Narrative iii in Geneva

Saturday, 13 September 2014 00:00 - - {{hitsCtrl.values.hits}}

By Jeevan Thiagarajah Narrative iii was presented to several Permanent Representatives and to an audience at a side event on the first day of the current sessions of the Human Rights Council in Geneva, the background being the Resolution in March which had three important references: A. “Recalling also the High Commissioner’s conclusion that national mechanisms have consistently failed to establish the truth and to achieve justice, and her recommendation that the Human Rights Council establish an international inquiry mechanism to further Investigate the alleged violations of international human rights law and international humanitarian law and monitor any domestic accountability processes”;

B. Para 2 calls upon the Government of Sri Lanka to conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law, as applicable; to hold accountable those responsible for such violations; to end continuing incidents of human rights violations and abuses in Sri Lanka; and to implement the recommendations made in the reports of the Office of the High Commissioner; C. Para 10 takes note of the recommendations and conclusions of the High Commissioner regarding ongoing human rights violations and the need for an international inquiry mechanism in the absence of a credible national process with tangible results, and requests the Office of the High Commissioner: Many argue the text is irreversible since it has been adopted. It is nevertheless worth noting the references to national mechanisms consistently failing made in para A. The next paragraph calls for the conduct of credible domestic investigations. The final quote speaks of an absence of a credible national process. A plain reading of the English text shows Op 10 subsuming Op 2 on the basis of the High Commissioner’s conclusions. It leaves Sri Lanka with no national options!

It would be tantamount to saying our entire judicial system has failed. That being a preposterous assumption, notwithstanding the fallibilities of individuals, we do have a system of justice in this country. In conversations we had with PRs of three BRICS states, broad conclusions drawn were ‘mandate creep’ in the Council, railroading of processes led by the powerful states, need for Sri Lanka to determine whether it wishes to engage and if so to do fully and to decide with whom and how now and not add to ‘other human rights violations’. Statement by Zeid Ra’ad Al Hussein The Opening Statement by Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights, at the Human Rights Council 27th Session had this to say: ‘Moreover, I attach great importance to the investigation on Sri Lanka mandated by this Council, on which OHCHR will report later in the session. I encourage the Sri Lankan authorities to cooperate with this process in the interests of justice and reconciliation. I am alarmed at threats currently being levelled against the human rights community in Sri Lanka, as well as prospective victims and witnesses. I also deplore recent incitement and violence against the country’s Muslim and Christian minorities.’ Given the High Commissioner’s reference to incidents of religious intolerance, this writer can bear testimony to an effort to elicit specific details from the Special Rapporteur on Freedom of Religion or belief on the reference to ‘More than 350 violent attacks against Muslims and over 150 attacks against Christians have been reported in Sri Lanka in the last two years’. The intent of the request was ‘to seek further information from his Mandate related to the specific incidents to enable follow up and support where needed to either individuals or groups so affected in Sri Lanka’. The response received was: ‘It has not been a part of our established practice and procedure that the mandate holders become the source of information FOR the NGOs on the ground.’ Many, if not all, UN special procedures mandate holders are from, if not are employed in, NGOs! Hence it’s rich when NGOs are referred to in such a haughty manner. When an issue of the right to pray is infringed, relief has to be in real time. In this instance our Minister of National Integration was very keen and convinced of the need to chase up on every reference made. The Office of the Special Rapporteur on Freedom of Religion or Belief was clearly not so moved. Op2 interventions I have selected some of the points made by our Ambassador/Permanent Representative of Sri Lanka in Geneva on Monday which encapsulates some of our Op2 interventions read in conjunction with the LLRC NPOA. These include:

The Presidential Commission of Inquiry on Missing Persons has received 19,471 complaints which include approximately 5,000 complaints from relatives of missing security forces personnel; 939 complaints out of those received have been inquired into. Recorded evidence by the complainants is being analysed for further investigation through an independent investigation team;
The Bill on ‘Assistance to and protection of Victims of Crime and Witnesses’ approved by the Cabinet of Ministers, gazetted on 8 August 2014, is due to be presented in Parliament on 9 September 2014;

As at 30 June 2014, 96% of demining has been completed;
Out of nearly 767,748 IDPs (226,824 families), a total of 510,710 persons (153,837 families) have been resettled in the Northern Province and 257,038 persons (72,987 families) have been resettled in the Eastern Province. A total of 26,056 persons (7,840 families) remain to be resettled, which includes 21,747 persons (6,498 families) from the north and 4,309 persons (1,342 families) from the east;
Rehabilitation and reintegration of LTTE ex-combatants: from approximately 12,000 persons, as at 11 August 2014, 114 beneficiaries (112 male and 2 female) are undergoing rehabilitation, and 84 are under legal proceedings;
The education system: The highest success rate in performance of school candidates by Province (63.88%) at GCE Advanced Level 2013 being recorded from the Northern Province. The Eastern Province has been placed third, with a percentage of 60.72%;
The Prescription Bill (Special Provisions) to restore land rights is scheduled to be taken up for discussion at the Second Consultative Committee Meeting in Parliament on 9 September 2014. Special Mediation Boards initiated in consultation with the Ministry of Lands by a Regulation to be gazetted under the Mediation (Special Categories of Disputes) Act to resolve land disputes;
The total reduction of military personnel since end of war as at July 2014 is at approximately 35% , a 4% reduction, from December 2013 levels;
As at July 2014, 61,831 fully damaged houses have been reconstructed and 9,104 partly damaged houses have been renovated for IDPs. The Government and other agencies have further committed to reconstructing 9,578 fully damaged houses and renovating 2,291 partly damaged houses during 2014 and 2015. The Housing Project funded by the Government of India has a target to build 50,000 houses by end-2015;
On restitution and the provision of compensatory relief for those affected by the conflict, a total sum of Rs. 1,421,368,198 has been disbursed since 2009 to July 2014 and the 2014 budget has allocated an additional SLRs. 475 million to continue the implementation of this recommendation;
As of August 2014, 19,389 resettled individuals in the Northern Province and 32,584 individuals in the Eastern Province have benefitted through the services of the National Counselling Centre since 2010. ‘Guidance & Counselling Cells’ that have been set up in 736 schools in Northern and Eastern Provinces and ‘Children’s and Women’s Development Units’ are in operation.

Mandate of the OISL

The mandate of the OISL (the UN mechanism) requires it to undertake investigations into alleged serious violations and abuses of human rights and related crimes by both parties to the conflict. It is supported and advised by three experts, as well as independent verification throughout the investigation. It will also obtain the assistance of specific special procedures mandate holders including on extrajudicial executions, disappearances, internally displaced persons, arbitrary detentions, violence against women and torture in carrying out its work. The exact nature of relations between the mandate holders and the OISL we were told remains under discussion. The OISL has a stated aim of being ‘guided at all times by the principles of independence, impartiality, objectivity, transparency, integrity and “do no harm”’. The OISL will base its findings on a “reasonable grounds to believe” standard of proof. i.e. “There are reasonable grounds to believe that an incident or pattern of violations or crimes occurred if the OISL has obtained a reliable body of information, consistent with other information, indicating their occurrence. This standard of proof may be sufficiently high to call for judicial investigations into violations of international humanitarian and human rights law and international crimes. The OISL will not make final judgments as to criminal guilt; rather, it would make an assessment of possible suspects that may pave the way for future criminal investigations.” Testimonies before the OISL are confidential. What is unclear (apart from the head of the UN team) who the rest of the members of staff are in terms of background, given testimonies would remain confidential, the standards of proof used referred would remain unknown to other than those involved. ‘Do no harm’ is where many facets come into play. As the South African statement in March sought, that ‘Sri Lankans find each other’ in a national process of reconciliation, is it not the case as was when the testimonies were collected for the Darusman Advisory Note from persons of Sri Lankan origin who would and are now testifying before an investigation which may be succeeded by ‘criminal investigations’ externally, it would take us further away from each other? Conversations in the Human Rights Council have never heard that:

In early January 2009, the Norwegian Ambassador conveyed a Government offer of Amnesty to all cadres bar the leader and head of intelligence which was rejected;
In early February 2009, the UN was aware fighting would last weeks, they sought a new No Fire Zone whilst contemplating air dropping food off the thin remaining coastal strip where fighting ended,
Co Chairs and Office of the UNSG had understood ‘distinction’ had ceased which meant civilians were hostage and surrender by LTTE was essential in terms of their recorded narratives.
On 19 February another Government also sought the LTTE to lay down arms and release the civilians.
Close on 34 countries passed strictures on organisations to prevent support for the LTTE which nevertheless proved porous and unsuccessful. The causes for which have to be recognised by those countries.

Bridging the gap Narrative iii was authored precisely to bridge this gap between national and international narratives which have divided us and will do further harm to national reconciliation even in its imperfect form at present. We have argued that whilst the charges of systematic and widespread targeting of civilians by Government forces has to be met, the distinction between combatants and civilians lies at the heart of regulating the conduct of hostilities and balancing principles of humanity and military imperative. A battlefield distinction, which the Co Chairs and UN found, had ceased. Incidents of potential excesses caused by individual actions have to be looked into credibly; the Government’s efforts at reconciliation and restorative justice have to be met by the principle political party representing Tamils who need to find a modality to account for perceived crimes and excesses amongst the Tamil community and against others. There is no doubt with the killing of Mayor Duraiappah, Inspector Bastianpillai and the enactment of the PTA, people were tortured, killed, disappeared, riots destroyed homes and properties, displacement occurred, many were driven overseas and some of them supported the war. Eelam wars I (1983-1987), II (1990-1994), III (1995-2002) and IV (2006-2009) were each accompanied by a significant toll. As a Tamil, I am nevertheless struck by the need for introspection by us:

accounting for killings or disappearances within the LTTE;
looking into killings or disappearances of individuals in other Tamil militant groups caused by the LTTE or other militant groups;
remorse for causing grievous harm to other civilians and loss of life including political leaders by Tamil militant groups;
owning up to every single incident of conscription of children.

The South African process saw internal agreement to resolve their conflicts internally. Such an effort does not exist in Sri Lanka yet. Hence Op2 cannot succeed unless such an agreement exists.

Let us find each other Be it Narrative iii or the points above, there many within the elite of Sri Lanka (the most recent being an ex-colleague holding high office in the UN Compound in Colombo) who feel that Narrative iii is a betrayal of those who espouse the dominant first Narrative. As we saw in Geneva when were greeted by a three-person ambush team in debates at the side event, there is an unwillingness to genuinely seek national healing and reconciliation. There are those intelligent, educated and articulate who espouse pluralism but wish to see all falling in line with one dominant narrative. Op 10 of the March Resolution provides refuge for such views. Uncovering the truth in term of political responsibility would imply all parties acknowledging their share of the responsibility for what happened, learning from the lessons of the past and moving forward to a durable process of peace and reconciliation. Op10 will have to ultimately move over and let us find each other.