Report on Sri Lanka by the Ban-Ki-moon advisory Panel – 2
By D.B.S. Jeyaraj
Continued from last week
A diplomatic tussle is going on at present between the United Nations Secretary –General (UNSG) and the Government of President Mahinda Rajapaksa over the release of the report compiled by the three-member advisory panel appointed by Ban Ki moon. This is not a fresh development but only an extension of the “cold war” that has been continuing ever since Ban Ki moon visited Sri Lanka in May 2009 after the war against the Liberation Tigers of Tamil Eelam (LTTE) was concluded.
President Mahinda Rajapaksa & UN SG Ban-Ki-moon
The UN SG along with influential western nations has been trying hard to get Sri Lanka to set up an accountability mechanism and conduct inquiries into the final phase of the war. The Government of President Mahinda Rajapaksa for reasons of its own has been resisting such efforts strenuously.
Despite this stance adopted by Sri Lanka , past events display a seeming lack of cohesion on the part of Colombo in dealing with the issue. It appears that Sri Lanka had no clear consistent policy on this matter and often see-sawed between rigid and flexible postures in this regard.
The high watermark in Sri Lanka’s diplomatic prowess was the victory it achieved in Geneva at the UN Human Rights Council conclave in May 2009. Sri Lanka with the help of friendly nations not only defended itself effectively against a resolution brought against it but also succeeded in getting a “counter resolution” favourable to it passed.
That resolution described as the “Geneva consensus” was carried by twenty-nine votes to twelve with five abstentions in the council comprising forty – six member states. The architecht of that diplomatic achievement was Sri Lanka’s envoy to the UN in Geneva,Dr.Dayan Jayatilleka. However, in a baffling move,Dayan Jayatilleka was recalled to Colombo within weeks of that diplomatic triumph.
Jayatilleka was also responsible for resisting UN pressures on Sri Lanka and stridently articulating the viewpoint of Colombo in the corridors and halls of Geneva. One recalls the cutting remark made by Jayatilleka to former UN Human Rights chief Louise Arbour when she kept on pressing Sri Lanka to agree to the setting up of a UN field office on Human rights in the Island as was done in Nepal. Jayatilleka asked Arbour “Which part of “NO” do you not understand”?
The flamboyant Jayatilleka with his ebullient mode of expression kept the Lankan flag flying at Diplomatic fora without complying to international diktat. All UN efforts to force Colombo to set up an accountability mechanism were rebuffed by him. But things changed soon particularly after his recall.
HMGS Palihakkara with UN SG Ban-Ki moon
It was our representative at the UN in New York, HMGS Palihakkara who first agreed to consider the appointment of a domestic accountability mechanism at a UN basement discussion.This consent to consider a domestic accountability mechanism was apparently made to Susan Rice the US representative at the UN.
In fairness to Mr.Palihakkara, it must be said that the seasoned diplomat made such a decision only as the best option available in a tricky situation. This was a time when strong moves were afoot to place Sri Lanka on the agenda of the UN security council. Although Sri Lanka’s friends Russia and China could always veto any adverse resolution there was no way in which they could have prevented the Sri Lankan issue being placed on the agenda and being discussed.
It was this prospect which perhaps made Palihakkara resort to the option of agreeing to consider a domestic accountability mechanism. This was a hard choice made with the best interests of the country at heart. On the one hand it avoided Sri Lanka being placed on the UN security council agenda and undermined pressures to launch an international probe , on the other.
The flexibility displayed by the Sri Lankan ambassador to the UN at New York was a departure from the rigidity adopted by the Sri Lankan ambassador to the UN at Geneva. Whatever the merits of this move the “consent” given was a boost to the international community pressuring Colombo. It also indicated that Colombo did not possess a precise strategy on the matter and was resorting to ad hoc tactical moves whenever suitable.
The Rajapaksa regime however did not give in readily to pressures on the setting up of a domestic accountability mechanism despite the view expressed by Palihakkara in NY.It continued to procrastinate. This delay was in a sense typical of a stratagem followed by President Rajapaksa in dealing with certain types of situations. It is best described in Sinhala “Porunthuwela Enda; passa balamu” (Promise and come; we’ll see later)
This resistance was annoying perhaps to Ban Ki moon who was beginning to get impatient. In March 2010 the UN Secy –gen announced his decision to appoint an advisory panel to delve into the final phase of war in Sri Lanka and submit a report to him.
This sparked off heated protests from Colombo. A legalistic position was taken that the UN secy –gen had no authority or mandate to appoint a commission of this type as the UN security council or General council had not sanctioned it. Ban Ki moon countered it by saying this was not a UN panel but only an advisory panel responsible to him.
After weeks of exchanges both private and public the Sri Lankan Govt announced the appointment of a commission in May 2010.It’s terms of reference however were different to what was specifically being demanded.The Lessons learnt and reconciliation Commission (LLRC) was to go into events from the cessation of hostilities accord in 2002 between the United National party (UNP) led Govt and the LTTE up to the war ending in May 2009.
On May 6, 2010, the Sri Lankan government announced that it will establish a commission to report on the lessons learned from the conflict and reconciliation efforts. In a statement posted on the government’s website, the government announced that “there will be the [sic] search for any violations of internationally accepted norms of conduct in such conflict situations, and the circumstances that may have led to such actions, and identify any persons or groups responsible for such acts.” The statement said nothing about holding such persons accountable under Sri Lankan criminal law or what other steps would be taken against those found to have been acting in violation of Sri Lankan or international law.
On May 10, the US ambassador to the United Nations, Susan Rice, welcomed Sri Lanka’s intention to establish a commission on the war and listed several criteria that would need to be met for the commission to play a valuable role in advancing accountability for violations of international humanitarian law.
These criteria included independence, the impartiality and competence of the members, a proper mandate, adequate and effective protection for witnesses, adequate resources, and serious government consideration of the commission’s recommendations.
International Human Rights monitoring agencies such as the Amnesty International,Human Rights Watch and International Crisis Grop were sceptical and critical from the start.They declined an invitation by the LLRC to testify before it. These agencies opined that the LLRC was structurally flawed and functionally impaired and was more an attempt to deflect international criticism than genuinely investigate rights violation allegations.
External Affairs Minister Prof.GL Peiris & UN SG Ban-Ki-moon
On May 28th 2010 ,Sri Lankan External Affairs Minister Prof.GL Peiris met US secretary of State Hillary Clinton and impressed upon her the fact that the LLRC was the best mechanism for domestic accountability available under prevailing circumstances and assured Washington that an independent report would be forthcoming. Human Rights Watch however wrote to Clinton urging her to not let Sri Lanka continue with its climate of impunity.
Despite these moves and counter moves the LLRC did not commence sittings for quite a while. This lethargy was shed when Ban Ki moon in a controversial move went ahead with his earlier intention of appointing an advisory panel.
The official UN press release of June 22nd 2010 that announced the appointment of this panel stated as follows –”The Secretary-General has appointed a panel of Experts that will advise him on the issue of accountability with regard to any alleged violations of international human rights and humanitarian law during the final stages of the conflict in Sri Lanka”.
It’s terms of reference at the time of appointment as outlined in the official press communiqué were –
“The panel will advise the Secretary-General on the implementation of the commitment on human rights accountability made in the Joint Statement issued by President [Mahinda] Rajapaksa of Sri Lanka and the Secretary-General during the latter’s visit to Sri Lanka in May 2009. It will look into the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka. It will be available as a resource to Sri Lankan authorities should they wish to avail themselves of its expertise in implementing the commitment”
The official statement further said “In the conduct of its mandate, the panel hopes to cooperate with concerned officials in Sri Lanka.It is expected to complete its advisory responsibilities within four months of the commencement of its work.The Secretary-General remains convinced that accountability is an essential foundation for durable peace and reconciliation in Sri Lanka. Through the panel the Secretary-General expects to enable the United Nations to make a constructive contribution in this regard”.
The three members of the panel were Marzuki Darusman ( Indonesia), Chair; Yasmin Sooka ( South Africa); and Steven Ratner ( United States).The highly respected Darusman was a former Indonesian Attorney –General.He had also been the UN special rights investigator for North Korea. Yasmin Sooka was a former member of the commission that investigated apartheid atrocities in South Africa. Steven Ratner is an American lawyer and author of a book on the struggle among nations to hold people accountable for human rights abuses
The appointment of the advisory panel was met with stiff opposition by Sri Lanka. The appointment of Darusman as chair was particularly controversial. President Rajapaksa had earlier in 2006 appointed a commission of inquiry to probe fifteen cases of alleged human rights violations.
Rajapaksa also appointed a panel of international experts to observe proceedings of the Presidential commission of inquiry. This panel comprising ten persons was called the International Independent group of Eminent persons (IIGEP). Darusman was a prominent member of the IIGEP panel. The Sri Lankan Attorney –General at that time was Chitha Ranjan de Silva(CR de Silva)
Darusman had objected to some aspects of the conduct of CR de Silva during proceedings. The Attorney-General’s conduct was cited as the main reason for the IIGEP to pull out of proceedings. Apparently Darusman was the driving force behind the pull – out from monitoring the inquiry proceedings. The IIGEP stated that it had “not been able to conclude…that the proceedings of the Commission have been transparent or have satisfied basic international norms and standards.”
Now the very same Darusman was chair of the advisory panel. By a quirk of fate the head of the LLRC was none other than CR de Silva. The one time prop forward who captained the Royal College Rugby team in 1968 is known in rugger circles as “Bulla”.
Nominating Darusman was perceived as a deliberate move by Ban Ki moon. Darusman was suspected (unfairly perhaps)of being partial and against Sri Lanka on account of his role in IIGEP proceedings.Likewise the other two members were also vilified as being partisan. Sooka because of her African National Congress connections was seen as being pro-LTTE. Ratner was seen as prejudiced against Sri Lanka due to some of his writings in his book
What was lost on those castigating Darusman, Sooka and Ratner as not being impartial was the fact that by the same yardstick the same charges could be laid out against the LLRC chairman and some other members also because they too had held or were holding official posts and thus could be deemed as not being impartial.
Such slandering on flimsy grounds is unacceptable. The members of both the LLRC and the Ki moon advisory panel are persons of integrity whose independence and impartiality deserves respect unless and until proved otherwise.
The announcement that an advisory panel had been appointed by Ban Ki moon triggered off a wave of protests in Sri Lanka. National Freedom Front (NFF)leader and Cabinet minister Wimal Weerawansa spearheaded demonstrations opposite the UN office in Colombo.While Weerawansa embarked on a “fast unto death” campaign demanding that the UN backtrack other demonstrators burned Ban Ki moons effigy. Demonstrators blocked entry and exit to the UN premises.When conscientious Police officers tried to stop this obstruction they were berated and allegedly reprimanded by higher authorities.
Weerawansa’s fast was called off after three days without his demand being granted. Apparently his health was decaying and President Rajapaksa himself asked him to call it off and symbolically ended it by giving Weerawansa water to drink.
The boisterous manner in which the protest was held and the rowdy behaviour of some demonstrators had a negative effect internationally. Earlier there was considerable sympathy for Sri Lanka among UN member states notably the non – aligned movement. These feelings however began dissipating after the Weerawansa led demonstration.
Ban Ki moon however continued to emphasise that this panel was only an advisory body set up to advise him and that it was not an official investigative body set up by the UN. He reiterated that the report was only to advise him and nothing further.
In spite of these assertions the Sri Lankan Govt vehemently opposed the move and declined to cooperate with the UN secy –gen in this. Sri Lanka refused to acknowledge the panel and refused to grant visas for the panellists to visit Sri Lanka.
Consequent to the protests against the panel the LLRC also geared up for action. The LLRC that had been nominated in May began to conduct proceedings in July 2010.Likewise the advisory panel appointed in June commenced work in September 2010. Richard Bennet the former head of the UN field mission in Nepal functioned as secretary to the panel.
Sri Lanka’s dismissal of the panel and strong views articulated conveyed the initial impression that the Island nation was going to stand firm on the matter. But as time went on it appeared that the Govt was not of a singular mindset on this. There seemed to be both hawkish and dovish tendencies within the establishment. While one school of thought wanted a confrontational attitude the other opted for a conciliatory approach.As a result there were conflicting signals.
On one occasion the Govt that had decided not to grant visas to the Darusman panel members was prepared to revise its stance.It was ready to allow the trio into Sri Lanka and observe LLRC proceedings. The panellists were also to be allowed to meet civil society representatives and political leaders. But they would not be able to hold investigations or conduct parallel sittings or participate in LLRC sessions apart from observing.
Predictably, these moves evoked a storm of protest from Weerawansa and others who had protested strongly against the panel being set up. Allowing the panellists into Sri Lanka was tantamount to tacit recognition they argued. The Govt was now in a quandary. But the crisis died down when Darusman and Sooka refused to attend LLRC sittings as mere observers. They wanted a more vibrant role. When this was ruled out the panel declined to visit Sri Lanka.
Another incident demonstrating the vacillating mindset of the Govt was in late February this year. A four member team representing Sri Lanka held a secret meeting with Darusman, Sooka, Ratner and Bennet in New York. Also present was Lynn Pascoe the UN under –secretary for Political affairs.Pascoe had apparently brokered the meeting.
The Sri Lankan team comprised former External Affairs ministry secretary Romesh Jayasinghe, Attorney –General Mohan Peiris, Sri Lankas permanent representative to the UN in New York Palitha Kohona and deputy permanent representative Shavendra Silva. The Sri Lankan delegation had also met with Ban Ki moon earlier in a publicised meeting. Subsequently Prof.GL Peiris confirmed at a press conference in London that a Lankan delegation had indeed met the panel. No further details were disclosed.
It is learnt however that the Sri Lankan delegation in the meetings with Ban Ki moon and his panellists had explained in detail the significant progress achieved by the LLRC so far. The delegation stated that the LLRC had been given a free hand and that the report would be independent, comprehensive and forthrightly impartial. The LLRC report would meet required international standards it was emphasised.
It is learnt that three specifically related requests were made on behalf of Sri Lanka.The first was that the panel delay finalising its report until the LLRC completed and released its report in May. If that was not possible the second request was that the UN SG not make the report available to the public. If that too was not possible then the third request was that the response of the Sri Lankan Govt to the report be obtained by the UN SG and released simultaneously with the main report
According to diplomatic sources Ban Ki moon had not agreed to the requests but said that he would consider them when making a final decision. Despite Ban Ki moon’s position there seemed to be a sense of optimism in Colombo on the matter. When President Rajapaksa met a gathering of newspaper editors some weeks ago he said that there would be no problem as long as the report was not made public. The president also pointed out that Ban Ki moon had appointed the panel to advise him and that it was an internal advisory report and not a public report.
The Darusman panel finalised its report on March 31st.Ban Ki moon however did not officially hand it over to Sri Lanka for nearly two weeks. Meanwhile neither the UN permanent representative nor deputy permanent representative were able to obtain an advanced copy through their personal influence as is usually the case in matters of this nature.
The UN apparently feared that mass demonstrations endangering UN employees were possible if and when the report was released. A mock drill was done on March 31st to educate UN employees on what to do if a crisis situation occurred. Finally It was on April 12th that the 196 page report was formally handed over to the Sri Lankan mission at the UN.
It is perceived that the timing of the handing over was calculated with the festive season of the Sinhala –Tamil April new year in mind. It is well-known that all things grind to a halt in the days preceding and following the traditional new year in Sri Lanka .It was felt perhaps that the chances of mobilising hostile demonstrators against the UN would be less during the festive season.
The move seems to have succeeded and so far there have been no demonstrations. The Govt too has announced that full protection would be given the UN and its employees in Sri Lanka in response to an appeal by the UN. One reason for the absence of demonstrations may be due to the fact that the UN has not officially released the report yet.Demonstrations may be held if and when that occurs.
The delay in the report being released officially by Ban Ki moon is because the Secretary –general has been awaiting an official response by Sri Lanka. He intends to agree to at least one request made by Sri Lanka and release both the report and response together.But Colombo is yet to convey its official response to contents of the report.
One factor that may be influencing Ban Ki moon in this respect is the experience undergone last year when a UN report on Rwanda was released. Details of the report were “leaked” to the media before the report was released officially .The Rwandan Govt was furious and threatened to pull out its troops from UN peace keeping forces in Africa.Ban Ki moon had to make a special trip to Kigali to cool passions.
Against that backdrop it makes sense for Ban Ki moon to release the report on Sri Lanka along with the official response.Hence the delay. As for Sri Lanka the situation is dicey because providing a response could be interpreted as accepting the report.
While an official release of the report was being anticipated – Sri Lanka being Sri Lanka – another unexpected development occurred. Details of the report began appearing in the media.In the case of Rwanda the report was allegedly leaked by UN circles In the case of Sri Lanka the leak or scoop (depending upon your perspective)was in the Island itself.
Revelations in the Sri Lankan media about details of the report stole the thunder from the long awaited official release by the UN. When journalists covering the UN complained to Ban Ki moon about the report being scooped the Secy –Gen in an official note explained that the leak was not in New York but in Colombo.
With a series of news stories revealing details of the report appearing in the Sri Lankan media the international media too began quoting them .Gradually the essence of the report in the form of the executive summary and details of other allegations have got into the public domain.
With the finger being pointed at the Sri Lankan Govt External affairs minister Prof .GL Peiris was quizzed on this at a press conference. Peiris denied Govt responsibility and pointed out that the Govt was seeking a non – release of the report and that leaking it to the media ran counter to such a stance. Sri Lankan officials in New York suggested that the leak was by the UN.
If indeed UN sources had leaked the contents it would have been to well-known International media and not the Sri Lankan media. Besides the news reports in Sri Lanka reveal a pattern.The allegations made against the Sri Lankan armed forces are being given prominence in a systematic manner. It appears that all these allegations would be rebutted vehemently in the relevant media in due course.
This shows that the Govt instead of cowering in fear against the UN triggered international onslaught has decided to face the challenge squarely even if not fairly.
Instead of letting the UN and international media publicise the allegations against Sri Lanka the media in the Island has been allowed to jump the gun. In a move akin to taking the bull by its horns an unorthodox but controlled exercise is underway to counter the criticism against Sri Lanka .How well this would fare remains to be seen but the premature publicity in the Sri Lankan media has negated the request by Sri Lanka that contents of the report should not be revealed.
Meanwhile the Govt is going ahead with other plans to counter the report. President Rajapaksa has called upon the country to express solidarity against international conspiracies by demonstrating together on May day or May 1st .While the Govt move to convert the day of workers into a political demonstration against the report has been criticised in some circles there is also an opinion that the President has prudently channelled the protest mood into a single demonstration instead of letting supporters run riot in an ad hoc manner.
The Govt has also appointed a four member team comprising Attorney – General Mohan Peiris and former diplomats Nihal Rodrigo, HMGS Palihakkara and Bernard Goonetilleka to analyse the report and prepare an adequate response. The Govt is very likely to incorporate the response into a White paper and submit it to Parliament
The Govt is also appealing to South Asian and Non aligned nations in this regard. A diplomatic offensive will be unleashed to solicit the support and solidarity of these countries including India and Pakistan. A campaign is on to obtain signatures from Sri Lankans protesting against the report
External affairs minister prof.GL Peiris met foreign diplomats stationed in Colombo and briefed them of the situation.Outlining the Govt position the minister appealed for support and solidarity from the International community in this respect.
The External affairs minister also held a press conference and lashed out.”The consequences to the UN by publishing the report are far from fortunate. The publishing of the report will inflict even greater damage on the UN system than for Sri Lanka. The UN is based on principles and this action compromises on these core values,” he said. “It is wrong to publish this report or take any steps based on the findings or recommendations of this report,” he further said.
The Minister also questioned the purpose of publishing a report that was sanctioned for an advisory purpose alone. “If this Panel was set up to advise the Secretary General then what need is there to make it public?” he queried.
Peiris further charged that UN Secretary General Ban Ki-moon was “transforming” the mandate of the body from an advisory one to an investigative one. “It was stated on six different occasions by the Secretary General that this Panel was a purely advisory one, why is it now being twisted to take on a role outside its mandate,” the Minister asked.
The Minister also reiterated the government stance that the Panel was not one sanctioned by the UN but rather a personal appointment by the Secretary General for advisory purposes. “The panel has overstepped its mandate and is not a formal UN body,” he said. He also refuted claims that the report had been forwarded to the Security Council.
When asked whether the UN had granted the government an opportunity to reply the Minister said that formulating a reply was an arduous task. “This report has been seven months in the making, how are we to reply to a 200 page document in a matter of days,” he asked.
Prof. Peries also claimed that the Sri Lankan government had no hand in leaking the report to the media. “This would be contrary to our self-interest. I am here asking them not to publish the report so what purpose would it serve us to have it made public” he questioned.
He further reiterated that the UN should allow for the Lessons Learnt and Reconciliation Commission to be allowed to fulfill its mandate by May this year.
“Will the release of this report build national unity in the country and further our process of reconciliation? These are the needs of the hour and the report will not serve any of these purposes, rather it will work contrary to these aims,” he said.
Peries said the report such as the Goldstone report on Gaza had been retracted by the author himself for being erroneous and drew parallels between this occurrence and Sri Lanka.
Defence secretary Gotabhaya Rajapaksa meets with Ambassador of the Russian Federation to Sri Lanka H.E. Valdimir P.Mikhaylov on Apr 20
While making a case out for itself and seeking international support the Govt is relying mainly on Russia and China to be of worthwhile assistance. If things get bad and the issue is taken up by the UN security council following the release of the report the expectation is that Russia and China would veto any anti – Sri Lanka moves. Defence secretary Gotabhaya Rajapaksa has in a media interview stated that Sri Lanka would be forced to turn to China and Russia if the UN did not protect its member states.
[L] to [R] Nirupama Menon Rao, Foreign Secretary of India, Robert O Blake, Jr., Assistant Secretary of State for South and Central Asian Affairs and former United States Ambassador to Sri Lanka and Maldives and William Hague MP – First Secretary of State, Secretary of State for Foreign and Commonwealth Affairs UK
While the importance of China and Russia cannot be underestimated the crucial and critical countries in this issue are the USA ,Britain and India. It is widely believed that the USA and Britain are firmly endorsing the UN moves in this regard. India on the other hand seems to be playing the role of a passive spectator as the great game unfolds. What further roles these countries would play or not play in the days to come would determine the course of events for Sri Lanka.
Sri Lanka however is persisting with efforts to prevent the report being released Although the UN had intended to release it officially on Thursday April 21st the decision was postponed. This was in deference to a request made by Prof. GL Peiris that the UN secy –gen should not release it until he discusses the issue with him.
Ban Ki moon has agreed to the request and a one to one discussion between Ban Ki moon and Gamini Lakshman Peiris has been scheduled for Saturday April 23rd. At the time of this article being written it was unclear as to whether the Sri Lankan external affairs minister would fly out to New York or whether there would be a New York – Colombo conversation on Skype. It is however clear that Sri Lanka is making a last ditch attempt to prevent the report being released to the public.
It remains to be seen as to whether Professor Peiris would succeed in convincing Ban Ki moon not to release the report. If Peiris fails in his mission it is very likely that the report would be released on Monday April 25th or early next week by Ban Ki moon.
DBS Jeyaraj can be reached on firstname.lastname@example.org
(pictures courtesy of Inner City Press, Defence.lk)