Shocking change of position soon after first informal session on US document
SPECIAL REPORT : Part 134
By Shamindra Ferdinando
Against the backdrop of President Maithripala Sirisena’s repeated declarations that the government of Sri Lanka hadn’t accepted foreign judges to inquire into accountability issues, it would be pertinent to examine the stand taken-up by the GoSL, on September 21, 2015, in respect of the draft resolution on Sri Lanka.
Sri Lanka rejected the draft resolution, on September 21, 2015, at the first informal session called by the Core Group pursuing the matter. The group comprised the US, the UK, Montenegro and Macedonia.
The US team, at the first informal session, included US Ambassador in Geneva, Keith M. Harper, who had been a partner at the law firm of Kilpatrick Townsend & Stockton LLP, and newly appointed US Ambassador in Colombo, Atul Keshap. Keshap had presented his credentials to President Maithripala Sirisena exactly a month before the first informal session in Geneva.
In the wake of Sri Lanka’s strong objections, the ‘Core Group’, on the draft resolution, submitted an amended resolution, on September 24, 2015. Sri Lanka accepted the amended resolution though it was essentially the same.
Let me reproduce verbatim the sections relating to judicial mechanism in the two draft resolutions: (September 21, 2015 draft resolution) Welcomes the government’s recognition that accountability is essential to uphold the rule of law and build confidence in the people of all communities of Sri Lanka in the justice system, takes note with appreciation of the government of Sri Lanka’s proposal to establish a Judicial Mechanism, with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; and affirms that credible transitional justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and calls upon the government of Sri Lanka, to involve international investigators, prosecutors and judges in Sri Lanka’s justice processes.
(September 24, 2015 draft resolution) Welcomes the government’s recognition that accountability is essential to uphold the rule of law and build confidence in the people of all communities of Sri Lanka in the justice system, takes note with appreciation of the Government of Sri Lanka’s proposal to establish a Judicial Mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; and affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and further affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators.
The Geneva-based United Nations Human Rights Council, on October 1, 2015, adopted, what it called, a consensus resolution on accountability for the alleged human rights violations during the war.
Some made a foolish attempt to deceive the public that following intervention by the GoSL, the US and UK had modified the draft resolution.
The GoSL co-sponsored the Geneva Resolution a few days after the UNHRC proposed the setting up of hybrid court to inquire into war crimes allegations.
The resolution called upon Sri Lanka to establish a credible judicial process, with the participation of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators, to go into the alleged rights abuses.
The judicial mechanism "should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality," according to the resolution.
After the resolution was adopted, India’s envoy, Ajit Kumar, said: "We reiterate our firm belief that the meaningful devolution of political authority, through the implementation of the 13th Amendment of the Constitution of Sri Lanka [adopted in 1987 as a sequel to an agreement between India and Sri Lanka] and building upon it would greatly help the process of national reconciliation."
Western powers moved three resolutions, targeting Sri Lanka, in 2012, 2013 and 2014. The third resolution demanded an external inquiry into accountability issues. The draft resolution finally adopted last year is largely based on the findings and recommendations made in a report prepared in accordance with the 2014 resolution. The report was prepared by UN staffer, Ms Sandra Beidas, formerly of the Amnesty International.
Having caused terrorism, in Sri Lanka, in the 80s, leading to massive death and destruction, India continues to play the role of friendly neighbour. Sri Lanka lacked the courage at least to make a reference to India’s despicable role during the Geneva sessions since the contentious issue of Sri Lanka’s accountability was included in the UNHRC’s agenda.
The 47-member body is divided into five regional groupings. Members are chosen for three-year periods.
Former President and Kurunegala District MP, Mahinda Rajapaksa, as well as those organizations opposed to international intervention, by way of the Geneva resolution, never bothered to forcefully take up the GoSL changing its September 21, 2015, stance. In fact, the former President, and the Joint Opposition loyal to him, didn’t, at least, comment on this. The government conveniently refrained from mentioning the circumstances under which the Sirisena-Wickremesinghe accepted the resolution which it rejected on September 21, 2015.
Who decided to co-sponsor Human Rights Council Resolution 30/1 on promoting reconciliation, accountability and human rights in Sri Lanka? Did the UNP leadership discuss the September 21, 2015, draft resolution as well as the draft resolution presented on September 24, 2015? Did the political leadership consult the Attorney General’s Department or was the issue taken up at the cabinet?
Nearly a year after the UNHRC adopted resolution on Sri Lanka; President Maithripala Sirisena continues to insist that he never accepted foreign judges. It would be interesting to know whether the Foreign Ministry had briefed President Maithripala Sirisena regarding the two draft resolutions.
Sri Lanka’s Permanent Representative in Geneva, Ambassador Ravinatha Aryasinha, strongly criticised the draft resolution when it was taken up at the first informal session in Geneva (Geneva draft resolution counterproductive - The Island, September 23, 2015).
The government never challenged the front-page story based on a three-page statement issued by the Permanent Mission of Sri Lanka to the UN, Geneva. Having rejected the draft resolution, the government co-sponsored the same in spite it being severely inimical to Sri Lanka. Obviously, Western powers ordered Sri Lanka to accept the draft resolution or face the consequences.
The Joint Opposition didn’t even realize what was happening though a section of the media, including The Island, extensively reported Ambassador Aryasinha’s statement at the first informal session. One-time Foreign Secretary, Bernard Goonetilleke, strongly criticized the draft of the proposed Geneva resolution in a live interview on Sirasa (Pathikada) and MTV (now TV 1) on September 24, 2015.
Pointing out that the draft resolution contained 24 preamble paragraphs and 26 operative paragraphs, Goonetilleke said, "It looks like a novel to me."
The veteran career diplomat basically echoed Ambassador Ravinatha Aryasinha that sections of the current draft were counter-productive to reconciliation efforts.
Responding to a query, Goonetilleke asserted that the outcome of the Geneva resolution would largely depend on how the government managed the situation.
Having commenced his career in 1970, Goonetilleke held postings in Kuala Lumpur, New York, Bangkok, Washington D.C., Geneva and Beijing. He has held several positions in the Ministry of Foreign Affairs ending as Director General (Multilateral Affairs) - (1997-2000), and Secretary Ministry of Foreign Affairs (2003-2004). Goonetilleke served as Director General of the Secretariat for Coordinating the Peace Process (SCOPP) and functioned as a member of the government’s negotiating team during the Norwegian-led peace process.
Expressing confidence in Aryasinha’s capacity to handle the situation, Goonetilleke said that he expected the government would take the correct path.
The retired top diplomat emphasized the responsibility on the part of the decision makers to comprehend the ground realities.
In spite of the formation of United Nations Human Rights Council in place of the United Nations Human Rights Commission, that instrument remained a political tool, Goonetilleke alleged, asserting that the Geneva UN body’s real intention wasn’t actually promoting human rights. The veteran pointed out that the resolutions had never been brought against the US, the UK, Canada or Australia.
Goonetilleke said that unless both parties could reach a consensus on the draft resolution, there was the option to go for a vote.
Goonetilleke said that influential countries pursued agendas beneficial to them. Some claimed credit for introducing certain sections, to a particular resolution, whereas others sought commendation for deleting parts. Goonetilleke emphasized that Sri Lanka couldn’t expect an overnight change in such international opinion.
Goonetilleke briefly explained the dilemma of the developing countries in taking a position on the Geneva issue due to Sri Lanka’s new friendship with the US. Commenting on Sri Lanka’s relationship with China, Goonetilleke stressed that Beijing was strongly committed to the principle that there shouldn’t be external interference in domestic affairs of member states. Goonetilleke said that China was most likely to remain an all-weather friend.
India’s position on the Geneva resolution would be largely dependent on the Centre’s stand, though Tamil Nadu factor couldn’t be ignored, he said (Ex-Foreign Secretary frowns on Geneva draft resolution-The Island, September 25, 2015).
Former President Rajapaksa’s office didn’t take notice of Ambassador Goonetilleke’s remarks. The government, too, never felt a need to consult experts, hence the decision to co-sponsor previously rejected resolution.
A statement made by Tamil National Alliance (TNA) spokesperson and Jaffna District MP M.A. Sumanthiran at a congressional hearing, on June 14, 2016, should be considered together with GoSL’s September 21, 2015 stand. In a lengthy statement made in the presence of Sri Lanka’s Ambassador in Washington, Prasad Kariyawasam, attorney-at-law Sumanthiran dealt with international involvement in the accountability process. Declaring that the Geneva Resolution had been accepted following negotiations, MP Sumanthiran declared that they had agreed for a hybrid court with foreign judges, prosecutors, defence attorneys and investigators consequent to tripartite talks involving the GoSL, the US and the TNA. The TNA in a statement, issued on June 16, 2016, quoted MP Sumanthiran as having told the congressional hearing: "I was personally involved in the negotiations, with the United States of America also participating in that particular process. There were some doubts created, as to whether the Constitution of Sri Lanka would allow for foreign nationals to function as judges and we went into that question, clarified it, and said yes they can and that is how that phraseology was agreed upon. And so, to us having negotiated and compromised and agreed that there would be a hybrid tribunal to try these mass atrocities, it is not open for the government now to shift its stance and say "well, international involvement yes, but it’s in a different form, now...’. That is not acceptable to us all."
The government nor the TNA never challenged The Island reportage on MP Sumanthiran’s bombshell statement. Sri Lanka’s embassy in Washington issued a press release regarding Ambassador Kariyawasam and MP Sumanthiran at the congressional hearing though there was no reference to the TNA heavyweight’s controversial remarks.
Ambassador Aryasinha, in his presentation on September 21, 2015, called for drastic changes in the draft resolution (the one the GoSL, the US and the TNA agreed on).
Having explained measures taken by the Sirisena-Wickremesinghe administration to address accountability issues through the formation of (A) A Commission for Truth, Justice, Reconciliation and Non-recurrence (B) An Office on missing persons based on the families right to know, designed and implemented with the support of the ICRC (C) A Judicial Mechanism with a Special Counsel that aims to address the problem of impunity for human rights violations suffered by all communities, and (D) An Office for Reparations, Ambassador Aryasinha regretted that the draft resolution didn’t take into consideration the new government taking an entirely different path.
Ambassador Aryasinha said: "At a time when we have a new Government that is adopting a calmly different path to that which was followed in the era, before 8 January, the expectation is, naturally, that there would be a similar change in tone, tenor, and even strategy on the part of the Council as well."
"In this context, my delegation is of the view that a lengthy resolution of the nature of the current draft before us which contains 24 preambular paras and 26 operative paras, which is repetitive, judgemental and prescriptive is not in keeping with the spirit of the process of reconciliation and reform that is underway in my country under the National Unity Government. Neither is it helpful in adopting a collaborative approach to reaching consensus. Many paragraphs in the current draft are in fact counter-productive to the reconciliation efforts of the government, and have the tendency to polarize communities, vitiate the atmosphere on the ground that is being carefully nurtured towards reconciliation and peace building and restrict the space required for consultations. There is a real danger that the current approach will leave room for negative interpretation, thus, only helping ‘spoilers’ in this process."
"Further, given that both the HCHR’s report (A/HRC/30/61) and the Report on the OHCHR investigation on Sri Lanka (OISL) (A/HRC/30/SRP.2) recognizes that the report represents a ‘human rights investigation’ and not a ‘criminal investigation’, emphasizing excessively on the criminal justice aspects, makes the resolution imbalanced. It would be more helpful to have a holistic approach when making recommendations in this resolution on promoting reconciliation in Sri Lanka."
"We also remain concerned regarding the formulations provided in several of the Operative paragraphs. Certain terminology used such as ‘verification’, is new and intrusive language to be presented in a human rights resolution, especially when the country concerned is engaging with the international community including with the OHCHR."
"I therefore urge, that in order to enable consensus, this resolution be sensitive to the constitutional and institutional difficulties that will have to be overcome in implementing its recommendations as well as political realities. It must also observe clear, cogent language that the people of Sri Lanka find respectful."
Obviously, those who had been demanding accountability on the part of Sri Lanka on the basis of unverified allegations simply ignored Ambassador Aryasinha’s statement at the first informal session on the draft resolution. Having succumbed to Western pressure and co-sponsored controversial resolution, the government is struggling to explain it did nothing inimical to Sri Lanka’s interest. Those who had boasted in the run up to January 2015 presidential polls that a defeat for war winning President Mahinda Rajapaksa would certainly save Sri Lanka from war crimes court are silent today. The Geneva resolution has proved them wrong. The previous government woefully failed to address accountability issues. The Rajapaksa administration pitiful strategies, in fact, helped Western powers, particularly the UK in coordination with the Tamil Diaspora to move Geneva against Sri Lanka. Their project remains on track. The government, as well as former President Rajapaksa, seem unable to face the Geneva accusations. They should carefully revisit the inquiry process leading to the adoption of Geneva resolution on Oct 1, 2015.