The Editorial Island

September 17, 2015, 7:09 pm

The UNHRC report on alleged war crimes in Sri Lanka is being interpreted in different ways. Its authors have apparently avoided the mistakes UNSG Ban Ki-moon’s expert panel made in the Darusman report. They have refrained from plucking civilian casualty figures out of the air and sought to give the report a semblance of balance. Perhaps, the demolition by Sir Desmond de Silva, QC et al of the arguments and claims in the Darusman report riddled with flaws may have prompted them to act with some restraint.

The Geneva report stresses, in its introduction, that it ‘represents a human rights investigation, not a criminal investigation’. True, but what it has left unsaid is that the ‘human rights investigation’ is aimed at paving the way for a criminal investigation’.

The report has listed out the alleged war crimes in such a way that it gives the impression that, of the LTTE and the Sri Lankan military, the latter is the worse offender. It says, “… there are reasonable grounds to believe that those who disappeared after handing themselves over to the Army at the end of the conflict were deliberately targeted because they were or were perceived to be affiliated with LTTE forces.’ But, it has not mentioned the fact that about 12,000 LTTE combatants who either surrendered to the army or were captured after the conclusion of the war were rehabilitated and reunited with their families.

It is being claimed in some quarters that the UNHRC has softened its stand on Sri Lanka and endorsed the new government’s move to conduct a domestic war crimes probe. But, a careful look at the report and UNHRC Chief Zeid Ra’ad Al Hussein’s remarks thereon reveal that what has been proposed is an international probe in all but name. The hybrid special court will, in effect, conduct an international investigation with the participation of some local judges!

The Sirisena-Wickremesinghe government claims that it has restored judicial independence and repaired the country’s image internationally following what they call their Jan. 08 revolution. But, the UNHRC has not bought into this claim. It insists that ‘[Sri Lanka’s] criminal justice system remains vulnerable to interference and influence by powerful political, security and military actors’. Anyway, the UNHRC cannot be expected to grant that the situation has improved considerably here since last January because the admission of that fact is self-defeating for it vis-à-vis its claim that Sri Lanka is not capable of conducting a credible domestic investigation.

The UNHRC chief has, no doubt, said something positive about the new dispensation here but, given the overall tenor, thrust, nature and intent of the report there is no cause for celebration. The government has a Trojan horse at its doorstep!

The report calls upon Sri Lanka to accede to, among other things, the Rome Statute of the International Criminal Court. The government is in a dilemma. Prime Minister Ranil Wickremesinghe takes pride, and rightly so, in the fact that, he, as the PM of the UNP-led UNF government (2001-2004), prevented Sri Lanka from being a signatory to the Rome Statute and, thereby, foreclosed the possibility of its political and military leaders being hauled up before an international war crimes tribunal. But, now, the country is under pressure to accede to that statute. In its recommendations to the UN system and member states, the UNHRC has called for setting up ‘a coordination mechanism among donors in Sri Lanka to ensure focused and concerted efforts to support the transitional justice process’. One may recall how the Tokyo Co-chairs (the US, the EU, Norway and Japan) tied the provision of aid to Sri Lanka to progress to be made in talks with the LTTE under the UNF government.

The UNHRC report lays special emphasis on ‘system crimes’ which, it says, are generally of such a scale that they require a degree of organisation to perpetrate. It asks Sri Lanka ‘to enact various modes of criminal liability, notably command or superior responsibility’ and, we repeat, accede to the Rome Statute of the International Criminal Court. Thus, the UNHRC’s battle plan is clear. It is targeting the political and military leaders responsible for the Vanni war rather than the troops who are alleged to have committed war crimes.

Here is a situation where the government should tread cautiously. It will be interesting to see the position of Sri Lanka’s newfound big allies on the proposed hybrid mechanism.