On June 22 2010, the United Nations Secretary General, Ban Ki-moon appointed a three-member Panel of Experts to examine, and advise him of “the modalities, applicable international standards, and comparative experiences with regard to accountability processes” that related to any alleged violations of international human rights and humanitarian law, during “the final stages” of the conflict in Sri Lanka. Last Tuesday (April 12), Ban Ki-moon received the so-called “Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka”. The Secretary General, “as a matter of courtesy”, made a copy available to the Sri Lanka Government through its Permanent Mission to the UN in New York, in advance of it being made public “in the coming days”.
The Government, after a quick preliminary examination of the Report, has declared it to be “fundamentally flawed in many respects”, in addition to it being based, without proper verification, on dubious “patently biased” sources. More comment is expected to follow upon closer scrutiny of the near 200 page report by the Ministry of External Affairs.
Amnesty International, Human Rights Watch, the International Crisis Group and other agencies, as well as re-branded members and supporters of the Liberation Tigers of Tamil Eelam (LTTE) have called for the early release and public circulation of the Report and have already commenced their respective campaigns towards this end.
I thought it appropriate in the circumstances to repeat some relevant observations I made last month in a presentation at the National University of Singapore that organized a Conference of South Asian Countries on their respective relations with the United Nations Organisation.
I described, in my presentation the situation operating in the closing stages of Sri Lanka’s battle against ethno-separatist terrorism, when thousands of civilians, may have lost their lives having been ruthlessly clustered, trapped and held against their will to serve as human shields for the LTTE. Sri Lanka had to contend with much censure, criticism and condemnation by some countries and many agencies while the LTTE, as “a non-state actor” received relatively less condemnation. Some external initiatives to provide safe refuge overseas for Prabhakaran were also being planned but were aborted by the trend of events and second thoughts.
Sri Lanka went before the larger international community, as represented in the United Nations, to present the true picture of developments in the war against terrorism, including in its concluding months. Three major reviews and assessments of the conflict were undertaken, in close succession, and with a degree of connectivity, all in May 2009, to place the complex developments in proper perspective.
First, following detailed clarifications of the true situation by Sri Lanka, the UN Security Council issued a Press Statement, not a resolution nor a President’s statement, on May 13 2009 (reference UN document SC 9659) which, inter alia, strongly condemned the LTTE for “its acts of terrorism over many years, and for its continued use of civilians as human shields”. The Statement acknowledged “the legitimate right of the Government of Sri Lanka to combat terrorism”. Members of the Council demanded that the LTTE “lay down its arms and allow tens of thousands of civilians still in the conflict zone to leave” and that the Government “take further necessary steps to facilitate the evacuation of the trapped civilians and the urgent delivery of humanitarian assistance to them”.
Secondly, the Government invited the UN Secretary General Ban Ki-moon himself to personally visit Sri Lanka, including its conflict affected areas to experience for himself the true reality of the ground situation. At the conclusion of the visit, on May 23, a Joint Statement by the Secretary General and the Government (ref document SG/2151) was issued. It was based on frank, focused discussions the Secretary General had with the Sri Lanka President Mahinda Rajapaksa and Ministers, briefings he received from his own United Nations officials based in Colombo, as well as what the Joint Statement described as consultations with “other relevant stakeholders, members of the international humanitarian agencies and civil society”.
The visit was projected in the consensual Joint Statement as a “reflection of the close cooperation between Sri Lanka and the United Nations”, with the President and the Secretary General agreeing that, following the end of operations against the LTTE, Sri Lanka “had entered a new post-conflict beginning”, though facing “many immediate and long term challenges relating to issues of relief, rehabilitation, resettlement and reconciliation”. They agreed that “the new situation” offered opportunities for “re-establishing democratic institutions and electoral politics after two and a half decades” in the North.
They both recognized further “the large number of child soldiers forcibly recruited by the LTTE as an important issue in the post-conflict context” to be dealt with in cooperation with the United Nations Children’s Fund” (UNICEF). The UN Secretary General “expressed satisfaction on the progress already made by the Government”. One objective of the rehabilitation process presently under way has been to re-integrate former child soldiers into society as productive citizens.
The concluding paragraph of the Joint Statement is important particularly in relation to the Report of the Panel of Experts. The three concluding sentences in it read as follows: “Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government of Sri Lanka (GOSL) will take measures to address those grievances”. The onus, as agreed, was therefore clearly on the GOSL to address grievances and not for any outside influences, including the United Nations to stipulate measures.
The third multilateral assessment on Sri Lanka was at the UN Human Rights Council (UNHRC) which held a Special Session in Geneva. It was held partly to contend with some human rights lobbyists and pro-LTTE elements abroad, seeking by then, to sanitize and re-brand themselves into respectability and global acceptance. The resolution adopted by the Council on May 27 was guided, as its opening paragraph indicated, by the UN Charter, the Universal Declaration of Human Rights, the International Covenants on Human Rights and other relevant human rights instruments. The resolution in other preambular paragraphs reaffirmed “respect for the sovereignty, territorial integrity and independence of Sri Lanka and its sovereign rights to protect its citizens and to combat terrorism”.
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It also condemned “all attacks that the Liberation Tigers of Tamil Eelam (LTTE) launched on the civilian population and the practice of using civilians as human shields” in the closing stages of the conflict. The UNHRC resolution also clearly welcomed “the conclusion of hostilities and the liberation by the GOSL of tens of thousands of its citizens that were kept by the LTTE against their will as hostages, as well as the efforts by the Government to ensure the safety and security of all Sri Lankans and bring permanent peace to the country”.
The Government was encouraged “to continue to persevere in its efforts towards the disarmament, demobilization and rehabilitation of former child soldiers recruited by non-state armed actors in the conflict in Sri Lanka, their physical and psychological recovery and reintegration into society, in particular, through educational measures taking into account the rights and specific needs and capacities of girls, in cooperation with relevant United Nations organizations”. The specific reference to girls was because the LTTE had even resorted to forced pregnancies of girls who subsequently had been commandeered to serve the LTTE.
Significantly, the resolution also welcomed the visit of the Secretary General to Sri Lanka and indeed endorsed the Joint Communiqué issued on May 23 2009 at the conclusion of the visit and the understandings contained therein.
The three foregoing United Nations documents that were all adopted in May 2009, in the close context of the controversial, much debated conclusion of the conflict between Sri Lanka and the LTTE, together present a balanced perspective of the situation as accepted by the international community which now seems to be called into question by the Panel’s Report. Admittedly, 12 countries, some of them hosts to large groups of pro-LTTE re-branded migrants (who also constituted significantly useful vote-banks for some local politicians), had voted against the UN Human Rights Council resolution.
In May 2010, the Sri Lanka President, on a deeper perception and comprehensive time frame, appointed the Commission on Lessons Learnt and Reconciliation (LLRC). Its mandate has been to inquire into the nature, causes and consequences of developments in Sri Lanka between February 2002 (when the Ceasefire Agreement (CFA) with the LTTE came into operation), and May 2009 (when the LTTE was defeated following its repeated violations and eventual abrogation of the ceasefire).
The mandate of the LLRC clearly includes its responsibility to consider and report any evidence indicating violations of international humanitarian or human rights law that have occurred in the entire period concerned. The LLRC has been open to receive oral or written representations from any quarter including Opposition Parties, or indeed any one hostile to the Government. It has held hundreds of hearings throughout the island, gathering frank views, negative and positive, as well as complaints including in areas of the final conflict, places of detention, welfare centres and camps of internally displaced persons (IDPs). Final recommendations of the LLRC are expected shortly.
It is curious therefore, that the UN Secretary-General, one year after the end of the conflict, had established a Panel of Experts to advise him on the issues of accountability with regard to alleged violations of international human rights and humanitarian law, specifically focusing only on “final stages” of the conflict in Sri Lanka. This is, basically the very period on which the UN Secretary-General himself in association with the Sri Lanka President, the Security Council and the UN Human Rights Council has already pronounced. The narrow focus on the “final stages” virtually ignores the atrocities of the LTTE such as the deliberate mass slaughter of innocent civilians including Buddhist monks at worship and Muslims at prayer and other inhuman acts of violence too numerous to retell.
Of course, a significant explanatory sentence in the official press release issued in June 2010 did state that the Panel only “advises the Secretary-General and is not an investigative or fact-finding body”. The Panel has not been based on any consensual or voted decision stemming from any wide representative multilateral discussion in plenary sessions of the United Nations or any of its subsidiary bodies or committees. The Panel is narrow in its focus and limited in approach focusing on “the final stages” alone. The Panel apparently gathered information in secrecy and has not published the evidence it received. This is in striking contrast to the open procedures of the LLRC where all public testimony is available on its website, except in circumstances where confidentiality/secrecy was requested by those appearing before it.
On July 9 2010, the spokesman for the Secretary-General also conceded that the Panel had been set up to advise the Secretary-General with regard to taking forward the objectives of the Joint Statement of May 23 2009 he had agreed with the GOSL. The spokesman also asserted that “the United Nations recognizes that the responsibility in this regard (including on the accountability issue) is that of the Government of Sri Lanka” as had been clear in the concluding paragraph in the Joint Statement between the GOSL and the Secretary-General of May 23 2009 quoted earlier.
Despite the controversy about the mandate of the Panel of Experts, in practical terms there is no major conflict between the United Nations and Sri Lanka despite the complex issues before them. For example, the role of the United Nations in assisting the post-conflict recovery process in the country is considerable. An inclusive consultative mechanism coordinated, in situ, between the UN and the GOSL through a Presidential Task Force, has engaged UN agencies including the United Nations High Commissioner for Refugees (UNHCR), the World Health Organisation (WHO), the United Nations Development Programme (UNDP) as well as select national and international non-government organizations.
It has resulted eventually in a Joint Plan for Assistance (JPA) for the Northern Province which has been the Province in the country most seriously affected by its occupation by the LTTE. The UN Report of the Plan states that “the Northern Province was held back in development for nearly 30 years. The LTTE controlled these areas with the objective of creating a separate state and that resources allocated to the Province by the Government for development were used for the LTTE objective”. The Report states the Government of Sri Lanka with partners’ support, “achieved substantial results since May 2009 in the provision of basic assistance, rebuilding of infrastructure and restoration of the administration across the Northern Province”.
The UN Report also describes the resettlement of nearly 350,000 people within the first year of the conflict’s end as “the biggest achievement of the GOSL”. It also pragmatically acknowledges the role of the Sri Lanka Army in “extensively assisting the resettlement process from its commencement”. The clarity of the UN acknowledgment on the Army’s role is important in dealing with criticisms in some quarters about the Army’s assumption of certain former civilian development functions.
The areas being covered in consultation with the Government in the JPA include food security, water and sanitation, demining, humanitarian assistance, shelter provision, management of the welfare centres for the internally displaced persons (IDPs), programmes for rapid resettlement, agriculture and in-situ livelihood security. Sri Lanka has participated actively and contributed to the multilateral activities of the United Nations as a considered practical aspect of her foreign policy. Sri Lanka presided over the 31st Session of the United Nations General Assembly in 1976 and has chaired vital UN Committees and Conferences, including that which led to the eventual adoption of the Convention on the Law of the Sea.
Sri Lanka was, about the same time, Chairman of the Nonaligned Movement (1976-1979) which negotiated with other political groups to reach consensus on several sensitive UN resolutions and decisions. Such engagements by Sri Lanka’s diplomats continue, with wide acceptance by the international community notwithstanding the complexity of, for example the ongoing negotiations on the UN Comprehensive Convention on International Terrorism. The Committee has already successfully negotiated three related Conventions, respectively on Nuclear Terrorism, Terrorist Financing, and Terrorist Bombings. Sri Lanka also currently chairs the UN Committee on Migrant Workers. Sri Lankan diplomats have also been chairing UN Committees on the Indian Ocean as a Zone of Peace, and the Special Committee to Investigate Israeli Practices Affecting the Rights of the Palestinian People and Other Arabs of the Occupied Territories.
Sri Lankan officials have also held office in the UN Secretariat and system, including at the senior level of Undersecretary General, in respect of the Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE); the UN Conference on Trade and Development (UNCTAD); and Disarmament Affairs. The current Undersecretary General dealing with Children and Armed Conflict is also Sri Lankan.