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Future Course of International Action on Sri Lanka will be Determined by what Navi Pillay reports after her Sri Lankan Trip

Add captionUNHRC session-March 2013-pic: UN

Dharisha Bastians

Louise Arbour, the last UN High Commissioner for Human Rights to visit Sri Lanka, arrived in the country in October 2007, just over a year into the Government’s ‘humanitarian operation’ to liberate the north and east from the Tamil Tigers. Government forces had recently secured the strategic LTTE base in Toppigala, flushing the Tigers completely out of the Eastern Province with that major victory. The Sri Lanka Army then headed by Lt. Gen. Sarath Fonseka was turning its eyes on the LTTE’s major bases of the North, a battle that would last two years more and have lasting effects on the country’s post-conflict narrative.

As security forces began the offensives to surround and contain the LTTE to its Wanni stronghold, concern was already rising about the plight of civilians caught in the fighting. When the military overran LTTE bases in Mannar in January 2008, the Army Commander announced that the war would be over in six months. The harsh reality of hundreds of thousands of civilians trapped in the ever-shrinking Tiger-controlled spaces of the north meant that in reality, the final battle would take one year longer than he anticipated. The scars and controversy arising therefrom, would last much longer.

High Commissioner Arbour landed in Sri Lanka, as rights activists began to voice growing fears about the toll the heightened conflict was taking on civilians. The end game, it was believed then, despite Government denials, would be hardest on non-combatants, a realisation that prompted the then High Commissioner to call for a UN monitoring mission to be set up in Sri Lanka, alongside an office of the High Commissioner for Human Rights that could “help” the situation on the ground. The Government said absolutely not. Arbour conceded that neither mission could be set up without the express invitation and facilitation of the Government of Sri Lanka. She was flatly refused access into LTTE controlled areas, with the Government saying it could not guarantee her safety. For her suggestion of monitors and a subsequent warning from Geneva as tensions rose in the battle theatres of the north that human rights violators in Sri Lanka, even those in senior government posts could be charged in international criminal courts, Arbour was lambasted by Sri Lanka’s “patriotic armies” and senior officials of the ruling administration for interfering in the country’s internal affairs.

Pillay arrives
The United Nations current High Commissioner for Human Rights, Navanethem Pillay, who has long since become the face of international opposition to Sri Lanka, consistently denigrated and vilified by nationalist groups acting as proxies of the incumbent administration, will be in the country for just over five days. She lands on Sunday (25) and is expected to hold meetings with a broad cross section of politicians, rights activists and civil society groups. Most importantly, the High Commissioner is likely to meet civilians in the former conflict zones, including wives and children of LTTE cadres and families of the disappeared. Denied access by the Government earlier this year, when they attempted to take their grievances to the UN in Colombo, civilians in the North, particularly families searching for missing loved ones, are likely to plead their cases before High Commissioner Pillay. She is said to have been particularly moved by the grief of those whose losses are particularly acute. In November last year, the father of one of the five young men killed in Trincomalee in January 2006, wept before the Human Rights Council during Sri Lanka’s Universal Periodic Review last year, begging for justice for his son’s murder. Pillay’s report to the Council in February this year, included a reference to the Trinco-5 murders, and her interest in the case has prompted the regime to take steps to remand and collect evidence against 12 STF personnel implicated in the summary executions. Thus far, the proceedings have not taken place in open court in Trincomalee and the Government is yet to release the names of the 12 personnel being held in remand custody, but it remains the only case with security forces involvement that has entered the judicial realm.

“Senior judicial officers”
Pillay’s office that officially announced her arrival on Sunday, said her round of meetings will also include discussions with “senior judicial officials”, an euphemism that suggests talks with deposed Chief Justice Shirani Bandaranayake may be on her agenda. She will travel to the North, where she is expected to meet religious and civil society leaders and likely hold discussions with some senior members of the military.
The Government it is clear, is deeply divided on the UN High Commissioner’s visit. Having invited Pillay to visit for several years, the Government cannot deny her access to the former conflict zones nor control her agenda while she tours the area. One diplomat in Colombo quipped that Pillay being a formidable official with a mind very much her own, would not be willing to accept the usual dog-and-pony show the regime trots out for other visiting dignitaries. Her intimate knowledge of the situation on the ground and her obligation to report the facts to the Council will ensure Pillay demands independence during her visit. Furthermore, any attempt on the part of the regime or its proxies to organise mass protests against her visit that are seen as being openly hostile to a senior UN dignitary, will not be appreciated by the international community at large. Attempts to condemn Pillay during the March sessions in Geneva, resulted in a stoic defence of the High Commissioner by other UNHRC member states, resulting in some embarrassment for the Sri Lankan delegation which looked to be engaged in an attempt to bully her.

While the more politically savvy sections of the Government realise the need to allow Pillay this free hand to stave off further international condemnation and prefer not to make much of her visit, the Defence Establishment is making its displeasure felt. A few days ago, the Defence Secretary demanded that Pillay furnish evidence of the UN’s claim that 40,000 civilians went missing during the final phase of the conflict and pledged to raise the issue with her during their meeting. He has also demanded that the UN lift the 20 year confidentiality clause for “sources” in its Panel of Experts report, saying it would strengthen the case for a war crimes inquiry against Sri Lanka. An irate Defence Secretary was quoted as saying: “There can be no better time to humiliate Sri Lanka,” and insisting that Defence Ministry estimates of 2600 missing were consistent with early UN reports of casualties. 1600 of these, he said, were LTTE cadres. In a further salvo ahead of Pillay’s visit, the Defence authorities appear to be taking umbrage by a decision of the US Government to reject two senior military officials for a US sponsored military training programme in New Zealand. One of the officials thus rejected is the Army’s Adjutant General, Major General Jagath Dias, who was recently put in charge of the military inquiry into the Weliweriya violence.

But US officials say the criteria for eligibility in US training programmes for the Sri Lankan military were “directly linked” to accountability. “There is a limit of work the US Government can do with a particular regiment if there are credible allegations of human rights violations against them and we can’t move forward until there is a credible investigation into the allegations,” a US Embassy official said. Under US law, foreign troops recommended for training are vetted under a process that disqualifies them if there are “credible allegations” of human rights violations against them. Individuals and the units in which they served during the time the allegations were made, are considered in the vetting process. “Hundreds of Sri Lankan military personnel are cleared in the vetting process but a small percentage is rejected and then we ask the Defence authorities to then recommend different names,” the Embassy official explained.

Expertise for accountability mechanism
The US is hoping the Sri Lankan Government will use Navi Pillay’s visit to obtain the technical assistance it needs to set up a credible investigative mechanism to investigate its soldiers. If the Government is willing, Pillay could provide the expertise needed to ensure the mechanism meets international standards of credibility. Such a system, US officials say, could clear the majority of the armed forces and regiments that are shadowed by allegations against them. Pillay’s mandate from the Human Rights Council is one of “technical assistance” meaning the Government can call on the expertise of her office to strengthen its own institutions committed to protecting human rights and seeking to investigate and punish violators.
As doors start to close for members of the armed forces because of the Government’s blanket refusal to investigate and prosecute soldiers who may be implicated in particularly gross rights abuses, Sri Lanka is compelled to face its accountability conundrums. The timing, as far as the military establishment is concerned, could not be worse, given Pillay’s imminent arrival, although US officials insist, the vetting is a routine process that is identical for every foreign soldier nominated to participate in its training programmes.

Riding high
When Louise Arbour arrived in the country in 2007, the Government was riding high on its humanitarian mission of liberation, when for the most part the international community was backing (with caution) President Mahinda Rajapaksa’s military offensive to defeat the LTTE. The LTTE were seen to be deliberately violating the conditions of the Ceasefire Agreement that had been in effect since 2002 after disenfranchising Tamil people living in areas under their control during a crucial presidential election in 2005. Despite red flags raised by rights activists, Sri Lanka was seen to be battling brutal terrorists and wiggle room was being provided internationally for the state to attempt to tackle the problem militarily after the rebels scuttled peace moves. The threat of “monitors” could be easily dismissed.

Sri Lanka in 2013, is a wholly different place. The roads are better, infrastructure facilities are being upgraded at warp speed and the sights and sounds of a country held back for decades developmentally by a brutal civil conflict, racing its way into the modern century are everywhere. But the conflict having ended four years ago, the Government has failed to offer a political solution to the Tamil issue or take any real steps to address increasingly severe allegations being raised internationally about troop accountability in the final phase of the battles. These were undertakings made by the Government as it pursued the military option and soon after. Yet in the years since the end of the war, nearly every promise on devolution and accountability has been broken.

Issues to tackle
Two UNHRC resolutions have been adopted – during Pillay’s tenure – against Sri Lanka, with the Council urging the Government to move faster on addressing outstanding accountability and political issues. Pillay’s visit comes therefore at a time when whispers of “war crimes” and violations of international law colour Sri Lanka’s every international interaction. Under the present political administration, Sri Lanka has earned the distinction of becoming one of the only countries in the world that has refused to undertake mass de-mobilisation of its military following the conclusion of a major conflict, according to some academics. On the contrary military man-power and budgets are increasing, and the military incursion into civilian life remains a constant and pervasive reality, most acutely in the north, but significantly elsewhere too. Scores of disappeared both during and after the conflict remain unheard from, although the President recently appointed a Commission of Inquiry into Missing Persons, just weeks ahead of Pillay’s scheduled arrival.
Reconciliation has proved equally elusive. Rampant triumphalism, encouraged and fostered at the highest levels, has prevailed where quiet introspection and trust building may have achieved greater social healing. War museums were erected in the place of victim memorials, enemy burial grounds have been desecrated and in some areas of the formerly embattled north, families of slain LTTE cadres are prevented from remembering their dead. A national anthem, sung since independence in the Tamil language in Tamil dominated areas, the words of which appear in the Tamil language version of the Sri Lankan Constitution, was unofficially banned in the north. The practice only recently resumed due to efforts by National Language Minister Vasudeva Nanayakkara and pressure to implement the recommendations of the LLRC that included this provision.

Battle for land
Persistent in its denial of the roots of Sri Lanka’s ethnic struggle, the Government looks set to repeat the mistakes of the past. It openly engages in an acquisition programme of land in the north, injuring the sensibilities of the Northern Tamils whose ties their ancestral lands are acute and deeply symbolic of their culture and origins. Land struggles formed a crucial part of the origins of the Tamil ethnic struggle in the 1950s-60s. Now, as the country enters its fifth year since defeating a militant struggle for secession, land struggles appear to define the relations between Government and citizen in the former conflict zones.
Elsewhere, the ruling regime is permitting hardline Sinhala groups to sow the seeds of another conflict, this time by vilifying and alienating the minority Muslim population. Used to having things its way during the war, the Government has refused to play politics differently in peacetime, cracking down on civilian demonstrations, evicting slum dwellers and pavement hawkers without notice, often arriving at dawn with backhoes to demolish their houses and shops and dealing high-handedly with the media.

With the Shirani Bandaranayake impeachment in January, during which the Government ignored the dictates of the country’s highest courts and proceeded to remove a Chief Justice who had become a thorn in its side, the UN High Commissioner arrives in the country even as Sri Lanka grapples with a host of other issues that speaks directly to the state of its democracy and freedoms. Impunity, a breakdown in rule of law, an erosion of the judicial independence and separation of powers concepts and the indisputable fact that for a few days in January this year, while the regime pushed through with its impeachment of Bandaranayake, a prorogation of the country’s constitution. The Sri Lankan constitution ascribes the sole power of constitutional interpretation to the Supreme Court, whose order the ruling Government ignored in deciding to remove the Chief Justice from office.

High Commissioner histories
With her history as the Chief Prosecutor in the International Criminal Tribunals for the former Yugoslavia and Rwanda who indicted then sitting Serbian President Slobodan Milošević for war crimes, Louise Arbour did not mince her words about the Sri Lankan situation. “The High Commissioner warned that violations of these rules by any party could entail individual criminal responsibility under international criminal law, including by those in positions of command,” the UN said in a statement on 15 January 2008. Since her retirement from the UN, Arbour heads the International Crisis Group, that has recently issued scathing reports on Sri Lanka’s deteriorating human rights record and democratic credentials.

Louise Arbour’s successor, Navi Pillay, counts similar experience, as the only female judge in the International Criminal Tribunal for Rwanda and one of the first judges of the UN’s International Criminal Court constituted in 2003. Pillay was a member of a panel of jurists that first interpreted that rape and sexual assault in war constituted acts of genocide, during the historic trial of Rwandan politician Jean-Paul Akayesu, who supervised the killing of many Tutsis in his jurisdiction during the 1994 Rwandan Genocide. A non-white South African Lawyer, who in her early career was not permitted to enter judges chambers because of her coloured skin, Pillay relentlessly defended anti-Apartheid activists and won political prisoners including Nelson Mandela the right to legal counsel in 1973. In her lifelong struggle against injustice, the Sri Lankan intervention is but a drop in the ocean.

At the end of her visit to Sri Lanka, Pillay is expected to make an oral presentation before the UNHRC’s 24th Session in September-October this year, of her observations. In February, when the Council convenes once more and the Sri Lanka issue is revisited, Pillay will submit her official report to the member states. It is now almost a certainty that a third resolution against Sri Lanka will be moved in 2014. Pillay’s report, will frame the next course of international action on Sri Lanka – particularly whether it is to be escalated or not – during that crucial Geneva session.

The UN’s Chief Envoys on Human Rights issues are not choices made lightly or at random. They are often hand-picked for their commitment to ensuring victims are not deprived of voice, a strong call of conscience and desire for justice and fairplay in an otherwise brutal world. Theirs is a different kind of international diplomacy, as advocates for victims and not Governments. Sri Lanka has nothing to gain from vilifying and criticising such officials and a world to lose if it continues to ignore their calls for change.


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