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Instruments of inquisition into Sri Lanka

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Mr. Samaraweera has fashioned a trident, a three pronged policy on human rights, accountability and reconciliation which undermines Sri Lanka’s sovereignty, national security and national interest. What are the three prongs of the trident?

1. An agreement with the UN High Commissioner and his office for a six month interval.
2. A domestic mechanism to investigate allegations
3. Another process of a Truth Commission to be evolved in conjunction with South Africa.  
Thus Prime Minister Wickremesinghe, through its Foreign Minister Samaraweera is planning on (a) a Geneva bureaucratic mechanism and inquisitorial process. (b) a so-called domestic mechanism which will actually be a joint venture the Office of the High Commissioner as well as international human rights NGOs. (c) A Truth Commission which is inapplicable to contexts such as the Sri Lankan war.

Foreign Minister Samaraweera is using two concepts which make no sense in the Sri Lankan context. The first is that of Transitional Justice.

Transitional Justice (TJ) comes into play when there is a transition that is systemic in character. Even then, Transitional Justice finds no place in some very important transitions such as the first wave of democratic revolutions which overthrew dictatorships in the 1970s. In Asia, matters are clearer still. The Philippines and Indonesia which underwent the most dramatic transitions from dictatorship to democracy chose not to delve into the past, for reasons of social and institutional stability. Transitional Justice is also relevant only in the context of a negotiated or essentially non-violent, if sometimes extra-electoral, transition. TJ does not make an appearance when there has been outright victory in war, especially if the victor has been the armed forces of the legitimate state. If Transitional Justice was not deemed a prerequisite for Reconciliation in Northern Ireland, why should it be deemed

imperative in Sri Lanka?
The other concept that Foreign Minister Samaraweera makes utterly inappropriate use of is the Truth and Reconciliation mechanism of South Africa. In the first place the context is not merely different but the exact opposite of that of Sri Lanka. In South Africa the struggle was for majority rule. In Sri Lanka, democratic majority rule existed and the LTTE fought against it.
The TRC was a byproduct of the roundtable process that ushered in a new South Africa in which majority rule was instituted. Not incidentally, the ANC rejected calls for federalism and its most progressive intellect, Joe Slovo, white.
A TRC that issued from such a context has no relevance for Sri Lanka. Would that help, rather than harm, the atmosphere for Reconciliation?

 What then is the answer? It is to stick explicitly to the letter and spirit of the LLRC recommendations, which entails nothing less and nothing more than the independent investigation of the residual issues identified and de-limited by the Report.
If anyone, including the UN High Commissioner attempts to push Sri Lanka beyond that, the new Government should re-enlist the support of India, Brazil and South Africa, and move a blocking Resolution in self-defense of national and state sovereignty.  
Meanwhile Foreign Minister Samaraweera and his Prime Minister must stop telling untruths on the public record that President Mahinda Rajapaksa agreed to an accountability mechanism-they sometimes say an international investigation – in his May 23, 2009 Joint Statement with Ban Ki Moon and later in the May 2009 Resolution in favor of Sri Lanka which obtained a near-two thirds majority in the UN Human Rights Council (on my watch, I might add).

The “understandings contained therein” were that the Government would take unspecified measures to address grievances regarding an accountability process with regard to human rights and humanitarian law violations. The “Government will take measures to address those grievances” is hardly a smoking gun; no evidence of any commitment to an accountability mechanism, domestic, international or hybrid. Indeed it is a model of diplomatic ambiguity. The LLRC and the Disappearances Commission, are the measures that the previous Government took, as promised, to address those grievances. That Government’s lapse was in failing to fully implement the LLRC report. That is all the new government has to do.  
(Dr. Dayan Jayatilleka was a Vice President of the UN Human Rights Council, elected to represent the Asian Region in 2007-2008.)

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