Photo courtesy United Nations

In the last stages of the war in Sri Lanka tens of thousands of civilians were killed and no one has been held to account to date. This article though is not about the accountability of the Government of Sri Lanka(GoSL) for the killings. Hundreds, if not thousands, have already discussed, written and produced documentaries demanding GoSL for action on this count.  The UN Secretary General’s Panel of Experts (PoE) put GoSL on the dock and recommended independent and credible investigations.

Though little has changed in Government’s position on the issue, ‘accountability’ has continued to remain a thorn and has forced the Rajapakses to steer away from the ludicrous defense of ‘zero casualty’, ‘gun in one hand and human rights charter in the next’ and other such denial theatrics. It has compelled the Government to appoint ‘Lessons Learnt Commission’ (LLRC) and Military inquiry panels to buy time and to hope that things will fade away. But war-crimes and crimes against humanity are serious business and they appear unlikely to go away from the agenda of the international community for some time to come.  Most importantly they will remain an issue in the country since those who were killed and those who killed are both Sri Lankans and the memories and evidence are hard to extinguish.

But there is another entity, whose acts and omissions let these tens of thousands of civilians to be killed and hundreds of thousands be interned, which probably might go scot free. To recap, since the time of the war the conduct of UN in Sri Lanka has been under criticism for failing to live up to its protection mandate and to ensure upholding of humanitarian principles, of which it is the custodian. For many of the affected people, UN became an irrelevant actor at best and complicit one at worst during a crucial time when they were most vulnerable – be it in the war zone when they were held as human shields by LTTE or when they were fired and strafed upon by the Sri Lankan army, navy and air force or subsequently when they were processed through various check points and incarcerated in Menik Farm ‘welfare’ centers.

The United Nations and its various bodies, which were set up to prevent precisely such atrocities failed in their mandate to protect these civilians. They let politics, negligence, vested interests and plain incompetence come in the way of prioritizing the lives of children, women and men in Sri Lanka. The overwhelming evidence implicating the UN, compelled the Panel of Experts (PoE) to recommend to the Secretary General that he should “conduct a comprehensive review of actions by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates”.

It is interesting to see how the responses to these PoE recommendations to the GoSL and the UN Secretary General evolved. The Government of Sri Lanka, did appoint a Commission, conducted hearings and produced a coherent report. Of course it had several serious shortcomings as pointed out by many – including some fatal flaws with regard to probing accountability.  The process and content were critiqued by a number of actors including political parties and civil society in Sri Lanka, the Panel of Experts, international human rights organisations like the International Crisis Group, Human Rights Watch and Amnesty International and several others.  Even Government of United States and India made their views known regarding the LLRC.

LLRC at its inception was criticized for lacking independence and impartiality and rightly so. It was said to be made up of individuals with serious conflict of interest whom the Government handpicked for the job. Its mandate was limited and was ambiguous about accountability. The hearings were compromised by the militarized context and the absence of adequate witness protection mechanism. Above all it was accused of being a time buying/wasting exercise by a President who did not have the political will for an independent investigation. Clearly, the Sri Lankan government should have done better.

In this backdrop it is instructive to see how the UN review has progressed. It was relatively straightforward and less complicated. After all no one was accusing UN of war crimes or crimes against humanity. In comparison negligence, irrelevance, personal ambitions, incompetence and even complicity had less consequential significance in terms of findings. Here was an opportunity for the UN to make an example and demonstrate to the Sri Lankan government how inquiries should be conducted. This could have greatly strengthened its demands for a credible investigation by the Sri Lankan Government. Instead, what we saw was regrettable dilly dallying.  In fact, the way UN followed up on the PoE recommendations makes the Sri Lankan response look best practice bench mark!

The rot started from the top. The UN Security Council is hopelessly divided on Sri Lanka and was never forthcoming with the required mandate. Ban Ki Moon did not think that UN had failed in Sri Lanka. He always maintained that he did all that was politically possible. The testimony of senior UN officials in New York was that the secretary-general was visibly agitated whenever the subject of Sri Lanka and the UN’s failure was brought up. He wanted to distance himself from what ultimately turned out to be a tragic failure of epic proportion and counting the dead or conducting a honest review was not something he was keen on.

But the problem went deeper than an absence of political will on the part of the secretary-general, for there seems to have been tacit resistance from the Heads of key UN institutions to any inquiry into their conduct. The embroilment of the Secretary-General’s chief-of-staff Vijay Nambiar in a controversial “surrender deal” that went awry was an added complication.

All this meant that it took more than two-and-a-half years since the end of the conflict – and only after a forceful recommendation by the PoE, and probably a ratcheting up of pressures from internal and powerful external actors – for Ban Ki-moon to commission a review. No one in Sri Lanka seem to know at what stage it is and when it is due to be completed.

The UN review is headed by an ex UN staff and is supported by a team of current staff. The appointment of a part-timer, Charles Petrie, who is simultaneously also engaged in another significant piece of work, is indicative of the importance Ban Ki Moon places on the failure to protect the lives of civilians. While Charles Petrie may be the right person for the job and may produce an objective report, the independence and impartiality that is often invoked in relation to such exercises could have been better served if the team had also consisted of eminent person(s) who had at least an arms length distance from the UN. They had the option of drawing expert observers/participants from among the donors or other humanitarian agencies or any of the regional inter-governmental bodies that are conversant with the humanitarian reform agenda to ensure objectivity.

While internal processes may be appropriate for routine reviews, the scale of the fiasco and the vested interests of the actors and agencies involved require an external anchor for credibility. Which, by the way is not too different from what is being demanded of the Government of Sri Lanka.

The timing of the review and the meager resources allocated to it also makes one wonder if it is not a deliberate strategy on the part of high ups in the UN to dilute the exercise. The inexplicable delay in commissioning the review, to start with, would make the review a difficult exercise as many key people would have moved on to other jobs and countries and documents and correspondence of that time become difficult to trace back. That the review team is only a handful of people (however good and committed they may be), with a short time frame, with little resources makes it even more limiting. Add to it the fact that they are working from outside Sri Lanka and have to rely on the goodwill of reluctant and grudging heads and seniors of UN institutions, with vested interests and reputations to protect, in Sri Lanka and Head Quarters for material and human resource assistance to carry out their duties. The question is, given the gravity of the issue being probed, couldn’t the review have been set up in a better way with greater independence?

When President Rajapakse appointed the LLRC through an official announcement, he opened himself to a deluge of criticism from various quarters – on the composition of the commission and its mandate that were made public from day one. In contrast, except for a few insiders no one knows the details of the terms of reference for the UN review exercise.  The public announcements on this by the UN has been very sketchy, if any, and there seems to be a lot of secrecy surrounding what the team is actually reviewing. Let alone the affected men and women in the northern province who have a thing or two to say about the conduct of the UN, even most of the human rights activists in Sri Lanka and most experienced UN staffers in country are in the dark about the scope of the review. A far cry from details on scope available in the public domain on LLRC for people to engage and critique the process. Nothing of the sort appears to be possible with the UN review.

GoSL’s LLRC despite several shortcomings engaged in a relatively public exercise of information gathering. It had public and private hearings in Colombo as well as in the field. Many people as we know did make use of the opportunity in spite of intimidating and life threatening environment at times. In contrast no one in Sri Lanka except perhaps a few insiders are privy to the UN review process and as to how to engage with it. There are no drop box or email addresses that one is aware of and there certainly does not seem to be any field visits by the review team where individuals or groups with concerns could make representations. No interim reports that one could comment on.

In addition, Tthere is a complete lack of transparency about the methodology and process the UN review team is adopting to arrive at findings. No one is clear about the methodology and process to be adopted to arrive at conclusions in the UN review or to validate them. Not only does it not have a mechanism for the affected communities and concerned activists to engage with the process and raise issues, there also does not appear to be any reaching out to get the views of the Government of Sri Lanka (who may presumably have complaints regarding the failure of UN to get LTTE to release civilians, to have not come out publicly regarding LTTE’s detention of UN staffers and family etc). Who knows, since it is a review of UN and not GoSL per se, the Government may even have agreed to allow the team to visit Sri Lanka!

An alternative to such an open ended process could be a systematic sampling of key stakeholders. But there is no indication of such a system in place either. Makes one wonder if the team is arbitrarily selecting those from whom they would like to hear, perhaps from the very same ‘Representatives’ who were responsible for the decisions that lead to the failure. I am aware of a few key UN staffers (both local and expatriate) and many locals who have pertinent information, but hadn’t been contacted by the team till date. Many of them, who were operating on the ground in the north, have a critical perspective of the decisions and conduct of the UN management in country.  A couple of them claimed that they had been contacted for only cursory information. And left out of the process, as usual, are the views of the men and women who UN failed to protect and is now reviewing why.

Again, it is very possible that Charles Petrie and his team may have devised a mechanism building on the findings of the PoE to narrow down the list of people they need to talk to in order to probe headline failures. Maybe the secrecy surrounding the whole exercise is a necessary and calculated strategy. In the face of severe internal reticence and/or political pressures from the five permanent members of the UN Security Council (plus India), this flying below the radar may be the best way to get the first-order findings into the public space before then making it mandatory for individual UN institutions to conduct more in-depth follow-up reviews to inform action. The point is, no one knows. While I am willing to reserve judgment on the team till I see the report, many others aren’t, and the flaws in the process are already alienating many concerned individuals and groups.

At this stage for a concerned citizen of Sri Lanka, the inexplicable delay in commissioning the UN review, a terms of reference that is shrouded in secrecy, appointing an insider who is working only part time on it and having a process that precludes broader engagement of affected community and is susceptible to arbitrariness makes one wonder if Ban Ki Moon is really serious about this review. Or, if he wants only a sham exercise that makes the usual noises, learns nothing from the failure and holds no one accountable. If it is the case it certainly would be UNfortunate and UNforgivable –  on account of the thousands of men and women who were left to die due to political constraints, personal ambitions, negligence and incompetence by the UN.

It is indeed regrettable that those who (rightly) criticized the government of Sri Lanka over the composition, mandate and modalities of the LLRC are silent on the same issues when it comes to the United Nations review. So it is all the more important that those concerned speak up now and make this review count.