Features
Promoting Reconciliation and Accountability in Sri Lanka
By Neville Ladduwahetty
From 2012, Reconciliation and Accountability have been the twin pillars of the series of Resolutions that emerged from the UN Human Rights Council in Geneva. Perhaps, the thinking of those who developed the formula of linking Reconciliation with Accountability was guided by the notion that an effective accountability process that holds some members of the security forces and the associated leaders accountable and punished would somehow ease the humiliation of defeat, and make the painful processes of healing and eventual reconciliation more tolerable.
In general, this notion presumes that retributive justice would promote reconciliation. The presumption of such an outcome is not an assured given because the possibility exists for the positions of the parties hoping to reconcile to harden to a point of defeating the intended objective of reconciliation if retributive processes and their outcomes are perceived as being vindictive. Thus, the contemplated accountability exercise has the potential to be counterproductive depending on the context in which it is conducted.
SRI LANKAN EXPERIENCE
In the case of Sri Lanka, this theory could not be put to the test because the retributive process could not even get started. The reason for this being that those who devised the process overextended themselves and wanted the accountability process to be so effective that they conceived only a judicial mechanism that involved foreign judges, prosecutor etc. would achieve the intended objectives. The fact that such an arrangement would involve amending existing Laws and provisions in the Constitution, to the extent of requiring a two-third approval by Parliament and approval by the People at a referendum, escaped their attention.
This was brought to the attention of the Human Rights Council in March 2019 by the then Foreign Minister Tilak Marapana.
“The Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioner for Human Rights and other interlocutors, explained the constitutional and legal challenges that preclude it from including non-citizens in its judicial processes. It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a referendum”.
This gave the present Government legitimate grounds to withdraw from the co-sponsorship of UNHRC Resolution 30/1 in terms of Article 46 of the Vienna Convention 1969, which in essence states that a State may invalidate its consent to a Treaty if it violates a rule of its internal law of fundamental importance such as a Constitution of a sovereign State.
CURRENT SITUATION
Currently, the accountability process is at a stand-still because of the failure of the approach adopted. However, what exists is a collective body of material available in Reports prepared externally by the Panel of Experts appointed by the UN Secretary General and by the Office of the Human Rights Commission in Geneva together with internal Reports of Commissions of Inquiry appointed by the Government of Sri Lanka such as the Lessons Learnt and Reconciliation Commission (LLRC), and the Paranagama Commission that included International Experts.
This body of material has been reviewed from two distinct perspectives. Since the mandate to the LLRC was primarily to promote national unity and reconciliation among communities, its Report gives emphasis to Human Rights as reflected in paragraphs 5.2 and 5.3 cited below. On the other hand, the other Reports reflect a perspective that is based on International Humanitarian Law (IHL) as the applicable Law since the conflict had reached the threshold of a non-International Armed Conflict. Consequently, the material reviewed from a Human Rights perspective is bound to be different to a review based on IHL. Of the several reasons for this difference the most significant is that the LLRC viewed the conflict as between a State (GoSL) and a non-state actor (LTTE), thereby holding the State to a higher level of accountability than the LTTE, while under the perspective of IHL, responsibilities are shared equally as parties to an Armed Conflict. This makes the conclusions drawn from the respective perspectives different.
Paragraph 5.2 states: “Being a party to the following seven core international human rights instruments, Sri Lanka has given obligations under these Conventions through legislative measures, including the Constitution as well as executive and administrative measures”
Paragraph 5.3 states: “Sri Lanka therefore has constitutional and international obligations for the effective national implementation of these core conventions both during times of peace and war, and in the latter situation, together with applicable International Humanitarian Law…”.
It is therefore evident from the foregoing that the LLRC emphasis is on Human Rights with “applicable International Humanitarian Law’ during times of war. Had the LLRC recognized that it was a non-International Armed Conflict from the day the Cease Fire Agreement was signed as two parties recognized nationally and internationally to the conflict, the accepted applicable Law should have been International Humanitarian Law coupled with seriously derogated Human Rights during an Armed Conflict. This interpretation is reflected in the Sri Lankan Constitution and in the relevant Conventions during an Emergency as in the case of an Armed Conflict. The failure of the LLRC to recognize that it was a non-International Armed Conflict is the significant reason for its perspective to be different to the other Reports cited above.
LLRC’s INTERPRETATION of ACCOUNTABILITY
The material presented below are extracts from Chapter 9 of the LLRC Report titled “Summary of Principal Observations and Recommendations”. Since the two primary charges against the Government and the Security Forces are the excessive use of force and the inadequacies in the delivery of humanitarian aid, the two related sub-section from the LLRC Report presented below are: (1) “Measures to safeguard civilians and avoid civilian casualties” and (2) “Supply of humanitarian relief, including food and medicine to civilians in conflict zone”.
“Measures to safeguard…and No-Fire Zones”:
Paragraph 9.4: “In evaluating the Sri Lankan experience in the context of allegations of violations of IHL, the Commission is satisfied that the military strategy that was adopted to secure the LTTE held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority…”
9.7 Having reached the above conclusion, it is also incumbent on the Commission to consider the question, while there is no deliberate targeting of civilians by the Security Forces, whether the action of the Security Forces of returning fire into the NFZs was excessive in the context of the Principle of Proportionality…”
COMMENT: The two fundamental principles of International Humanitarian Law are: Distinction and Proportionality. Without Distinction as to who is a combatant and who is a civilian to question whether the military response was proportionate or excessive cannot be ascertained. Since the LLRC Report admits that the LTTE shed their uniforms during the final states of the conflict, the question of distinguishing a civilian from a combatant is not possible, which means the principle of Proportionality cannot be applied. Furthermore, the comment that the Security Forces were “RETURNING fire to the NFZs” makes clear that it was the LTTE in the NFZs that initiated the firing. Despite the obvious presence of LTTE combatants, the LLRC Report makes no reference to them and refers to ALL as civilians.
Therefore, to categorize ALL in the NFZs as civilians and to question whether the return of fire was excessive in the context of the Principle of Proportionality that has no applicability in the particular circumstances, is seriously flawed.
In regard to “Hospitals/Makeshift Hospitals paragraph 9.12 (b) of the LLRC report states: “None of the persons making representations was able to state with certainty that they were in a position to definitely confirm that the shells which fell on the hospitals, originated exclusively from the side of the Sri Lankan Army or from the LTTE…Another ex-LTTE cadre…stated that the Puthumatthalan hospital was in fact accidentally shelled by the LTTE for which they had subsequently apologized”.
Supply of Humanitarian Relief
Paragraph 9.15: “The Commission notes that the supply of food to the civilians held by the LTTE up to early 2009 was at reasonably adequate levels…However, these adequacy levels appear to have declined during the months of February, March, April and the first half of May 2009…”
Paragraph 9.16: “It must be acknowledged that the maximum quantities of food supplies, that were possible…due to the collective efforts of the Government of Sri Lanka, in particular the GAs and the Security Forces as well as international agencies such as the ICRC and WFP, and other volunteers who had provided selfless service on the spot in the No Fire Zone”.
The impression conveyed in the above comments is that the Government of Sri Lanka was responsible for and obligated to supply humanitarian relief to All in the No Fire Zone. Since it was not possible to separate combatants from civilians, this meant supplying humanitarian aid including medical supplies to the LTTE and engaging with them in an Armed Conflict, simultaneously. Such a flawed expectation is a result of the confused perspective adopted by the Commission as to the role of the Government. How could the Government be a party to the conflict and be a provider of humanitarian aid both at the same time?
COMMENT: Had the LLRC accepted IHL as the applicable Law, they would not have held the Government of Sri Lanka accountable for the “decline” in the supply of relief. The reason for including the Government in the list of those responsible for the supply of humanitarian relief is because their understanding of the Government’s responsibilities was misplaced. The Commission fails to acknowledge that the Government as a party to the Armed Conflict, should not be expected to supply aid of any kind to the LTTE. Instead, what the Government was expected to do was ONLY to facilitate free passage of humanitarian aid to those affected by the Armed Conflict as per ICRC Rules 55 and 56 (Vol. 87, Number 857 March 2005).
Rule 55: “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse, distinction, subject to their right of control”
Rule 56: “The parties to the conflict must ensure the freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions. Only in the case of imperative necessity may their movements be temporarily restricted”.
PROPOSED STRATEGY
There are two basic approaches that Sri Lanka could take in presenting its case before the forthcoming sessions in Geneva. One approach is to plead its case by presenting all the available evidence from sources such as that of Lord Naseby, UN Reports, opinions of experts in the Paranagama Commission Report and any other sources challenging the alleged claims in the UNHRC Resolution 30/1. The other is to challenge the alleged violations on the basis of International Humanitarian Law, backed up with support material referred to above. Of these two approaches there is a greater likelihood of the latter approach being more acceptable because it has a more credible basis than the former.
CONCLUSION
When Sri Lanka placed on record at the March 2019 UNHRC sessions that it was withdrawing from the co-sponsorship of UNHRC Resolution 30/1, it undertook, among other undertakings, to appoint a Commission of Inquiry “to review the reports of previous Sri Lankan COIs which investigated alleged violations of Human Rights and International Humanitarian Law, to assess the status of implementation of their recommendations and to propose deliverable measures to implement them in keeping with the new Government’s policy”.
The plea to anyone engaged in fulfilling the commitment stated above is to declare at the very outset that its review of reports of previous COIs is based on the fact that the conflict in Sri Lanka that ended in May 2009 was a non-International Armed Conflict, as recognized by international law. Consequently, the review process should bear in mind that the applicable Law is International Humanitarian Law together with derogated Human Rights Laws as reflected in International Covenants and in Sri Lanka’s Constitution during an Emergency. Therefore, the alleged violations presented in these Reports should be assessed in the context of these Laws, backed up with support material such from UN Reports, evidence presented by Lord Naseby, opinions of experts in the Paranagama Commission Report, and by the ICRC, etc.. Since the Additional Protocol II of 1977 is accepted as part of Customary Law and the fact that it embodies all recognized provisions of non-International Armed Conflict, the provisions of the Protocol should guide the review process of alleged violations committed collectively or individually.
The review process should also identify which recommendations in the Commission of Inquiry Reports relating to Reconciliation are deliverable in keeping with Government policy. In this regard one measure that would make a significant difference to Reconciliation is to demand tangible outcomes from the Office of Missing Persons, bearing in mind that their work could be constrained by the non-cooperation of Member States if they fail to disclose the identities of persons missing from Sri Lanka and who are now living in their countries under altered identities.
The forthcoming sessions in Geneva would be a defining moment for Sri Lanka in its relations with the UNHRC. Therefore, the Government should conclude its review process well in time, in order to enable it to canvas support among the members of the UN Human Rights Council on the basis of the legitimacy of the approach taken and bring closure to Accountability. At the same time the UN Human Rights Council should permit Sri Lanka the time and space to address Reconciliation through processes that each country has to fashion because its uniqueness is special to every country, and no country or International Agency has a universal formula to bring about Reconciliation among communities in a country.
Neville Ladduwahetty
November 15, 2020.
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There’s an ill more dangerous and pervasive than the Coronavirus that’s currently sweeping Sri Lanka. That is the fear to express one’s convictions. Across the public sector of the country in particular many persons holding high office are stringently regulating and controlling the voices of their consciences and this bodes ill for all and the country.
The corrupting impact of fear was discussed in this column a couple of weeks ago when dealing with the military coup in Myanmar. It stands to the enduring credit of ousted Myanmarese Head of Government Aung San Suu Kyi that she, perhaps for the first time in the history of modern political thought, singled out fear, and not power, as the principal cause of corruption within the individual; powerful or otherwise.
To be sure, power corrupts but the corrupting impact of fear is graver and more devastating. For instance, the fear in a person holding ministerial office or in a senior public sector official, that he would lose position and power as a result of speaking out his convictions and sincere beliefs on matters of the first importance, would lead to a country’s ills going unaddressed and uncorrected.
Besides, the individual concerned would be devaluing himself in the eyes of all irrevocably and revealing himself to be a person who would be willing to compromise his moral integrity for petty worldly gain or a ‘mess of pottage’. This happens all the while in Lankan public life. Some of those who have wielded and are wielding immense power in Sri Lanka leave very much to be desired from these standards.
It could be said that fear has prevented Sri Lanka from growing in every vital respect over the decades and has earned for itself the notoriety of being a directionless country.
All these ills and more are contained in the current controversy in Sri Lanka over the disposal of the bodies of Covid victims, for example. The Sri Lankan polity has no choice but to abide by scientific advice on this question. Since authorities of the standing of even the WHO have declared that the burial of the bodies of those dying of Covid could not prove to be injurious to the wider public, the Sri Lankan health authorities could go ahead and sanction the burying of the bodies concerned. What’s preventing the local authorities from taking this course since they claim to be on the side of science? Who or what are they fearing? This is the issue that’s crying out to be probed and answered.
Considering the need for absolute truthfulness and honesty on the part of all relevant persons and quarters in matters such as these, the latter have no choice but to resign from their positions if they are prevented from following the dictates of their consciences. If they are firmly convinced that burials could bring no harm, they are obliged to take up the position that burials should be allowed.
If any ‘higher authority’ is preventing them from allowing burials, our ministers and officials are conscience-bound to renounce their positions in protest, rather than behave compromisingly and engage in ‘double think’ and ‘double talk’. By adopting the latter course they are helping none but keeping the country in a state of chronic uncertainty, which is a handy recipe for social instabiliy and division.
In the Sri Lankan context, the failure on the part of the quarters that matter to follow scientific advice on the burials question could result in the aggravation of Islamophobia, or hatred of the practitioners of Islam, in the country. Sri Lanka could do without this latter phobia and hatred on account of its implications for national stability and development. The 30 year war against separatist forces was all about the prevention by military means of ‘nation-breaking’. The disastrous results for Sri Lanka from this war are continuing to weigh it down and are part of the international offensive against Sri Lanka in the UNHCR.
However, Islamophobia is an almost world wide phenomenon. It was greatly strengthened during Donald Trump’s presidential tenure in the US. While in office Trump resorted to the divisive ruling strategy of quite a few populist authoritarian rulers of the South. Essentially, the manoeuvre is to divide and rule by pandering to the racial prejudices of majority communities.
It has happened continually in Sri Lanka. In the initial post-independence years and for several decades after, it was a case of some populist politicians of the South whipping-up anti-Tamil sentiments. Some Tamil politicians did likewise in respect of the majority community. No doubt, both such quarters have done Sri Lanka immeasurable harm. By failing to follow scientific advice on the burial question and by not doing what is right, Sri Lanka’s current authorities are opening themselves to the charge that they are pandering to religious extremists among the majority community.
The murderous, destructive course of action adopted by some extremist sections among Muslim communities world wide, including of course Sri Lanka, has not earned the condemnation it deserves from moderate Muslims who make-up the preponderant majority in the Muslim community. It is up to moderate opinion in the latter collectivity to come out more strongly and persuasively against religious extremists in their midst. It will prove to have a cementing and unifying impact among communities.
It is not sufficiently appreciated by governments in the global South in particular that by voicing for religious and racial unity and by working consistently towards it, they would be strengthening democratic development, which is an essential condition for a country’s growth in all senses.
A ‘divided house’ is doomed to fall; this is the lesson of history. ‘National security’ cannot be had without human security and peaceful living among communities is central to the latter. There cannot be any ‘double talk’ or ‘politically correct’ opinions on this question. Truth and falsehood are the only valid categories of thought and speech.
Those in authority everywhere claiming to be democratic need to adopt a scientific outlook on this issue as well. Studies conducted on plural societies in South Asia, for example, reveal that the promotion of friendly, cordial ties among communities invariably brings about healing among estranged groups and produces social peace. This is the truth that is waiting to be acted upon.
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By Sanjeewa Jayaweera
It was on 3rd January 1972 that our family arrived in Karachi from Moscow. Our departure from Moscow had been delayed for a few weeks due to the military confrontation between Pakistan and India. It ended on 16th December 1971. After that, international flights were not permitted for some time.
The contrast between Moscow and Karachi was unbelievable. First and foremost, Moscow’s temperature was near minus 40 degrees centigrade, while in Karachi, it was sunny and a warm 28 degrees centigrade. However, what struck us most was the extreme warmth with which the airport authorities greeted our family. As my father was a diplomat, we were quickly ushered to the airport’s VIP Lounge. We were in transit on our way to Rawalpindi, the airport serving the capital of Islamabad.
We quickly realized that the word “we are from Sri Lanka” opened all doors just as saying “open sesame” gained entry to Aladdin’s cave! The broad smile, extreme courtesy, and genuine warmth we received from the Pakistani people were unbelievable.
This was all to do with Mrs Sirima Bandaranaike’s decision to allow Pakistani aircraft to land in Colombo to refuel on the way to Dhaka in East Pakistan during the military confrontation between Pakistan and India. It was a brave decision by Mrs Bandaranaike (Mrs B), and the successive governments and Sri Lanka people are still enjoying the fruits of it. Pakistan has been a steadfast and loyal supporter of our country. They have come to our assistance time and again in times of great need when many have turned their back on us. They have indeed been an “all-weather” friend of our country.
Getting back to 1972, I was an early beneficiary of Pakistani people’s love for Sri Lankans. I failed the entrance exam to gain entry to the only English medium school in Islamabad! However, when I met the Principal, along with my father, he said, “Sanjeewa, although you failed the entrance exam, I will this time make an exception as Sri Lankans are our dear friends.” After that, the joke around the family dinner table was that I owed my education in Pakistan to Mrs B!
At school, my brother and I were extended a warm welcome and always greeted “our good friends from Sri Lanka.” I felt when playing cricket for our college; our runs were cheered more loudly than of others.
One particular incident that I remember well was when the Embassy received a telex from the Foreign inistry. It requested that our High Commissioner seek an immediate meeting with the Prime Minister of Pakistan, Mr Zulifikar Ali Bhutto (ZB), and convey a message from Mrs B. The message requested that an urgent shipment of rice be dispatched to Sri Lanka as there would be an imminent rice shortage. As the Ambassador was not in the station, the responsibility devolved on my father.
It usually takes about a week or more to get an audience with the Prime Minister (PM) of a foreign country due to their busy schedule. However, given the urgency, my father spoke to the Foreign Ministry’s Permanent Sectary, who fortunately was our neighbour and sought an urgent appointment. My father received a call from the PM’s secretary around 10 P.M asking him to come over to the PM’s residence. My father met ZB around midnight. ZB was about to retire to bed and, as such, was in his pyjamas and gown enjoying a cigar! He had greeted my father and had asked, “Mr Jayaweera, what can we do for great friend Madam Bandaranaike?. My father conveyed the message from Colombo and quietly mentioned that there would be riots in the country if there is no rice!
ZB had immediately got the Food Commissioner of Pakistan on the line and said, “I want a shipload of rice to be in Colombo within the next 72 hours!” The Food Commissioner reverted within a few minutes, saying that nothing was available and the last export shipment had left the port only a few hours ago to another country. ZB had instructed to turn the ship around and send it to Colombo. This despite protests from the Food Commissioner about terms and conditions of the Letter of Credit prohibiting non-delivery. Sri Lanka got its delivery of rice!
The next was the visit of Mrs B to Pakistan. On arrival in Rawalpindi airport, she was given a hero’s welcome, which Pakistan had previously only offered to President Gaddafi of Libya, who financially backed Pakistan with his oil money. That day, I missed school and accompanied my parents to the airport. On our way, we witnessed thousands of people had gathered by the roadside to welcome Mrs B.
When we walked to the airport’s tarmac, thousands of people were standing in temporary stands waving Sri Lanka and Pakistan flags and chanting “Sri Lanka Pakistan Zindabad.” The noise emanating from the crowd was as loud and passionate as the cheering that the Pakistani cricket team received during a test match. It was electric!
I believe she was only the second head of state given the privilege of addressing both assemblies of Parliament. The other being Gaddafi. There was genuine affection from Mrs B amongst the people of Pakistan.
I always remember the indefatigable efforts of Mr Abdul Haffez Kardar, a cabinet minister and the President of the Pakistan Cricket Board. From around 1973 onwards, he passionately championed Sri Lanka’s cause to be admitted as a full member of the International Cricket Council (ICC) and granted test status. Every year, he would propose at the ICC’s annual meeting, but England and Australia’s veto kept us out until 1981.
I always felt that our Cricket Board made a mistake by not inviting Pakistan to play our inaugural test match. We should have appreciated Mr Kardar and Pakistan’s efforts. In 1974 the Pakistan board invited our team for a tour involving three test matches and a few first-class games. Most of those who played in our first test match was part of that tour, and no doubt gained significant exposure playing against a highly talented Pakistani team.
Several Pakistani greats were part of the Pakistan and India team that played a match soon after the Central Bank bomb in Colombo to prove that it was safe to play cricket in Colombo. It was a magnificent gesture by both Pakistan and India. Our greatest cricket triumph was in Pakistan when we won the World Cup in 1996. I am sure the players and those who watched the match on TV will remember the passionate support our team received that night from the Pakistani crowd. It was like playing at home!
I also recall reading about how the Pakistani government air freighted several Multi Barrell artillery guns and ammunition to Sri Lanka when the A rmy camp in Jaffna was under severe threat from the LTTE. This was even more important than the shipload of rice that ZB sent. This was crucial as most other countries refused to sell arms to our country during the war.
Time and again, Pakistan has steadfastly supported our country’s cause at the UNHCR. No doubt this year, too, their diplomats will work tirelessly to assist our country.
We extend a warm welcome to Mr Imran Khan, the Prime Minister of Pakistan. He is a truly inspirational individual who was undoubtedly an excellent cricketer. Since retirement from cricket, he has decided to get involved in politics, and after several years of patiently building up his support base, he won the last parliamentary elections. I hope that just as much as he galvanized Sri Lankan cricketers, his political journey would act as a catalyst for people like Kumar Sangakkara and Mahela Jayawardene to get involved in politics. Cricket has been called a “gentleman’s game.” Whilst politics is far from it!.
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Believe me, seeing certain videos, on social media, depicting action, on the dance floor, at some of these entertainment venues, got me wondering whether this Coronavirus pandemic is REAL!
To those having a good time, at these particular venues, and, I guess, the management, as well, what the world is experiencing now doesn’t seem to be their concerned.
Obviously, such irresponsible behaviour could create more problems for those who are battling to halt the spread of Covid-19, and the new viriant of Covid, in our part of the world.
The videos, on display, on social media, show certain venues, packed to capacity – with hardly anyone wearing a mask, and social distancing…only a dream..
How can one think of social distancing while gyrating, on a dance floor, that is over crowded!
If this trend continues, it wouldn’t be a surprise if Coronavirus makes its presence felt…at such venues.
And, then, what happens to the entertainment scene, and those involved in this field, especially the musicians? No work, whatsoever!
Lots of countries have closed nightclubs, and venues, where people gather, in order to curtail the spread of this deadly virus that has already claimed the lives of thousands.
Thailand did it and the country is still having lots of restrictions, where entertainment is concerned, and that is probably the reason why Thailand has been able to control the spread of the Coronavirus.
With a population of over 69 million, they have had (so far), a little over 25,000 cases, and 83 deaths, while we, with a population of around 21 million, have over 80,000 cases, and more than 450 deaths.
I’m not saying we should do away with entertainment – totally – but we need to follow a format, connected with the ‘new normal,’ where masks and social distancing are mandatory requirements at these venues. And, dancing, I believe, should be banned, at least temporarily, as one can’t maintain the required social distance, while on the dance floor, especially after drinks.
Police spokesman DIG Ajith Rohana keeps emphasising, on TV, radio, and in the newspapers, the need to adhere to the health regulations, now in force, and that those who fail to do so would be penalised.
He has also stated that plainclothes officers would move around to apprehend such offenders.
Perhaps, he should instruct his officers to pay surprise visits to some of these entertainment venues.
He would certainly have more than a bus load of offenders to be whisked off for PCR/Rapid Antigen tests!
I need to quote what Dr. H.T. Wickremasinghe said in his article, published in The Island of Tuesday, February 16th, 2021:
“…let me conclude, while emphasising the need to continue our general public health measures, such as wearing masks, social distancing, and avoiding crowded gatherings, to reduce the risk of contact with an infected person.
“There is no science to beat common sense.”
But…do some of our folks have this thing called COMMON SENSE!
