By Neville Ladduwahetty Courtesy The Island

September 6, 2016, 7:46 pm

The admission by the United Nation’s Secretary General (UNSG) Ban Ki Moon during his visit to Sri Lanka from 31 August to 2 September 2016 that the UN “made big mistakes” and “…learned very hard lessons” in Sri Lanka is in keeping with the traditions set by former UNSGs whenever the UN failed to meet its obligations as happened in Rwanda, Bosnia and more recently in Haiti. Continuing, he is reported to have stated: “Reports by experts, independent panels that I appointed found serious systemic problems on the part of Member States and Secretariat alike”… “We found serious mistakes, inactivity. Had we been more actively engaged we could have saved many more human lives” (Adaderana News, September 2, 2016).

These “big mistakes” were made during the separatist armed conflict in Sri Lanka. More “mistakes” that cost Sri Lanka dearly, occurred following the conclusion of the conflict. Within a week of the end of the conflict May 23, 2009) the UNSG, visited Sri Lanka and issued a joint statement with President Mahinda Rajapaksa. The last paragraph of the statement states:

“Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances”. The UNSG has violated the commitments in that Joint Statement.

POST-CONFLICT “BIG MISTAKES”

VIOLATING the UN CHARTER

Without appreciating that the humanitarian needs of over 350,000 post-war civilians and former combatants had to take precedence over accountability issues, the UNSG began proposing the appointment of an advisory panel in early 2010. Then, on March 16, 2010 the UNSG at the UN News Center stated: “The panel I am establishing will advise me on the standards, bench marks and parameters, based on international experience, that must guide any accountability process such as the one mentioned in the joint statement. Now that panel will report to me directly and not to any other body”.

In the appointment of such a panel, the UNSG is required to abide by the provisions in the UN Charter as to the formalities that the UN Secretariat should follow, i.e., provisions in Article 100 of the UN Charter.

Article 100 states:

1. “In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization”.

2. “Each Member of the United Nations under-takes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities”.

The UNSG violated these provisions and appointed a Panel of Experts (PoE) from outside the UN. The report of the PoE was meant for INTERNAL USE ONLY, again as per Article 100 cited above, and asserted by his statement in New York. Despite the strict need for confidentiality, the report of the PoE was unofficially made available in the public domain.

The consequence of these two actions were irreparable. According to the UNSG’s own admission in New York the panel was only to set the “standards, benchmarks and parameters” for an accountability inquiry. Instead, the panel issued a report that was damaging to Sri Lanka; the most serious charge being that possibly 40,000 civilians died. This excessive figure has haunted Sri Lanka ever since the report was made public. For this the UNSG has to take full responsibility.

VIOLATING COMMITMENTS in JOINT STATEMENT

The second act of the UNSG to seriously affect Sri Lanka related to violating the commitments in the joint statement between him and President Mahinda Rajapaksa. In keeping with this commitment, the Sri Lankan President appointed the Lessons Learnt and Reconciliation Commission (LLRC) on May 15, 2010. Despite this, the UNSG went ahead an appointed his panel one month AFTER the LLRC was appointed, on June 22, 2010, in violation of the joint statement that requires Sri Lanka to address accountability issues. This was compounded by the Panel report being submitted to the UNSG on April 12, 2011 well ahead of the LLRC report that was presented on November 2011, thereby prejudicing international and public opinion against Sri Lanka. Consequently, the LLRC report was initially not received with the objectivity that it deserved.

VIOLATIONS by the UN HIGH COMMISSIONER for HUMAN RIGHTS (UNHRC)

Paragraph 10 of the Human Rights Council 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 the Commission was assisted by 3 internationally eminent legal experts headed by Sir Desmond de Silva, the Office of the High Commissioner for Human Rights (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 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.

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. Both the UNSG and UNHRC 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 which 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 that 40,000 civilian may have died.

COLLECTIVE ACCOUNTABILITY

During his current visit to Sri Lanka, the UNSG is reported to have stated: “The decades-long civil war saw terrible violence, terrorism, the use of human shields and other grievous violations of human rights and humanitarian law. In the conflict’s decisive final stages, tens of thousands of civilians perished. The war was ended – an unquestionable good for Sri Lanka, the region and the world. But we also know that even in its ending, the price was high”.

The admission by the UNSG that “Had we been more actively engaged, we could have saved many more human lives” means that the UN along with the parties to the conflict are collectively answerable for that “high price” in varying degrees. The UN – for not doing enough to save lives. The LTTE – for committing war crimes by compelling thousands of children to become combatants and by taking nearly 350,000 civilians hostage for the purpose of using them as a human shield, and shooting those who attempted to escape; facts confirmed by the UN and UNICEF. The Government – for using legitimate means appropriate to the circumstances presented to maintain and re-establish law and order in the State or to defend the national unity and territorial integrity of the State granted under Article 3 of the Additional Protocol II of 1977, bearing in mind that principles of distinction and proportionality were not applicable due to the inability to distinguish between civilians and combatants.

CONCLUSION

The facts presented above demonstrate conclusively there are 3 parties that should be associated with the accountability processes. They are:

1. The UN and its agency the UNHRC, for the “big mistake” of not “been more actively engaged”. Had they done so, the UN “could have saved many more lives”. In addition, there were serious improprieties in the manner the UN and the UNHRC conducted itself during the post-conflict period. These actions not only seriously disadvantaged and discredited Sri Lanka and its international image with consequences on its economy, but also violated the need for impartiality. The inappropriate procedures adopted by the UN during the post-conflict period were seen by the Sri Lankan public as efforts driven at the instigation of the Tamil diaspora and their supporters in the International Community. These perceptions have further polarized the communities, and continues to be a barrier to the reconciliation process to which the Sri Lankan government is committed.

2. The LTTE, for committing war crimes by taking nearly 350,000 civilians hostage to be used as a human shield, shooting any who attempted to escape and for conscripting over 6000 child soldiers equipped with suicide capsules one third of whom were girls.

3. The Government, for using legitimate means that could be deployed under the circumstances created by the LTTE to maintain and re-establish law and order in the State or to defend the national unity and territorial integrity of the State granted under Article 3 of the Additional Protocol II of 1977 bearing in mind that principles of distinction and proportionality were not applicable due to the inability to distinguish between civilians and combatants due to the conditions imposed by the LTTE.

These facts would demonstrate conclusively the complexities that would be associated with apportioning accountability through a Transnational Justice process as attempted by the UNHRC resolution or any other. In the course of such a process, it would be necessary to establish who is more accountable:

Is it the UN for not doing enough to save civilians trapped by the LTTE and preventing serious potential violations? OR

The LTTE for creating circumstances that compromised the safety of the civilians by taking them hostage and using children as frontline combatants thereby presenting moral challenges to the Security Forces? OR

The Government and the Security Forces who were compelled to make hard choices to separate the civilians and re-establish the territorial integrity of the State?

Clearly, attempting to unravel these complexities would cause more injustice than justice. Therefore, the component pertaining to accountability aspects of Transnational Justice should be abandoned.