Colombo, Foreign Relations, Human Rights, Peace and Conflict, Politics and Governance, Post-War, Reconciliation, War Crimes

The Duplicitous Disclaimer: GOSL, the UN and Accountability

In consideration of the vague exposition on the reasons behind the meeting between Ban Ki-moon and representatives of the Sri Lankan Government in New York on the 23rd of February 2011, as well as the Government’s own disclaimer on the meeting, it is clear that there has been a concerted effort to disclose as little information as possible on this ‘eleventh hour’ attempt by the Government at back-door diplomacy in order to address the UN’s ‘panel on accountability.’ It is rather obvious that suspicions will arise when there are contradictory statements provided by both sides on the content of the discussions, which differed considerably as Ban Ki-moon’s spokesman, Martin Nesirky, stated that it was a ‘courtesy call’ on ‘reconciliation and reconstruction efforts,’ while the Secretary of the Ministry of External Affairs, Romesh Jayasinghe, stated that the meeting was about ‘legal issues.’ It was also interesting to note Deputy Minister Neomal Perera’s statement, which denied that there was an official visit planned by Mohan Peiris and Romesh Jayasinghe to New York to meet Ban Ki-moon. This possibly indicated that the hierarchy of the ruling alliance might have made the decision without the consultation of G.L Peiris and Neomal Perera, or perhaps only the latter was excluded. The rejoinder provided to Inner City Press by Sri Lanka’s permanent representative to the UN, Dr. Palitha Kohona, in response to Neomal Perera’s statement was that ‘the deputy doesn’t know anything, just ask him.’ No further clarification is required on the level of maturity and statesmanship exhibited in that response.

This is not the first time that the Government has dispatched envoys to meet Ban Ki-moon in order to discuss the UN panel (the last meeting was in 2010 between Ban Ki-moon and Mohan Peiris); however, in this particular attempt at diplomacy, it is important to note the timing of the meeting and consider what the content of these discussions would have been, particularly when the meeting occurred five days before the UNHRC meeting in Geneva and the expected public release of the UN panel’s interim report on Sri Lanka as well. The frenetic attempt by the Government to possibly urge the UN to recognise certain facts in the final report has been noted by the political editor of the Sunday Times:

…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…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.

The reference by the political editor to the meeting as an exercise in ‘damage control’ seems rather obvious given that the dramatic impasse on the panel’s accessibility to Sri Lanka most probably resulted in the collection of information sans the submission of any representations by the Government and any consideration of the LLRC’s work. The Government’s willingness to engage with Ban Ki-moon in order to discuss the UN panel has been expressed consistently. However, if the reportage above is factual, by demonstrating an explicit concern about the panel and the content of its interim report, does this not legitimise the mandate of the panel? This is rather strange given that some key ministers have stated that the Government does not recognise the UN panel, but it does seem as though opinions on the panel and the level of engagement required differ considerably within the Government. Furthermore, the alleged subject of discussion at the meeting runs contrary to sentiments expressed by Minister Mahinda Samarasinghe, who is currently heading the Sri Lankan delegation at the UNHRC sessions from the 28th of February to the 5th of March, on the legitimacy of the panel and its questionable inception. This Minister had this to say about the UN panel in an interview with the Daily News on the 6th of February 2011:

Our position has been that this was a unilateral decision by the Secretary General. It was not based on an inter-governmental decision or established by way of a resolution at the UNGA…We don’t know in the first place if the report will come out before the end of February. From what I understand their mandate is being extended by the Secretary General till end of February. We also have to bear in mind that although they had the opportunity of meeting with the Lessons Learnt Reconciliation Commission (LLRC), that has still not taken place…At the very outset Sri Lanka put forward its position that we do not recognise this panel. [Emphasis ours] In that context whether such a document could be brought before an inter-governmental body is a big question mark. We are in any case closely following what is happening there.

It appears that the possibility of the UN panel visiting Sri Lanka is out of the question or at the very least limited and this is a considerable victory for the Government, as well as a defeat for Ban Ki-moon after his statement on the flexibility of President Mahinda Rajapakse on 17th December 2010, who had agreed to allow the panel to visit the country and meet the LLRC:

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, and 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 the President Rajapaksa on this issue.

However, the post-meeting comments on the 23rd of February 2011 by Martin Nesirky confirmed the fate of the panel when he stated,

…it is not essential for the Panel to visit Sri Lanka. There are other ways for the Panel to gather the material that it needs to do the job on accountability that it has been asked to do by the Secretary-General, to advise him.

Since June 2010, the position of the Government on the panel has constantly evolved from outright condemnation by stating that the panel would not be allowed to ‘enter’ Sri Lanka, to a fast unto death by a government minister and then official recognition in December 2010 when the Government agreed to allow the panel to visit Sri Lanka for a meeting with the LLRC. Minister G.L Peiris’ statement in October 2010 in an interview with the Daily Mirror indicated that the Government had changed its position on the panel and that it would be willing to ‘consider suggestions’ as long as there was no attempt at an investigation on war crimes. G.L Peiris went on to suggest the limitations of the Government’s engagement with the panel:

Open to suggestion does not mean accepting suggestion, open to suggestions does not necessarily mean acting on suggestions, open to suggestions means considering suggestions- we are prepared to consider good suggestions from whatever source those suggestions may emanate. Any other attitude would be wholly unacceptable. [Emphasis ours.]

If the Government intended to have a clandestine meeting, then it would be solely for the purpose of mitigating the opposition that would have resulted from discussions about an intended meeting in order to discuss the content of the report by certain constituent parties of the ruling alliance. In December 2010, Wimal Weerawansa maintained his position of opposition in a statement to the Sunday Times,

The government was opposed to the panel coming here when they made a request earlier. They said no visas would be issued. We do not accept that the panel’s objective is to advise Ban Ki-moon on accountability issues in Sri Lanka.

They have their personal agendas. If we allow them to come, it would be accepting their position. [Emphasis ours.] They should not be allowed to come here. The External Affairs Ministry should continue to maintain that stance.

The other statements on the UN panel by the JHU and the JVP were noted in a BBC Sandeshaya report on 22nd of December 2010,

The UN panel will label the president and the defence secretary as war criminals,” NFF spokesman Piyasiri Wijenayaka told journalists on Wednesday.

“The invitation to the advisory panel will enable the security council and the UN Human Rights Commission to push the International community to take an adverse decision against Sri Lanka,” warned JHU spokesman Udaya Gammanpila speaking to BBC Sandeshaya on Tuesday.

Opposition JVP parliamentarian Vijitha Herath told journalists on Tuesday that the government has demonstrated it’s ‘duplicity’ by rejecting the UN panel earlier and inviting it now.

After such tenacious statements a few months ago, the silence of the nationalist lump within the Government – particularly the NFF and the JHU – is intriguing, but no more than the utter reticence of the opposition.

Despite the fact that the statements from G.L Peiris, Mahinda Samarasinghe and others within the Government seem to contradict each other, it is clear that the Government has been deliberately vague on the form and extent of engagement with the UN panel. However, as we highlighted above and after the fall out of the panel’s intended meeting with the LLRC, the Government has not attempted to directly engage with the panel in order to discuss the content of the interim report. If the Government has made a mendacious and desperate attempt to save face by providing specific representations to Ban Ki-moon in order to ensure that the content of the interim report includes certain facts, then it certainly has legitimised what it initially sought to extirpate. It is obvious then that the Government is clearly concerned about the content of the interim report, particularly in the present context of increasing international pressure for an investigation. However, it is unclear whether the panel report will be released to the public, but the obduracy of both sides on the accessibility of the panel in Sri Lanka will contribute to the failure of the panel to conduct a proper and balanced analysis, which will affect the content of the report. It is also worth considering whether the recent filing of an application with the International Criminal Court (ICC), which names Dr. Palitha Kohona as an alleged “complicit” actor in war crimes, was discussed at this meeting. This could be considered a pertinent point given the presence of Ban Ki-Moon’s Chef de Cabinet, Vijay Nambiar, at the meeting whose name was apparently included in the application filed with the ICC in order to question whether he was “…an innocent neutral intermediary or in fact a co-perpetrator within the negotiation-related community.” However, there has been no indication or report that this might have been on the agenda for discussion at the meeting in New York.

The mounting international pressure – from several human rights campaigns; the concern over the content of the UN panel report if and when it is released and finally, the meeting of the United Nations Human Rights Council (UNHRC) – has prompted the Government to press home on the counter-campaign against what it feels are the unjust and puerile accusations of human rights abuses during the last stages of the war. The most recent statement by the assistant Secretary of State, Robert Blake, which effectively warns of the appointment of an international commission to inquire into human rights violations and accountability issues if the Government fails to abide by international standards of investigation, will add to the pressure that has led to a degree of strain within the Government. Yet, the Government will continue its counter-campaign with the help of the Non-Aligned Movement (NAM,) which represents seventy-five per cent of the UN’s member states. NAM supported the Government’s position on the panel by condemning the ‘…selective targeting of individual countries, which it deems contrary to the founding principles of “of NAM and the UN charter.

Ultimately, the Government will have to take note of the significance of the US statement detailed above and therefore, it is certainly desirable for the ruling party to demonstrate its commitment to peace by arriving at a framework for a political solution in its negotiations with the TNA, reformulating the scope and mandate of the LLRC as well as implementing the recommendations detailed in the interim report, and finally ensuring that the Human Rights Commission substantively addresses the past cases of violations and the post-war cases with a strict emphasis on justice and accountability. The Government may not feel that they have to abide by international standards and that instead home grown standards should be the yardstick of their conduct; either way, the ability to abide by a set of standards that lead to visible results and progressive transformation is what is expected from the citizens that they serve.