Mission failure

The group of eminent persons monitoring the inquiry into allegations of human rights violations decides to end its operations.

in Colombo

SRI LANKA suffered a major blow on March 6 in the midst of the ongoing war between the security forces and the Liberation Tigers of Tamil Eelam (LTTE). The International Independent Group of Eminent Persons (IIGEP), headed by Justice P.N. Bhagwati, former Chief Justice of India, and 10 other prominent citizens from various parts of the world, announced its decision to terminate its operations in the island with effect from March 31. It cited lack of political will on the part of the Mahinda Rajapaksa government to investigate issues relating to human rights violations as the chief reason for its exit.

The timing of the IIGEPs announcement could not have been more unfortunate coming as it did weeks after the Sri Lanka Monitoring Mission (SLMM) wound up its operations (following the governments decision to abrogate the Norwegian-brokered 2002 Cease Fire Agreement) and in view of the growing uproar from within and outside for greater transparency on matters relating to human rights violations. The IIGEP was constituted in February 2007 by the President and was mandated with the task of monitoring the work of the Commission of Inquiry (COI), appointed by the President in November 2006, to investigate and inquire into 16 incidents of alleged serious violations of human rights that came up since August 1, 2005.

Other members of the group are Judge Jean-Pierre Cot (France), Marzuki Darusman (Indonesia), Arthur E. Gene Dewey (United States), Prof. Cees Fasseur (the Netherlands), Dr. Kamal Hossain (Bangladesh), Prof. Bruce Matthews (Canada), Andreas Mavrommatis (Cyprus), Sir Nigel Rodley (United Kingdom), Prof. Ivan Shearer (Australia) and Prof. Yozo Yokota (Japan).

Its mission was to comment on the transparency of the COIs investigations and their conformity with international norms and standards. The President also invited the IIGEP to make recommendations for redress. But it proved to be mission impossible right from the start.

Within weeks of its formation, the relations between the government and the IIGEP deteriorated to such an extent that both developed a deep distrust of the others intentions. They were at loggerheads on fundamental aspects of human rights issues. The questions were not merely procedural. The government charged the group with pursuing an agenda tailored for external forces, while the IIGEP harped on lack of political will. The government shred to pieces every single report of the group, dismissing them as irrelevant and unwarranted. Worse still, motives were attributed to each of the five reports produced by the group, making the eventual withdrawal of the IIGEP seem like the outcome of a systematic design.

The parting of ways was naturally on a bitter note. The dichotomy, as perceived by the IIGEP, is best captured in the summary of its public statement on the termination of its operations. It reads:

The IIGEP concludes that the proceedings of inquiry and investigation have fallen far short of the transparency and compliance with basic international norms and standards pertaining to investigations and inquiries. The IIGEP has time and again pointed out the major flaws of the process: first and foremost, the conflict of interest at all levels, in particular with regard to the role of the Attorney Generals Department. Additional flaws include the restrictions on the operation of the Commission through lack of proper funding and independent support staff; poor organisation of the hearings and lines of questioning; refusal of the State authorities at the highest level to fully cooperate with the investigations and inquiries; and the absence of an effective and comprehensive system of witness protection.

The Eminent Persons are fully aware of the overall context in which the Commission is operating, which makes its activities, however diligent, incapable of eliciting the kind of facts that would be necessary to ensure that justice is seen to be done. Underlying it all was the impunity that had led to the prior fruitless investigations that, in turn, led to the setting up of the Commission. There is a climate of threat, direct and indirect, to the lives of anyone who might identify persons responsible for human rights violations, including those who are likely to have been committed by the security forces. Civilian eyewitnesses have not come forward to the Commission. Security forces witnesses preferred to make themselves look incompetent rather than just telling what they know. Accordingly, it is evident that the Commission is unlikely to be in a position to pursue its mandate effectively.

These inherent and fundamental impediments inevitably lead to the conclusion that there has been and continues to be a lack of political and institutional will to investigate and inquire into the cases before the Commission. The IIGEP is, therefore, terminating its role in the process not only because of the shortcomings in the Commissions work but primarily because the IIGEP identifies an institutional lack of support for the work of the Commission. Beyond these considerations, the IIGEP is of the opinion that there has not been the minimum level of trust necessary for the success of the work of the Commission and the IIGEP. The IIGEP model may be unique. However, experiences associating national and international persons and processes in the past, with the view to harmonising national practice with international norms and standards, have always relied on confidence and trust for their success.

The IIGEP does not see how its continued engagement with the process could change this situation. The Eminent Persons hope, nevertheless, that their concluding observations and recommendations will assist the Commission of Inquiry, the Government of Sri Lanka and all the courageous people of Sri Lanka to achieve the full implementation of the rule of law and respect for fundamental human rights.

Further, the IIGEP noted that in keeping with the letter and spirit of its mandate, it had made substantial suggestions and observations in its Interim Reports to the President and in direct contact with the Commission and with representatives of the government and regretted that most of these suggestions had been ignored or rejected. Official correspondence directed to the IIGEP has too often been characterised by a lack of respect and civility. The IIGEPs next and concluding report to the President and subsequent public statement will detail the Eminent Persons observations and conclusions, substantiated by the evidence available, it said.

Exercising the right to reply, Justice N.K. Udalagama, Chairman of the COI, contended that the Commission had endeavoured to be transparent throughout the investigation and inquiry proceedings, and complied with international norms and that any shortcomings pointed out by the group had been promptly addressed and corrected to the extent possible.

The response of the Attorney General (A.G.) spared no punches: The Attorney General wishes to reiterate its concern this time too, that from the timing of the release of the 5th Statement of the IIGEP, it is clear that the IIGEP seeks to cater for an international agenda in the release of Public Statements, in that this time too the IIGEP has timed the release of the Statement to coincide with the ongoing 7th Sessions of the United Nations Human Rights Council in Geneva, Switzerland. It would be recalled that on previous occasions too, the IIGEP coincided with the release of its Public Statements with sessions of the U.N. Human Rights Council and other important meetings such as the meeting His Excellency the President had last year with the U.N. High Commissioner for Human Rights. The timing of the release of the current Public Statement together with its contents, clearly manifests the true intentions of a majority of the current membership of the IIGEP, in that what the eminent persons appear to be interested in is to ensure an international condemnation of Sri Lanka through the expression of certain views prejudicial to the interests of Sri Lanka based on certain untested hypothesis and distorted facts and circumstances. Expression of such comments to say the least is unwarranted and is in excess of the mandate of the IIGEP, the A.G.s response said.

Further, the A.G. noted that the decision of the IIGEP to quit coincided with the stoppage of funds by the European Union (E.U.) to the group. It is regrettable that the current membership of the IIGEP has in this regard decided to execute a function in respect of which they have absolutely no authority or even an entitlement. The IIGEP is an institution created by His Excellency the President. Therefore, it is only His Excellency the President who has the legal authority and entitlement to retain the institution, modify its mandate or terminate the functioning of the IIGEP.

However, the statement made by the Ministry of Disaster Management and Human Rights was at variance with the contention of the A.G. While regretting what it termed as the hasty withdrawal of the group, the Ministry disclosed that on November 30, 2007, the IIGEP, by its letter addressed to the President, had communicated its decision to end its mandate by the end of March.

The IIGEP embarked on its work in February 2007, which means that, within eight to nine months of the commencement of its mandate, and prior to fulfilling a full year, such a decision to quit was taken.

The Ministry hinted at the strategy contemplated by the government to neutralise the adverse impact of the IIGEPs decision and consider an alternative mechanism.

The unique concept of the IIGEP is owned by the Government of Sri Lanka and the 11 experts were appointed in their individual capacities to this unique structure with a one-year mandate. Although the 11 experts took a decision as far back as November 2007 to relinquish their mandate at the end of March, this does not mean that the concept of the IIGEP has been dispensed with. If the present 11 experts, for whatever reason, feel that they do not want to be part of the IIGEP after the end of March, the Government of Sri Lanka may exercise its rights to source and appoint such number of experts who would be able to discharge the mandate given to the IIGEP to observe and comment on the functioning of the COI. No doubt, if this is done, the new experts will be able to observe and contribute towards the functioning of the COI in the most interesting and significant phase of its proceedings viz. its public inquiries....

The changing worldview of Sri Lanka was also evident in the recent comments made by its Foreign Secretary Palitha Kohona in an interview to The New York Times. He told the newspaper that Sri Lankas traditional donors, namely, the U.S., Canada and the E.U., had receded into a very distant corner, to be replaced by countries in the East. He gave three reasons for this: the new donors are neighbours; they are rich; and they conduct themselves differently.

Asians dont go around teaching each other how to behave, he said. There are ways we deal with each other perhaps a quiet chat, but not wagging the finger.

The thinking of Colombo is in conformity with its view that some of the Western countries have their own agendas in respect of Sri Lanka and it is easier and more productive to seek the help of neighbours even on issues relating to human rights.

A senior official in the government told Frontline that informal talks had been initiated with Justice Bhagwati to explore the possibility of another group with representatives from the South Asian Association for Regional Cooperation or neighbouring countries as members. But would an alternative group carry credibility in the eyes of the world, especially after the fate of the IIGEP?