South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Sri Lanka’s Permanent Representative at the United Nations, Dr. Palitha Kohona, now at the centre of a brewing legal battle with the overseas pro-Tiger guerrilla lobby, was surprised when news reached him that UN Secretary General (UNSG) Ban Ki-moon would meet a visiting two member delegation from Colombo this week.

The UNSG’s Secretariat had conveyed the news to him. Evidently, the request for a meeting linked to a “top secret” mission had gone not from Kohona’s office but directly from Colombo. Immediately thereafter, External Affairs Ministry Secretary Romesh Jayasinghe and Attorney General Mohan Peiris flew out on Saturday (February 19) to New York. Until Monday, hardly any External Affairs Ministry official was aware that their boss was away. Some were ready to walk into his office with files whilst others wanted to obtain directives over issues of importance.

They learnt he had gone abroad. Senior officials were talking in whispers what the destination and the purpose of travel would be. Things had remained so hush hush.

At the Big Apple last Wednesday afternoon, the duo, together with two others walked in to the temporary office of the UNSG on the third floor of the north lawn building. Ban’s 38th floor office suite in the UN building overlooking Turtle Bay in Manhattan, is now under renovation and work is expected to continue until 2013. Staff of more than 4,000 has been moved to a temporary building on 46th Street. Those joining in were Kohona and his deputy, Major General Shavendra Silva, one of the senior Army officers who spearheaded the military campaign against Tiger guerrillas in May 2009.

Other than confirmation from UN officials, who even forwarded a photograph to the Sunday Times, both government officials and those at the External Affairs Ministry maintained a stoic silence. If External Affairs Minister G.L. Peiris was quiet on the matter, his deputy, Neomal Perera, was to say the two Sri Lankan officials had no such meeting with Secretary General Ban. The need to keep the mission top-secret prompted silence by the minister and terminological inexactitude (or lying) by his deputy.

SL officials meet UNSG

However, Farhan Haq, deputy spokesperson for the UN Secretary General, told the Sunday Times in an e-mail from New York on Thursday, “The Sri Lankan delegation has requested a courtesy meeting with the Secretary-General, and that meeting took place yesterday (Wednesday) afternoon.”

I asked Haq whether it related to the ongoing UN panel investigating accountability issues during the concluding stages of the separatist war in May 2009.

His reply: “The UN has been engaged in ongoing discussions with the Sri Lankan authorities on post-conflict issues, including on efforts pertaining to accountability of alleged violations of international humanitarian and human rights law that took place in the final stages of the conflict.” He said that the work of the panel is continuing.

The Sunday Times learnt that the main thrust of the meeting by the two Sri Lankan officials centred on the upcoming report of the three-member UN panel. On June 22 last year, Ban appointed the panel. Indonesia’s Marzuki Darusman serves as the chairman and the others are Yasmin Sooka of South Africa and Steven Ratner of United States. The panel, whose extended mandate expires tomorrow, “is looking into the modalities applicable, international standards, and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.”

Days after the official announcement of the panel, government leaders strongly rejected the move. Peiris had said, “There is a cynical rejection of values enshrined in the UN Charter in trying to set up this panel on an internal matter that is already engaging the attention of the Sri Lanka government.”

Sri Lanka’s PR at the United Nations, Dr. Kohona was to speak at a meeting of the Co-ordinating Bureau of the Non Aligned Movement in New York in March, last year, (ahead of the appointment of the panel). “If the Secretary General, whose responsibility is to engage with its members, were to appoint advisory panels selectively on Member States against their wishes,” it would set a precedent that would be difficult to manage, he argued.

However, the government’s stance shifted in December last year. It came after UNSG Ban addressed a news conference in New York. He said, “After long consultations between myself and President (Mahinda) Rajapaksa of Sri Lanka, I am pleased that the panel of experts is now able to visit Sri Lanka and meet with the Commission on Lessons Learned and Reconciliation. I sincerely hope that the Panel of Experts will be able to have good co-operation, to have an accountability process and make progress as soon as possible. This is a result of long consultations, and I appreciate the flexibility of President Rajapaksa on this issue.”

The government was caught off guard by Ban’s sudden announcement. Though it was the result of diplomatic consultations between Colombo and the UN in New York, it has still not become known whether anyone in authority yielded and said “yes” to the UN. Consequently a debate ensued at the highest levels where hard line constituent partners were piqued. Allowing the panel to visit Sri Lanka and hear testimony, the latter argued, would amount to recognition of the UN panel, a position that will be in marked contrast to government’s stated policy of not accepting its legitimacy. Hence, the government devised a new approach — it would facilitate a visit only for a meeting with the Lessons Learned and Reconciliation Commission (LLRC). A dialogue continued but neither side yielded.

Govt. to damage control

Now, the Sunday Times has learnt, the government wants to do damage control before the UN panel’s report enters the public domain. According to authoritative sources, Attorney General Peiris briefed Ban on the working of the LLRC and how various important issues, though gone into by the UN panel, have been addressed by the LLRC. This includes work carried out so far by the Inter-Agency Committee and their future plans. Peiris heads this Committee. The LLRC was appointed by President Rajapaksa on May 15, last year, and is headed by eminent counsel and former Attorney General C.R. de Silva. It was only last week that the Commission directed that houses located in the High Security Zones in the North be returned to their original owners. The commission is now finalising the final recommendations.

Peiris, the same sources said, urged Ban to call upon the panel to take note of the considerable work done by the LLRC. However, these sources declined to elaborate. Such a move, it was felt, would be to ascertain whether the panel would incorporate the government’s responsive measures in its report. More so, since the government has re-iterated periodically that the LLRC was in fact going into issues that were the subject matter of probe by the UN panel. If protagonists within the government argue that such a move would dilute criticism or accusations, if any, in the panel’s report, others hold a different view. The latter say any representation from Sri Lanka, whichever channel they resort to achieve that objective, would amount to a recognition of the UN panel.

This dilemma, no doubt, highlights the government’s wobbly and ad hoc approach to important foreign policy issues. At first, UPFA leaders rejected the UN panel as “unacceptable”. Then, out of the blues, Ban announced that the panel would visit Colombo to hear testimony. The government was clearly embarrassed and forced to go on the back foot. The panel, the government was forced to take up the position, could come to Colombo, but can only talk to those in the LLRC.

Now, Sri Lanka wants the UN Secretary General to apprise the panel of the issues already tackled by the LLRC (and the Inter Agency Committee) so their report could possibly take note of it. The question is whether it would make the panel assert that Sri Lanka indeed had placed its own case before them. Such a move, some officials argue, would tantamount to Sri Lanka going before the panel. There was speculation in the corridors of the UN that the Sri Lankan officials wanted to state their case before the panel itself. However, highly placed sources in Colombo scoffed at the reports. They said, “As always, we deal with the Secretary General. Our aim is to state our case so the international community knows our position very clearly.”

It seemed ironic that conduct of foreign policy in the UPFA administration has become compartmentalised. If the United Nations has become the subject for Attorney General Peiris, a troika of three leading personalities handle Indo-Sri Lanka relations at the apex. They are Economic Development Minister Basil Rajapaksa, Presidential Secretary, Lalith Weeratunga and Defence Secretary, Gotabhaya Rajapaksa. The United Nations in Geneva has become the responsibility of Plantation Industries Minister Mahinda Samarasinghe. He has been tasked with human rights issues.

In the recent weeks, parliamentarian Sajin Vaas Gunawardena, who is assigned to monitor the Ministry of External Affairs has been dealing with some West Asian countries. So much so, he was successful in pulling off a visit by Namal Rajapaksa MP to Libya before the ongoing turmoil in that country. Rajapaksa not only met Libya’s ruler Moammar Ghadaffi but also his son Saif al-Islam who was then identified as heir apparent.

There is little doubt that the government is under pressure to go into damage control mode for several reasons. The hurried interaction with the UN Secretary General is just part of a hurriedly formulated initiative. There are a number of reasons. Main among them is the meeting of the United Nations Human Rights Council (UNHRC) which begins its 16th sessions in Geneva tomorrow (February 28). It continues until March 25. For six weeks, 3,000 delegates from member states, observer countries and non-governmental organisations participate. They adopt about a hundred resolutions, make decisions and discuss the chairperson’s statement on issues perceived to be relevant.

Minister Samarasinghe left Colombo for Geneva on Thursday. Attorney General Peiris and Jayasinghe who are flying from New York will join him there. Officials of the Attorney General’s Department and the Army’s Legal Division are among others who will be in the Sri Lanka delegation. Samarasinghe, according to reports from Geneva, is scheduled to have a meeting with the United Nations High Commissioner for Human Rights, Navi Pillai. The Sunday Times reliably learns that the UN panel’s report is to be placed before the UN Council on Human Rights on March 4 (Friday). It is not immediately clear whether the report will be debated during the current sessions. There are concerns in sections of the government that the release of the report may prompt a member country of the UN Security Council to seek a briefing from Secretary General Ban.

The Council will begin its session by holding a High-Level Segment from tomorrow until Wednesday. Dignitaries will address on their countries’ efforts to promote and protect human rights. Following this segment, the Council will hold an interactive dialogue with Ms Pillai , after she presents the annual report of the activities of her Office. According to a UNHRC statement issued in Geneva this week, “There will also be a general debate following the presentation of thematic reports from the Secretary-General and the High Commissioner on topics including reports on the human rights of persons with disabilities; the protection of human rights in the context of HIV/AIDS; minorities; human rights and counterterrorism; and the effective implementation of international human rights instruments, among other topics.”

Pro-Tiger lobbies on war crimes

Ahead of the UNHRC sessions, pro-Tiger guerrilla lobbies abroad have already launched a campaign in many countries over alleged war crimes and human rights issues. The President of the Global Tamil Forum, Father S.J. Emmanuel, is on a tour of Tamil Nadu (South India), Malaysia, Australia and New Zealand on a fund-raising mission. He is also drumming up support for his group ahead of the UN panel’s report. In Britain, as revealed in the front page of this newspaper last week, an “all party” group of 42 British parliamentarians have written to Prime Minister David Cameron to call for what they say is “an independent international investigation.” Lee Scott is the chair to the request which, among others, is signed by Virendra Sharma (Vice Chair), Siobahn McDonagh (Vice Chair), Simon Hughes (Vice Chair), Keith Vaz, Gareth Thomas and Sharon Hodgson. The two-page letter cites reports from the US Congress, the European Commission, the International Crisis Group (ICJ) and The Elders led by Bishop Desmond Tutu of South Africa to back up their request.

Siobahn McDonagh, MP said in London this week that if Premier Cameron supported the “all party group,” he would be sending a “powerful message to the Secretary General that Britain backs an international inquiry. The move to pressure Ban comes at a time when he is seeking re-election for a second term. The issue is to come before the UN in June this year. Ban needs the support of western countries supporting his UN panel for his re-election bid. The United States, Britain and the European Union are among those who have endorsed the panel probing accountability issues in Sri Lanka.

Last month, a so-called “Swiss Council of Eelam Tamils (SCET)” and another styling itself “Tamils Against Genocide” filed a 45-page request to Luis Moreno-Ocampo, Prosecutor of the International Criminal Court (ICC) in the Hague (Netherlands). They want the Court to issue a warrant for the arrest of Kohona who holds dual Australian and Sri Lankan citizenship. This is on grounds of alleged “extra judicial killings” in May 2009 over what is termed as “extended joint criminal enterprise liability.” Sri Lanka is not a signatory to the Rome Statute that established the ICC and that statute is not applicable to its citizens.

However, the request has been submitted based on Kohona being an Australian national. Australia is a signatory to the Rome Statute. Kohona has dismissed the move as “utterly puerile” and declined to make any comment on it and “thus lend credibility.” This week, Kohona refused to speak to Australia’s ABC network that had aired a story of the request to the ICC. Government officials in Colombo believe that the ICC may not entertain the complaint. In the unlikely event of the Court undertaking the task, the question of legal defence would become an important issue. Would the government of Sri Lanka offer defence counsel to argue, at least technically, the case of an Australian citizen? The question was the talking point in government legal circles.

Intl. Humanitarian Law violations

Ahead of tomorrow’s UN Human Rights Council sessions, even some academic institutions have shown interest on Sri Lanka. The Harvard University’s Programme on Humanitarian Policy and Conflict Research held a live (via web cast) seminar on Friday night (local time). The purpose was to examine “mechanisms and strategies to promote accountability for International Humanitarian Law” violations committed during counter insurgencies, focusing on the case in Sri Lanka. Interesting enough, it came just days ahead of the UN Human Rights Council sessions. Among the questions examined were:

  • What aspects, if any, of counterinsurgency doctrine have the potential to affect adherence to IHL principles?
  • What accountability mechanisms-judicial or otherwise-exist regarding IHL violations committed during non-international armed conflicts?
  • What accountability mechanisms are currently being implemented, and what potential mechanisms are under consideration?
  • What legal and political challenges arise in the context of multiple, simultaneous accountability mechanisms aimed at addressing the same counterinsurgency situation?
  • What role, if any, should humanitarian actors play in promoting adherence to international norms in counterinsurgency situations? These questions will be examined by reference to the situation in Sri Lanka.
  • The panellists included Jon Lee Anderson (author of a US-based New Yorker magazine article on Sri Lanka that was laced with factual errors), Alan Keenan (International Crisis Group), Palitha Kohona (Sri Lanka’s PR at the UN) and Sam Zarifi (head of Amnesty International). Partners who sponsored this seminar were the Swedish Federal Department of Foreign Affairs and the Swedish International Development Co-operation Agency.

    IPU Report

    Another report that would be cause for concern to the government is due later next month from the Inter-Parliamentary Union. Contrary to claims by the government, the IPU’s 123rd assembly in Geneva on October 23, 2010 decided to assign its Human Rights Committee to probe issues related to former General Sarath Fonseka. This followed a complaint by UNP Assistant Secretary (for Relief and Human Rights) Jayalath Jayawardena. The report on the Fonseka affair is to be presented when the IPU meets in Panama from April 15 to 20. According to diplomatic sources in Colombo, the IPU report, among other matters, is expected to urge the government to allow representatives of recognised international human rights organisations to be present in Sri Lankan courts when cases relating to human rights violations are heard.

    The upcoming local government elections did not prevent the UNP from placing its own complaints of alleged human rights violations to a European Union delegation which was in Sri Lanka this week. It was led by Jean Lambert (Greens/EFA UK), John Attard Montalto, First Vice Chair (SD- Malta), Thomas Mann, Second Vice Chair (EPP – Germany), Lidin Joanna Geringer de Oedenberg (SD – Poland), Nicola Rinaldi (NI – Bulgaria), Nirj Deva (ECR – UK), Philip Kamaris (European Parliament General Secretariat – France), Ainhon Markuleta (EP General Secretariat – Spain) and Sabine Meyer (Greens-EFA – Germany).

    UNP meets EU delegation

    UNP deputy leader Karu Jayasuriya who is heading the party’s local polls campaign together with General Secretary Tissa Attanayake found time to meet the EU delegation. Conspicuous by his absence was delegation member, Sri Lanka born Nirj Deva, who finds a place in annual visits by EU delegations to Colombo. Jayasuriya was to detail out what he called the attacks carried out on the UNP, the country’s main opposition, on February 4 – Independence Day – when party supporters were carrying out a peaceful protest demanding the release of Fonseka.

    He accused government supporters of being responsible and said the EU should raise issue over the matter since the actions were undemocratic.

    The UNP and the EU delegations also discussed at length the murders and attacks on journalists as well as media freedom issues. The UNP delegation included Mangala Samaraweera. Jayalath Jayawardena and D.M. Swaminathan. The UNP delegation also presented its views on the electoral process and devolution of power.

    Sajith Premadasa, a contender for the UNP leadership, was in for some shock this week. His veritable Chief of Staff, Bodhi Ranasinghe, known for his expert organisational skills at the grassroots level, passed away in his sleep on Tuesday. At his request, his body was handed over to Sri Jayawardenapura Medical Faculty. “His loss is irreparable. Boidhi was a pillar of the UNP and was a loyal friend,” Premadasa told a group of his loyalists.

    The ongoing world cup cricket series and the upcoming local polls notwithstanding, human rights issues have become the pre occupation of both the Government and the main Opposition. This turns the spotlight on the External Affairs Ministry and makes clear that Peiris, the Minister, has a lot more to do besides making courtesy calls and issuing statements. More so when Sri Lanka is under attack from several quarters on issues related to human rights.

    Source: The Sunday Times – 27.02.2011