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Panel on Sri Lanka is not a move by Ban Ki moon and not the UN itself

Jul 4, 2010 7:21:44 AM- transcurrents.com

An Interview with Dr. Dayan Jayatilleka

By Manjula Fernando


Despite vehement protests by the Sri Lankan Government the UN Chief went ahead with his decision to appoint the proposed advisory panel on accountability issues. Can the UN disregard our protests backed by two veto wielding powers Russia and China as well as the NAM?


At the very outset I must emphasize that we have no problem with the UN. Though the Western media spins it as a move by the UN, Sri Lankan political responses and public opinion must not fall into that trap: this is not by the UN; this is an issue arising with the Office of the Secretary General. That vital distinction has to be drawn and observed. If someone were to have a problem with a Parliamentary official, say the Secretary-General of Parliament or the Speaker, it would be stupid to create an issue with the Parliament as a whole; as an institution which everyone would defend. Evidently, the UN Secretary General has gone ahead and done something which is highly selective and has precedent setting implications which are negative.

His action is not in keeping with the letter or spirit of the reference to accountability in the joint statement between him and the Government of Sri Lanka issued on May 23rd 2009. It misinterprets that statement. We must focus on that and not let things get out of hand. We must not let this turn into a battle between Sri Lanka and the UN. No country can take on the United Nations and expect support from any other country. If we resort to tactics like surrounding the UN office or demonstrating outside it, we shall generate adverse global coverage and play right into the hands of Sri Lanka’s enemies.

Q:The mandate of this panel has not been made public. The UN repeatedly says this is not an investigative body. If not, what is their stipulated role?

A: This constitutes a danger. There seems to be a definitional elasticity and a shifting of goalposts. The Western media seems to be spinning it as an investigatory panel. If it is merely an advisory panel on standards, modalities etc, why does it contain a US academic, formerly of the State Department, who is an expert not on post conflict ‘transitional justice’ but precisely on international law implications of ‘new borders’, the breakup of states and the emergence of new ones, and is also a published critic of sovereignty, the G 77 and China

Q: While the UNSG’s spokesperson has said the members of the advisory panel will not be travelling to Sri Lanka to question anyone since it is not an investigative body, the Head of the Panel has said that it is unfortunate if they will not be allowed in. What can we derive from these conflicting statements?

A: Yes, these conflicting statements are worrisome and could indicate a shifting of goalposts. Of course the remarks of the head of the panel are quite understandable and may have been made with the best of intentions. He may think that closer engagement with and by Sri Lanka would be mutually helpful. I must add that Mr. Darusman is from Indonesia, a Third World country and Non Aligned pioneer which is a close and helpful friend of Sri Lanka. In our reactions, we must not alienate public and governmental opinion in such a country. This is true also of South Africa, a respected and influential Non Aligned country from which the second panellist comes.

Q: There is a rumour that this body could be a precursor to a UN war crimes investigation on Sri Lanka. Is it possible that the findings of this body could be used in such a way to establish a war crimes probe?

A: This cannot be ruled out. Mr. Haq, a UN spokesperson has already used the word ‘atrocities’ and the slippery term ‘first step’ to describe the panel and its role. He is quoted in the international press as having said “The conflict ran for decades, and during that period many atrocities took place... While there is a legitimate need for a thorough inquiry into the entire conflict, it was felt that as a first step it would be necessary and practical for the Secretary General’s panel to focus on the final stages of the war.” This is alarming! That is why it is important to be aware of all possible scenarios including the worst-case ones, and launch a truly global - I would say ‘planetary’ diplomatic outreach to mobilize forces on all fronts against any such possibility.

What is most vital however is to get our own act together, to clean up our act on the domestic front especially on issues of human rights and democratic freedoms, inter-ethnic political reconciliation, and trust-building between the Sinhala and Tamil communities. This would make us far less vulnerable to external moves.

Q: Can Sri Lanka be satisfied with the impartiality of the three members of this panel?

A: As I said earlier, I am unhappy with the mismatch between the supposed mandate of the panel and the profile and background of some members of the panel whose area of acknowledged authority has nothing to do with the stated purposes of the panel.

The problem stems from the unilateralism and lack of transparency on the part of the UN Secretary General’s Office in setting up this panel. I am also alarmed at the highly elastic statement of the UN Secretary General’s spokesperson.

Q: Is it a prerogative of the UN Chief to take such a unilateral decision and can the recommendations be legally binding?

A: Well he has gone right ahead and done it and it is neither being reversed nor challenged. This is dangerously uncharted territory, territory without precedent, so one does not know what the status of the outcome - the product of the panel’s deliberation-will be. This could be merely the thin end of the wedge.

There could be a chain reaction. Luckily we have a top legal scholar as our Minister of External Affairs. We should harness top Sri Lankan jurists such as Justice Christie Weeramantry and Dr. Rohan Perera in the effort to analyze, pre-empt and combat such possibilities.

Q: Sri Lanka’s Foreign Minister has reiterated to the visiting UN Under Secretary General for Political Affairs Lynn Pascoe that it was unethical for Moon to appoint an external body to advice on Lanka when there was an internal mechanism at his disposal. Why, in your opinion, was he adamant to appoint such a panel?

A: Secretary General Ban Ki-Moon says he is going by the Joint Statement signed in Colombo by him and the Government of Sri Lanka at the conclusion of his visit on May 23rd 2009. We may surmise that he believes that Sri Lanka has not stood by the agreement contained in that statement.

In this regard it cannot be ruled out that he was probably influenced by an important element within Western states. He probably perceives a need for their support when he comes up for a second term next year. These elements themselves could have been influenced by

(1) the pressure of sections of the Tamil Diaspora

(2) strategic considerations such as need to counter our close and indispensable friendship with China

(3) their own ideological predispositions such as ‘Responsibility to Protect’ and ‘liberal humanitarian interventionism’

(4) a perception that sovereignty should be ignored when probing violations of human rights and humanitarian law

(5) a need to punish Sri Lanka for defeating the Tamil Tigers militarily, without acceding to last-ditch Western attempts at a ceasefire and renewed talks with the LTTE

( 6) a perception that there is no domestic process of reconciliation with the Tamils and no credible domestic mechanism for investigating human rights violations overcoming a culture of impunity

(7) the fact that there wasn’t enough of a mobilisation of our friends at the UN, to counter such a move.

Q: One of the fears expressed by Sri Lanka is that, this body could lend legitimacy to LTTE international propaganda, while having a negative impact on the on-going post war rebuilding efforts and the process of healing war wounds. Your views?

A: While it will certainly encourage LTTE propaganda and hardcore secessionist sections of the Tamil Diaspora, and the raking up of the past could result in mutual recriminations thus retarding the process of healing war wounds, I fail to see how and why it should have a negative effect on post-war rebuilding efforts. That’s entirely within Sri Lanka’s purview and it has to do with a reconciliation among our own citizens, our own communities; regions of our own country.

If we send out the right signals the whole world will be ready to help us in post-war re-building. If we permit anything to come between us and such rebuilding efforts, if we delay in this task or accord it less than top priority for any reason, we would be playing into the hands of our enemies.

A sincere outreach to the Tamil community mainly in the war ravaged areas, and a programme that gives priority to political reconciliation and reconstruction is the best answer to pro-LTTE international propaganda and to whatever moves the UN Secretary General’s panel may set in train.

Q: How will it affect the overall reconciliation process that has been set in motion by the Government?

A: It shouldn’t. Why should it? What’s the connection? All communities have suffered through the common tragedy of a thirty year conflict. No one, North or South, has a monopoly of either virtue or victimhood. We must seek reconciliation with the Tamil people who have been partly suppressed by the LTTE, partly brainwashed against us and have suffered greatly for decades in the war-torn high conflict zones.

It is something we must do if we have learnt the correct lessons of the past. We must seek out and draw on the best practices from post conflict situations; not the worst practices which have made for endless conflict such as in the Middle East. Reconciliation is something we must do for our own future. Reconciliation comes from the word ‘conciliation’. It cannot be achieved by repression. It means mutual forgiveness and broad mindedness. It requires a turning away from extremes and treading the Middle Path. Reconciliation can only commence with an open political dialogue with the democratically elected representatives of the Tamil people.

If we fail to speed up and successfully bring to fruition a political reconciliation process between the communities inhabiting our island home, world history teaches us that the conflict will resume in some form or the other.

Such a failure will also make us vulnerable to external charges, pressures and interventions. One important way of countering the efforts set in motion by the UNSG’s ‘panel’ is to accelerate a domestic, nationally propelled, process of political reconciliation with the Tamils.

(Dr. Dayan Jayatilleka was Sri Lanka’s Ambassador/Permanent Representative to the United Nations, Geneva during the war years 2007-9, inclusive of the UN Human Rights Council’s Special Session on Sri Lanka last May. Currently he is a Visiting Senior Research Fellow at the National University of Singapore’s Institute of South Asian Studies. These are his personal views and in no way represent those of the Institute.This interview appeared in the "Sunday Observer")