As President Maithripala Sirisena said the international community would have insisted on hard strictures and conditions on Sri Lanka in the Report of the United Nations High Commissioner for Human Rights, if not for the change of government.
The indications were that the UN body would have named some people – politicians, bureaucrats and members of the armed forces – as perpetrators of human rights violations and barred them from travelling abroad and imposed other sanctions, he said.
The visitors from powerful countries: from US Secretary of State John Kerry, Foreign Ministers of several European countries, leaders from India, China and Japan, and the two visits of US Assistant Secretary of State Nisha Biswal indicated that the international community was softening its stance and wanted to come to the assistance of Sri Lanka at the UNHRC in September 2015. The Report shows that the international community is satisfied with the actions taken towards restoration of rights, media freedom, good governance and other positive steps of the new government.
As President Sirisena and Prime Minister Ranil Wickremesinghe told media heads on Friday, if there was no change of government, the UNHRC Report would have posed severe difficulties to the country. Fortunately for the country and the people, the international community came to our support, taking into consideration the positive directions taken by the new government and adoption of the 19th Amendment to the Constitution to take the country back to the democratic path.
Sri Lanka’s task now is to sell the idea to the international community that instead of a hybrid court suggested initially by the UNHRC, we would set up a domestic mechanism to look into the alleged violations taking into consideration some suggestions made in the UNHRC Report and take technical support from the UN whenever it is required.
The Foreign Ministry, in its first brief response to the UNHRC Report welcomed it for its unreserved acknowledgement that the Government of President Maithripala Sirisena has taken the country in the right direction.
A total rejection
The Ministry of Foreign Affairs stated the Sri Lankan Government recognizes fully that the Report represents a human rights investigation and not a criminal investigation. That comment, combined with High Commissioner’s reply to two questions on identities of perpetrators of alleged human rights violations and on allegations of ‘genocide’ gives sufficient reasons for concluding that there is no immediate threat or a danger to Sri Lanka or past or present decision makers or officials in the armed forces.
The Third Person Note (TPN) sent by the Ministry stated it is pleased and encouraged by the High Commissioner’s recognition of the efforts of the new government since the Presidential election of 8 January 2015, in dealing with issues of concern for the people of Sri Lanka relating to human rights, rule of law, governance, justice, institutional and legal reform and reconciliation.
The government “appreciates the recognition given to the Government’s constructive engagement with the High Commissioner and OHCHR aimed at addressing post-conflict issues that impact on achieving reconciliation. Remains firm in its conviction to take all possible measures to ensure non recurrence in keeping with the mandate given by the people of the country twice this year, 2015, at the Presidential election in January and the Parliamentary election in August,” it added.
The government will ensure that its content as well as recommendations receive due attention of the relevant authorities including the new mechanisms that are envisaged to be set up and remains open to continuing its engagement with the High Commissioner and his Office as well as the systems and procedures of the Human Rights Council, aimed at taking steps to safeguard and uphold the human rights of all her citizens,” the TPN stated.
It is true that the proposed investigation is not a criminal probe. However, one cannot but notice that the Report has detailed out many allegations without substantiating facts or proofs. For example, what is the proof of the allegations in the Report about ‘pattern of killings in the vicinity of check points, and military bases,’ ‘extrajudicial killings of individuals while in custody’ and ‘sexual violence committed against detainees, often extreme brutality, by the Sri Lankan security forces’. The Report says 30 survivors of sexual violence had given evidence. But the Report failed to identify the 30 survivors or provide evidence to prove that they were telling the truth.
A blanket acceptance
Making a categorical denouncement of the judiciary in Sri Lanka, based on vague and generalized circumstantial reasons is unethical and unprofessional for an international organization of repute. The high standards of Sri Lankan judges are known and recognized all over the world and many eminent legal luminaries from Sri Lanka are serving as judges in several countries in the Asia Pacific region and Africa in addition to Sri Lankan origin legal experts in many European countries and North America. Hence, it is wrong to denounce the Sri Lankan judiciary in one stroke of the pen without checking the factual position. It is also necessary to point out that the current Chief Justice of Sri Lanka is a highly respected Tamil judge who cannot be labelled as a biased person by any standard.
If there are shortcomings in the criminal justice system, it is one thing to provide technical assistance to strengthen the system. But denouncing the entire judicial system and attempting to impose foreign judges, prosecutors, lawyers and investigators will only complicate matters without helping to strengthen the legal system.
There are many similar allegations in the report that are baseless. The charge of denial of food to people in the North has been levelled against the government without any study of the ground realities that existed during the last few days of the conflict. The report charged that “OISL has reasonable grounds to believe that the Government knew or had reasons to know the real humanitarian needs of the civilian populations in the concerned areas, including from its own Government agents on the ground, and yet imposed severe restrictions on the passage of relief and the freedom of movement of humanitarian personnel. This apparently resulted in depriving the civilian population in the Vanni of basic foodstuffs and medical supplies essential to survival. If established by a court of law, these acts and omissions point to violations of international humanitarian law, which, depending on the circumstances, may amount to the use of starvation of the civilian population as a method of warfare, which is prohibited under international humanitarian law. Such conduct, if proven in a court of law, and depending on the circumstances, may constitute a war crime.”
The international media showed how the LTTE forced 300,000 civilians to move to a small stretch of land in Nandikadal and used them as a human shield. The armed forces made heavy sacrifices to liberate those people from the clutches of the LTTE and provided them with food clothing and shelter at makeshift camps. The government succeeded in resettling them within two years.
There are diverse views on post-conflict justice. One school of thought is that the persons guilty of human rights violations must be punished without taking its possible repercussions into consideration. Those who are against this form of retributive justice are of the view that the persons who suffered during the conflict desire immediate relief and solutions to their problems. Hence, they advocate restorative justice. Reparation theory is favourable with those who believe that the victims must be compensated and governments must make amends to ensure there would not be recurrences of factors leading to conflicts.
Reparation to victims
These debates began after the World War II and continue for more than eight decades, as the world witnesses conflicts from time to time. Immediately after the WW II, the leaders focused on retribution against the leaders and agents of autocratic regimes preceding democratic transitions and on reparation to victims. The transitional justice was seen in the wake of World War II in several countries such as Austria, Belgium, Denmark, France, Germany, Hungary, The Netherlands, and Norway.
While many countries support the US position as Assistant Secreatry for South and Central Asia Nisha Biswal stated during her visit to Sri Lanka, many expatriates continue their campaign for an international investigation.
New Zealand Foreign Minister Murray Mc Cully welcomed the Sri Lankan Government’s announcement it will establish a Truth and Reconciliation Commission to help the country recover from its decades-long civil war. “New Zealand welcomes the measures announced by the Sri Lankan Foreign Minister, Mangala Samaraweera at the UN Human Rights Council in Geneva this week,” Mc Cully said in a statement. “They constitute a significant step towards genuine reconciliation and political devolution for Sri Lankans, something New Zealand has been encouraging.”
Meanwhile, a US-based Hindu organization has called for an international independent probe into the alleged war crimes during Sri Lanka’s final assault on the LTTE as America is set to bring a resolution in the UN rights body supporting a domestic probe. “The US and other UNHRC member countries have a moral responsibility to deliver justice to the victims of Sri Lanka’s civil war, particularly the estimated 40,000 Tamil civilians that were massacred in the closing months of the war in 2009,” said Samir Kalra, senior director and Human Rights fellow of the Hindu American Foundation.
“An international independent investigation is the best means to achieving accountability and justice for the victims. A purely domestic mechanism will not heal the country’s wounds or allow it to move forward,” Kalra said as HAF released its 11th annual human rights report for ‘Hindus in South Asia and the Diaspora’.
Although the international community has not accepted the figure of 40,000 Tamil civilian deaths, many pro-LTTE diaspora groups continue to use it to substantiate their claims of ‘massacre of civilians’.
This kind of different opinions will pour-in, but Sri Lanka should not get carried away while responding. Instead it will have to take a sober look. It is not clear as to how much of the report is acceptable to Sri Lanka. One thing is clear that there would not be either a total rejection or a blanket acceptance. In today’s realities of international power play, a country such as Sri Lanka is not in a position to reject outright such a report. What we can do is to use our good offices and friends to get the report further softened and obtain the international approval for the proposed local mechanism.
