UN role in Sri Lanka’s accountability process



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By Neville Ladduwahetty


After several contradictory statements from the President, the Prime Minister, and spokespersons, finally the Prime Minister has very correctly stated that the "Constitution does not permit foreign judges to sit in judgment" (The Island, February 2, 2016). Elaborating further, the PM stated: "If we are to permit foreign judges to sit in judgment then our Constitution has to be amended with the consent of the people at a referendum". It would also need a 2/3 approval of Parliament.


This position should satisfy the provisions in paragraph 6 of the UN Resolution A/HRC/30/L.29 dated 29 September, 2015 that recognizes "the importance of participation in a Sri Lankan judicial mechanism, including special council’s office, of Commonwealth and other judges…". Since the operative word in the above Resolution is "participation" the clarification by the PM was needed in view of calls by the US, UK and others, for foreign judges to sit in judgment during the proceedings. Considering the contradictory statements that have been made on this and other subjects, the concern of the public is that the Government would cave in under external pressure and retract its statement.


According to paragraph 6 of the Resolution the purpose of the accountability process is "to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable". As such, the "applicable" parties to the accountability process should be the Sri Lankan Government, the LTTE and their supporters both in Sri Lanka and outside, and the International Community, in particular the UN. Had these parties acted jointly in a decisive manner during the Armed Conflict they could have made a difference to the human rights and humanitarian law violations that are characteristically associated with such conflicts.


ROLE of the UN during the


ARMED CONFLICT


The role of the UN during the final stages of the Armed Conflict when the LTTE held nearly 300,000 plus civilians hostage is contained in the "Report of the Secretary-General’s Internal Review Panel on United Nations Actions in Sri Lanka". This report was prepared by a Panel Headed by Charles Petrie and three staff. Given below are some relevant extracts from this report:


1. "Some members of the diplomatic corps said that because the CHAP’s (Consolidated Humanitarian Appeals process) and other UN documents referred prominently to protection they assumed that the UN had a monitoring and response system to address attacks on civilians and other violations. The fact that protection was defined so broadly that it included a wide range of humanitarian actions obscured the very limited extent to which the UN’s protections actions actually served to protect people from the most serious attacks"(p.19).


2. "The UN, in headquarters and in Sri Lanka, did not appear to fully recognize the scope of its responsibility to respond to Government violations and did not realize until very late that its protection actions were largely empty"(p. 19).


3. "The UNCT (UN Country Team) leadership in Colombo had insufficient political expertise and experience in armed conflict, and in human rights and humanitarian law to deal with the extraordinary challenges that Sri Lanka presented. The UNHQ heads of agencies and departments, however, did not appear to recognize this. The senior-most position on the ground was ranked a D1. Several heads of UNCT entities in Colombo complained that the HQs of their



respective agencies were not adequately seized of the evolving situation and did not provide policy and political support". (p. 24).


4. "The events in Sri Lanka highlight the urgent need for the UN to update its strategy for engagement with Member States in situations where civilian populations caught up in the midst of armed conflicts are not protected in accordance with international human rights and humanitarian law"(p. 26)).


5. Subtitled "Systemic Failure"; "…the Panel’s report concludes that events in Sri Lanka mark a grave failure of the UN to adequately respond to early warnings and to the


evolving situations during the final stages of the conflict and its aftermath, to the detriment of hundreds of thousands of civilians and in contradiction with their principles and responsibilities of the UN. The elements of what was a systemic failure can be distilled into the following: (i) a UN system that lacked an adequate and shared sense of responsibility for human rights violations; (ii) an incoherent internal UN crisis-management structure which failed to conceive and execute a coherent strategy in response to early warnings and subsequent international human rights and humanitarian law violations against civilians, and which did not exercise sufficient oversight for UN action in the field; (iii) the ineffective dispersal of UNHQ’s structures to coordinate UN action and to address international human rights and humanitarian law violations across several different UNHQ entities in Geneva and New York with overlapping mandates; (iv) a model for UN action in the field that was designed for development rather than conflict response; (v) the most senior position in the field graded at a D1 seniority that was below the heavy responsibilities required for the position, and a corps of senior staff that did not sufficiently include the armed conflict, political, human rights and international humanitarian law and related management experience to deal with the challenge Sri Lanka presented, and who were given insufficient support; (vi) inadequate political support from Member States as a whole, notwithstanding bilateral efforts from all regions, and inadequate efforts by the Secretariat to build such support; and (vii) a framework for a Member State engagement with international human rights and humanitarian law protection crises that was outdated and often unworkable, in part because it did not enable Member States to reach a sufficiently and a full political consensus on the situation and the UN response"(p. 29).


6. "The UN had been preparing a joint letter to the Government from heads of several UN departments and agencies raising concerns over the situation; the hope was to use their combined weight to advocate for the protection of civilians and humanitarian action. However, during the time needed to circulate the draft across the various entities involved, to make changes and redistribute the draft, the situation had evolved and participants agreed the letter needed updating. DPA (UN Department of Political Affairs) recalled the need for a "viable political framework" and common situation analysis and coordination among UN agencies, Participants discussed alternatives, other than road convoys, for delivering assistance" (p. 64).


The "Systemic Failures" listed above demonstrate the total inadequacy of the UN and its agencies to handle the unique circumstances associated with the Armed Conflict in Sri Lanka. Perhaps the reason for coming down hard on Sri Lanka is to cover up the UN’s own inadequacies and that of the International Community. However, for an inquiry to be credible it has to expose the serious inadequacies within the UN and its agencies; inadequacies that could have minimized or even prevented some of the violations by all parties. The fact that the UN was not equipped to handle the unprecedented circumstances associated with the Armed Conflict in Sri Lanka could very well have contributed considerably to the human rights and humanitarian law violations. Assessing the degree to which the UN and the International Community is accountable in this regard should also be addressed during the course of the proposed inquiry.


ROLE of the UN in POST- CONFLICT SRI LANKA


The UN is also responsible for several procedural flaws associated with its post-conflict engagement with Sri Lanka. These are presented below:


1. Following the joint statement between the Secretary-General of the UN and former President Rajapaksa on May 23, 2009, Sri Lanka was to undertake an "accountability process". In keeping with this commitment Sri Lanka appointed the Lessons Learnt and Reconciliation Commission (LLRC) on May 15, 2010. Despite this, the UNSG appointed a Panel of Experts (PoE) on June 22, 2010 ; i.e., 5 weeks later.


Although the report of the PoE was meant for INTERNAL USE ONLY by the UNSG under the rules of the General Assembly, it found its way to the public domain. This is in total violation of the remit of the UN, and brings into question the professionalism and the credibility of the office of the UNSG.


2. Paragraph 10 of the Human Rights Council’s Resolution on Sri Lanka specifically states: "…the need for an international inquiry mechanism in the ABSENCE (emphasis added) of a credible national process…". On July 14, 2014 a national process was initiated in the form of a Presidential Commission headed by Justice Paranagama under the 2nd mandate to look into allegations of war crimes and other violations of international law. Despite the fact that this Commission was assisted by 3 internationally eminent legal experts, the OHCHR set up "a special investigating team within the OHCHR in Geneva that came into operation in mid-August 2014 – i.e., 1 month AFTER the national process was initiated.


The measures adopted by the UN clearly demonstrate that they have violated their own commitments by initiating actions that should have been taken ONLY in the ABSENCE of initiatives by Sri Lanka. The measures resorted to by the UN and its agency the OHCHR violate concepts that are required to guide the work of the Council such as "impartiality, objectivity and non-selectivity, and cooperation with a view to enhancing the promotion and protection of human rights"; concepts that the OHCHR is expected to exercise as per paragraph 4 of the General Assembly Resolution that set up the Human Rights Council in 2006. The levels of unprofessionalism and misconduct reflect the degree to which the UN and its agencies are being manipulated; a fact that should be a matter of deep concern for all Member States.


CONCLUSION


The undertaking given in the Resolution of the UNSG and the UNHRC was that any inquiry into alleged violations should ONLY be undertaken in the absence of inquiries initiated by Sri Lanka. The UNSG and UNHRC both violated their respective undertakings. The most egregious act was the unofficial release of the Report of the UNSG appointed Panel of Experts report on Sri Lanka. This action was in complete violation of the remit granted to a UNSG by the General Assembly. The contents of this unofficial report that should NOT have seen the light of day except by the UNSG, have become the official source for other reports, the most specific being the arbitrary allegation of some "40,000 civilian deaths".


The consequence of these actions was for Sri Lanka to be on the defensive to such an extent that Sri Lanka ended up co-sponsoring a UNHRC- initiated Resolution. All this was possible because Sri Lanka failed to bring to the attention of the UN and its agencies their inadequacies and abject failures to act decisively in Sri Lanka’s Armed Conflict. These systemic failures are highlighted in the Report of the Secretary General’s Internal Review Panel of United Nations Actions in Sri Lanka dated November 2012. Six specific systemic failures cited in the Report are quoted above.


These Systemic Failures should be a vital component of any "credible investigation". What is revealing is the fact these failures prevented the UN and its agencies and the International Community from acting decisively to minimize or even to prevent human rights and humanitarian law violations. Therefore, the UN and the International Community who were closely engaged throughout the Armed Conflict should bear proportionate responsibility for any human rights and humanitarian law violations as well as omissions that may have occurred during the conflict. The most glaring example of collective responsibility relates to the delivery of humanitarian aid; a responsibility that has come to be solely tagged on to Sri Lanka despite the fact that it is not an obligation under rules of Armed Conflict, and furthermore, it was a task undertaken by a multiplicity of national and international agencies.


What is most disturbing is that after the experiences of Rwanda, and former Yugoslavia as well as the unimaginable tragedies in Iraq and Afghanistan, the UN still remains bogged down by its own system failures. As admitted by them, not only were unqualified persons assigned tasks that they were incapable of handling, but also the UN was weighed down by bureaucratic baggage that prevented it from fulfilling its assigned role in Sri Lanka. Instead of accepting its inabilities to cope with global tragedies it has duplicitously decided to hit on countries like Sri Lanka to cover up the UN’s own nakedness.


Notwithstanding all of the above it is very likely that Sri Lanka would not raise a hair to bring to the attention of the UNHRC, the fact that accountability is a shared responsibility. Sri Lanka is not likely to calmly and firmly say that whatever happened took place because the LTTE took 300,000 plus civilians hostage, and the UN and the International Community did not with all their might and influence compel the LTTE to release the civilians. Despite this justifiable collective responsibility Sri Lanka is not likely to take a principled stand, because of a misguided notion prevalent in Sri Lanka that the need to stay "engaged" with the UN and the West outweighs all other imperatives.


 
 
 
 
 
 
 
 
 
 
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