By Kalana Senaratne
Ensuring ‘accountability’ is important, but doing so is a complex task. Who is to ensure accountability, when, where, how? - are questions which have always aroused serious debate, and will do, in the future. While there may be no ‘independent/internal’ investigations, one need not be starry-eyed about ‘independent/international’ investigations
For example, ‘Nuremburg’ was an important start, but was never a suitable model. What, for instance, is ‘international’ and who decides the form and nature of this mechanism? Can we go with Chinese/Russian investigators, and if so, would they be independent? Can we go with US/UK investigators, and would they be independent? Also, can we simply investigate the ‘last stages’ of the armed conflict? What about India’s role in the conflict, and are we to forget the manner in which India nurtured armed groups hostile to Sri Lanka? Are we to investigate only the leaders (of the present regime) who defeated the LTTE, but not those of previous regimes who may have contributed to the prolongation of the armed conflict for so long?
‘Accountability’, yes: but when and why? When ‘peace-talks’ took place, wasn’t ‘accountability’ necessary? Were we not asked to forget ‘accountability’ in the name of peace? Had there been a serious ‘accountability’ process which prosecuted those alleged to have committed serious crimes, would the LTTE’s top leaders been able to discuss ‘peace’, unless negotiations were to be held inside prison? Wasn’t that why peace-facilitators ignored the importance of ‘accountability’? But suddenly, when one party is eliminated, there emerges the need for ‘accountability’. And then, the government states what the peace-facilitators stated then: forget ‘accountability’, let’s move on.
The manner in which this ‘accountability’ issue was approached by past regimes and the peace-facilitators has been disturbing. The true intentions of all these actors are questionable. Yet, ‘ground realities’ need to be acknowledged - but, not to the extent of saying that ‘accountability’ is totally unnecessary.
In short: a serious internal or international accountability mechanism will not succeed in the present context, and that needs to be accepted and acknowledged. The more suitable (and under current circumstances, the most practical) option available is the establishment of a credible truth and reconciliation process, with maximum legal protection afforded to those who are willing to come before such a commission (i.e. victim/witness protection), with the so established commission having no powers to prosecute. Opportunity should be provided to all those affected by the armed conflict, especially the Tamil people in the North and the East, as well as the Sinhala and Muslim people in those areas and elsewhere, to come before such a commission, without fear, and point out to all in the country the immense suffering they underwent due to a bloody conflict for nearly 30 long years. This seems to be the least divisive compromise that many people within the country would wish to arrive at, given recent developments.
What then of the report of the UN Secretary General’s Panel of Experts? How has the Government reacted, how has the UNP responded? What now: will everything end up at the International Criminal Court (ICC), or the UN Human Rights Council (UNHRC)?
UNSG and the Panel Report
The role of the UNSG Ban Ki-Moon has been a truly unfortunate one. Prodded, pushed and pressured by certain Western powers, and with hopes of being re-elected for another term, UNSG Moon established a Panel of Experts, thereby setting a serious precedent. The Panel was supposed to “advice him [the UNSG] on the issue of accountability” and to “look into 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” (as per the Statement attributable to the UNSG’s spokesperson, 22 June, 2010).
But, of course, didn’t the Secretary General of the UN really know what had to be done? Did he really need a Panel of Experts to tell him what he [the UNSG] should do about accountability, and that too, only in Sri Lanka? No. And if the intention was not to ‘investigate’, then why another Panel which only corroborates what is already stated by other organizations?
Therefore, it seems that the sole intention of establishing the Panel was not simply to receive ‘advice’, but to open up space for a more detailed report to be prepared which, in the eyes of certain influential members of the ‘international’ community, would have some persuasive authority since the report comes now in the form of ‘advice’ given to the UNSG. So, while the UNSG’s spokesperson stated that the panel’s advice (report) “will be available as a resource to Sri Lankan authorities should they wish to avail themselves of its expertise in implementing its commitment” and while many argued that the Panel’s report will complement the work of the LLRC for example, the UNSG-Panel’s Report complements more the work of the human rights organizations.
The Panel consisted of eminent persons. The only concern about the composition was that there still was that ‘appearance of bias’, given the inclusion of Mr. M. Darusman (even though he is undoubtedly a respected and eminent individual). And it needs to be noted here that this ‘appearance of bias’ taints even the LLRC. Critics of the Panel conveniently ignore this fact.
But of course, the most unfortunate aspect of the Panel is that it seems to have engaged in an exercise of simply re-writing the material they may have received from different sources, known and unknown. If the sources were the already known sources (e.g. AI, HRW, etc.), then why a new, detailed, report? If there are other additional sources, what are those sources? And were these latter sources the sources which helped the Panel determine “a very different version of the final stages of the war”? But then again, wasn’t that the version of other human rights groups as well? So we return to the question of ‘intention’ (not of the Panel, but rather of the UNSG): what was the real intention of establishing this Panel? The answer seems to be all too clear.
From the very beginning, the manner in which the government approached the issue of ‘accountability’ was deeply disappointing. One main argument raised by the government is: ‘accountability’ is unnecessary as no civilians were killed during the final stages of the war. An absurd assertion, given the fact that the group which the Armed Forces had to confront was a most ruthless terrorist organization in the world, which, during the course of its terror campaign, did its utmost, intentionally and deliberately, to blur the distinction between LTTE combatants and ordinary civilians. So it doesn’t make any sense, and is indeed illogical, if the government still states that however difficult the task was, not a single civilian was harmed. This argument raises serious questions about the true intentions of the government, and if any truth and reconciliation process is to succeed, the government needs to stop making such unbelievable, incredulous and absurd statements.
Also, the government has been unable to respond effectively and comprehensively to the numerous allegations leveled against the Armed Forces. It had enough time, since May 2009, to issue a detailed report on the allegations leveled against it (note, for instance, that even Israel issued a somewhat detailed report titled Gaza Operation Investigations: An Update, in January 2010 in response to the Goldstone-Report, highlighting, inter alia, that 150 investigations had been launched by the Israeli Defence Forces (IDF), pointing out that by the time the Goldstone Report was published, Israel was already investigating 22 of the 34 incidents contained therein.
Yet, the manner in which the government has handled many of the issues concerning ‘accountability’ and especially foreign policy has ceased to cause alarm. That is perhaps all that needs to be said, since much of this is stale news to any observer or follower of Sri Lankan politics.
ICC and the UNP
With the release of the UNSG-Panel report, debate on Sri Lanka and the ICC seems to be intensifying in certain quarters. The report does have, in the eyes of the Western powers, some persuasive authority, but whether Russia and China would think so is still very questionable (going by the statements already made by Russia, in particular). One reason why these two veto powers might not yet be ready to do a Sudan or Libya may be due to the fact that doing so would be an implicit acknowledgment, even endorsement, of the precedent set by the UNSG in convening a Panel, getting its ‘advice’, and making the ensuing report a tool which allows Western powers to exert pressure on small and less-powerful States.
Since Sri Lanka is not a Party to the Rome Statute, it cannot be brought before the ICC. Sri Lanka should either be a State Party, or the situation in Sri Lanka should be referred to the ICC by the Security Council. Even the Chief Prosecutor of the ICC cannot successfully launch an investigation proprio motu (as per Article 15 of the Statute), since Sri Lanka is not a State Party, and therefore does not fall within the jurisdiction of the ICC. It was the Chief prosecutor himself, Mr. Luis Moreno Ocampo, who stated somewhere in 2009 that he cannot do anything since Sri Lanka is not a State Party, and that one would have to convince the UNSC (see, video on YouTube, titled: ‘prosecutor for the International Criminal Court discusses the situation in Sri Lanka’).
Here, then, comes the United National Party (UNP), which has been quite fascinated by the Rome Statute. For quite some time, ever since 2009, the UNP (especially MP Mangala Samaraweera) has been tossing around an interesting claim. The recent version is contained in the UNP’s statement (The Island, 20 April 2011): “The people of a country can be subjected to the jurisdiction of the International Criminal Court only if the said country is a signatory to the Rome Convention … During the tenure of Mr. Ranil Wickremasinghe’s premiership in 2002, there was international pressure for Sri Lanka to be a signatory to this convention. However Mr. Wickremasinghe steadfastly refused” to sign.
The flaws contained in the statement above are obvious to anyone familiar with the fundamentals of treaty law, and the Rome Statute. For instance, a signatory is not a Party (a State becomes a Party only upon ratification or accession), and cannot be strictly bound by the provisions of the Statute. Also, this does not say anything about the power of the Executive President. Moreover, Mr. Wickremasinghe’s signature would have been immaterial had the UNSC decided to refer the matter to the ICC. Also, in any case, the crimes that the ICC could investigate are crimes committed after the Statute enters into force, i.e. 1 July, 2002, so obviously, the situation in 2002 was not so serious as to move the ICC (or the UNSC) to initiate an investigation in Sri Lanka.
Furthermore, the UNP does not state the following: that like in the case of Cote d’Ivoire, any government could, through a Declaration, accept the jurisdiction of the ICC (as per Article 12(3) of the Statute). Would, for instance, ‘President Ranil Wickremasinghe’ (note: this is a purely hypothetical case), under pressure from Western or other powers, accept the jurisdiction of the ICC, and enable the ICC to investigate the situation during the last stages of the armed conflict? If the intention of the UNP is to show that it is truly ‘patriotic’, or that its current leader is the great saviour of Sri Lanka, then it might be necessary for the UNP to state clearly that under no circumstances will it accept the jurisdiction of the ICC, anytime in the future too, through signature, ratification, accession or declaration.
Are we to return, then, to the UNHRC? Recommendation 4A of the UNSG-Panel Report is explicit: “the Human Rights Council should be invited to reconsider its May 2009 Special Session Resolution (A/HRC/S-11/1.1/Rev.2) regarding Sri Lanka, in light of this report.”
It seems that the UNHRC will be the forum that decides the true impact of the UNSG-Panel Report, at the geopolitical level. The recommendation shows how critical Sri Lanka’s ‘victory’ in May 2009 was, how strong an impact it had on the direction in which the debate on ‘accountability’ went. Is Sri Lanka ready to re-open, to revisit, the old debate? How confident is Sri Lanka of securing a ‘victory’, as she did in May 2009? What, for instance, does this tell us about the importance of the UNHRC, about the manner in which the Government of Sri Lanka acted soon after the ‘victory’ in 2009? In any case, if the UNHRC decides to revisit the matter, it will emerge as one of the most significant foreign policy challenges for the Government.
At present, the problem of ‘accountability’ seems to be set to be ‘resolved’, temporarily, at the UNHRC. It ought to have been ideally resolved in Sri Lanka, through a proper inquiry, through domestic mechanisms.
However, what remains to be done, at best, given the nature of the domestic situation, is the establishment of a credible truth and reconciliation process. Furthermore, serious measures need to be taken to ‘advance accountability’ in the short term. In this regard, the government would do well to implement the measures referred to in ‘Recommendation 2’ of the Executive Summary of the UNSG-Panel report. The short-term measures contained in ‘Recommendation 2’ are measures that can and should be adopted, irrespective of the serious concerns one may have with regard to the veracity of some of the accusations contained therein.