Sri Lanka: UN resolution the first step on rocky path to accountability

United Nations Special Rapporteur Chaloka Beyani, center, listens to a Sri Lankan ethnic Tamil war survivor during his visit to a former attle field in !ullaitivu, Sri Lanka in "ecem er# $ic% &$#

By JS

Tissainayagam !ar '(, )*(+ The Sri Lanka resolution adopted by the United Nations Human Rights Council (UNHRC Thursday establishes an international in!estigation mechanism to probe alleged "ar crimes of the past as "ell as monitor ongoing human rights !iolations in the country# $hile politicians "orld"ide spoke of the passing of the resolution in terms of !ictory and defeat% for those "orking for &ustice and accountability in the country it "as a day of sober reflection on the "ork ahead# $hile the resolution partly fulfils the demand for &ustice and accountability% its "eaknesses could also be a cause for serious setbacks# The final te't in the document calls on the UN high commissioner for human rights to undertake a comprehensi!e independent in!estigation into (alleged serious !iolations( by both the go!ernment troops and the LTT) rebels# The te't "as a compromise in "hich the *+ countries that comprise the UNHRC balanced hard,headed national interests "ith the demands of international la"# )!en then not all agreed: -. countries !oted for the resolution% "hile /- did not support it0 /- abstained#

$hile there are a number of interrelated issues on "hich the multi,clause resolution focuses% the core of the document is the international in!estigation mechanism# 1deally the backers of an international in!estigation hoped for a commission of in2uiry (Co1 to be appointed by the UNHRC# 3ut "hat the fractious council member states could agree to "as for an international in2uiry mechanism to be appointed by the 4ffice High Commissioner for Human Rights (4HCHR # The difference bet"een a Co1 appointed by the UNHRC and an international in2uiry mechanism by 4HCHR is significant because of its acceptability and for ne't steps# The UNHRC is an intergo!ernmental body# The high commissioner is the principal human rights official of the UN# He or she does not run or manage the UNHRC but is simply the chief e'pert that "ould ad!ise the intergo!ernmental body# 5 Co1 reports back to the state parties that appoint it# 4n the other hand% if the 4HCHR is mandated to carry out the in!estigation the in!estigator is appointed by high commissioner and he 6 she reports back to the 4HCHR# This body in turn "ill report back to the UNHRC% "hereupon the states "ill decide "hether to take action on the 4HCHR7s ad!ice or ignore it# Therefore% in the case of an 4HCHR,appointed in!estigation there is one more layer of uncertainty in implementing findings than if the in2uiry is conducted through a Co1# There are other uncertainties too# 1t is understood that High Commissioner Na!i 8illay is to appoint an e'pert as the lead in!estigator# $ith the !ote on the resolution imminent Sri Lankan and international ci!il society groups "ere scrambling last "eek to make recommendations on personnel they considered suitable for positions in the in!estigating team# The "orld!ie" and integrity of the single lead in!estigator could affect the outcome of the in!estigation !ery significantly# The third issue is a timeframe that limits the international in2uiry to the period co!ered by the Lessons Learned and Reconciliation Commission (LLRC # The LLRC% "hich "as a domestic commission of in2uiry appointed by the 9o!ernment% co!ered the period beginning :ebruary -;;- "hen the Ceasefire 5greement "as signed bet"een Colombo and the LTT) rebels% to /< =ay -;;< "hen Sri Lanka7s ci!il "ar ended# 1f the in!estigator abides rigidly by those dates% there is fear that many of the alleged "ar crimes perpetrated in the immediate aftermath of the "ar , Sri Lankan soldiers e'ecuting captured and surrendered rebels% the inhuman treatment of Tamil internally displaced people by the go!ernment and acts of se'ual !iolence to"ards female LTT) cadre and ci!ilian "omen% and the disappearances that occurred in the South in -;/; such as the abduction of 8rageeth )kneligoda , might not come under the scope of the in!estigation# $hile all of the abo!e deals "ith accountability% there is also the issue of reconciliation# The resolution aimed to deal "ith reconciliation by referring to the Northern 8ro!incial Council (N8C in the te't# Under the /. TH 5mendment to the Constitution% limited po"ers are de!ol!ed to pro!incial councils (8Cs Control o!er Local )conomic >e!elopment and pro!iding ser!ices so they ha!e# The N8C is the only council of the nine in Sri Lanka "hich is Tamil dominated and the

international community has long held that elections to the Northern 8ro!ince and establishing the N8C "ould be the first step to"ard po"er sharing and reconciliation# 1t is for this reason that the -;/. resolution called for holding of this election# >espite the N8C being established% the Central 9o!ernment has in Colombo Used political roadblocks to pre!ent the N8C and 5dministrati!e e'ercising e!en the limited po"er a!ailable to 1T under the /. TH 5mendment# Remedy To this% the 4riginal draft of the UNHRC resolution -;/* 5sked the 9o!ernment to pro!ide Sri Lanka "ith the N8C and 1ts Chief minister (and authority to go!ern R)S4URC)S 5s re2uired( under the /. TH 5mendment# Ho"e!er the te't "as changed to state (all pro!incial councils including the ?N8C@ ###( 1n other "ords% although it "as only the N8C of the nine 8Cs that "as in conflict "ith the central go!ernment o!er po"er and resources% the modified resolution asks that all councils be treated alike# The reason for treating the N8C differently from the others "as not because other 8Cs ha!e no problems of their o"n# 1t is because N8C has special issues# 3ut by introducing language that treats all 8Cs similarly% the special problems of N8C need not be addressed by Colombo# 4r as they ha!e done in the past the other eight 8Cs "ill pass resolutions that "ill gi!e Colombo an e'cuse not to address the N8C7s e'clusi!e issues# Hence the language of the resolution undermines one of its stated goals# The initial draft of resolution "as "eaker than anticipated# That allo"ed Colombo to use its allies to dilute the draft e!en further# Ho"e!er% those "ho "orked to ha!e this resolution adopted "orked tirelessly for it# 5nd that has to be commended# >espite its "eaknesses% the resolution "as necessary# 1t is the first independent international in2uiry "here an intergo!ernmental body has recognised the allegations of "ar crimes "ere "ell founded and !oted to ha!e the allegations more closely e'amined# 1t also goes to sho" that if there is sufficient political "ill in the international community they can act to bring some measure of relief to sur!i!ors of gross "ar crimes and gross human rights !iolations# This is "hy perhaps politicians backing the resolution ha!e chosen to interpret the !ote in the UNHRC mandating the appointment of an international in2uiry as a !ictory# :or sur!i!ors of "ar crimes and those confronted by the e!eryday brutality of the go!ernment forces ho"e!er% the conse2uences of this resolution remain uncertain# Therefore those "orking for &ustice and accountability in Sri Lanka ha!e a great task ahead in bridging this dichotomy#