By Neville Ladduwahetty
With the co-sponsoring by Sri Lanka of the UNHRC Resolution “Promoting reconciliation, accountability and human rights in Sri Lanka” dated September 29, 2015, a chapter has come to a close. This closure marks the beginnings of a new chapter which is the implementation of the undertakings in the resolution. It is being speculated whether Sri Lanka is obligated to implement the provisions strictly as stated in the resolution on grounds of being a co-sponsor or whether there is room for flexibility in its implementation.
For instance, Paragraph 4 of the Resolution states:
“Welcomes…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 such mechanisms the freedom to obtain financial, material and technical assistance from international partners, including the Office of the High Commissioner…”.
Similarly Paragraph 6 states:
“…the recognition by the Government of Sri Lanka that accountability is essential…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 justice 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 the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators”.
Several other paragraphs in the Resolution require the government of Sri Lanka to address issues that have a bearing on the national security and internal affairs of a sovereign State. If the UNHRC is of the view that issues relating to human rights entitle them to intervene in internal affairs of a State, the UN should start by securing a mandate from all member States to revise Article 2 Clause 7 of the UN Charter. This article clearly does NOT authorise the UN or its Agencies “…to intervene in matters which are essentially within the domestic jurisdiction of any state…”. Therefore, the UN has to first secure a mandate from the General Assembly in order to intervene, prior to claiming jurisdictions over matters it currently does not have.
COMMENT on PARAGRAPHS 4 and 6.
For instance, “…the freedom to obtain financial, material and technical assistance from international partners, including the Office of the High Commissioner…” (para. 4) for the functioning of a commission for truth, justice, reconciliation and non-recurrence may or may not impact on the Constitution depending on the manner it is organized. If organized to meet the degree of freedom envisaged by the OHCHR, it could entail a revision to the Constitution. On the other hand, if organized within the framework of the Constitution, it may not meet the degree of freedom sought by OHCHR. Therefore, there is a need for the Government to bring to the attention of the OHCHR the stakes involved. Professors & Politicians Gather To Warn Us About The New World Order (NWO)
Similarly, paragraph 6 that addresses accountability has 3 components. (1) A mechanism with a special counsel to investigate; (2) A credible judicial process that SHOULD (emphasis added) include “independent judicial and prosecutorial institutions” ; (3) The PARTICIPATION (emphasis added) in a Sri Lankan judicial mechanism including Commonwealth and other foreign judges, defence lawyers, prosecutors and investigators. Fulfilling the degree of foreign involvement cited above in the accountability processes that include prosecution would mean revising the Constitution. Furthermore, amending the Constitution to accommodate the provisions envisaged in paragraph 6, in particular the provision to involve foreign judges and prosecutors would set in place a separate judicial system for those associated with the armed conflict concurrently with existing judicial systems. This would violate Article 12 that states: “All persons are equal before the law and are entitled to the protection of the law”. Therefore, the only realistic option is to limit the judicial process to investigation and inquiry under the Commission of Inquiry Act with foreign participation in advisory capacity ONLY to establish a prima facie case that could be tried under existing domestic judicial systems for any crimes committed.
Since the government is committed to operate within the Constitution the engagement of any foreign personnel must necessarily be in an advisory capacity, and without legal status in the accountability processes. Such an approach is offered as a valid option in paragraph 617 of the Paranagama Commission report. This paragraph states: “In the event Sri Lanka were to set up a purely domestic tribunal without the participation of any foreign judges, it is the view of this Commission that there should be international technical assistance and observers”. Therefore, the Government should endeavour to come to an understanding with the OHCHR regarding the need for flexibility if revisions to the Constitution are to be avoided.
Whoever sanctioned co-sponsoring the Resolution should have been aware of the implications involved in fulfilling most of the provisions in the Resolution. The fact that the government went ahead and co-sponsored the Resolution must mean that it was confident that the OHCHR would be sufficiently flexible to permit Sri Lanka to fulfil the provisions in the Resolution within the framework of the existing Constitution. If such an understanding does not exist, the government is obligated to live by the full scope in the Resolution. This would mean amending the Constitution and subjecting the country to the serious consequences that would follow. Since amendments to the Constitution would involve a 2/3 majority in Parliament and a referendum, the government should persuade the OHCHR to cooperate by being flexible in order to avoid complexities that inevitably are associated with amending the Constitution.
GROUNDS for COPERATION
The process of accountability started with the joint statement signed between the Secretary General of the UN and the former President Mahinda Rajapaksa on May 23, 2009 that stated: “The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances”. In keeping with this commitment Sri Lanka set up the Lessons Learnt and Reconciliation Commission (LLRC) on May 15, 2010. Five weeks later, UNSG engaged a Panel of Experts (PoE) on June 22, 2010 led by Marzuki Darusman to address issues of accountability in complete disregard to the initiative taken by Sri Lanka as if the Sri Lankan initiative did not exist thereby trivializing the efforts of the government.
Although the report by the PoE was meant to be an internal document for use only by the UNSG under the rules of the General Assembly, it was made available to the public on March 31, 2011. Although the LLRC report was still in the making, the PoE report stated as long as 8 months before the LLRC report was published (November 15, 2011), that: “In sum, the LLRC is deeply flawed, does not meet international standards for an effective accountability mechanism and, therefore, does not and cannot satisfy the joint commitment of the President of Sri Lanka and the Secretary-General to an accountability process” (p. v. Executive Summary). Such prescience reflects a patently evident prejudice against the domestic process. This conduct is a disgrace to the UN as an institution.
On July 14, 2014 the Paranagama Commission’s mandate was expanded (2nd mandate) to look into allegations of war crimes and other violations of international law committed during the conflict. The report covering the 2nd mandate was completed on August 15, 2015.
Paragraph 10 of the Human Rights Council’s Resolution on Sri Lanka specifically states: “…the need for an international inquiry mechanism in the ABSENCE (emphasis added) of a credible national process…”. Therefore, since a national process was under way the OHCHR should NOT have initiated a process of its own. Despite this stipulation, the OHCHR set up “a special investigating team within the OHCHR in Geneva… (and) its core seven-member staff became fully operational by mid-August” – 1 month AFTER the national process in Sri Lanka took effect. This was a violation of the OHCHR’s own commitment. Such conduct disgraces the Human Rights Council as an institution.
It is evident from the foregoing that on two occasions, the first with regard to the LLRC and the second with regard to the Paranagama Commission, the UN and its Agency initiated actions as if Sri Lanka’s national processes did not exist when in fact they were to do so ONLY IN THE ABSENCE of such national processes. The measures resorted to by the UN and its agency the OHCHR violate concepts that are required to guide the work of the Council such as “impartiality, objectivity and non-selectivity, and cooperation with a view to enhancing the promotion and protection of human rights” that the OHCHR is expected to exercise as per paragraph 4 of the General Assembly Resolution that set up the Human Rights Council in 2006. While these indiscretions are a slur on the institutions represented by the UN Secretary General and the OHCHR, one cannot ignore the fact they also reflect a degree of their disingenuousness that should be a matter of deep concern for all member States regarding the manner in which the UN and its Agencies are being manipulated.
While paragraph 4 recommends addressing accountability issues through “a commission for truth, justice, reconciliation and non-recurrence” the focus of paragraph 6 is on investigations, justice through prosecutorial process and a Sri Lankan judicial mechanism together with the participation of foreign experts. The proposal of the OHCHR with emphasis on prosecution is influenced by the views expressed in the Darusman report because its main thrust is to investigate and prosecute (Paranagama report, para. 563). On the other hand, there is a substantial body of State practices and international opinions that do not assign such weight to prosecution over other mechanisms. For instance, Article 6.5 of Additional Protocol II states: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they were interned or detained”. Therefore, the focus should be on investigations to seek the truth, and not for the purpose of prosecutions. Furthermore, the report adds: “Similarly recognized is that the duty to prosecute in all circumstances has not yet crystallized as an international norm or become part of customary international law…” (Ibid, para. 576).
Para. 604 of the Paranagama report states: “The course that has been embarked upon by the GoSL has placed proper emphasis on the need for investigation and the establishment of the truth, as well as accountability for those responsible for the commission of any serious violations of international law. This is entirely in accordance with international standards, as explored above, for transnational justice”.
Para. 606 of the Paranagama report states: “The mandate of the Paranagama Commission of Inquiry is rooted in the victims of the protracted conflict knowing the truth as well as being able to be part of a stable society, free of conflict, in which reconstruction and reconciliation are priorities”. In view of the opinions expressed above, the Government of Sri Lanka should formulate a domestic judicial mechanism with clear guidelines and objectives based on the fundamentals of seeking the truth through comprehensive investigations with the objective of granting “the broadest possible amnesty to persons who have participated in the armed conflict” as stated in Article 6.5 in Additional Protocol II. A fact that is not sufficiently recognized and duly acknowledged is that such an approach was adopted and implemented by the former administration when they rehabilitated hundreds of Tamil child soldiers and thousands of their combatants who participated in the armed conflict. The tendency to ignore the positive and highlight the negative has characterized the actions of the OHCHR.
The engagement of the UN in post-conflict Sri Lanka has been troubling. It started with the UNSecretary General appointing the Panel of Experts headed by Marzuki Darusman as if the functioning LLRC did not exist. Next was the OHCHR investigation with no regard to the existence of the Paranagama Commission already functioning under the 2nd mandate despite the commitment in the 2014 OHCHR Resolution that it would initiate an investigation ONLY IN THE ABSENCE of a national process. By doing so, the OHCHR has compromised the credibility of the 47 member Human Rights Council. In fact if the Council is aware of the background to the resolution, it would invalidate the report of the OISL for the sake of its own honour and credibility. The fact that the Sri Lankan Governments have failed to bring these matters to the attention of the Council and sought relief has enabled the OHCHR to exploit a situation in violation of its own commitments.
The thinking in Sri Lanka is that bringing such matters that amount to bullying, to the attention of Agencies such as the UN might amount to non-cooperation. Consequently the tendency is to accept whatever is dished out. What happened in Geneva is a perfect example of this attitude. Therefore, even at this late stage, if Sri Lanka is to reclaim its dignity despite the fact that the Government has co-sponsored the resolution, every effort should be made to seek as much relief as possible from the constraints imposed on Sri Lanka so that Sri Lanka is in a position to fashion its own accountability mechanisms with a view to fostering reconciliation for the sake of a sustainable peace.