Yasmin Sooka: If panel of experts are banned from visiting Sri Lanka..

A: I am not an employee of the UN; however, I have been part of several missions for the UN including Sierra Leone where I served as the International Commissioner for the Truth Commission there. I have also been part of missions to Liberia, Ivory Coast, Libya as well as serving on the Panel of Experts advising Secretary-General to the United Nations, Ban Ki-moon, on Sri Lanka.

A: No – I will not be part of the panel of experts as the High Commissioner for Human Rights will probably appoint a new independent team of experts.

A: South Africa has been playing a key role in facilitating a dialogue between the Government of Sri Lanka (GOSL) and the Tamil National Alliance (TNA), on a political solution including reconciliation. The South African Government has also appointed the Deputy President of the African National Congress, Cyril Ramaphosa, as a Special Envoy to Sri Lanka to take on the role of independent mediator in order to facilitate a dialogue on a political solution. I am sure that the South African Government was of the opinion that if it voted for or against the resolution, it would in all likelihood compromise their role as an independent mediator.

A: I am sure that the Office of the High Commission for Human Rights (OHCHR) is deeply conscious of the need for urgency and will already have begun to work on implementing the resolution.

A: It is never too late for reconciliation initiatives in any country. However, reconciliation cannot be built on impunity and denial and is usually based on accountability that is, truth, justice, reparations for victims and an acknowledgement by the State of its responsibility for such crimes. The TRC in South Africa was established as one of many transitional institutions paving the way for democracy. It was also preceded by an interim Constitution which paved the way for elections and ultimately the transition to democracy. The civil society in South Africa participated in national consultations which resulted in the passing of the law establishing the TRC. The goals of the Commission included truth seeking about the past violations, determining those responsible for such violations, at both an instituional and invidividual level, justice, and reparations for victims. The promotion of national unity and reconciliation was linked to accountability. It is important to note that political will on the part of the government to establish a secure environment in which witnesses could testify without fear of reprisals was the key to the success of the TRC in South Africa.

A: Peace in Sri Lanka can only be achieved if the government commits itself to a political solution for the Tamil speaking people of the North and the East which addresses their legitimate aspirations. In addition, the GOSL must address impunity for past violations, end the ongoing violations and ensure that those responsible are held accountable. A necessary prerequisite to a dialogue for peace also entails that the government end the military occupation of the North and the East, removing the high security zones, returning the land to those to whom it belongs and ending the Sinhalization policy. Above all, it must end abductions, arbitrary detention, torture, rape and sexual violence of Tamil citizens. It is only when the playing fields are levelled that a dialogue can begin around a shared sovereignty for the Tamil speaking people in Sri Lanka which allows the TNA as the legitimately elected representatives to assume their proper role.

A: There are number of issues. One is, any inquiry, should be flexible for the government to cooperate with the members of the Commission of Inquiry or the expert panel and obviously it would be important for them to visit Sri Lanka to start with. There are a number of inquiries that can be established in the world without visiting the UN member countries. It has been possible for the panel to do their work without visiting the country that is in question and the panel of experts have reported well.

But the present complication is the HR Council is a body which represents the member states and they often interfere when a country has been unable or unwilling to take the right actions.

In my view, it would be unwise for the GOSL not to cooperate because to retreat from the Commission of Inquiry and say to the HRC:”we don’t acknowledge that and you have no authority to do this ” ..that would be problematic.

The member states have been extremely patient from 2012 when the process started. They gave Sri Lanka time to carry out their own internal inquiry. They also did the same in 2013 and in many ways respected the obligations of the government to do their own internal probe first counting only on truthful action. But it has been so many years since the war ended but the GOSL had no serious attempts to establish accountability. There will be serious repercussions for the Government of Sri Lanka and I’m sure the members will have to convene and decide on the actions on the GOSL. In such case the usual thing would be to consider some form of sanctions.

A: Sanctions take a whole range of difficult forms. I really can’t comment what they would be. But I know there would be very serious repercussions if they chose not to cooperate with the international inquiry and to reject it. It does not mean rejecting UNHRC Commissioner Navi Pillay’s decision but rejecting the Human Rights Council.

The sanctions could be anything such as a travel ban on State officials, asset freezing, drop on foreign investments transactions with US dollars and so on and I guess it will happen after very serious discussions by the HR Council, member states and the regional blocks as to what would be the appropriate action to take.

Sanctions are indicative of displeasure with the country and we have increasingly seen in the last few weeks that the EU and the USA have brought in place sanctions against Russian officials for what happened in the annexation of Crimea. But again, I wouldn’t like to see that happen and I would really urge the GOSL to collaborate with the HR Council on the probe of human rights reports.

A: I suppose the question everybody in the UN has in mind was that the LLRC was initiated long time ago and yet there had not been any implementation of the recommendations. So I’m not sure it would be good for the government to implement the recommendations when it comes to an investigation internally. I don’t think people trust the government anymore. It is for this reason that you had the UNHRC take this stance to do it. The vital question is “Can you investigate yourself?” That’s the problem.

A: No. I am shocked to hear that the President rejected the UNHRC’s call for an independent probe. We often don’t like these things to take place but I am shocked because it was a decision after the UN body called for the vote and it was not to tarnish Sri Lanka’s image but really wanting to help Sri Lanka achieve reconciliation. We cannot have reconciliation without dealing with truth, justice and accountability.

A: That has always been a problem for the bodies doing this kind of work; to get permission to enter countries for investigations. The reality is of course is that you don’t often need to be physically present. That needs to be remembered.

A: In the last decade a number of Commissions of Inquiry have not been given access to the country that they are supposed to investigate. In the case of the Secretary General’s Panel of Experts on which I served, we too, were not allowed to come to Sri Lanka to do our work. Nevertheless, we did not allow this to prevent us from doing our work and we managed to interview witnesses, gather evidence and test the allegations gathered. We, like many other Commissions of Inquiry managed to produce very good reports. Investigative Commissions have managed to complete their work even when not allowed into a county. Obviously it would be preferable for them to be able to visit the country but if they are not allowed in, this will not compromise their work; it would simply be a little more difficult.

Witnesses are willing to talk to different bodies including the panel of experts; there are a number of other initiatives including my report – a new study published on accountability issues in Sri Lanka. That proves you don’t have to come there, yet, it would be desirable to be able to visit Sri Lanka.

A: It’s a US sponsored resolution and it really lies in the hands of the Office of the UNHRC High Commissioner and I am sure the Office is going to put in place the necessary measures to get the investigations going. One of the first things I am sure is to ask for a meeting with the GOSL to discuss its cooperation with the OHCHR to see about its willingness to work.

It is important to hear from the GOSL first whether or not they are going to pursue a rejection policy or would collaborate with the UN High Commissioner’s Office.