What next at UNHRC: Govt.

ponders its
options

By Our Political EditorSunday, September 20,

2015
US and Sri Lanka in dialogue

to work out new resolution to

be presented on Sept 30
President pledges tough
action against Gang of Five
trying to provoke the
security forces on Geneva
issue
Serious charges against
former regime and LTTE, but
Mangala says hot potato is
not too hot
Days ahead of the official release of
the report on alleged war crimes by
troops and Tiger guerrillas, the
United Nations Human Rights High
Commissioner Zeid Raad Al
Hussein and Foreign Minister
Mangala Samaraweera were in
regular telephone contact.
In one such phone call from Geneva
to Samaraweera in Colombo, Zeid
said the investigation report of the
OHCHR (Office of the High
Commissioner for Human Rights), tagged the OISL, would be made available to the
Government of Sri Lanka five days ahead of the official release. He said his immediate concern
was the need to maintain strict secrecy of the contents until they were made public, officially.

After a lengthy discussion, the duo agreed there would be no reference to the OISL
report even in their own conversations. The exercise of transmitting a sealed copy
from Geneva to Colombo, printed on watermark paper, was code named Operation
Hot Potato. Zeid said he had made only two such copies from the original report. He
was retaining one. A member of the Human Rights High Commissioners Secretariat
was hand carrying the other to Colombo. Samaraweera received a message last
Thursday that the hot potato was arriving the next day.
At 8.45 am on Friday (September 11) the emissary arrived at the Bandaranaike
International Airport in Emirates flight EK 650 from Dubai. In view of the hurry, he was
not given time to travel to Colombo and hand over the sealed package containing the
261 page report. Samaraweera had sent an official from his own office to collect the
report and make a beeline to the Foreign Ministry where he was waiting.

When his staffer arrived, Samaraweera stripped open the sealed package and read
part three the chapter dealing with principal findings of OHCHR investigations on Sri
Lanka (OISL). This is while officials, including Foreign Secretary Chitranganee
Wagiswara, Maheshini Colonne, Director UN at the Foreign Ministry and Ravinatha
Aryasinha, Permanent Representative to the UN in Geneva watched. The latter had
been summoned to Colombo for consultations only days earlier.

Its not as hot as we anticipated, not a hot potato. It is not blood curdling and the
report has not mentioned any names, Samaraweera declared. He opined the OISL
report was more a narrative and as declared therein, was a human rights
investigation and not a criminal one. He made a string of phone calls after the
discussion.

The result was a high level noon meeting on Friday chaired by President Maithripala
Sirisena. Prime Minister Ranil Wickremesinghe, former President Chandrika
Bandaranaike Kumaratunga and Justice Minister Wijeyadasa Rajapakshe took part.
Here again, Samaraweera briefed them on the highlights of the OISL report. Later the

same night, the Foreign Minister, the Justice Minister and Eastern Province Governor
Austin Fernando flew to Geneva for the 30th sessions of the Human Rights Council.

On Sunday, ahead of the sessions beginning the next day (Monday), Samaraweera
together with Rajapakshe met High Commissioner Zeid. He had returned to Geneva
only that day from the United States. This meeting was followed by another with Keith
Harper, the United States Permanent Representative to the UN in Geneva. Thus,
when Samaraweera spoke at the high level segment where Ministers make
statements, he was able to address some concerns raised in the OISL report even
before it became public. He gave details of how the Government has evolved
measures for setting up independent, credible and empowered mechanisms for truth
seeking, justice, reparations and guarantees of non-recurrence within the framework
of the Constitution. However, a more important task awaits him. When the OISL report
is debated on September 30 by the UNHRC, it would fall on him to explain the different
measures the Government proposed in the wake of the OISL report. For this purpose,
he is to place a road map.

Wednesdays developments
However, when the report was released officially at 10.30 am Wednesday in Geneva
and worldwide through the OHCHR website, the findings of three experts became the
focal point of attention. The trio were Marti Ahtisaari, former President of Finland,
Dame Sylvia Cartwright, former High Court Judge of New Zealand and Asma Jehangir,
former President of the Human Rights Commission of Pakistan. Their findings were in
two parts: (1) The 261 page overarching Report of the Office of the United Nations
High Commissioner for Human Rights (OHCHR) on Promoting Reconciliation,
Accountability and Human Rights; (2) An accompanying report of 19 pages of the
OHCHR Investigation on Sri Lanka.
With the release of the report, UNHRC chief Zeid said in Geneva that the OISL has
identified patterns of grave violations in Sri Lanka between 2002 and 2011, strongly

indicating that war crimes and crimes against humanity were most likely committed by
both sides to the conflict. (This period also covers the final stages of the separatist war
in May 2009). He said it has laid bare the horrific level of violations and abuses that
occurred in Sri Lanka, including indiscriminate shelling, extrajudicial killings, enforced
disappearances, harrowing accounts of torture and sexual violence, recruitment of
children and other grave crimes. He added, Importantly, the report reveals violations
that are among the most serious crimes of concern to the international community as a
whole. Some of the more important highlights in the report are listed briefly in the later
paragraphs.

Even if Foreign Minister Samaraweera did not believe the OISL report was not a hot
potato, at least one key recommendation has turned out to be exactly that. High
Commissioner Zeid declared that for accountability to be achieved in Sri Lanka, it will
require more than a domestic mechanism. He pointed out that Sri Lanka should draw
on the lessons learnt and good practices of other countries that have succeeded with
hybrid special courts, integrating international judges, prosecutors, lawyers and
investigators. Such a mechanism will be essential to give confidence to all Sri
Lankans, in particular the victims, in the independence and impartiality of the process,
particularly given the politicization and highly polarized environment in Sri Lanka.
OHCHR stands ready to continue providing its advice and technical assistance in the
design of such a mechanism.

Zeid noted that the Governments move for a credible domestic inquiry was welcome,
but it needs to convince a very sceptical audience Sri Lankan and international
that it is determined to show results. Prosecuting a few emblematic cases will not be
sufficient; Sri Lanka needs to address the patterns of serious human rights violations
and other international crimes that have caused such suffering for all communities
over decades if it is to prevent them haunting its future. It is quite clear that the UN
High Commissioner took note of the Governments move for a credible domestic
inquiry only during the six month deferral in tabling the report at the UNHRC at Sri

Lankas request. As is clear, the shape and form of such hybrid special courts is still
not defined in clear terms with only an offer of UNHRC assistance to design such a
mechanism.

Cabinet takes up OISL report

The OISL report formed the subject of main discussion after the ministers cleared
some twenty different cabinet memoranda at their weekly meeting on Wednesday
night. After Foreign Minister Samaraweera briefed his colleagues, ministers expressed
different views. Wide media coverage of claims by Udaya Gammanpila (UPFA
Colombo District) that he would introduce a private members motion calling for
amnesty to troops who may be indicted for alleged war crimes came in for severe
criticism. It was pointed out that there was no basis for such claims since no such
thing has happened. It was alleged that his remarks were aimed at rousing communal
passions. President Maithripala Sirisena was to make an important revelation. He said
he had credible information that a former political leader, a former top official, a former
Commander of the Army and two MPs who held extremist views were engaged in a
campaign to provoke the security forces over the issues before the UNHRC. He gave
their names. He said he was aware of what was going on and added that he would not
hesitate to take tough and deterrent action against them. He said he had no tolerance
for such activity.
Sirisena, who will address the 70th sessions of the UN General Assembly in New York
later this month, is also to refer in his speech to the measures the Government would
adopt on the OISL report. He is leading a 30-member team. It will include Foreign
Minister Samaraweera, Justice Minister Rajapakshe, Rehabilitation, Resettlement and
Hindu Religious Affairs Minister D.M. Swaminathan, Skills Development and
Vocational Training Minister Mahinda Samarasinghe, Northern Province Governor
H.M.G.S. Palihakkara and Eastern Province Governor Austin Fernando. Others in the
delegation are officials and members of the personal security detail. Sirisena has also
been invited together with select world leaders by President Barack Obama for an

event related to the use of military in peace keeping roles. The Government wants to
seek a larger share for the Sri Lankan military.
There was a distraction when some ministers raised issue over recent investigations.
This included the Avant Garde case and that of Tiger guerrilla procurement division
leader, Kumaran Pathmanathan. Criticism was levelled at officials of the Attorney
Generals Department. Among those who spoke were Champika Ranawaka, Rajitha
Senaratne, Sajith Premadasa, Ravi Karunanayake and Mangala Samaraweera.

The day following the ministerial meeting, different remarks by Government

personalities were to cause confusion. One was by Health Minister and now a
Government spokesperson (after Media Minister Gayantha Karunatilleke was named
first). Responding to questions from the BBC, he said our stand on the alleged war
crimes is that we must hold an internationally acceptable local inquiry. As a country we
are not ready to agree on international inquiries. A domestic inquiry on the
international standards. That is our position. That is what we have agreed with our
European friends and the US and other countries. Senaratne told the weekly media
briefing Thursday at the Department of Information that he hopes that the reference to
international roles would be omitted by the UNHRC. Former Deputy Foreign Minister
Ajith Perera told a local website, United Nations Human Rights Commission released
the report on Sri Lanka and recommended to appoint an international hybrid court. UN
Human Rights Commissioner is permitted to make comments according to the
Commissions report but it is not necessary for Sri Lanka to accept it. I personally
oppose the international experts and organisations interference in the internal matters
of this country. Perera has now been advised not to make such remarks.

Sampanthan raises credibility issue

However, the official position was articulated at a news conference by Foreign Minister
Samaraweera. He said that a credible domestic mechanism would be set up, at least
by January next year, to probe OISL findings. Two of the main stakeholders have
already rejected the notion of a credible domestic inquiry. Rajavarothayam

Sampanthan, leader of the Tamil National Alliance (TNA), re-iterated yesterday that
an entirely domestic process has no credibility. We know what happened to the
Udalagama Commission, the killing of five students in Trincomalee and the 17 aid
workers in Mutur. The IIGEP (International Independent Group of Eminent Persons)
appointed to assist the Commission that probed matters withdrew from its mandate
stating that the Sri Lanka Government did not have the political will or commitment to
investigate grave human rights violations in keeping with international norms and
standards. British based Global Tamil Forum spokesperson Suren Surendiran said, A
purely domestic court procedure will have no chance of overcoming widespread and
justifiable suspicions fuelled by decades of violations, malpractice and broken
promises. He said the GTF supports the establishment of a hybrid Special Court,
integrating international judges, prosecutors, lawyers and investigators. The Forum
was formally acknowledged as a stakeholder by President Sirisena when he met a
delegation over a meal in London at his hotel, the Park Lane Hilton. This took place
when he, as chair in office, attended the Commonwealth Day ceremonies in London in
March. The event was kept a closely guarded secret, and was first revealed during a
television talk show by the then Deputy Foreign Minister. On the other hand, Anura
Kumara Dissanayake, leader of the Janatha Vimukthi Peramuna (JVP) told the
Sunday Times, We are opposed to the setting up of hybrid special courts. We are of
the view that the investigations should be through a domestic mechanism.
The Governments proposal for a local mechanism was earlier endorsed by the United
States which agreed to move a joint resolution towards this end together with Sri
Lanka. The first draft was due to come up for consultation with other UNHRC
members last Thursday (September 17) but the event has been put off for September
23. This is said to be at the request of Britain, Canada and the European Union,
according to diplomatic sources. These sources said that both the State Department in
Washington and the Foreign and Commonwealth Office in London had informed
Minister Samaraweera that they preferred the hybrid special courts in the light of the
OHCHR recommendation.

Though not explicitly, this new position of the United States is spelt out in a five-page
draft US resolution, now being circulated amongst UNHRC members. A copy obtained
by the Sunday Times shows that this draft does not define whether it should be a
domestic mechanism or a hybrid special courts. Nevertheless, it calls upon the
Government to to involve international investigators, prosecutors and judges in Sri
Lankas justice processes which is what the OHCHR says is the core of the hybrid
special courts. The resolution takes note with appreciation the Government of Sri
Lankas proposal to establish a Judicial Mechanism with Special Counsel to
investigate allegations of violations and abuses of human rights and violations of
international humanitarian law, as applicable; and affirms that credible transitional
justice process should include independent judicial and prosecutorial institutions led by
individuals known for integrity and impartiality; and calls upon the Government of Sri
Lanka, to involve international investigators, prosecutors and judges in Sri Lankas
justice processes. There is every possibility that this draft would undergo changes
as the US consults other member Governments of the UNHRC. Details of the draft US
resolution appear as a report in our front page today.
Charges in OISL report
Does the Governments move to set up a credible domestic inquiry mechanism reject
or exclude the possibility of hybrid special courts being set up? Foreign Minister
Samaraweera provided the answer in an interview with the Sunday Times. See box
story on this page. He said: This is also one of the possibilities we have to explore
We have not closed our doors on any of these ideas. Finally whatever we do is not
merely to satisfy a few of us. It must be a credible mechanism which is acceptable to
all parties concerned.
Among the more important matters that would come under probe, highlighted in the
OISL report are:

On the basis of information obtained by OISL there are reasonable grounds to believe
the Sri Lankan security forces and paramilitary groups associated with them were
implicated in unlawful killings carried out in a widespread manner against civilians and
other protected persons. Tamil politicians, humanitarian workers and journalists were
particularly targeted during certain periods, but ordinary civilians were also among the
victims. There appears to have been discernible pattern of killings, for instance in the
vicinity of security force checkpoints and military bases, and also of individuals while in
custody of the security forces. If established before a court of law, these may amount,
depending on the circumstances, to war crimes and/or crimes against humanity.

OISL also gathered information that gives reasonable grounds to believe that the LTTE
also unlawfully killed Tamils, Muslims and Sinhalese civilians perceived to hold
sympathies contrary to the LTTE. The LTTE targeted rival Tamil political parties,
suspected informants and dissenting Tamils including political figures, public officials
and academic, as well as members of rival paramilitary groups. Civilians were among
the many killed or injured by LTTE indiscriminate bombings and claymore mine
attacks. Depending on the circumstances, if confirmed by a court of law, these may
amount to war crimes and/or crimes against humanity.

On the basis of the information obtained by OISL, there are reasonable grounds to
believe that acts of torture were committed on a widespread or systematic scale. This
breaches the absolute prohibition of torture, and Sri Lankas international treaties and
customary obligations. If established before a court of law, these acts of torture may,
depending on the circumstances, amount to crimes against humanity and/or war
crimes.

OISL notes with grave concerns the repeated shelling of hospitals in the Wanni.
Hospitals and other medical units and personnel enjoying special protection under IHL
(International Humanitarian Law) and cannot be made objects of attacks. Their
protection does not cease unless these are used to commit hostile acts, outside their

humanitarian function. The recurrence of such shelling, despite the fact that the
security forces were aware of the exact location of hospitals raises serious doubts that
these attacks were accidental. Other civilian facilities in the NFZ (No Fire Zone) were
also impacted, notably humanitarian facilities and food distribution centres. The
information available to OISL indicates that in none of the incidents reviewed were
there any grounds that could have reasonably led the security forces to determine that
these facilities were used for military purposes. These facilities therefore maintain their
civilian character and could not be directly targeted. Directing attacks against civilian
objects and/or against civilians not taking direct part in hostilities is a serious violation
of international humanitarian law and, depending on the circumstances, may amount
to a war crime.

OISLs findings indicate that there are reasonable grounds to believe that the LTTE
had a clear high level policy of preventing civilians from leaving the Wanni, thereby
unlawfully interfering with their liberty of movement. The information also shows that
the policy hardened from January 2009 although the specific instructions as to how
LTTE cadres should prevent anyone from leaving need to be clarified. Nevertheless,
the information gathered indicates that a number of individuals including several
children, were shot dead, injured or beaten by LTTE cadres as they tried to leave, in
contravention of their right to life and physical integrity. These acts may amount to
direct attacks on civilians not taking direct part in hostilities, in violation of international
humanitarian law. If established before a court of law, and depending on the
circumstances, such conduct may amount to a war crime.
OISL has reasonable grounds to believe that the Government knew or had reasons to
know the real humanitarian needs of the civilian population in the concerned areas,
including from its own Government Agents on the ground, and yet imposed severe
restrictions on the passage of relief and the freedom of movement of humanitarian
personnel. This apparently resulted in depriving the civilian population in the Wanni of
basic foodstuffs and medical supplies essential to survival. If established by a court of
law, these acts and omissions point to violations of international humanitarian law,

which, depending on the circumstances, may amount to the use of starvation of the
civilian population as a method of warfare, which is prohibited under international
humanitarian law. Such conduct, if proven in a court of law, and depending on the
circumstances, may constitute a war crime.
What next: UNHRC spokesperson explains
What next at the UNHRC in Geneva, now that the OISL report is out? Its
spokesperson Rupert Colville responded in an e-mail to the Sunday Times, It will take
time for everyone to digest the contents of such a big report covering such a range of
issues occurring over a nine-year period. Obviously we hope that the 47 states that
make up the Human Rights Council will take the recommendations in this report very
seriously, but we are not in a position to predict what they decide to do. We
understand that some States are likely to submit a draft resolution in the next few
days. So that will be an important next step. Asked about the September 30 debate,
he replied Yes, certainly there will be a debate. If there is draft resolution in play by
that time, various scenarios are possible: either it could be passed by consensus, or
if the 47 States cannot all agree on a text it may be put to a vote.
There is no gainsaying that there is a need to probe some of the serious issues that
have been raised. Such matters have still not been proved in a court of law. The
alleged war crimes highlighted are not something peculiar only to Sri Lanka. Even
troops of superpowers, some backing the probe in Sri Lanka, have been indicted,
though, admittedly, few and far between. However, their plus point is that such
instances, whenever highlighted, have been mostly probed and perpetrators brought
to book. What is insulting to Sri Lankans is another aspect. It has taken three eminent
personalities, at the request of the UNHRC, to proffer advice on national security
issues like for example the downsizing the military. Of course they argue that the size
and power were causes for abuses. Yet, 67 years after independence, that such a
request should come from a trio to a sovereign nation however small it is and not
rightly from an elected Government is, to say the least, disconcerting. The war, now

under UNHRC probe, is over. Peace has not arrived yet. Who could best discern
threat factors, a UN team or the Sri Lankan Government? The question will continue to
linger.
Here is the full text of the United States draft resolution before the UN
Human Rights Council. Among other matters it calls for "international
investigators, prosecutors and judges in Sri Lanka's justice system."
This draft, which could be subject to changes, will come up for public
consultation on the sidelines of the Human Rights Council sessions on
Wednesday.
The full text of the latest US draft can been seen here
Minister outlines plans for Truth Commission and other measures
The setting up of Hybrid Special Courts, recommended by the UN High Commissioner for
Human Rights is also one of the possibilities we have to explore, says Foreign Minister
Mangala Samaraweera.
Here are brief excerpts from an interview he gave the
Sunday Times:
OHCHR RECOMMENDATION FOR HYBRID SPECIAL
COURTS: That is also one of the possibilities we have
to explore. We are talking about a special judicial
mechanism. We have proposed that we must have Sri
Lankan judges of the highest calibre and independence.
However, there is also another school of thought that
Foreign Minister Mangala
our judicial system has been run down to such an
Samaraweera
extent, particularly in the last ten years. We may have a
problem in finding suitable people acceptable to all parties concerned. In
that respect, having experts from abroad as consultants or technical
assistance or even as judges may be an option that needs to be
considered.
We have not closed our doors on any of these ideas. Finally whatever we do
is not merely to satisfy a few of us. It must be a credible mechanism which
is acceptable to all parties concerned. Within those parameters we have to
leave our options open for discussion.
ON PREPARATIONS FOR A DOMESTIC INQUIRY: In keeping with the mandate
we got in January, we have been talking about a credible domestic inquiry
with international assistance. I then appointed a committee headed by
Eastern Province Governor Austin Fernando. There were other experts.
They worked through the parliamentary elections period to work out the

contours of the domestic mechanism. The basic framework was discussed

and agreed upon. We decided on a mechanism. It was based on four pillars.
They are:
1. Under the statutes to set up a mechanism on truth seeking. In
consultation with South Africa a Commission for Truth, Justice,
Reconciliation and non-recurrence will be set up. This mechanism will have
two structures. Religious leaders from the major religions will be appointed
to a Compassionate Council comprising Commissioners. This commission
will help to seek the truth for victims of human rights abuses from any
community where the perpetrators are not clear to be tried before a judicial
system or where they have resulted in discrimination and obtain remedy
for any injustice. Further details will be finalised following discussions.
2. To set up an office under the statues with the expertise of the
International Committee of the Red Cross (ICRC) to obtain information
about missing persons. We have also proposed to have a judicial
mechanism on the Right to Justice. The structure of this will be determined
in a consultation process in October.
3. The right for Reparation. For this purpose an office will be set up under
the existing statues. This will facilitate the implementation of the
recommendation on reparation by the proposed Commission on Truth,
Justice, Reconciliation and Non-recurrence, the Office of the Missing
Persons, the LLRC and any other body.
4. Taking measures to guarantee the non-recurrence of the events that
have taken place in the past such as the two insurrections in the south and
the war in the north. Special statutes and mechanisms will be put in place
for this purpose. A political settlement within a united Sri Lanka to settle
the grievances of the minorities should be reached.
Based on this, we will start national consultations with stakeholders. We are
not going with fixed ideas. We are only going with a framework. From the
time I return from New York, we will form a permanent Committee to guide
this process. We will start national consultations from January. Politial
parties, victims, civil society and anyone else who is interested. We will
discuss how this could be organised within the structures proposed. To put
those structures into place within 12 to 18 months. We have also informed
our international partners.
TIME FRAME: Basically we have indicated we would like to do it in the
shortest possible time frame 12 to 18 months.
ON WHY THOSE ALLEGEDLY INVOLVED IN WAR CRIMES WERE NOT NAMED
IN THE REPORT: It is a human rights investigation. The narratives talk about
the various incidents and various serious instances of Human rights

violations. This is not only of Government forces but also the LTTE. There is
one section which says the guerrillas were holding people hostage during
the last stages of the war. There were children who were shot when trying
to escape. It is a balanced report.
They have rightfully left the criminal investigation or the responsibility of
identifying those responsible for alleged war crimes. Pursuing them and
punishing them has been left to us.
They have also mentioned the importance of taking into account how
things came about. Many of these soldiers did not do these things out of
their own accord. The soldiers who may have been involved had no
personal grudge against those victims. They were acting on orders they
received. In such an investigation, I would say identifying the command
structure is more important. I read a report by the British on the Iraq war
which says the soldiers were carrying out orders which emanated from the
political leadership. Particularly a professional disciplined Army like ours,
other than a few miscreants would not have carried out such vast scale
violations unless they were given political orders. I would say in that
respect identifying that would be the most important aspect and not
creating a witch-hunt against the armed forces who most probably were
following orders.
PRIORITY AREAS FOR CONSIDERATION: The four areas we have identified
are equally significant. There are certain things we can do earlier like
setting up of a Permanent Office for missing persons. The details have
already been finalised. I believe necessary legislation can be brought very
soon. Even the TRC (Truth and Reconciliation) machinery. We have to go
through the consultation process. We have to make these a fait accompli.
Along with it will come many other parliamentary acts which will ease the
pressure. Anti-Hate laws, Freedom of Information Act etc. are also on the
cards.
A FUTURE ROLE FOR THE MILITARY: We have also been seriously discussing
with UN and others for a bigger role for Sri Lanka Army in peace keeping
operations. We have been invited to send a battalion to Mali. I believe on
the sidelines of the UNGA, US president has invited President Sirisena and
other world leaders to discuss a role for soldiers. Otherwise the soldiers in
Sri Lanka were forced to do menial jobs for politicians and officials of the
last government, bathing dogs, selling vegetables, washing clothes,
cooking food etc. The new move will restore their self-dignity.
By making them part of the peace keeping missions in the world we will

have our troops receiving professional training and international

experience.
Here is the full text of the United States draft resolution before the UN
Human Rights Council. Among other matters it calls for "international
investigators, prosecutors and judges in Sri Lanka's justice system."
This draft, which could be subject to changes, will come up for public
consultation on the sidelines of the Human Rights Council sessions on
Wednesday.
The full text of the latest US draft can been seen here
Posted by Thavam