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Monday, May 20, 2024

The Long Road From Geneva – Dharisha Bastians

For two weeks, Sri Lanka has been a hot topic at the 30th session of the UN Human Rights Council in Geneva, after a report by the Office of the High Commissioner for Human Rights Investigation (OHCHR) found evidence of probable war crimes committed in the Untitled-10island during the last years of the conflict. The report implicates both the LTTE and Government troops in what investigators called “systematic” killings, extra-judicial executions, the recruitment of children as soldiers and enforced disappearances.

The report contained few surprises, after Britain’s Channel 4 television systematically released evidence of alleged war crimes committed during the last phase of the war in Sri Lanka in films released over the past three years. With the exception of evidence gathered about a few more ‘emblematic’ cases that point to atrocities committed during the conflict and extensive information about LTTE crimes of war, the report’s findings differ little from the UN Panel of Experts (PoE) report commissioned by UN Secretary General Ban Ki Moon in 2010. But the OHCHR investigation on Sri Lanka (OISL) report has more significance for several reasons. Firstly, it was mandated by the 47 member Human Rights Council, that has been censuring Sri Lanka since 2012 over its human rights record and its failure to own up to brutal crimes allegedly committed during the final phase of the war. The OHCHR probe also covers a larger timeframe than the PoE report, which only scrutinized the final months of the war in 2009. The OHCHR report covers the same period the LLRC undertook to investigate, between 2002-2011, allowing UN investigators to delve deep into the LTTE misdeeds in war time. In this assessment, the UN probe team said they had received assistance from the Sri Lanka Monitoring Mission (SLMM) that operated in the North and East while the Ceasefire Agreement was in effect, between 2002-2006. The SLMM, which comprised Scandinavian ceasefire monitors, opened up its records to the OISL team, that contained extensive documentation of LTTE child recruitment, killings and ceasefire violations, that far outnumbered violations of the agreement by the Government forces.
The report is in some ways, the culmination of six years of intense international scrutiny of Sri Lanka’s human rights situation and acknowledgement that the country had failed to investigate allegations that serious international crimes were committed during the war. High Commissioner Zeid Ra’ad Al Hussein’s call a hybrid special court, comprising international judges, prosecutors and investigators to prosecute these alleged crimes is similar recognition that Sri Lanka’s justice system was incapable of dealing with them on its own. To any observer of the systematic onslaught against Sri Lanka’s independent judiciary, particularly in view of the recent impeachment of Chief Justice Shirani Bandaranayake and astounding proclamations about the Geneva Convention, human rights and the “rights” of terrorists by her successor from the Supreme Court bench, this observation by the UN should come as no surprise.
Judicial hurdles
In any event, horrendous case backlogs, the lack of institutional capacity for prosecutions and importantly, the lack of laws in Sri Lanka’s statute books criminalizing crimes committed in war will guarantee delays that could run into decades, if ordinary courts were entrusted with prosecuting some of the cases highlighted in the OISL report. International assistance, observation and capacity building will be crucial to allowing the Government to act against the perpetrators of these alleged atrocities. In 1972, the United Front Government under Prime Minister Sirimavo Bandaranaike established the Criminal Justice Commission, a special tribunal to try detained JVP rebels following the Marxist insurrection the previous year because the “practice and procedure of the ordinary courts are inadequate to administer criminal justice” (Manoharan, 2006).  Special tribunals to expedite prosecutions in extraordinary situations are not new to Sri Lanka. There is no longer a question of ‘internationalising’ the country’s human rights issues, because the UN has now concluded a comprehensive international probe into the allegations. Any mechanism to address these crimes must unfold on the ground in Sri Lanka, legal experts say, with international facilitation or inputs to ensure credibility and standards.
With or without an international role in such a tribunal,  prosecutions are likely to take decades, and amount to a handful of indictments and convictions, transitional justice experts say.

In Cambodia, the UN endorsed Extraordinary Chambers in the Courts of Cambodia (ECCC), or the Khmer Rouge Tribunal took nine years to establish and was finally operational by 2006. The tribunal comprises a mixture of Cambodian and international judges nominated by the UN Secretary General. Sri Lankan Justice Chandra Nihal Jayasinghe sits in the Supreme Court chamber of the tribunal. Over a nine year period, the Khmer Rouge Tribunal has indicted five leaders of the Khmer Rouge regime, and successfully convicted only three.

The mechanism for prosecutions is a key part of the US resolution on Sri Lanka, that will be adopted by the Human Rights Council today, but it is by no means the only benchmark set for the country’s reconciliation and accountability process. The resolution calls for the involvement of ‘foreign and commonwealth judges” in the transitional justice mechanism the Government has proposed. But it also calls for action from the Government on several other outstanding issues, including power sharing with the Tamil community in the North and East, enforced disappearances, sexual violence and torture and witness protection laws. The draft resolution presented to the UNHRC Secretariat in Geneva last Thursday (24), has found favour with moderate Tamil politicians and civil society activists from Sri Lanka.
GoSL digs in its heels
But the biggest surprise of the negotiations on the draft resolution was Sri Lanka’s ultimate decision to co-sponsor the document. Having previously assented to a consensus resolution, that would not require a vote at the Council, the Government did not have to sign on as a co-sponsor,  sources with knowledge of multilateral negotiations told Daily FT. Co-sponsorship by the concerned country places greater onus on the Government with regard to the recommendations in the draft. The decision to co-sponsor, announced by Prime Minister Ranil Wickremesinghe at a CIMA event in Colombo on Thursday evening, followed a week of heated negotiations in Geneva, Colombo and across many powerful capitals of the world, especially Washington and London.
Bolstered by its improved relationship with Washington, Colombo was initially surprised by the tenor of the “zero draft” or first attempt to assemble the contents of the resolution, circulated in Geneva on 18 September. The Government previously believed that the resolution sponsored by the US would be relatively ‘harmless’. In fact, the zero draft was much stronger than anticipated, containing a reference to the involvement of’ international judges, prosecutors and investigators’, a direct take from Zeid’s hybrid court recommendation.

The 2600 word draft text contained 26 operational paragraphs, that called for action from the Government on reconciliation and addressing human rights violations. Foreign Minister Mangala Samaraweera was particularly concerned that the ‘zero draft’ contained several references to his speech to the Council on 14 September, when he made sweeping commitments about the four tiered transitional justice mechanism the Government was proposing, that included a Truth and Reconciliation Commission and a special prosecutor’s office to start trial proceedings into controversial cases. Colombo’s initial shock led to a chaotic negotiation process in Geneva, with foreign diplomats complaining that there was a serious lack of coherence in the messages from Colombo pertaining to the draft text.

On instructions from the Foreign Ministry in Colombo, the Government delegation in Geneva led by Ambassador Ravinatha Aryasinha proposed sweeping changes to the draft text at two separate informal consultations on the resolution last week. The interventions sought to slash key elements of the resolution, deleting 14 out of 26 operational paragraphs, and sent shockwaves through the diplomatic community in Geneva negotiating on the draft. Sri Lanka’s moves also upset civil society activists and human rights groups, who were hoping for a robust resolution that mirrored the seriousness of the findings of the OISL report. US Ambassador to Sri Lanka, Atul Keshap was also in Geneva early last week, briefing members of the ‘core group’ or main sponsors of the Sri Lanka resolution and other delegations supporting the draft, on the ground situation and political realities in Colombo. Some sections of Washington were advocating a softer approach in the resolution. They argued that a harsh resolution could mobilise Sinhala hardline groups that would in turn threaten political stability. Conversely, other members of the core group, which includes the UK, Macedonia and Montenegro, were seeking a credible draft that took into account the findings of the OISL report.
Bad strategy?
Sri Lanka’s outward show of opposition to nearly all of the draft text, while hectic negotiations were on behind closed doors, finally amounted to poor diplomatic strategy. It was too reminiscent of the Government’s previous interventions at the Human Rights Council against member states advocating international action on Sri Lanka for being biased and judgmental while the Rajpaaksa regime was in power. The Government had hoped strong opposition would strengthen its bargaining position on the draft language behind the scenes. But the tactic also had the unpredictable effect of shocking the wider diplomatic community in Geneva, including EU member states and Canada, that then hardened their own positions and strongly opposed the dilution of the draft language. With the Sri Lankan delegation’s second intervention about the draft language last Tuesday (22), a few delegations began to speak of pushing for a vote on the resolution. The plan would have been unsuccessful without Washington’s support, but would nonetheless have  resulted in a division in the Council once again over Sri Lanka, a situation the Government in Colombo badly wanted to avoid. As the hours wore down to the submission deadline last Wednesday, consensus on the US sponsored draft was proving difficult to reach.

Finally with negotiations going down to the wire in Geneva with a deadline for submission of resolutions at the Council expiring at 1PM on Thursday (24), the Government pushed the co-sponsors to request a deadline on submission. Meanwhile Prime Minister Ranil Wickremesinghe’s office took over negotiations from Colombo. Prime Minister Wickremesinghe spoke several times with the Government delegation in Geneva on the telephone, as Colombo grappled with watering down the text of a second unpublicized draft, that was stronger than the first draft in some sections. Prime Minister Wickremesinghe, negotiating in Colombo through Ambassador Keshap and British High Commissioner James Dauris, and in Geneva through Ambassador Aryasinha, managed to effect several deletions that made the text more acceptable to the Government.

The US resolution on Sri Lanka will be officially tabled today, at the Human Rights Council and is likely to be adopted without any major changes to the text. The OHCHR will inform the Council that it the Sri Lanka resolution will require supplementary financial support, with a programme budgetary implication of 337,800 US dollars. The money will be required for six 14 day missions to Colombo by UN experts and OHCHR teams specializing in transitional justice and rule of law, senior UN staff in Geneva to review and assess progress of the resolution on Sri Lanka and services for translations etc. The UNHRC Secretariat will make these budgetary implications known to the Council before the resolution is adopted today.
Lasting legacy
The resolution, international observers of the negotiations on the draft text say, is a “provisional vote of confidence” in Sri Lanka’s new Government. The resolution cautiously welcomes the Government’s commitments to reconciliation and accountability while setting out outstanding issues and urging action on these fronts. International concern about Sri Lanka’s human rights is likely to continue for several years and is the lasting legacy of the Rajapaksa administration’s intransigence on reconciliation measures and disastrous diplomatic approach to its problems in Geneva. But apart from the international focus, post-war issues highlighted in the resolution and the OISL report are matters the Sri Lankan state, and her people, should care deeply about.
The conversation about the final phase of the war, is one Sri Lanka needs to start. For six years, there has been no political and civil space for that discussion. In six triumphal years since the war ended, hostile denials and rationalization perpetuated by the country’s former political leadership has been emblazoned on the national psyche. But this is, as the new Government says, a different time.

In his speech to the UN Human Rights Council in Geneva on 14 September, Minister Samaraweera said the moderates had recaptured power in Sri Lanka’s Parliament. He said extremists had been defeated by ballot in the north and the south of the country. Sri Lanka, he told the UN, was ready to start a long process of healing.

It is up to Samaraweera, President Sirisena and Prime Minister Wickremesinghe to start that process. Mahinda Rajapaksa, will be remembered forever as the President that finished the war. The Sirisena-Wickremesinghe combine has an opportunity to build their own legacy. They could go down in the annals of Sri Lanka’s political history as statesmen who finally delivered peace to a country fractured and diminished by three decades of civil war. They need not keep harping on President Rajapaksa’s pledges on reconciliation and accountability. They can choose to write a reconciliation story that is all their own.

TNA’s example
The Tamil National Alliance, led by R. Sampanthan, one of Sri Lanka’s last remaining Tamil statesmen of a particular vintage, did an extraordinary thing as it welcomed the UN investigation report released in September. In a statement issued on 16 September, the TNA called on the Tamil people to use the moment for introspection about the failures of their own community and the “unspeakable crimes committed” in their name. The statement was bold and honest in the way it confronted harsh truths about the LTTE’s brutality that was laid bare in the OISL report and it won the TNA plaudits from Sri Lanka’s moderates. But it was received with anger and charges of betrayal by Tamil hardliners in Sri Lanka and overseas. The TNA trounced its competition in two separate electoral contests held this year, proof positive that the party commands overwhelming support in the north and east of the island. But still, words so critical of the Tigers are not easy for a Tamil party to say and the TNA takes a political risk each time it chooses to do so. The fact that the party says them anyway is a marker of its moral fortitude in recent times.

These courageous decisions have set the modern TNA apart from its previous avatars. Over the past few years, the TNA has consciously eschewed populism in favour of moral courage. It has remained steadfastly committed to evolving into a progressive party that champions democracy, equality and the rule of law. The TNA consciously pits itself against the nationalist hysteria emerging from both Sinhala and Tamil quarters, coming through as a rational player with a strong and reasonable case for justice seeking.

And so when the Tamil party raises concerns, powerful foreign Governments pay heed. When the party calls for moderation and measured responses from the Tamil community, people tend to listen. The moral high ground must be actively fought for and won. It will not be granted political leaders who play defensive and grovel before populist whims.
Counter-narrative of the war
Central to reconciliation is a credible Truth Commission, that will open up the space for victims to share their stories and allow the counter narrative of the war to finally emerge. To deal with some of the atrocities highlighted in the OISL report, frank conversations must begin. They must centre upon our common humanity, our morality, that must at least, to use the ‘emblematic’ case of Balachandran, learn how to abhor the murder of an innocent, in spite of the hideous crimes of his father.

War is an ugly, evil thing. Bad things happen on the battlefield. Systems collapse, commanders fail, soldiers go rogue. The time has come to turn the page on the rosy narrative of ‘humanitarian operations’, for Sri Lankans to look at the past and see it for what it really was. To condone or dismiss the killing of a small boy, or justify his death because the LTTE killed children, is to surrender all compassion and humanity. The refusal to acknowledge this brutality sullies the reputation of soldiers who conducted themselves humanely on the battlefield; the soldiers that offered the boy a biscuit or covered Isipriya’s naked body with a cloth upon her capture. It undermines the Government’s legitimate military actions to end the reign of a brutal terrorist outfit operating in the island. The inability to condemn the murder, tells the story of a broken Sri Lanka, a country that lost its moral compass in the brutality of war. It tells a story of a country that will never recover from war wounds, destined to repeat cycles of violence. Truth-seeking and justice, these are hard things. But they must happen for Sri Lanka’s own sake.

Balachandran was 11 years old. At the time of his capture, he may have known that his entire family was dead. With the expertise of forensic pathologists the UN report found that the boy was shot from 60-90 cm away. He was inches away from his killer. Did he scream and cry for his mother? Did he beg them not to shoot? Did he even have time to think?

The Government will request more time, it may argue that it is too soon for these frank discussions, that perceptions must change gradually, over time. Six years after the war ended, this is an argument that is growing harder to defend. It is important that the Tamil community stare down the home-truths laid bare in the UN investigation report. The report extensively lists crimes of war committed by the LTTE, since 2002 and in the final stage of the battle in 2009. They include child conscription, political assassinations and most important to the war crimes debate, the Tigers’ refusal to permit civilians to flee the fighting. Led by the TNA, the Tamil community must seek to shed forever the legacy of violent politics and consistently denounce acts of terror committed in the fight for a separate Tamil nation in Sri Lanka’s north and east.
But theirs is not the only burden.
The Sinhalese majority, that strongly backed the military offensive against the LTTE, celebrate the valour of the soldier that delivered the country from terrorism, and legitimately so. They may not yet be ready and willing to face up to the ugliness of those final battles and alleged crimes committed in their name.

It may not be popular and it will not be easy.  But progressive policies are rarely valued in their own time; so it was with abortion rights in the UK, so it will be with marriage equality in the US – so it may be with accountability measures in post-war Sri Lanka. These are times that call for bold leadership and moral courage.  Sometimes, if the people are “not there yet”, if they are not ready to deal with difficult issues, it is the duty of progressive, democratic politicians, to lead them there.



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