National mechanisms have consistently failed to establish the truth and achieve justice: Navi Pillay

navi pillay  A damning 20-page report from United Nations Human Rights High Commissioner Navi Pillay became the subject of close scrutiny by the UPFA Government this week.  Pillay’s office urged the Government, as is the practice, to respond to the contents of this 74-point report — the precursor to the United States backed latest resolution on Sri Lanka next month — within a week. The External Affairs Ministry (EAM), which co-ordinated the point by point answers converting it to a formal document kept to the deadline which was last Wednesday (February 12). It was sent to Ravinatha Ariyasinha, Sri Lanka’s Permanent Representative at the United Nations in Geneva, for onward transmission. The Pillay report too had earlier been channelled through him to the Government in Colombo. It will be made public by the Human Rights Council just days before the 25th sessions which begin on March 3 or in less than two weeks.

This report, a copy of which was seen by the Sunday Times, has made recommendations both to the 25th sessions of the UN Human Rights Council as well as the Government of Sri Lanka. To the UNHRC, it recommends, that it should “establish an international inquiry mechanism to further investigate the alleged violations of international human rights and humanitarian law and monitor any domestic accountability process. OHCHR (Office of the High Commissioner for Human Rights) stands ready to assist such a process.”

Here is what the Pillay report calls upon the Government of Sri Lanka to carry out:

(a) Finalise laws dealing with incitement to hatred, witness and victim protection, the right to information, the criminalization of enforced disappearances, in line with international standards, and revise existing laws to bring them into line with International Human Rights Law;

(b) Repeal of the Prevention of Terrorism Act and lift the regulations promulgated under it which allows for arbitrary detention;

(c) Arrest, prosecute and punish alleged perpetrators of attacks on minority communities, media and human rights defenders, and ensure protection of victims;

(d) Undertake independent and credible criminal and forensic investigations with international assistance into all alleged violations of human rights and humanitarian law, including recently discovered mass graves;

(e) Establish a truth seeking mechanism and national reparations policy in line with international standards as an integral part of a more comprehensive and inclusive approach to transitional justice;

(f) Broaden the scope and tenure of the Commission on Disappearances to encompass cases from all parts of the island and all periods of the history of disappearances. Ensure an effective public information campaign and provide sufficient time to hear and record all petitioners who wish to submit complaints;

(g) Publish the final report of the military courts of inquiry, presidential commission of inquiry 2006 and more recent commissions of inquiry to allow the evidence gathered to be evaluated;

(h) Take further steps in demilitarization, and initiate a meaningful and transparent reduction of the military presence to peacetime levels, which would require a clear timeline for demobilisation, disarmament and disengagement from activities that are meant to be civilian;

(i) Engage civil society and minority community representatives more fully in an inclusive and consultative process to support implementation of the LLRC recommendations;

(j) Implement the LLRC recommendation for a national day of commemoration, allow all citizens their right to hold individual or group commemorations, and hold national consultations on the design of appropriate memorialisation for the victims of the war;

(k) Give positive consideration to the offers of technical assistance made by the High Commissioner for Human Rights;

(l) Invite special procedure mandate holders with outstanding requests to visit the country in 2014, particularly the Working group on Enforced and Involuntary Disappearances and the Independent Expert on Minority Issues.

Among other matters, Pillay says that “new evidence — including witness testimony, video and photographic material — continues to emerge on what took place in the final stages of the armed conflict. Human remains also continue to be discovered, for instance in Matale in November 2012 and Mannar in December 2013.” She adds: “As the emblematic cases highlighted above show, national mechanisms have consistently failed to establish the truth and achieve justice. The High Commissioner believes this can no longer be explained as a function of time or technical capacity, but that it is fundamentally a question of political will.

The Secretary-General’s PoE (Panel of Experts) and initiatives by international non-governmental organisations have shown that witnesses are willing to come forward to testify to international inquiry mechanisms which they trust and which can guarantee their protection. For this reason, the High Commissioner remains convinced that an independent, international inquiry would play a positive role in eliciting new information and establishing the truth where domestic inquiry mechanisms have failed. In the absence of a credible national process, she believes the international community has a duty to take further steps which will advance the right to truth for all in Sri Lanka and create further opportunities for justice, accountability and redress.

“The High Commissioner reiterates concern about the continuing trend of attacks on freedom of expression, peaceful assembly and association, particularly against human rights defenders, journalists and families of victims; the rising levels of religious intolerances; and continued militarisation which continues to undermine the environment where accountability and reconciliation can be achieved. She therefore reiterates and updates the recommendations made in her previous report to the Human Rights Council, most of which remain unimplemented.” Diplomatic sources say the Pillay report will form the basis on which the US resolution would be finally worded. That is to make clear that their resolution has been further complemented by the outcome of the UN Human Rights Commissioner’s findings.

One of the important elements in the Human Rights High Commissioner’s report to the Human Rights Council, besides the call for an international inquiry, is that there should be no amnesty for those found guilty of war crimes if a truth seeking mechanism is established. The Government has looked at the South African model for such a purpose and wanted to set up a Truth and Reconciliation Commission.

South Africa, where a Truth and Reconciliation Commission came into being after apartheid was abolished, has been engaged in diplomatic efforts to have a modified one set up in Sri Lanka. According to the South African TRC, a Promotion of National Unity and Reconciliation Act declared that the TRC was to enable “South Africans to come to terms with their past on a morally accepted basis and to advance the cause of reconciliation.” This was to help deal with what happened under apartheid. The conflict during this period resulted in violence and human rights abuses from all sides. It was to be carried out through three mechanisms — the Amnesty Committee, Reparation and Rehabilitation Committee and the Human Rights Violations Committee. A Register of Reconciliation gave members of the public a chance to express their regret at failing to prevent human rights violations and to demonstrate commitment to reconciliation. Applicants were allowed to appeal for amnesty for any act, omission or offence associated with a political objective.

Despite the Sri Lanka Government’s interest in a TRC, there is grave doubt about the prospects of one being set up. The broader outlines, mooted informally, were for a commission that would include military officers, who will hear representations paving the way for a pardon or amnesty. However, one of the key players who would have to agree to such an exercise, the Tamil National Alliance (TNA), is unwilling. It does not want to be seen as by-passing India which has strongly backed it so far and continues to do so.

Cyril Ramaphosa as special envoy
There were also misgivings between Colombo and Pretoria, particularly after talks between South African President Jacob Zuma and President Rajapaksa, on the side lines of the Commonwealth summit in November last year. References in a news release after the talks spoke of a Sri Lankan interest in the TRC when in fact the two countries were already locked in diplomatic consultations to set up such a commission. Yet, South African born Pillay has chosen to close what she deems may be a loophole when an investigation into alleged war crimes is concluded. The provision to exclude amnesty for those found guilty, diplomats in Colombo say, was likely to be entrenched in the new US resolution.

Yet, South African President Zuma referred to Sri Lanka in his 2014 State of the Nation Speech to mark the opening of Parliament last Thursday in Cape Town. He said: “Progress is being made in negotiations between Sudan and South Sudan on outstanding issues following the secession. Following requests from Sri Lanka and South Sudan for assistance in bringing about peace and reconciliation, Mr. Cyril Ramaphosa, has been appointed as South Africa’s Special Envoy to the two countries. His expertise in conflict resolution and negotiations as well as our country’s experience in this regard, will greatly assist the two countries to resolve their problems.”

Ramaphosa is best known for founding the National Union of Mineworkers, the most powerful trade union in South Africa. He is also known for the role he played during the negotiations to bring a peaceful end to apartheid and to steer the country towards its first democratic elections in 1994.

The UPFA Government’s position on the different issues was articulated by Presidential Secretary Lalith Weeratunga who headed a special mission to Washington DC. He told a media briefing on the LLRC Action Plan for select invitees on Thursday, “My reading is that, the USA will somehow push this resolution in Geneva. It appears that they will go flat out to get this resolution on board and to make sure that a majority of people will support it. But I think what we have to do is, whether resolutions come, presented or not, is to complete as early as possible what we do. That is the stance I think the Government will have to take in time to come.”
Weeratunga added: “The crux of the argument I made was why Sri Lanka is not being given time when you see the enormity of the work that we have to do.

Whatever we say here is to make sure that reconciliation is a process which will take a long time. We are not trying to rush through and I don’t think we can ever sort it out in a matter of a year or two. So I know that there is a lot of scepticism. Even when the LLRC was formulated there was, but I think when the report came out, there was some kind of acceptance. Ok, right, good recommendations have been made. I think it is better late than never, at least to educate these people (US and in Geneva). It was not to stop a resolution in Geneva…..”

The Pillay report is the direct outcome of the US backed resolution adopted by the UNHRC in March 2013. It called upon the Human Rights Commissioner to “present an interim report at the twenty-fifth session (next month) of the Human Rights Council, on the implementation of the resolution.” For this purpose, she paid a week-long visit to Sri Lanka, the longest she has undertaken to any country. She then declared that “I am deeply concerned that Sri Lanka, despite the opportunity provided by the end of the war to construct a new vibrant, all-embracing state, is showing signs of heading in an increasingly authoritarian direction.”

The Sri Lankan Government’s response to the latest Pillay report was formulated by senior External Affairs Ministry officials with assistance from those in the Ministry of Defence, the Attorney General’s Department, and the Human Rights Commission among others. Forming the basis is a report prepared by Lalith Weeratunga who chairs a Presidential Task Force on the implementation of the LLRC recommendations.

That highlights the recommendations implemented, those under implementation and the different initiatives the Government has taken. In addition, reports of alleged attacks on religious minorities, attacks on media practitioners, threats and intimidation of human rights defenders were among the matters dealt with.

These alleged attacks on religious minorities figured even at Thursday’s weekly meeting of the cabinet of ministers. It came in the backdrop of reports that both Kuwait and Saudi Arabia, members of the UNHRC, are poised to vote in favour of the US resolution. Kuwait voted against the resolution (i.e. in favour of Sri Lanka) last year whilst Saudi Arabia is a new member. President Mahinda Rajapaksa told his ministers that the “whole purpose” of the upcoming US resolution was to bring about a regime change. He raised issue about a document circulated by the Sri Lanka Muslim Congress (SLMC) listing places of Muslim worship where attacks have allegedly been carried out. (Sunday Times)

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