Columns - Political Column

Lanka defies UN, EU, US

  • Ban's panel of experts a precursor to possible war crimes probe
  • Tough response to European conditions and American advice
By Our Political Editor

On the international front woes for the Government continued for a second week. Despite the frenzied diplomatic efforts in the past year or so, the Government was not successful in its efforts to stall two major issues that have dogged it.

One was the move by the United Nations Secretary General (UNSG), Ban Ki-moon, to appoint a panel of experts to advise him on accountability issues in Sri Lanka.

The other is to persuade the European Union to continue the GSP Plus preferential tariffs for Sri Lanka's exports. These two have remained the most critical issues in Sri Lanka's foreign policy in the recent months.

On Tuesday, the UN headquarters announced a three-member panel was appointed to advise the Secretary General. This is over accountability issues during the final stages of the campaign to defeat militarily the Tiger guerrillas. Within four-months, the panel is required to advise the UNSG on "the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka".

Ban's mandate made clear it was a prelude to a now imminent UN inquiry into alleged war crimes by both troops and the guerrillas. A pointer in this regard is the use of the words "….the nature and scope of the alleged violations …." That makes clear the precursor to the appointment of the panel is the "alleged violations" which, despite the Government's strong denials, the UN has decided require scrutiny. Thus, the panel's responsibility is solely to advise the UN Chief on how he should go about setting up the accountability mechanism. That too within four months or by October, this year.

External Affairs Minister addressing a news conference where he slammed the UN for interfering in Sri Lanka’s affairs. Pic by J. Weerasekera.

The panel is headed by Marzuki Darusman (Indonesia) and comprises Yasmin Louise Sooka (South Africa) and Professor Steven R. Ratner (United States).

Prof. Ratner's inclusion in the panel adds significance in the light of the US Justice Department investigating a string of accountability issues during the final stages of the military campaign against the guerrillas in May last year.

It was only in March this year, the Non-Aligned Movement wrote to the UN chief asking him not to go ahead with the appointment of a panel and accused him of "selectively targeting Sri Lanka".

Though Ban had dragged his feet for weeks, despite international pressure, the naming of the panel this week showed it had come after careful study. Two of the three members, Indonesia and South Africa, are members of the Non Aligned Movement (NAM) and held the chair at different times.

The naming of the panel also sent a veiled message to the Commission on Lessons Learnt and Reconciliation appointed by President Rajapaksa. The UN would monitor aspects the Commission was going to inquire.

The UN said on Tuesday that the resources of the three-member panel would be available to the "Sri Lankan authorities should they wish to avail themselves of its expertise".

As reported in these columns last week, the Government is not in favour of a proposal by the United States that the Commission co-opt UN members or seek their expertise. Hence, the six member Commission headed by former Attorney General C.R. de Silva, PC, will conduct its own proceedings in accordance with the terms of reference assigned to them.

The United States was one of the first countries to welcome Ban's decision. Within hours of the UN statement, the United State's UN envoy Susan E. Rice declared, "the US supports a robust accountability process that will provide a durable foundation for national reconciliation and the rule of law in the aftermath of Sri Lanka's decades-long conflict."

She added, "To that end, the United States welcomes UN Secretary General Ban's announcement of a panel of experts to provide advice on relevant best practices for investigations into the alleged violations of international human rights and humanitarian law. To be successful, Sri Lanka's domestic "Lessons Learnt and Reconciliation Commission" should apply the best practices from similar commissions in other countries and the Government of Sri Lanka should give serious consideration to the Commission's recommendations. We strongly urge the Government of Sri Lanka to take advantage of this UN Panel's expertise."

The United States position is complementary to that of the UN Secretary General. Washington also endorses the need for "investigations into the alleged violations" of international human rights and humanitarian law. The US position was also articulated by Samantha Power, Special Assistant to US President Barack Obama, on Multilateral Affairs and Human Rights during talks with President Mahinda Rajapaksa. Accompanying her was David Pressman, National Security Council Director for War Crimes and Atrocities.

The Government's thinking on the Obama administration's stance was spelt out by Basil Rajapaksa, Minister of Economic Development and Senior Presidential Advisor, during talks with Power and Pressman. "Do you want to know our frank opinion about the US?" Basil asked Power, who is known to be close to President Obama and meets him almost daily at the White House. She nodded. He said, "The US Government is a little jealous about Sri Lanka. We are a small country but we have achieved what the US has not been able to."

He was alluding to the military defeat of Tiger guerrillas while the US was still fighting insurgencies in Iraq and Afghanistan. He also said Sri Lanka was managing its economy well. "Don't think like that. Help us. President Bush talked about terrorism…."

Power was to remind him that the Obama administration had opened a new chapter and did not endorse the views of the Bush administration on such issues. On human rights, Basil was to cite the case of his own brother, President Rajapaksa. He said when he was Prime Minister, the then President (Chandrika Bandaranaike Kumaratunga) had sought to prosecute him.

Tuesday's official announcement by the UN Chief's office caused widespread anger in Government ranks. There were various responses although whether all of them represented the official view of the Government of Sri Lanka was not clear. "We feel the panel is an unnecessary interference. The Government should be given a free space to make its own findings," said External Affairs Minister G.L. Peiris. "We explained this to UN Undersecretary General Lyn Pascoe during his visit to Colombo. We told him the repercussions would be 'very unfortunate'," he said.

Both Peiris and Media Minister Keheliya Rambukwella said no visas would be granted for the panel members if they wished to visit Sri Lanka. Rambukwella also wanted the UN to list out the allegations of human rights violations against the Government. He warned the Government "will take appropriate action" for "ignoring the wishes of a member state." The state run Independent Television Network (ITN) made a scathing attack on Ban's Chief of Staff, Vijay Nambiar, a former Indian Ambassador to the UN. It is not clear whether the bitter attack was directed personally against him or had other connotations. It showed footage of a person visiting an Ayurvedic clinic and said UN officials were only interested in going to such places.

Last Tuesday, UN Spokesman Martin Nesirky told a news conference in New York, "the Secretary General has all the authority that he needs to conduct this work through an advisory panel."

"There is no specific need to travel to Sri Lanka or to engage with Sri Lankan officials on the ground unless they consent to do that," he added.

The main opposition United National Party (UNP) leaders played safe by not declaring their official response to the appointment of the panel. They are perhaps conscious that they may also come under bitter attack by sections of the media. However, one senior leader, who spoke on grounds of anonymity, declared that no Sri Lankan troops could be tried for war crimes since the country is not a signatory to the Rome Protocol. "However, it is incumbent on the Government to tell us what happened, what went wrong," he said. He pointed out that when Ban visited Sri Lanka last year, UNP leader, Ranil Wickremesinghe was prevented from meeting him. "It was only at the eleventh hour, at Ban's insistence, that. Wickremesinghe met him at the Katunayake airport," he added.

The European Union's re-iteration this week that it would not extend the GSP plus tariff concessions if 15 demands were not heeded, seemed a "self inflicted wound" by the Government. By that, it has lost the little space that was still available for "silent diplomacy" through a continued dialogue with the European Union. Was it part of a strategy to anger the Sri Lankans against the EU? This is particularly in the light of it becoming clear that the concessions were not going to be extended.

It began with media reports attributed to unidentified Government sources, claiming that the European Union had extended by a further six months the GSP Plus tariff concessions. The reports drew a strong response from the European Union last Tuesday. It said, "contrary to these articles, the date of 15 August on which Sri Lanka would cease to benefit from GSP Plus will not be extended unconditionally." That was a categorical assertion that there would be no extension.

The statement declared, "the European Union has informed the Government of Sri Lanka of its readiness to propose to the Council of the European Union to maintain GSP Plus preferences for Sri Lanka for a limited additional period, subject to a clear and written commitment by the Government of Sri Lanka to undertake a well defined number of human rights related actions, within a six-month time frame beginning in July of this year, and to provide reassurances as to the sustainability of progress registered under the GSP Plus dialogue."

The EU said only if a written commitment was made by the Government by July 1 would it put such a proposal to the Council.

For "sustainable development and good governance," the EU has provided GSP Plus (under its Regulations) since June 27, 2005. This is through a scheme of generalised tariff preferences (on the common customs tariff ad valorem duties) on certain products, which originate in a country included in the arrangement. The concessions are granted to countries, which the EU says, have ratified and effectively implemented the conventions of its Regulations. Among them are the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the Convention on the Rights of the Child (CRC).
The EU requires that the country in question gives an undertaking to maintain the ratification of the conventions and their implementing legislation. The GSP Plus may be temporarily withdrawn, in respect of all or certain products, in particular if the national legislation no longer incorporates the conventions or if that legislation is not effectively implemented.

In the light of talks a four member Sri Lanka team headed by Attorney General Mohan Peiris held in Brussels with European Commission officials, on June 17, EC Vice President Catherine Ashton wrote a two page letter to External Affairs Minister Peiris. The Government officially released both her letter and a set of conditions placed by the European Council. Ashton said, "……following an assessment of the meeting with Attorney General Peiris on May 20-21 and of the further information which your Government has supplied, it is not yet possible to conclude that Sri Lanka is, at this time, effectively implementing the provisions of the International Covenant on Civil and Political Rights and the UN Convention against Torture."

The letter adds, "The European Commission notes the clear willingness on the part of Sri Lanka to take further additional steps to address without delay outstanding human rights issues and stands ready to work with you on this. We are prepared to propose to the Council of the European Union that it decides to maintain GSP Plus preferences for a limited additional period subject to a clear commitment by your Government to undertake the actions listed in the annexe to this letter within a six months time frame beginning July of this year.

"These actions relate to areas; firstly, where the Government of Sri Lanka itself has declared its intention to further the normalisation of the human rights situation; second, which would implement some of the existing recommendations of the UN human rights bodies, and third, which the European Commission considers crucial to make significant progress towards effective implementation of the International Covenant on Civil and Political Rights and the UN Convention against Torture."

Among the highlights of the 15 conditions placed by the European Commission are:

" Take steps to ensure that the key objective of the 17th Amendment to the Constitution namely to provide for independent and impartial appointments to key public positions, is fully safeguarded, including through a Constitutional Council which adequately reflects the interests of all political, ethnic and religious groups and minorities within Sri Lankan society.

" Repeal the remaining part of the 2005 Emergency Regulations, notably those Regulations concerning detention without trial, restrictions on freedom of movement, ouster of jurisdiction and immunity, and repeal of the 2006 Emergency Regulations. If GOSL considers that it is essential to retain certain provisions which are compatible with the ICCPR or UNCAT, such provisions concerning possession of weapons should be transferred to the Criminal Code.

" Adoption of the planned amendments to the Code of Criminal Procedure, which provide for the right of a suspect to see a lawyer immediately following his arrest.

" Steps to implement outstanding opinions of the UN Human Rights Committee in individual cases.
" Extension of an invitation to the following: UN Special officials who have requested to visit Sri Lanka (UN Working Group on Enforced Disappearances, UN Special Rapporteur on Torture, UN Special Rapporteur on Freedom of Expression, UN Special Rapporteur on Independence of Judges and Lawyers.)
" Publication or making available to family members a list of former LTTE combatants currently held in detention as well as all other persons detained under the Emergency Regulations. Decisive steps to bring to an end the detention of any persons held under Emergency Regulations either by releasing them or by bringing them to trial.

" Adoption of the National Human Rights Action Plan by Parliament and its prompt implementation.
" Take steps to ensure journalists can exercise their professional duties without harassment.

The Cabinet on Wednesday rejected outright the European Council's conditions. "This is more dictatorial than how the colonial rulers of the past treated us," said Economic Development Minister and Senior Presidential Advisor Basil Rajapaksa. "We cannot be bullied into submission. We can stand on our own and resist these conditions," he told the Sunday Times. Here again, there were varied views from Government leaders raising issues whether all of them reflected the official position.

"The implementation of the 17th Amendment to the Constitution is an internal matter," said External Affairs Minister Peiris. He told a news conference that elected Governments of this country must make judgements. "We cannot surrender decision making powers, very sensitive and crucial matters to any foreign government," he said.

If Peiris had campaigned for almost a year for the restoration of the GSP Plus, his Ministerial colleague, Keheliya Rambukwella (Media Minister) blamed Opposition UNP leader, Ranil Wickemesinghe, Sri Lanka Muslim Congress Leader Rauff Hakeem, Democratic National Front (DNF) leader Mano Ganeshan and NGOs for campaigning to deny GSP Plus concessions to Sri Lanka. "We want to obtain GSP Plus facilities unconditionally. We are not willing to agree to any conditions," he told a news conference.

Rambukwella's remarks drew a retort from Wickremesinghe. "If what he says is correct, they should hand over the Government to me."

Wickremesinghe told the Sunday Times that the GSP Plus facility being denied to Sri Lanka from August this year was the result of the gross failure of the conduct of Sri Lanka's foreign policy. "The External Affairs Minister, who has been canvassing for this even before he assumed that portfolio raised hopes of Sri Lankans by saying the facility, would be extended. What has he to say now? Let the Government come out with the truth, what led to the blunders and the public being misled."

Wickremesinghe said when he was once in Brussels, he telephoned President Rajapaksa. This was after talks with officials there. "I told him the EU was receptive to talks to restore the facility. They must now find out how this ended in a colossal failure," Wickremesinghe said.

The news of the appointment of the UN panel and the European Union's statement came on the same day, last Tuesday. The positions articulated by the UN Chief, the US and the EU leave little doubt that they are all on the same page. The axis of the Government's foreign policy worries remains the United Nations, the United States and the European Union.

Members of the advisory panel: A brief profile
Marzuki Darusman is a former Attorney General of Indonesia and will serve as the head of the panel. In a similar capacity, he prosecuted General Wiranto, the former Indonesian armed forces commander for crimes against humanity in East Timor. He was a member of the now defunct International Independent Group of Eminent Persons (IIGEP) appointed by President Mahinda Rajapaksa to observe proceedings of the Commission which probed 16 major cases of human rights violations. The IIGEP ceased to function after sharp differences arose between it and members of the Commission. Darusman, the son of an Indonesian diplomat, also served in a UN panel that investigated the death of Benazir Bhutto, one time Prime Minister of Pakistan. She was assassinated during an election campaign.

Yasmin Louise Sooka is the executive director of the Foundation for Human Rights, one of South Africa's indigenous grant makers to the human rights sector. Prior to joining the foundation, Sooka served as Commissioner on the South African Truth and Reconciliation Commission. She was Deputy Chairman of the Human Rights Violations Committee. In 2002, she was appointed by the United Nations High Commissioner for Human Rights to serve as International Commissioner on the Sierra Leone Truth and Reconciliation Commission.

She was an acting Judge of the Witwatersrand High Court and is regarded as an expert on transitional justice. She has been a consultant to a number of governments, commissions and civil society organisations.

Steven R. Ratner, once a professor of law at the University of Michigan, focuses on public international law and on a range of challenges facing governments and international institutions since the Cold War. They include ethnic conflict, border disputes, counter-terrorism strategies, corporate and state duties regarding foreign investment and accountability for human rights violations.

In 1998, Prof. Ratner, was appointed by the UN Secretary General to a three-member group of experts to consider options for bringing the Khmer Rouge leaders in Kampuchea to justice. He served in this capacity till 2008. From 2008 to 2009, he served in the legal division of the International Committee of the Red Cross (ICRC). He had begun his legal career as an attorney-advisor in the office of the Legal Advisor of the US Department of State.

He served as a member of the Indonesian Parliament of the Golkar Party for 15 years, representing Bandung in West Java. He told an Indonesian magazine once that any "self respecting politician would want to become President". In the one time Suharto's Indonesia, such a phrase was tantamount to submitting one's candidacy. The Golkar Party immediately struck his name from the list of the party's candidates in the 1992 election. Darusman spent his formative years in Europe.

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