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Credible domestic investigations into war crimes allegations is neither anti-patriotic nor a sel...

Mar 6, 2011 7:27:30 PM- transcurrents.com

by Kalana Senaratne

The latest development that has the effect of exerting considerable pressure, not only on the government of Sri Lanka but also the US, comes in the form of a US Senate Resolution (S. Res. 84), dated 1 March, 2011. It is broadly aimed at ‘Expressing support for internal rebuilding, resettlement, and reconciliation within Sri Lanka that are necessary to ensure a lasting peace.’

The resolution recognizes the establishment of the ‘Lessons Learned and Reconciliation Commission’ (LLRC), it commends the establishment of the Panel of Experts by the UNSG Ban Ki-moon, and, inter alia, "calls on the Government of Sri Lanka, the international community, and the United Nations to establish an independent international accountability mechanism to look into reports of war crimes, crimes against humanity, and other human rights violations committed by both sides during and after the war in Sri Lanka and to make recommendations regarding accountability."

The above development coincides with the opening of the 16th Regular Session of the UN Human Rights Council in Geneva. The UNSG-Panel is expected to finalize its report and provide advice to the UNSG. The LLRC too is supposed to finalize its own report or recommendations in the course of the next couple of months.

The Senate has made an unambiguous statement. Interestingly, representatives of the US government have done the same, on the issue of accountability; as Robert O. Blake, Assistant Secretary for South and Central Asian Affairs did, in a recent AFP-interview. Asst. Sec. Blake, highlighting the UN figures concerning the number of civilian deaths alleged to have taken place, states the importance of carrying out an investigation: "Those need to be investigated, preferably by the government of Sri Lanka and its own institutions." Having noted the work of the LLRC, he reiterates the above point, stating that "there are still a number of important steps to be taken, and our preference is that the Sri Lankans themselves take these. It’s always best for a host nation to take responsibility for these sensitive issues."

Now, there is much to be said about some of the issues raised by Asst. Sec. Blake, and there’s much more to be said about the kind of hypocrisy exhibited by such powers as the US on this topic of ‘accountability’. But it is necessary to recognize and bear in mind what these sentiments are meant to express in different words: the inability or unwillingness of a government to carry out an investigation concerning the allegations of civilian deaths leveled by the UN and other states such as the US; an inability or unwillingness from which arise serious legal and political ramifications, internationally. Where there is an inability or unwillingness to prosecute through domestic mechanisms, international law and international mechanisms come into play; as the principle of complementarity would suggest.

Interestingly, the External Affairs Ministry, in its comment on the Senate resolution (dated 4 April 2011), states the following: "It is a universally accepted legal principle that consideration needs to be given to international measures, only when national domestic recourse is unavailable." The EAM statement recognizes an important point, but the problem in Sri Lanka is not necessarily one of ‘unavailability’. Rather, the problem has to do with the proper and efficient functioning of domestic mechanisms which are already available. To restate the obvious, the mere availability of mechanisms does not resolve the problem of accountability.

It is the responsibility of the government to ensure that the mechanisms already available and established in the country are functioning effectively, which would have helped the state to answer the criticisms and allegations leveled against it and the Armed Forces. Emerging from its victories in May 2009 (the comprehensive defeat of the LTTE as well as the defeat of the Western-backed resolution at the UNHRC in Geneva), the government would have done well to act more responsibly regarding the need to ensure accountability, by carrying out proper investigations and inquiries into allegations of crimes committed during the final stages of the armed conflict, in particular.

One serious problem that gives rise to this seeming inability or unwillingness to carry out domestic investigations is the flawed perception that a domestic investigation is either anti-patriotic, or amounts to a ‘sell-out’ of the hard earned victories of the Armed Forces. A domestic investigation which is meant to investigate ‘allegations’ (note: ‘allegations’) cannot amount to a ‘sell-out’. If such an inquiry amounts to a ‘sell-out’, then the ‘selling-out’ took place a few years ago, when the present leadership decided to set up the ‘Udalagama Commission of Inquiry’. Also, if such inquiries were anti-nationalist or anti-patriotic, how could this very leadership have gone a step further and established that ‘International Independent Group of Eminent Persons’ (IIGEP), which was meant to observe or oversee the work of the national commission? It is therefore difficult to buy the ‘sell-out’ argument, or the anti-patriotic one.

What now? Much depends, at the moment, on what the UNSG-Panel has to say, and importantly, on what the LLRC has to say about the need or otherwise of domestic inquiries and investigations. It is still hoped that the LLRC will take a responsible and bold stand and make recommendations that will address the issue of accountability. A member of the LLRC, HMGS Palihakkara, recently stated during a lecture that we need to "preserve the independence of the local mechanisms created and to show to those who voice their concern on accountability issues, that the government is serious about addressing them." One is yet to see how this important message is translated into concrete recommendations when the report is released. The task is difficult, for it needs to be ensured that the next time commissions of inquiry are set out, they don’t turn out to be grand flops, like some of the commissions established in the past.

Another argument raised by some, especially in the Opposition, is that a political solution would be adequate to avert the pressure being exerted on the government to carry out investigations. This could be true, but it is questionable as to what this ‘political solution’ will turn out to be, and how long it will take for the political leadership to present or devise a ‘political solution’ that negates the necessity of an accountability process. UNP MP Lakshman Kiriella, who made some valuable remarks during a press conference recently (about the need to admit mistakes that may have been made, and desist from uttering the unbelievable, i.e. civilian casualties’) states that the UNP is ready to support the government. But what is its policy, really? What is the position of its ‘emerging leadership’ on the form and nature of this ‘political solution’? What of the Tamil political parties?

Finally, in that interview, Asst. Sec. Blake was asked an interesting question. The question was whether there is any way of getting past the question of accountability: is there a possibility to "sort of sweep it under the carpet and say okay look, start on a clean slate. Is there a possibility of that?" Asst. Sec. Blake replies: "I don’t think you can sweep it under the carpet."

‘Political solutions’ don’t fall from the sky. Carpets are tricky things too, especially if they are magic carpets that suddenly take flight, exposing everything hidden underneath. Ensuring accountability is essential, and if the government procrastinates, it will be doing so at its own peril. Sri Lanka cannot be seen to be unable or unwilling to investigate, not only because conclusive evidence that affirms its inability or unwillingness gives rise to serious consequences, but also because it will make the country look like a replica, a South Asian dummy, of Asst. Sec. Blake’s very own USA (what an awful prospect, that).