and Cooperation, Marius Fransman, expressed similar concerns over double-standards adopted by certain countries. He noted that "The partiality in which some international bodies are perceived to respond to situation of human rights abuses in different parts of the world is also problematic. Some countries continue to enjoy the protection by certain Western powers even whilst gross human rights violations against their own neighbours is continuing.

It is the responsibility of the UNHRC to ensure that this type of selective application of the definition of human rights is being stopped." South Africa is a country that is in a position to give moral leadership to other countries on account of its remarkable transition from governance based on Apartheid to democracy with practices of truth telling, repentance and amnesty taking a prominent place.

LLRC CONVERGENCE

However, it is also significant that while appreciating the positive recommendations made by the LLRC and other post-war developments, South Africa urged Sri Lanka to act decisively with regard to ongoing investigations on accountability. This is also what the US-sponsored resolution seeks to ensure. The US Ambassador to the Human Rights Council Eileen Chamberlain Donahue said that "doing a Human Rights Council Resolution on this subject is warranted and important because we believe there cannot be impunity for large-scale civilian casualties and that if there is to be real reconciliation it must be based on an accounting of the truth and serious implementation of changes. So we are working to convince the Sri Lankan government that there has to be greater evidence of serious implementation of the recommendations in their own domestic report and greater accountability in order to satisfy the victims and the various communities that feel like they have not yet been heard."

The implications of this US position is that an international mechanism will only come in to play when domestic mechanisms have failed, and that the preferred option is to see the implementation of a credible domestic or internal mechanism. While it may be too late for the Sri Lankan government to completely defeat the US-sponsored resolution it may still be possible to seek amendments to it. It is unfortunate that the government was advised to take on a confrontational posture with the world’s dominant power. It appears that the government’s hope has been to ratchet up the rhetoric against US domination and Western imperialism and thereby rally the support of non-Western countries to its side. Where the government’s plans may go awry is that even those countries, such as South Africa, see the implementation of the LLRC recommendations as being worthy of support.

There seems to be convergence of minds both in Sri Lanka and in Geneva that the LLRC recommendations hold the key the country’s future.

There is still a possibility that the government can propose amendments to the draft US resolution that will be well received. The government’s main concern will be the third part of the resolution, which calls for an advisory UN and international role in the implementation of the LLRC recommendations, and its monitoring. In order to obtain an outcome that is least harmful to itself and to national sovereignty, the government needs to be able to convince the majority of countries in the UN’s Human Rights Council that it is prepared to set up independent internal implementation and monitoring mechanisms. Needless to say, the participation of the political opposition, including the TNA, and civil society in the setting up of these mechanisms would be crucial to ensure its independence.

The mistake in terms of hubris and desire for power that the government made in doing away with the 17th Amendment to the constitution and replacing it with the 18th Amendment would now be obvious. At this late stage, only genuinely independent internal mechanisms would negate the need for their international counterparts.