by Kalana Senaratne
The past record of Sri Lanka’s commissions of inquiry has been so poor that ‘failure’ seems to be the predominant ‘home-grown’ quality of those commissions. Hence, there is naturally a great degree of skepticism shown when a government announces the establishment of a new commission (‘yet another commission’), even the establishment of the ‘Lessons Learnt and Reconciliation Commission’ (LLRC).
All governments (including the present one) are responsible for this state of affairs. These were some of the critical views expressed by this writer elsewhere (and by others), when the LLRC was established. The presumption that the LLRC or other commissions are bound to fail (given the past record of commissions) is, it is admitted, a rebuttable presumption; so, the LLRC and the government can always prove their critics wrong.
Yet, the LLRC process has begun. Even though the government may be disingenuous, the members of the LLRC have so far shown that they are not. A number of groups and individuals (respected former public servants and diplomats, senior journalists etc.) have appeared before the LLRC and made very useful submissions. Some civilians who were directly affected during the last stages of the war have come forward and stated their version of what happened; about how they were held as part of a ‘human shield’ by the LTTE, but also about how the government forces carried out certain attacks. It’s within this context that an invitation to appear before the LLRC was extended to Amnesty International (AI), Human Rights Watch (HRW) and the International Crisis Group (ICG). Having raised some important issues in their joint letter, these organizations have proceeded to reject the invitation; stating that they would be pleased to appear if a "genuine and credible process" is established featuring, inter alia, "truly independent commission members."
Two important issues arise here. Firstly, why would any organization seriously and genuinely concerned about human rights protection reject such an invitation and opportunity? Secondly, what do these groups mean by "truly independent", and do organizations which are not ‘truly independent’ have a legitimate right to reject such an invitation citing the alleged lack of independence of the body before which they have been invited to appear?
Reluctance to appear before the LLRC: why?
AI, HRW and the ICG seem to have believed that by accepting the LLRC’s invitation, the LLRC process would gain greater legitimacy. But why should these organizations overly worry about that? Those heading these organizations should have been mature enough to know that mere cooperation does not necessarily make the LLRC process legitimate or acceptable; which depends ultimately, not on the status of those who appear(ed) before the LLRC, but more on the final outcome; i.e. on the final recommendations and findings of the LLRC and how they would be implemented by the government. Take the case of the Udalagama Commission of Inquiry. The mere involvement of the International Independent Group of Eminent Persons (IIGEP) did not mean that the Udalagama Commission was legitimate or successful, because it ultimately failed and ended abruptly. So no one can today point out that the Udalagama Commission was legitimate or successful very simply because the IIGEP was part of that process.
Hence, what this reluctance to appear before the LLRC suggests is that these organizations are not entirely confident of defending its position before the LLRC; which casts a lot of doubt on the veracity and credibility of the accusations leveled by them regarding alleged war-crimes committed especially by the Government forces, during the final stages of the war. Since those who were held as a ‘human shield’ by the LTTE have now come forward and stated their views of what they think happened during the final stages of the war, these organizations should have come before the LLRC and perhaps corroborated such allegations. Why then, if not for the above, reason, did these organizations reject such an excellent opportunity?
Being ‘truly independent’
Legitimacy also depends on the independence of the members of the commission. This is undoubtedly true. But it is only ‘truly independent’ groups which could legitimately raise this argument and thereby decline an invitation to appear before the LLRC.
Firstly, AI, HRW and the ICG accuse two members of the LLRC (including its chairman) of prejudice, since they had previously defended governmental action. In doing so, these organizations go on to state that there is no member who is known for taking "independent political positions." But these organizations seem to be unaware of the fact that one member of the LLRC (a member of the prestigious International Law Commission) was even accused some time ago by certain nationalist groups (which are part of the government today) for being a signatory to a report of experts which assisted the APRC process. And apart from that, by labeling all those who had been involved in governmental activity as persons not holding ‘independent political positions’, are these organizations trying to say that all those in the non-governmental sector hold ‘independent political positions’?
More importantly, what is it to be "truly independent", as required by AI, HRW and the ICG?
For instance, since these groups accuse that some members have defended the Government during the final stages of the war, are these groups then suggesting that the LLRC should consist of those who think that the Government forces did commit war-crimes? Do these groups then want something in the nature of the Goldstone Fact-Finding Mission, which was initially set up by the Human Rights Council to investigate alleged war crimes committed by Israel, during the Gaza-bombings? Because in that case, prior to their appointment, ALL of the members (4) had publicly stated that in their view, Israel had committed, or was in the process of committing, war crimes, and that they were shocked to the core. So while I do understand the concerns raised by AI, HRW and ICG concerning the importance of ‘independence’, they would need to clarify whether they want those who directly accused the Government of having committed war-crimes in the LLRC. If such members were present, would these organizations have appeared before the LLRC?
Or does Amnesty International (AI), for instance, want a ‘Lord Hoffman’ within the LLRC? I am referring here to the first House of Lords (UK) judgment of November 1998 in the case of Senator Pinochet, where AI intervened to ensure that Pinochet was not entitled to claim immunity for crimes against humanity (especially torture). Two judges held that Pinochet was entitled to claim immunity, but three held he was not so entitled. Lord Hoffman, interestingly, belonged to this latter group of three. But after the judgment was delivered, it was revealed that Lord Hoffman was a director/chairperson of Amnesty International Charity Limited which undertook aspects of Amnesty International Ltd (AIL) and had even helped in fund raising appeals for AI. So, the entire order of November 1998 was set aside and a re-hearing took place; since a judicial committee of the House of Lords held that Lord Hoffman should not have sat on the case, since there was the appearance of bias. So, does AI, or the rest, want members within the LLRC who have some interest in their organizational activities? Is that the yardstick with which these groups measure ‘independence’?
Or would these organizations which are unwilling to cooperate due to the alleged lack of independence shown by the LLRC’s chairman (due to his involvement in the Udalagama Commission-IIGEP process) also express dissatisfaction concerning the UNSG’s Panel of Experts?
Kate Allen, director of AI (UK), has reportedly stated that the UNSG-Panel was "an important first step" but "falls short of what is actually needed" (i.e. an international investigation). But surely, if the LLRC Chairman can be accused of ‘bias’, then AI should also accuse the Chairman of the UNSG-Panel of possible ‘bias’; because both of them were involved in the same Udalagama Commission-IIGEP process.
The argument raised here is certainly not that commissions should consist of members who are not independent. But rather, the argument is that the very organizations which are not ‘truly independent’ (and so accused by so many international observers) have no moral right to reject invitations to appear before commissions under the pretext that that commission consists of members who are not independent. After all, the LLRC is not a judicial body or a court of law, and it had only asked these organizations to appear before it and make submissions (as many others have already done) and explain more fully the accusations they have leveled against the armed forces and the LTTE. And if these organizations are to appear only before ‘truly independent’ commissions, they would need to cite when and where in this world such ‘truly independent’ commissions were ever established, where none of the members even remotely appeared to be biased or prejudiced.
This writer certainly appreciates the work done by organizations such as AI and HRW around the world (which is certainly not a popular sentiment that many share in Sri Lanka!). The reports of these groups which contain accusations leveled at a number of governments (including Western governments, which is why the West is so peeved by these groups at times) and non-state actors, if credible, will continue to play a most important role in raising awareness of the human rights violations and other atrocities that such state and non-state actors commit.
But certainly, these organizations also need to be somewhat self-critical and accept their own limitations and prejudices, for they are not the most perfect paragons of virtue they often consider themselves to be. Therefore, very serious and genuine concerns arise due to the reluctance shown by AI, HRW and the ICG to appear before the LLRC. This inability or unwillingness to appear before the LLRC shows that these organizations fear of being exposed under pressure, which should not be the case if they are confident of their version of the story, and their sources.
It’s becoming clearer by the day then, that the overarching purpose of these organizations is to denounce and defame those who gave the political and military leadership to a country which defeated one of the most brutal terrorist organizations in the world. It is also clear that they too are being ‘political’ and ‘selective’ in handling human rights issues around the world. These organizations should have acted far more responsibly to refute these accusations.
Amidst all that, one also noticed the rather sad and ironic spectacle of Kate Allen urging the British Foreign Secretary William Hague to demand an independent international investigation into alleged war crimes in Sri Lanka, during his meeting with Sri Lanka’s Foreign Minister, Prof. GL Peiris.
Mr. William Hague will surely feel very uncomfortable, since his Prime Minister Nick Clegg has stated that the Iraqi invasion was illegal and still, after British troops had been accused of so many crimes (which deserved an international investigation) their main response was to establish a ‘Lessons Learned Commission’ (chaired by Sir John Chilcot) that simply looks into "the UK’s involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned."
(Kalana Senaratne is a postgraduate research student at the Law Faculty of the University of Hong Kong)