Options for Sri Lanka post HRC Resolution in March 2014

UNHRC RESOLUTIONA/HRC/25/L.1/Rev.1

15 APRIL 2014

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THE WAY FORWARDFOR SRI LANKA –

PART I

INTRODUCTION

This presentation attempts to lay down some of the more important considerations for the ‘way forward’ for the GOSL, with respect to the Resolution A/HRC/25/L.1/Rev.1 on promoting Reconciliation, Accountability, and Human Rights in Sri Lanka

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SCOPE

BACKGROUND TO THE RESOLUTION

THE HRC RESOLUTION OF 27/3

IMPLICATIONS OF THE RESOLUTION

IMPERATIVES FOR DECISION MAKING

HISTORICAL EXAMPLES

OPTIONS AVAILABLE TO THE GOSL

TECHNICAL COOPERATION

THE WAY FORWARD

PLAN OF ACTION

CHALLENGES FOR THE GOSL

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BACKGROUND

END OF THE WAR

Immediately following the end of the armed conflict in May 2009, the Secretary General of the UN visited Sri Lanka and with His Excellency the President, issued a joint statement in which the GOSL agreed to take measures on accountability of violations of IHR/IHL in the final stages of the conflict

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BACKGROUND (Cont’d)

‘DARUSMAN’ REPORT

As months of inaction by GOSL passed-by, pressure grew for an international inquiry. As a consequence the Secretary General of the UN (UNSG) appointed a three-member POE in June 2010 to advise him on the HR issues in Sri Lanka.

The completed report referred to as the ‘Darusman Report’ was presented to the UNSG in March 2011. The GOSL rejected the report as being ‘fundamentally flawed’ and ‘patently biased’

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LLRC REPORT

To investigate the facts and circumstances which led to the failureof the CFA made operational on 27 Feb 2002, the lessons that should be learnt from those events, and the institutional, administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future, and to promote further national unity and reconciliation among all communities, the GOSL appointed the LLRC in May 2010.

The report of the LLRC was published on 16 Dec 2011. The UNHRC and the ‘Darusman’ panel heavily criticized the report of the LLRC, due to its ‘limited mandate, and failure to meet minimum international standards’

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‘PETRIE’ REPORT

An internal review panel was appointed by the UNSG to examine the UN’s actions during the final stages of the armed conflict in May 2009, and in its aftermath. This report referred to as the ‘Petrie’ report was presented to the UNSG in November 2012.

While releasing the report, the UNSG stated that, “The UN system failed to meet its responsibilities. The findings have profound implications for our work across the world. I am determined that the UN draws appropriate lessons and does its utmost to earn the confidence of the word’s people, especially those caught in conflict who look to our organization for help”. The GOSL criticized the report that, the UN failed to take action when the LTTE used civilians as ‘human shields’, so that, the GOSL could not be held responsible

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REPORT OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

Navanethem (Navi) Pillay’s report on Sri Lanka, issued on 24 Feb 2014, calling for an international probe into alleged war crimes; was based on the ‘Darusman’ report, and boosted by the ‘Petrie’ report

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THE HRC RESOLUTION OF 27/3 Resolution is based on the Darusman report, Pillay’s report,

and the LLRC report. The driving force behind the resolution as well as the Secretary General’s thinking is the ‘Petrie’ report

The ‘Oral Statement’ of OHCHR projects the necessity for the budgetary allocation to be provided through an ‘additional appropriation’ in the context of the ‘Contingency Fund’

Sri Lanka is not a signatory to the ‘Rome Statute’ which created the ICC

The HRC Resolution has no legal binding on GOSL to compel the GOSL to act on the mandate of the Resolution – being a member of the UNO, it is only a moral obligation to make a commitment

Pursuant to Para 10(b) of the 27/3 HRC Resolution, an International Panel of Inquiry will commence investigations by May 2014

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(Cont’d) The report of the Panel of Inquiry would be tabled at a

UNHRC Plenary session and adopted by the UNHRC

UNHRC/OHCHR has no ‘legitimacy’ to take punitive action against the GOSL. The report of the inquiry, and its subsequent adoption by UNHRC will be illegal and hence of ‘no consequence’

As a consequence of ‘outright rejection’ of the 27/3 Resolution by GOSL and continued ‘non-cooperativeness’ with the OHCHR in implementing the mandate of the Resolution, the case against Sri Lanka may be referred to the UNGA/UN Security Council for a decision. Here too, the guiding principle would be the ‘Petrie’ report

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(Cont’d)Summary of major categories of alleged HR violations cited in the Resolution:-

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DURING THE MANDATED PERIOD OF THE

ARMED CONFLICT

DURING THE ‘POST-CONFLICT’ PERIOD

Intentional targeting of innocent civilians

Arbitrary detention

Arbitrary detention Enforced/involuntary disappearances

Torture Extra-judicial killings

Violence/sexual assault against women

Violence/sexual assault against women

Intimidation/retaliation of members of Civil Society, HR defenders and Journalists

Violation of rights to Freedom of Expression and peaceful assembly

Threats to Judicial independence and the Rule of Law

Discrimination of Religious minority groups and attacks on their places of worship

IMPLICATIONS OF THE RESOLUTION

IMPLICATIONS FOR THE OHCHR

‘Requests’ the OHCHR to undertake a comprehensive international investigation into alleged serious violations and abuses of HR and related crimes by GOSL/Armed forces and the LTTE, during the period covered by the LLRC; in the absence of a credible domestic investigation process so far

OHCHR to ‘Establish’ the facts and circumstances of such alleged violations and of the crimes perpetrated, with a view to avoiding impunity and accountability

OHCHR to ‘Implement’ the Resolution with the assistance from relevant Panels of Experts, and Special Procedures

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IMPLICATIONS OF THE RESOLUTION (Cont’d)

IMPLICATIONS FOR THE OHCHR (Cont’d)

OHCHR to ‘present an oral update’ to the the 27th Session of HRC (8-26 Sep 2014)

OHCHR to ‘present a comprehensive report’ followed by a discussion on the implementation of the present resolution at the 28th Session of the HRC (Mar 2015)

OHCHR to ‘monitor the domestic inquiry processes’ of the GOSL

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IMPLICATIONS OF THE RESOLUTION (Cont’d)IMPLICATIONS FOR THE GOSL

Calls upon the ‘GOSL to implement’ effectively the constructive recommendations made in the report of the LLRC

Calls upon the ‘GOSL to release publicly’ the results of Military investigations into alleged HR violations/abuses by the Armed forces, during the mandated period and post-war period

Calls upon the ‘GOSL to fulfill’ its Public commitments, including the devolution of political authority, which is integral to reconciliation

GOSL to credibly investigate widespread allegations of extrajudicial killings, and enforced disappearances

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IMPLICATIONS OF THE RESOLUTION (Cont’d)IMPLICATIONS FOR THE GOSL (Cont’d)

GOSL to ‘de-militarize’ the North, implement land dispute resolution mechanisms, re-evaluate detention policies, strengthen independent civil institutions, promote and protect right to freedom of expression, and enact the Rule of Law reforms

GOSL to Broaden the scope of the NPoA, to cover all elements of recommendations of the LLRC and those serious allegations of IHR/IHL specified in the Resolution, not included in the LLRC

GOSL to have a comprehensive approach to Transitional Justice, incorporating the full range of judicial and non-judicial measures

GOSL to appoint Internal domestic inquiries to incorporate ‘truth seeking’ processes that investigate patterns of past HR violations, their causes and consequences

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IMPLICATIONS FOR THE GOSL (Cont’d)

GOSL to prosecute those responsible for gross violations of IHR and serious violations of IHL, constituting crimes under International Law, with a view to end impunity

GOSL to investigate into all alleged HR violations/abuses in the ‘post war’ period, by individuals and groups, and take steps to end continuing incidents of HR violations and abuses

GOSL to take steps to implement the 13th Amendment to the Constitution

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IMPLICATIONS FOR THE GOSL (Cont’d)

GOSL to implement durable solutions for the IDPs, including the long-term displaced

GOSL to cooperate with the Special Procedures mandate holders, and respond formally to their outstanding requests

GOSL to cooperate with the OHCHR in the implementation of the present resolution, and to that extent seek advice and Technical Assistance

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IMPLICATIONS OF RESOLUTION

(Cont’d)

A ‘comparison’ of Para. 2 and 10(b) of A/HRC/25/L.1/Rev.1OPERATIVE PARA. 2 OPERATIVE PARA.

10(B)CRITERION

Calls upon GOSL to conduct an independent and credible investigation into

Requests the OHCHR to undertake a comprehensive investigation into

To conduct an international inquiry, in the absence of a credible domestic process

Allegations of violations of IHR and IHL, as applicable

Alleged serious violations and abuses of HR and related crimes

Investigate HR violations/abuses and related crimes

-To be decided by GOSL-

By both parties in Sri Lanka

Whom to be investigated


During the period covered by the LLRC

What period of the conflict to be covered


And to establish the facts and circumstances of such alleged violations and of the crimes perpetrated

Extent of civilian casualties, ROE, intentional targeting of civilians, laws of armed conflict, rules of war

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IMPLICATIONS OF RESOLUTION

(Cont’d)

A ‘comparison’ of Para. 2 and 10(b) of A/HRC/25/L.1/Rev.1 (Cont’d)

OPERATIVE PARA. 2 OPERATIVE PARA. 10(B)

CRITERION

To hold accountable those responsible for such violations

With a view to avoiding impunity and ensuring accountability

Holding the perpetrators accountable and prosecuting them

To end continuing incidents of HR violations/abuses in Sri Lanka

With a view to avoiding impunity and ensuring accountability

Holding the perpetrators of HR violations in the ‘post war’ period accountable and prosecuting them

And to implement the recommendations made in the reports of the OHCHR

With assistance from relevant experts and special procedures mandate holders

Through the UNHRC technical cooperation mechanism

PARAMETERS OF INQUIRY LEFT TO

GOSL

FOCUSED AND SPECIFIC

PARAMETERS

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IMPERATIVES FOR DECISION MAKING

The liberation of the North and East from the fascist LTTE terrorists who ruled the Tamil people with jackboots and an iron fist for over three decades is one of the greatest achievements of the current SL regime

Restoration of democracy in the North and east, giving the opportunity to the Tamil people for the first time ever in history to elect their own governing bodies in the areas they claim to be their ‘homeland’ can be rated as the highest political achievement in the ‘post-war’ period

The irresponsible actions of the post-war extremist groups in the South, through their ‘Race-Religion-hate’ rhetoric against the minority groups have been aiding and abetting the 23 countries which voted against Sri Lanka at the HRC Resolution; and helped the prime movers of the HRC Resolution to add new accusations to the Resolution

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IMPERATIVES FOR DECISION MAKING (Cont’d)

The cliché - Zero Civilian Casualties – was vital as a matter of GOSL policy during the mandated period of the armed conflict. As in any armed conflict any where in the world, civilian casualties in the form of ‘co-lateral damage’ was a reality, even during the armed conflict in Sri Lanka

However it is of utmost importance to establish through an independent credible internal inquiry that, there was no instance of ‘intentional targeting of civilians’ by the GOSL/Armed Forces during the mandated period of the armed conflict in the North & East of Sri Lanka

A speedy independent credible internal investigation seems the best means of dispelling the myths of HR violations, while recognizing the genuine extent of civilian casualties, due to ‘co-lateral damage’ and clearing the image and reputation of the GOSL/Armed Forces, ‘once and for all’

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GOSL has been called upon to conduct an Internal independent credible investigation and hold accountable those responsible, if any, for violation of IHR/IHL, without any undue delay

In the event the GOSL rejects the Resolution, the Sponsors of the Resolution could act independent of the UNHRC system, to impose sanctions/punitive measures against Sri Lanka, which certainly will have a negative impact on the International standing of Sri Lanka

The GOSL has Less than 01 year, to complete action to counter the HRC mandate given to the OHCHR to undertake a comprehensive International Inquiry into alleged violations of IHR/IHL

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Sri Lanka being a country of ‘Strategic Importance’ (for the control of Indian Ocean & its Air Space) to the world powers - USA and UK, they would take their current moves at the HRC, to the logical end of a possible ‘Regime Change’ using non-cooperativeness of Sri Lanka with the HRC/OHCHR, in the implementation of the HRC Resolutions adopted, as an excuse

On numerous occasions; the latest being the US Ambassador Sison’s remarks to the Foreign Correspondents Association on 3 Apr 2014 (no less than 7 times), it has been reiterated that the US is firmly committed to working with the people of Sri Lanka, however there isn’t a single instance of mention of the ‘US working with the GOSL’

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The US is committed to the unity and territorial integrity of Sri Lanka; a divided island is of no significant strategic value to any aspiring modern colonialist.

The fact that, the US has not even once, mentioned its commitment to the ‘sovereignty’ of Sri Lanka; tantamount to it being of lesser value to the US/UK; as if Sri Lanka ceases to be a sovereign country

US Ambassador Sison also states that, the ‘Sinhalese-Tamil division’ existed long before the resolution. The US/UK and other sponsors of the Resolution ignores the fact that, throughout the armed conflict and up to date, over 40% of the Tamil population has opted to ‘live and work’ side-by-side with the Sinhalese in the South; away from the so called Tamil Homeland – where is the division here?

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The ‘Arab Spring’ in the Middle East (Tunisia, Libya, Bahrain, Syria, and Egypt) in fact was also preceded by typical championing by the US – “working with the people for restoring democracy” – a typical pattern of preparing the grounds for ‘regime change’ can be observed in the US rhetoric on Sri Lanka

The lease contract between the UK/USA for establishing US Base Diego Garcia in the Chagos islands (annexed by UK at Independence of Mauritius) will terminate in 2016. Maldives has refused a base for the USA. USA has a strategic interest in gaining some form of ‘foothold’ in Sri Lanka, as a consequence; as there being no other options for the US

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HISTORICAL EXAMPLES

ISRAEL Israeli strategy of the outright rejection of HRC

Resolution 5-9/1 relating to the IDF operations in Gaza between 27 Dec 2008 and 18 Jan 2009, did not help Israel; despite the fact that Israel has the ‘full backing’ of the USA

Pursuant to HRC Resolution 5-9/1, a four member International Panel of Inquiry headed by Justice Richard Goldstone of South Africa was appointed on 3 Apr 2009, “to investigate all violations of IHR and IHL that might have been committed, if any, whether before, during or after the conflict”

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HISTORICAL EXAMPLES (Cont’d)

ISRAEL (Cont’d) The Goldstone investigation was completed in 6 months and the report tabled on 29 Sep 2009 at a Plenary Session of the HRC and was adopted by the HRC on 16 Oct 2009

The report accused both sides – the IDF and the Palestinian militants, of war crimes and crimes against humanity

The Panel of Inquiry recommended that each side openly investigates its own conduct, and if they failed to do so, the HRC should refer the case to the ICC

It was proven that the IDF “intentionally targeted civilians as a matter of Policy”

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HISTORICAL EXAMPLES (Cont’d)

ISRAEL (Cont’d) To date the matter was however, never referred by HRC to the ICC (Israel is not a signatory to the Rome Statute which created the ICC), and totally ignored by Israel; with no consequences

At the recent HRC 25th Session, three Resolutions were adopted on Israel (A/HRC/25/L.37/Rev.1, L.38/Rev.1, L.39), passed by near unanimous vote, with only the USA voting against the resolution

All three Resolutions were condemned by Israel and totally rejected

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OPTIONS AVAILABLE TO THE GOSL

PRIMARY OPTION

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OUTRIGHT REJECTION:a. of the HRC Resolution A/HRC/25/L.1/Rev.1 of 27/3

b. of ‘Oral Update’ of OHCHR due in September 2014

c. of ‘Comprehensive Report’ due in March 2015

OPTIONS AVAILABLE TO THE GOSL (Cont’d)

ALTERNATIVE OPTIONS

① Constructive engagement and cooperation with the OHCHR in the implementation of the Resolution adopted at the 25th Session of the UNHRC

② Negotiation with the HRC/OHCHR for a compromise on the mandated Resolution

③ Commencement of an Internal Independent credible inquiry with UN Technical Cooperation *

④ Plan of Action** with the combination of OPTIONS 1 & 3

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* TECHNICAL COOPERATION Typical process of UNHRC/OHCHR Technical Co-

operation:-

Helps countries recovering from armed conflict, in implementing HR obligations;

Implementation is only through concurrence/partnership with the host government;

Relies on external agencies for programme implementation;

Programmes include, support to the Governments, legal reforms, administration of justice, HR education, treaty obligations and setting-up national institutions

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* TECHNICAL COOPERATION (Cont’d)

Typical role of UNHRC/OHCHR Monitoring of an ‘investigative’ nature:-

Conducted by independent international panel of inquiry;

OHCHR ‘Follow-up’ monitoring mechanism involves; Special Rapporteurs Independent Experts Special Procedures mandate holders

Deployment of OHCHR ‘Field Presences’ to forestall further HR violations/abuses

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THE WAY FORWARD Outright rejection of the ‘illegal and intrusive’ HRC

Resolution of 27/3 and the follow-up ‘Oral Update’ of 26/9 and ‘Comprehensive Report’ of Mar 2015

This strategy would invariably ‘lead up to’ the case against Sri Lanka being presented to the UNGA/Security Council for a decision

Plan of Action** to Institute a strong, independent, impartial and transparent national HR mechanism to investigate HR related complaints; to prosecute HR violators/abusers through the justice system in SL; and to provide redress to those whose rights have been impinged

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** PLAN OF ACTION

Description of Activity To be Completed by

By Whom

01 Formal rejection of Resolution

April 2014 MEA

02 Appoint panels of Internal Inquiry

April 2014 GOSL

03 Conduct (11+) Internal Inquiries

May 2014 Inquiry Panels

04 Complete the Inquiries September 2014 Inquiry Panels

05 Apportion blame/accountability

September 2014 Inquiry Panels

06 Challenge OHCHR ‘oral update’ at 27th HRC session

8-26 September 2014

MEA

07 Prosecution of perpetrators if any

October 2014 Supreme Court

08 Publish reports of Inquiry December 2014 Inquiry Panels

09 Challenge OHCHR comprehensive report at 28th HRC session

March 2015 MEA

Proposed ‘Timeline’

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** PLAN OF ACTION (Cont’d)

Proposed (11+) panels of internal inquiry for each major category of alleged HR violations (for ‘fast tracked’ investigation):-

Intentional targeting of innocent civilians in the final phase of the conflict

Arbitrary detention Enforced disappearances Torture Extra-judicial killings Violence and sexual assault against women Intimidation and retaliation against Civil Society members Violation of rights to freedom of expression and peaceful

assembly Threats to judicial independence and the rule of law Intimidation and reprisals against HR defenders Discrimination of religious minority groups and attacks on

their places of worship

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** PLAN OF ACTION (Cont’d) Internal inquiry must establish beyond any doubt

that, there was no instance of ‘intentional targeting of innocent civilians’ during the mandated period of the armed conflict

Though ‘zero-civilian casualties’ was in fact GOSL policy during the final phase of the armed conflict, It must be established beyond any doubt that, the number of civilian casualties that occurred in reality during the mandated period of the armed conflict, was as a direct consequence of ‘co-lateral damage’ and must also establish the ‘genuine extent’ of such civilian casualties due to ‘co-lateral damage’

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** PLAN OF ACTION (Cont’d)The panels of inquiry so appointed, must

essentially be ‘un-biased’ and ‘impartial’, and should have eminent persons from the regional friendly countries as well as from Sri Lanka

Appointment of ‘panels of internal inquiry’ without any undue delay, and speedy commencement of investigations will ‘pre-empt’ OHCHR intrusions of sovereignty of Sri Lanka

It is imperative that the GOSL plan for ‘Devolution of Powers/Political Authority’ to the Provincial Councils is fast tracked

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** PLAN OF ACTION (Cont’d) Investigations into the period of armed conflict

beyond the ‘mandated period’ in the Resolution will essentially be time consuming and may even be unrealistic in that, they might not pay the expected timely dividends to the GOSL. Therefore, internal inquires must focus their investigations within the period stipulated in the mandated Resolution

Recommendations of the LLRC have to be expeditiously implemented. In this context, the NPoA must be reviewed with the aim of incorporating all elements of the LLRC

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THE CHALLENGES FOR THE GOSL

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1. ‘Oral Update’ of OHCHR due in September 2014

2. ‘Comprehensive Report’ due in March 2015 3. Possible adoption of the Resolution of 27/3, by the UNGA / Security Council – post ‘comprehensive report’ in March 2015

Documents

Options for Sri Lanka post HRC Resolution in March 2014