by Neville Ladduwahetty
The latest Resolution on Sri Lanka at the UNHRC sessions in Geneva brings into focus 2 issues:
1. The lack of clarity as to what specific recommendations are expected to be implemented by the Government of Sri Lanka;
2. The call for an independent and credible investigation into violations.
ISSUE # 1: What specific recommendations are to be implemented?
The Preamble to the resolution refers to the National Plan of Action while the text of the resolution calls upon the Government of Sri Lanka "to implement effectively the constructive recommendations made in the report of the Lessons Learnt and Reconciliation Commission…". The Text of the resolution also "Encourages the Government of Sri Lanka to implement the recommendations made in the report of the Office of the High Commissioner…".
In the background of 3 separate sets of Recommendations, what is the Government expected to implement? Is the Government to implement unidentified "constructive recommendations" of the Lessons Learnt and Reconciliation Commission (LLRC), the recommendations in the UN High Commissioner’s report, or the Government’s own National Plan of Action - since reference to all 3 are in the Resolution?
It is evident from the foregoing that the UNHRC is confused. The Government too has not been emphatic enough to state in clear and precise terms that its commitment is ONLY to implement the National Plan of Action. References to any other recommendations such as those in the LLRC report should therefore be deleted from statements in resolutions and other documents since they have lost relevance. The right to determine what recommendations to implement is the right of any sovereign State. The fact that Sri Lanka failed to emphasize and articulate its sovereign rights in Geneva is perhaps the reason for resolutions to embody statements with references to multiple recommendations. If this situation is not addressed by the Government without further delay, Sri Lanka’s performance in respect of implementation would be judged by multiple standards. The need to avoid such a situation is urgent.
The obligation of the Government is to implement the recommendations of the National Plan of Action since it is the ONLY document that has the endorsement of the Government. Recommendations of the LLRC or that of the High Commissioner for Human Rights does not meet the same threshold of legitimacy. This Plan contains 83 (Friday Forum identified 85) of the 285 "Observations and Recommendations" in Chapter 9 of the LLRC report. The number of 80+ in the National Action Plan may appear low. However, what needs to be appreciated is that all 285 are not recommendations. Most of paragraphs are devoted to "Observations". Therefore, the "observations" need to be weeded out from the so called 285 "recommendations".
The justification for such an approach is because no Government that is accountable to its People is expected to incorporate ALL the recommendations of a Commission that is not accountable to the People. Its obligation is to exercise its discretion and identify in this case, those recommendations in the LLRC report and any others it considers "constructive" and develop a National Plan of Action. This, the Government has done and has committed to implement. The performance of the government has to be judged against this Plan, and not any other.
For instance, a total of 9 paragraphs, from 9.229 to 9.237, in the LLRC report deal with "The Need for Devolution". However, the ONLY serious recommendation is in paragraph 9.236 i.e. one out of nine. Under the circumstances it is understandable that what the Government intends to implement as "constructive recommendations" are those that are embodied in the National Plan of Action and not what is stated in the LLRC report. Although paragraph 9.232 "considers the possibility of establishing a second chamber comprising representatives from the provinces" it is ONLY paragraph 9.236 that gives the contours of a serious proposal. This paragraph states: "The Commission therefore recommends that the present opportunity be utilized to launch a good faith effort to develop a consensus on devolution, building on what exists – both for maximum possible devolution to the periphery especially at the grass roots level, as well as power sharing at the centre".
Had the Government brought such issues to the attention of the UNHRC at the time the Draft Resolution was circulated, the statement in the Preamble that states: "Noting that the national plan of action does not adequately address all the findings and constructive recommendations of the Commission" could have been challenged. What is most intriguing is that despite the fact the LLRC makes no reference to the unit of devolution, the Preamble of 2012 UNHRC resolution states: "reach a political settlement on the devolution of power to the provinces". It appears that the US sponsored resolution of 2012 has gone out of its way to be more creative that even the LLRC. This is an unwarranted intrusion unbecoming of the UN.
ISSUE #2: Independent and credible investigation into violations.
The resolution calls on the Government to "conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law, as applicable". Sri Lanka needs to decide how it is to address this issue. For the present the call is for "an independent and credible investigation". The outcome of such an investigation would determine whether the investigation was independent and credible. If in the opinion of the International Community driven by the US and India, the investigation does not meet their expectations of what is "independent and credible", the next resolution would call for an international investigation; a fact evident from the deletion for an international probe from earlier versions of the draft resolution.
In view of these developments Sri Lanka has to take a long and hard look as to how it would fare in an investigation even if it is to be "independent and credible", and not "international" considering the position it has taken thus far, namely, that it was a Humanitarian Operation. This position was further consolidated by the findings of the Army’s Court of Inquiry. While acknowledging that phases of the conflict did have humanitarian dimensions, the Government would be hard pressed to maintain that the entire operation was motivated by humanitarian considerations.
In this regard, a glimmer of hope is provided for in the Preamble to the 2013 Resolution that states: "Reaffirming also that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable". Since this provision can serve as a cover for all States combating terrorism, Sri Lanka should exploit the opportunity presented by it to modify the presentation of the conflict as a combination of an Armed Conflict fighting terrorism by recognized rules of war as stated in the Geneva Conventions and Additional Protocol II, coupled with a Humanitarian Operation to save the civilians trapped by the LTTE.
CONCLUSION
The 2013 Resolution passed by the UNHRC in Geneva calls upon the Government of Sri Lanka to implement multiple recommendations, viz., "constructive recommendations in the LLRC report, recommendations in the High Commissioner’s report and makes reference to Sri Lanka’s National Plan of Action. This lack of clarity is problematic. Adding to the confusion are statements and comments almost on a daily basis within Sri Lanka by Members of Parliament, commentators and analysts, calling for the implementation of LLRC recommendations. It is imperative to realize that in the current context, the LLRC report has lost its relevance because it is now a historical document. What is relevant is the Government approved National Plan of Action. The Government should take steps to urgently rectify this confusion by stating unequivocally both nationally and internationally, that it is committed to implement ONLY the National Plan of Action and nothing else, since this is the only plan that has the endorsement of the Government. Furthermore, the Government’s performance should be judged against this plan and not any other.
The second issue namely, the resolution’s call for an "independent and credible investigation into violations" needs to be addressed with the seriousness it deserves if grave consequences are to be avoided. Not to do so is to invite international investigations concerning violations committed at some future date; a call initiated already by Tamil Nadu. In this regard Sri Lanka needs to seriously consider its ability to sustain its stand and prevail in gaining acceptance from the international community and from the US and India in particular, that the conflict was a Humanitarian Operation. If Sri Lanka has doubts in this regard, it is in Sri Lanka’s interest that it evolves a fresh approach even at this late stage, and calls for re-categorization as a combination of an Armed Conflict fighting terrorism by recognized rules of war, coupled with a Humanitarian Operation to save the civilians trapped by the LTTE, without continuing to take a stand that is not helpful to bring closure to conflict-related issues.
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