‘The findings are independent of political considerations’

Interview with Ravina Shamdasani, OHCHR spokesperson.

Published : Sep 30, 2015 12:30 IST

Ravina Shamdasani.

Ravina Shamdasani.

RAVINA SHAMDASANI, spokesperson for the Office of the United Nations High Commissioner for Human Rights (OHCHR), visited Sri Lanka when the 30th session of the U.N. Human Rights Council had just begun. In Colombo on the day of the release of the much-awaited report of the OHCHR Investigation on Sri Lanka (OISL), she explained the salient features of the report. She emphasises that “all the transitional justice mechanisms are designed through full, broad consultations with a wide range of stakeholders, in particular victims and witnesses of violations”. Excerpts from an interview:

How different is the UNHRC investigation on Sri Lanka from its investigations in other countries?

Each investigation by the U.N. Human Rights Office follows a clear methodology that has been established over the years through successive inquiries. Confidentiality and witness protection are key pillars of the investigation, as is the need to corroborate information gathered. In the case of Sri Lanka, the mandate given by the HRC was a broad and comprehensive one, enabling the investigation to cover a nine-year period, to investigate violations committed by both parties to the conflict as well as to establish much deeper and long-standing patterns of violations. Lack of access to the country was a constraint, as was the reticence of some victims and witnesses to come forward due to intimidation and threats by the previous regime. We were able to conduct a comprehensive investigation nonetheless, with more than 3,000 written submissions, interviews in 11 countries, photos, videos and satellite imagery with expert analysis.

What is your response to the criticism that the report has not dealt with the issue of “genocide” comprehensively?

The legal analysis in the report is based on its extensive findings. On the basis of the findings, we can say that there are strong indications that war crimes and crimes against humanity were most likely committed by both sides to the conflict. The crime of genocide requires specific objective and subjective elements [laid out in paragraphs 202-203 of the report]. On the basis of the information we were able to gather, we did not come to the conclusion that these elements were met. This does not preclude such a finding being made as a result of further criminal investigations, including [an investigation] by the hybrid court that we recommend.

Given the fact that many key LTTE members are no more or that their whereabouts are not known, is it possible to unearth its role completely in the alleged crimes?

It is true that the victims’ right to justice has been compromised by the fact that many key LTTE personalities were either killed or were subjected to enforced disappearance as the war ended. However, the OISL did make findings of a very serious nature with regard to the LTTE, including unlawful killings such as roadside bomb [attacks] and assassinations; abduction and forced recruitment, particularly of children for their use in armed conflicts; of the LTTE operating military installations in close proximity to civilian areas; and of compelling civilians to stay in areas of active hostilities. Crimes of an international nature were committed, and it is important that criminal investigations seek to establish individual criminal responsibility, including [crimes committed] through the command structures, the financiers, the political leadership, as well as the lower-level perpetrators of violations.

It is possible that other states may in the future launch their own prosecutions of LTTE members involved who may now be residing in their territory [respective countries]—indeed, in one such case in the Netherlands, five LTTE fundraisers were recently jailed. We also hope the report will provoke reflection and debate in the Tamil community and diaspora and that Tamils everywhere will face up to the reality of the abuses committed in their name by the LTTE.

What would be your suggestion to address concerns in certain quarters, especially among sections of Tamil leaders, that a hybrid mechanism might not work?

Given the findings of the report and the current context in Sri Lanka, the High Commissioner believes that the next stage of investigation and prosecution would be best taken forward by a combined hybrid mechanism, with international and local judges, prosecutors, lawyers and investigators. A domestic inquiry will have little chance to succeed given the lack of trust on the part of victims and the unfortunate reality that the Sri Lankan justice system is just not ready or equipped to handle international crimes of this nature.

For this process to succeed, there needs to be buy-in, in particular from the victims on all sides. It is crucial that all the transitional justice mechanisms are designed through full, broad consultations with a wide range of stakeholders, in particular victims and witnesses of violations. The mechanism needs to be designed to succeed, to learn from the successes and failures of other such hybrid courts. The security of witnesses in any process will be paramount.

How do you respond to the observation made by President Maithripala Sirisena that but for the change of government in January this year, the UNHRC report would have been more severe? Do you think that the basic findings of such an investigation undergo drastic changes taking into account political realities?

The findings of the report were based on a painstaking, comprehensive study of all the materials that were compiled in the course of the investigation, as described above. The findings are independent of political considerations and are fact-based and corroborated.

As for the recommendations, the High Commissioner’s call for a hybrid court and his other important recommendations to take transitional justice, institutional reform and legal reform forward in Sri Lanka—these certainly took into account the very welcome commitments by the Sri Lankan government. At this stage in Sri Lanka’s history, these are the best recommendations for the way forward. This is indeed a historic opportunity, and we hope the government and the international community, in particular those states with influence in this matter, will firmly grasp this opportunity to accompany Sri Lanka in its road to a society firmly grounded in the rule of law.

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