(Kalana Senaratne, LL.B, LL.M (University College London), is currently a post-graduate research student at the University of Hong Kong)
The recent appointment of a Panel of Experts by the UN Secretary General (UNSG) is a disturbing development, even though it was bound to happen.
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The panel and its mandate
The statement attributable to the UNSG’s spokesperson, issued on 22 June 2010, refers to the fact that the UNSG had appointed a Panel of Experts which will “advise him [the UNSG] on the issue of accountability” concerning alleged violations of international humanitarian and human rights law committed during the final stages of the war. The Panel “will look into the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.” Also, “[i]t will be available as a resource to Sri Lankan authorities should they wish to avail themselves of its expertise in implementing the commitment.”
The mandate does not refer to ‘investigation’. That needs to be appreciated. However, conflicting reports seem to float around. Some news reports suggest that the Chairman of the Panel (M. Darusman) has referred to the word ‘investigation’. If so, some clarification would be necessary. One doesn’t know whether the UNSG has given a different brief to the Panel, because Darusman ought to have known the serious connotations attached to the word.
There is also the following phrase: “In the conduct of its mandate, the Panel hopes to cooperate with concerned officials in Sri Lanka.” Here again, there are conflicting news reports. ‘Cooperation’, one would believe, involves, or should involve, an element of travelling; in this case, to Sri Lanka. But when the government issued its response stating that the Panel-members will not be granted visa to enter Sri Lanka, a clarification was issued by the UN that the members were not required to travel. Here again, the UNSG’s office is either contradicting itself, or is trying to please a different number of actors simultaneously.
Then, there is the question of ‘bias’; an accusation leveled at the composition of the Panel, its members. But this issue needs to be viewed in some perspective. The UN has, at most times, faced this problem when appointing such panels of experts. Fundamentally, such problems are bound to arise, because on the one hand there is the need to ensure that there is no bias, but on the other hand, there is also the need to ensure that certain eminent or well known persons are appointed. The issue with appointing ‘eminent’ people is that given their wide experience they would have at some time during their careers in the past, written about or commented on certain matters which they are mandated to look into now from a more ‘independent’ perspective.
This was the problem the UN/UNHRC ran into regarding the establishment of the fact-finding mission concerning Gaza. When former Irish President Mary Robinson declined the invitation to head the fact-finding mission which looked into the Israeli attacks, there was the setting up of the ‘Goldstone panel’; which included Judge Richard Goldstone, Desmond Travers, Hina Jilani and Christine Chinkin. The problem here was not about ‘eminence’. All of them, in particular Judge Goldstone and Prof. Chinkin (of LSE) are eminent legal scholars. The problem was that all of them had, prior to their appointment, issued letters which vehemently condemned the Israeli attacks; Judge Goldstone, Travers and Jilani via an Amnesty International petition stating that they were ‘shocked to the core’ by Israeli action, and in the case of Prof. Chinkin, it was through a letter published in British Sunday Times, stating that the Israeli bombardment of Gaza was not a case of self-defence but a war-crime.
Likewise, there is some concern with regard to the chairman of the present panel, Marzuki Darusman; mainly due to his involvement in the ‘Udalagama Commission of Inquiry’, via the International Independent Group of Eminent Persons (IIGEP). Yet, if then, that same argument of ‘bias’ can and should be raised against Sri Lanka’s own domestic commissioners as well; particularly with regard to the chairman of the recently appointed ‘Lessons Learnt’ Commission.
Finally, as regards the mandate, there is the following: that the Panel will be “available as a resource to Sri Lankan authorities should they wish to avail themselves of its expertise in implementing the commitment.” Such words sound comforting, no doubt. But this is where matters turn serious. What happens if the Sri Lankan authorities do not wish to avail themselves of the Panel’s expertise? Would the UN respect the government’s discretion? I do not think so. Such inaction would be used against Sri Lanka, and it is felt that Sri Lanka should have stated, that while it opposed the establishment of the Panel, it would be willing to take note of the recommendations once the final report is made available.
One cannot predict, conclusively, what these recommendations are going to be. In general, much of what can be recommended is contained in the work of another member of the Panel, Prof. Steven Ratner (see Steven R. Ratner and Jason A. Abrams, Accountability for Human Rights Atrocities in International Law, Second Ed., 2001), wherein the general impression formed by the authors about the Sri Lankan conflict seems to be that both governmental and non-governmental forces in Sri Lanka have been involved in the commission of atrocities.
The politics of the UN and the West
In these matters which involve the UN, one needs to be mindful of the ‘bigger picture’: the ‘international factor’, which is an eclectic mix of numerous actors, playing different roles.
The fundamental problem as regards the position of the UNSG is that it is the most glorified bureaucratic position in the world; very simply because the UN organization is the largest bureaucracy in the world. The preservation of that bureaucratic role, in turn, depends to a large extent, on the goodwill of the major powers (this would include the Permanent Members of the Security Council, the major financial contributors to the UN budget etc.). Every single UNSG needs to be mindful of the pressure that can, and would, be exerted not only by the ‘West’, but also by the ‘Rest’ (Ban Ki-Moon would be mindful of the fall of former UNSGs Boutros Ghali due to the US veto, and that of Kurt Waldheim due to the Chinese veto), and that the role of the UNSG is, to a great extent, shaped and formed according to the interests of the major powers in the world. In this regard, it needs to be noted that ‘political power’ exerted by the major powers is a problem that affects the roles of many others within the UN structure. Take, for instance, the principal judicial organ of the UN - the International Court of Justice. It is well known amongst many international law scholars - and as a couple of leading European scholars have pointed out during lectures - that one significant factor which stood in the way of the re-election of Sri Lanka’s Judge CG Weeramantry was the US’s dissatisfaction with Judge Weeramantry’s strong Dissenting Opinion - in the ICJ’s Nuclear Weapons case (Advisory Opinion, 1996).
To return to the case of Sri Lanka - all this means that the UNSG cannot ignore the pressure exerted by certain Members of the UN against Sri Lanka. Psychologically, there is also that tremendous desire to act (‘to do something’ and show the world that he is doing something) with regard to a small case like Sri Lanka, because the UNSG would have realized that he is utterly helpless when it comes to doing anything of serious importance or value concerning other major, and more serious, crises in the world (Iraq, Afghanistan, North Korea, Iran, Israel etc., etc.).
So, there is pressure that comes principally from the Western powers (and of course from the separatist elements elsewhere). But this Western block is one which has unfortunately lost its moral and ethical right to ask other States to respect international law; largely due to the horrible precedent that the US and UK have set in the form of the illegal invasion of Iraq, the cunning and deliberate efforts made by the US and the UK to change the rules of international law, the ‘rules of the game’ (especially on the use of force, humanitarian/human rights law), and to legitimize everything in the name of the ‘Global War on Terror’ and the 9/11 ‘Grotian moment’ which in their view called for serious changes in the law (did the West also forget that Sri Lanka’s war on terror started decades ago?).
But also, take a very simply example such as the voting pattern of the 10th (Israel) and 11th (Sri Lanka) Special Sessions of the UNHRC. It was almost the same block of States which voted against Sri Lanka, that had abstained from voting against Israel, during the 10th Special Session on Israel (that block includes the following: Canada, France, Germany, Italy, Switzerland and the UK in particular). What more of ‘Western legitimacy’?
If then, in a world where one sees that the US and the UK can easily escape from being held accountable for the atrocities committed by them and where the UN and the UNSG have been unable to establish any viable accountability process, the West does not have a moral right to be serious about ‘accountability’ vis-à-vis Sri Lanka. As a believer in the critical third-world approach to international law, such double-standards and ‘Western hegemony’ should not be allowed to prevail. Rather, as Profs. Tony Anghie and BS Chimni have argued (in relation to the broader theme of ‘accountability’ in internal conflicts), the West and the UN - when dealing with the issue of accountability concerning internal conflict situations - should place greater emphasis on the wishes of the people within the State. This is of extreme importance, also due to the fact that unlike in an ‘international’ or ‘inter-State’ conflict, the UN needs to be mindful of the serious issue of, and the need for, ‘ethnic reconciliation’ that has arisen in Sri Lanka, especially in this post-war context.
‘Post-war’ Sri Lanka: problems and contradictions
Now, having said all that, one needs to return to Sri Lanka. While this overarching global picture points to a significant erosion of ‘Western’ legitimacy and that of the role of the UN in general, the question that needs to be asked is; what of Sri Lankan legitimacy? Has Sri Lanka acted responsibly, especially since the end of the war? Sadly, this is not so.
Firstly, the political leadership, in addressing the issue of ‘accountability’ conveniently forgot that it had made a political commitment in that regard, in May 2009, in the UNSG-President Rajapaksa ‘Joint Communiqué’ and that the Resolution (S-11/1) adopted at the UNHRC 11th Special Session endorsed the “joint communiqué issued at the conclusion of the visit and the understandings contained therein.” Much could have been done by the Sri Lankan political leadership. But procrastination crept in. Also, very little was done by the government to ensure that a comprehensive and detailed response to the allegations leveled against its Armed Forces was issued, or in the case of specific incidents of serious crimes, a proper investigation took place. Instead, it took one year to appoint a ‘Lessons Learnt’ Commission, which, again, does not address the underlying problems concerning the need for independent and impartial investigations, or even a broad reconciliation process.
Secondly, related to this was a certain arrogance Sri Lanka showed in its diplomatic dealings. One such case was the unceremonious sacking of its Permanent Representative to the UN in Geneva Dayan Jayatilleka, soon after the victory at the UNHRC 11th Special Session on Sri Lanka. This was a serious strategic blunder; not only because of the most successful and vital role played by Dr. Jayatilleka, but also because Sri Lanka proved to the ‘international community’ that: a) it was not too concerned about the impression it creates in the eyes of its supporters right in the middle of such a crucial diplomatic centre as Geneva, and b) it believed, naively, that the threat of an ‘international investigation’ had become non-existent (had vanished) soon after victory was secured at the 11th Special Session.
Thirdly, Sri Lanka is beginning to (if it has not, already) look very much like Israel. Firstly, it blocked Canadian MP Bob Rae from entering Sri Lankan territory, and now, it states that no visa will be granted to the UNSG-panel members. Countering Western hegemony is not done through the rejection of visas. (One also remembers the way in which Israel blocked the members of the Goldstone mission and UN Special Rapporteur Richard Falk). And in another sense, Sri Lanka too seems to be engaged in ‘double-standards’. There was a time, somewhere in March 2009, when reports appeared that the Israeli Ambassador (in Delhi) had visited Colombo to lodge an official complaint concerning the strong anti-Israel remarks of Sri Lanka’s then PRUN in Geneva (Dr. Jayatilleka). But today, Sri Lanka is seen heading an inquiry which looks into Israel’s human rights violations. There’s something terribly wrong here.
Fourthly, there certainly could have been greater domestic political consensus on the question of how Sri Lanka should address the issue of an alleged ‘war-crimes’ investigation. This did not happen due to internal political friction; and the examples and reasons are well known to all.
Sri Lanka should realize that it cannot (and should not) depend and rely on the goodwill and sympathy of a few major powers (China, Russia, India) to help it always overcome the threat of an ‘international investigation’. Such dependency doesn’t do any good, and doesn’t take the country forward. What Sri Lanka needs to do is to take principal control of this issue, and rely on the support of her powerful friends when and where necessary. That can happen only if, inter alia, there is a much more broader and genuine ethnic reconciliation process. That cannot be done only by a few lawyers and bureaucrats. It should involve the people, belonging to all segments of society.