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The UN Human Rights Council on Monday approved a recommendation by the High Commissioner for Human Rights Zeid Ra’Ad Al Hussein to defer the publication of his report on alleged war crimes in Sri Lanka till the Council’s 30th session in September instead of presenting it at the 28th session that starts next month. This was in response to a written request from Sri Lanka’s Foreign Affairs Minister Mangala Samaraweera. The US and Britain were quick to ‘welcome’ the pledges made by Samaraweera on behalf of the Government and agree with the move. So what was the deal between Samaraweera and the rights chief?

Election pledge
One of the key pledges made during the Government’s campaign during the run-up to the presidential election was that an international war crimes probe in Sri Lanka would not be allowed. After taking office the Government continued to maintain this position saying that it would institute its own domestic inquiry into allegations of human rights violations during the war.

However in his interaction with Zeid Minister Samaraweera who visited Washington and New York ten days ago has agreed to “work with the High Commissioner and his office” to develop this domestic mechanism, in what could be seen as a capitulation on that promise. In his letter to Zeid he has further pledged that the Government will invite the UN Working Group on Enforced and Voluntary Disappearances before the 30th session of the Human Rights Council in September, and to invite relevant Special Mandate Holders ‘on a needs-based early opportunity.’ He said the Government will begin an immediate dialogue with the Special Rapporteur on truth, justice, reparations and guarantees on non-recurrence, to seek his advice.

Questions arise
A copy of the minister’s letter to Zeid dated February 13, the authenticity of which Foreign Ministry sources have verified, was shown on an English TV news bulletin on Thursday. According to the letter, the full text of which is available with the online version of this column, the relevant paras read as follows:

“As I explained during my interaction with you, although the new Government is just 33 days old, discussions are already underway on the kind of domestic mechanism that should be put in place and the nature of assistance that would be required from your office and other international partners. While the Government is committed, as undertaken in the election manifesto, to set up a credible domestic mechanism, the relevant preambular provisions in Resolution 25/1 to ensure accountability, serve justice and provide remedies to victims will be taken into account.

“The Government looks forward to working with you and your office to develop this mechanism and obtain technical assistance.”
Among questions that arise, one is whether the written or verbal pledges made by Samaraweera to the rights chief were a trade-off for Sri Lanka’s securing a deferral of the report for six months. If so, was it just so the government could ‘tread water’ till the general election expected in May or June is over, without having an inconvenient issue to deal with during the run-up?

Changing context
Zeid’s request to the Council for deferral of the report is accompanied by the recommendation that the Office of the High Commissioner for Human Rights “continue its follow up to Resolution 25/1″ — the US-UK led resolution adopted last year which called for the international investigation. In his remarks to the HRC on Monday Zeid said his request for a one-time-only postponement was based on “the changing context in Sri Lanka, and the possibility that important new information may emerge which will strengthen the report.” This would suggest that he seeks to ‘strengthen the case for the prosecution’ as it were. So it is by no means clear that the postponement will be to Sri Lanka’s advantage.

In addition the rights chief said “I have received clear commitments from the new Government of Sri Lanka indicating it is prepared to cooperate with my Office on a whole range of important human rights issues — which the previous Government had absolutely refused to do — and I need to engage with them to ensure those commitments translate into reality.” What does the ‘whole range of human rights issues’ on which the government indicated it is prepared to cooperate’ refer to?

Asked to comment on the implications of Samaraweera’s letter to Zeid, Dayan Jayatilleka, the former UN ambassador in Geneva whose team defeated a 2009 HRC resolution against Sri Lanka in the immediate aftermath of the war, said it contained “not one but a number of pledges, which constitute a package of creeping internationalisation.” The general pledge to work with the High Commissioner and his office in developing a domestic mechanism means it will be one that is jointly designed, he said, though the reference to ‘technical assistance’ was ‘ok.’ Asked if this represents a departure from the election promise not to allow an international investigation he said “It’s a domestic front for what is a partnership, and a serious deviation.”

The remit of the domestic mechanism should be the LLRC report, which is limited and selective in listing the cases that require independent inquiry, Dr Jayatilleka asserted. These 8 to 10 cases need to be read along with the chapter where the Commission exonerates the Sri Lanka armed forces of wittingly committing war crimes on a large scale he said.

In the dark
In parliament on Thursday Opposition Leader Nimal Siripala de Silva demanded that Samaraweera’s letter to the HR Commissioner be tabled, indicating that the House was not apprised of its contents even after Samaraweera had made pledges on behalf of the government. The letter was reportedly tabled on Friday. Were the undertakings given by the Foreign Minister to the High Commissioner approved earlier by President Sirisena and the cabinet?

It would appear that ministers were not aware of them. On Thursday at a forum of the Foreign Correspondents Association Energy Minister Champika Ranawaka when asked how far the JHU supported foreign participation in the proposed domestic mechanism, said the Government has still not decided on its structure. The JHU always maintained that charges against security forces personnel ‘or any other individual’ should be handled by ‘our judicial system’, he said. Referring to the LLRC report, the Paranagama Commission on missing persons and the expert committee to support it he said, “We’ll see the reports. If there are substantial allegations, you have to investigate.” The comments show that he was in the dark about commitments made by Samaraweera — just like everyone else.

(Click to vsit for the full letter from Minister Samaraweera to Human Rights Chief Zeid.)