For a credible mechanism

The report of the Office of the United Nations High Commissioner for Human Rights Investigation on Sri Lanka calls for a hybrid mechanism involving international jurists to look into the allegations of war crimes and human rights violations in the final stages of the ethnic conflict.

April 29, 2009: Displaced Tamils watch British and French Foreign Ministers arrive at the Kadirgamar camp in Chettikulam, northern Sri Lanka. 

FOR Sri Lankans, September 16 went off like any another day. There was no visible display of rejoicing or disappointment on the streets of Colombo or elsewhere in the country following the release of a report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) Investigation on Sri Lanka (OISL). Apparently, only political commentators, policymakers and diplomats were getting exercised about how the report would be. Until then, the media, print and electronic, were preoccupied with elaborate discussions and commentaries on the possible contents and implications of the report, which was originally expected to be released on September 30 during the 30th session of the U.N. Human Rights Council (UNHRC).

On D-Day, a sigh of relief was palpable among those holding positions of power or having moderate views on the Tamil question. Those who were expecting, in the words of Foreign Minister Mangala Samaraweera, “a blood-curdling report” were “highly, extremely disappointed”.

The report covers the events in war-torn Sri Lanka over a nine-year period that commenced with a ceasefire agreement in February 2002 between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) and culminated with the release of the Lessons Learnt and Reconciliation Commission (LLRC) report in November 2011. It was a sequel to the adoption of a resolution by the UNHRC in March 2014.

The OHCHR had to carry out an investigation in the wake of widespread allegations of war crimes and human rights violations in the final stages of the ethnic war which ended in May 2009.

The day after the report was out, Cabinet spokesperson Rajitha Senaratne, who openly and frequently emphasises reconciliation with the Tamils, told this correspondent that the report had “a lot of positive” features. “They [OHCHR] have not named anybody. They have levelled allegations against the LTTE and against us also. They have not asked us to take action in haste. What they say is to carry out an investigation and take action.” Samaraweera summed up the government’s response when he said that the report was written “with the best of intentions”.

Nature of the judicial mechanism

However, for the government and the Tamils alike, the critical issue is the nature of a judicial mechanism to be instituted to go into the allegations. The OHCHR has proposed a hybrid mechanism including international jurists as it has said more than once in its report that its work is not one of criminal investigation but one concerning human rights.

But President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe talk of a domestic mechanism. When Parliament met on September 22 after a gap of three weeks, Wickremesinghe assured the House that the discussion would be centred around a domestic mechanism.

Even though the Chief Minister of the Northern Province, C.V. Wigneswaran, expressed happiness over the report hours after its release, the Tamil National Alliance (TNA) chief, R. Sampanthan, who became Leader of the Opposition in Parliament in early September, was more guarded in his response. For him, “implementation” is the key element and Geneva developments should form its basis. He also alludes to a set of proposals presented by Samaraweera in the UNHRC on accountability, justice and reparation and the U.N. High Commissioner for Human Rights Zeid Ra’ad Al Hussein’s observations at the time of the report’s release. The TNA leader feels that “international inputs” in the proposed investigation may become “inevitable”.

Sirisena has given an interesting twist to the events subsequent to the report’s release. At a rare joint briefing of the media along with Wickremesinghe and a host of other Ministers, the President said that but for a regime change in January, the report would have been more severe. Some representatives of the government went on record to say that but for the present regime’s actions Mahinda Rajapaksa’s situation would have been worse.

Expectedly, Rajapaksa was not pleased with the report. In a well-drafted response, he called upon the government to reject it and dismissed the government’s position that the document was less indicting than expected.

Even though it is not known as yet how the UNHRC will eventually take a decision on the mechanism, it is likely that the criminal investigation process will not be completely domestic.

German Foreign Minister Frank-Walter Steinmeier, who was in Colombo for a day in the third week of September, made it clear that there had to be “international assistance”. Samaraweera said what required to be finalised was the shape of such assistance and this would be done through consultations with “all stakeholders to this problem”.

Contentious issue

Judicial mechanism has been a contentious issue ever since the allegations of war crimes cropped up in May 2009. K.S. Ratnavel, a lawyer who has been pursuing cases concerning missing persons, holds the view that a credible mechanism is not possible because of Sri Lanka’s political reality and its competence to have one.

M.K. Shivajilingam, former Member of Parliament and TNA’s Councillor from the Northern Province, argues that justice had not been meted out to Tamils after the 1983 riots despite members of the Tamil community holding the positions of Supreme Court Chief Justice, Inspector General of Police, and Attorney General. “This is why we are for the International Criminal Court or an international criminal tribunal to go into the matter,” Shivajilingam said. But this is possible only with the approval of the U.N. Security Council, which is unlikely given the current international political situation.

Even before dealing with the issue of international assistance, Sri Lanka should be clear in one respect. It should display sincerity in resolving the basic Tamil problem, says Jehan Perera, director of the National Peace Council, a 20-year-old non-governmental organisation. Perera does not favour a hybrid system as otherwise “it would give us an excuse to undermine the process”.

If competence is an obstacle to carrying out a credible investigation, the international community can help Sri Lankans acquire capacity. What is more important is that “we have to do it on our own”, says Perera.

Trust deficit If a mechanism that is acceptable to both sides is worked out, this can also pave the way for a settlement of the basic Tamil problem. In a society characterised by a long-standing trust deficit, the political class across the spectrum and the intelligentsia should keep in mind that it is imperative for them to come together and demonstrate a sense of purpose and accommodation to resolve the problem. When that happens, one can be sure that peace is possible in Sri Lanka.