Tuesday, 25 February 2020

Lanka has to run the gauntlet in Geneva


By Shamindra Ferdinando

The late Mano Tittawella, in his capacity as the Secretary General of the Secretariat for Coordinating Reconciliation Mechanisms (SCRM), instructed Sri Lanka’s Permanent Representative (PR) in Geneva, A. L. A. Azeez, to accept resolution 40/1 on behalf of the Government of Sri Lanka (GoSL).

Tittawella recently passed away in Melbourne, Australia.

His ashes were flown to Colombo from Australia, early this week and it was kept at the ‘Respect’ funeral parlour at Borella.

 Top career diplomat Azeez, who was asked to return soon after the temporary change of government in November last year, did as he was told. Azeez had no option but to go ahead with the yahapalana project. The move was meant to extend the time allocated for Sri Lanka to implement 30/1 resolution, co-sponsored by us, by two more years. GoSL received time till March 2021 to fulfill commitments.

If the previous govt didn’t rob the Central Bank, perhaps Geneva commitments, including the new Constitution could have been enacted.

Azeez succeeded Ambassador Ravinatha Aryasinha in April 2018. Aryasinha, who served the Geneva mission for five years, accepted Resolution 30/1, on Oct 1, 2015 at the behest of the yahapalana government.

It would be pertinent to examine the setting up of SCRM to liaise between the GoSL and its Geneva mission as well as other bodies such as the ‘peace-building board’ and ONUR (Office for National Unity and Reconciliation) involved with the Geneva process. Twice (two terms 1994-1999 and 1999 to 2005) President Chandrika Bandaranaike Kumaratunga headed ONUR

The UNP-UPFA yahapalana coalition established the SCRM under the then Prime Minister Ranil Wickremesinghe’s Office, in keeping with a Cabinet decision, dated December 18, 2015. In terms of the cabinet decision, the Secretary General of SCRM reports directly to Premier Wickremesinghe. The outfit received capacity building assistance from the UN.

Tittawella issues instructions to Azeez

Tittawella issued instructions to Ambassador Azeez as regards the government’s decision in respect of Resolution 40/1, led by the UK, in the absence of the US. The UK took over the Sri Lanka project, in Geneva, in the wake of the US quitting the Geneva-based United Nations Human Rights Council (UNHRC). Obviously, the yahapalana government established the SCRM to bypass the Foreign Ministry. The UK received the leadership after the US quit the Geneva body, in June 2018, after accusing it of being ‘a cesspool of political bias.’

 Instead of taking it up with Premier Wickremesinghe, President Maithripala Sirisena lambasted Azeez. Some Joint Opposition UPFA lawmakers, including National Freedom Front (NFF) leader, Wimal Weerawansa, flayed Tittawella for having given instructions to Ambassador Azeez.

Tittawella has held several key positions in the state sector such as Chairman of the People’s Bank, Director General of Public Enterprises Reform Commission (PERC), Senior Director General of President Chnadrika Bandaranaike Kumaratunga’s Office, from August 2003 to November 2005, and was also a Senior Presidential Adviser on Economic Affairs.

President Sirisena accused Azeez of having betrayed the country and its armed forces. The President and those who censured Azeez never bothered to inquire into the role played by the SCRM, a special body created with Cabinet approval, tasked to carry out specific instructions received from the Prime Minister’s Office in respect of the Geneva process. Wickremesinghe personally handled the Geneva project. There is no basis for accusations that instructions were issued to Ambassador Azeez clandestinely. Cabinet appointed SCRM following proper procedures and all relevant parties were aware of the government decision to seek two more years to fulfill the Oct 01, 2015 Resolution 30/1.

The October 01, 2015 resolution had been endorsed by Ambassador Azeez’s predecessor Ravinatha Aryasinha. Azeez took over the Geneva mission in April 2018. Aryasinha signed the March 2017 resolution, too, which gave Sri Lanka two more years to fulfill its Geneva commitments.

The Foreign Ministry has been under Mangala Samaraweera (January 2015 to May 2017), Ravi Karunanayake (May 2017 to August 2017), Tilak Marapana, PC (Aug 2017 to Oct 2018), Dr. Sarath Amunugama (Oct 2018-Dec 2018) and again under Minister Marapana. Dinesh Gunawardena received the portfolio with the ministry being renamed Foreign Relations.

Dinesh submits cabinet proposal

Cabinet of ministers, at a meeting chaired by President Gotabaya Rajapaksa, on Feb 19, 2020, decided to withdraw from co-sponsorship of Resolution 40/1 of March 2019.

Thanks to Foreign Relations Ministry, an English translation of Decision No 19 of the Cabinet Decisions, taken on 19.02.2020 is now in the public domain.

Nalaka Kaluwewa, Director General of Government Information, as well as the Public Diplomacy Division, circulated the following:UNHRC Resolution 30/1 ‘Promoting reconciliation, accountability and human rights in Sri Lanka.’ The Cabinet of Ministers approved the proposal presented by the Minister of Foreign Relations on the GOSL’s approach on the above during the upcoming 43rd Session of the Human Rights Council and on the diplomatic initiatives necessary to realise this strategy

I. To announce Sri Lanka’s decision to withdraw from co-sponsorship of Resolution 40/1 of March 2019 on ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, which also incorporates and builds on preceding Resolutions 30/1 of October 2015 and 34/1 of March 2017.

II. To continue to work with the UN and its agencies, including the regular human rights mandates/bodies and mechanisms and seek as required, capacity building and technical assistance, in keeping with domestic priorities and policies.

III. To declare the Government’s commitment to achieve sustainable peace through an inclusive, domestically designed and executed reconciliation and accountability process, including through the appropriate adaptation of existing mechanisms, in line with the Government’s policy framework. This would comprise the appointment of a Commission of Inquiry (COI) headed by a Justice of the Supreme Court, to review the reports of previous Sri Lankan COIs which investigated alleged violations of Human Rights and International Humanitarian Law (IHL), to assess the status of implementation of their recommendations and to propose deliverable measures to implement them keeping in line with the new Government’s policy.

IV. To through due democratic and legal processes, address other outstanding concerns and to introduce institutional reforms where necessary, in a manner consistent with Sri Lanka’s obligations including the 2030 Sustainable Development Agenda (SDGs). Demonstrate in good faith the policies rooted in the Government’s commitment to the people by advancing individual and collective rights and protections under the law, ensuring justice and reconciliation and addressing the concerns of vulnerable sections of society.

V. To announce the intention of the GoSL to work towards the closure of the Resolution, in cooperation with the members of the UN.

 The UNHRC consists of 47 countries, divided into five zones. In spite of the GoSL’s decision to withdraw co-sponsorship of Resolution 40/1, the process cannot be brought to an end without the backing of member states, as acknowledged by the Foreign Relations Minister’s proposal. Now that the GoSL has declared its intention to work towards the closure of the Resolution, it will have to furnish all available information to dispute the very basis of the 2015 resolution. That’ll be a daunting task given the US, UK et al’s determination to undermine Sri Lanka for political as well as strategic reasons.  

The recent US move against Army Commander and Acting Chief of Defence Staff Lt. Gen. Shavendra Silva over alleged war crimes underscored the real challenge faced by the country.

Having announced the GoSL’s intention to withdraw from co-sponsorship of the 40/1 Resolution, Foreign Relations Minister Gunawardena is now in Geneva along with Foreign Secretary Aryasinha to achieve the key objective of President Gotabaya Rajapaksa’s government.

Peace-building Board

The incumbent government should make an effort to understand the system that had been in place to implement the Geneva resolution. The late Tittawella’s outfit had been part of what was called Peace Building Board and comprised both Sri Lankan and high level Colombo-based officials. Among foreign participants were the late UN Resident Representative in Colombo Una McCauley, the EU head of delegation Tung-Lai Margue and Juan Fernandez, senior human rights advisor, UN Resident Coordinator’s Office. Tittawella and McCauley functioned as Co-Chairs. The outfit included two civil society representatives, Mirak Raheem and Brito Fernando.

Tittawella’s outfit handled substantial foreign funds. At the fourth meeting of the peace-building board, held on Dec 14, 2016, at the Foreign Ministry, UN Chief here, at that time, McCauley discussed disbursement of USD 7 mn. The SCRM also received substantial EU funding. At the same meeting, held at the Foreign Ministry, EU head of delegation Tung-Lai Margue is on record as having mentioned the allocation of Euro 8.1 mn to provide technical assistance to Tittawella’s outfit.

Having strongly objected to the draft resolution, on Sri Lanka, at the first informal session called by the ‘Core Group,’ on Sept 21, 2015, Ambassador Aryasinha accepted the accountability resolution on Oct 01, 2015. Among those who had been present on that occasion were US Ambassador in Geneva Ambassador Harper and US Ambassador in Colombo Atul Keshap. Ambassador Aryasinha opposed the draft. One-time journalist Aryasinha asserted that heavy emphasis on what he called criminal justice aspects made the resolution imbalanced.

In a 13-point statement, issued immediately after the informal session in Geneva, Aryasinha, explained as to why it shouldn’t be adopted under any circumstances. Aryasinha emphasized the pivotal importance of the resolution taking into consideration constitutional and institutional difficulties in implementing its recommendations as well as political realities. The Geneva body ignored Sri Lanka’s concerns. Aryasinha dealt expertly with the crisis, caused by Geneva approach, in his eighth paragraph. Let me reproduce the relevant section verbatim: "In this context, my delegation is of the view that a lengthy resolution of the nature of the current draft before us which contains 24 preambular paras and 26 operative paras, which is repetitive, judgmental and prescriptive is not in keeping with the spirit of the process of reconciliation and reform that is underway in my country under the National Unity Government. Neither is it helpful in adopting a collaborative approach to reaching consensus, Many paragraphs in the current draft are in fact counterproductive to the reconciliation efforts of the government and have the tendency to polarize communities, vitiate the atmosphere on the ground that is being carefully nurtured towards reconciliation, and peace building and restrict the space required for consultations. There is a real danger that the current approach will leave room for negative interpretation, thus, only helping ‘spoilers’ in this process."

Isn’t it ironic that Aryasinha, having served as the Foreign Secretary during the latter part of the yahapalana administration, being given critically important assignment in Geneva.

Aryasinha back in Geneva

Ahead of the 43rd Geneva session, Aryasinha briefed the President of the UNHRC Ambassador Elisabeth Tichy-Fisslberger, as regards the GoSL decision to withdraw its co-sponsorship of Resolution 40/1 of March 2019 on ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, which also incorporates and builds on preceding Resolutions 30/1 of October 2015, and 34/1 of March 2017. Briefing took place on Feb 21.

Aryasinha also informed Ambassador Tichy-Fisslberger that Minister Gunawardena would formally inform the Council Members on the GoSL’s decision when he would address the High Level Segment of the Council, on Wednesday, Feb 26.

Minister Gunawardena, who will also respond to the Oral Update on Sri Lanka by the High Commissioner, on 27 February, is scheduled to meet the High Commissioner for Human Rights Michelle Bachelet, during his stay in Geneva.

The UNHRC head was also informed by the Foreign Secretary that on the eve of the decision being taken by the Cabinet, the Ambassadors of the ‘core group’ that had moved the resolution, who were resident in Colombo (the UK, Germany and Canada), had also been briefed by Minister Gunawardena.

The GoSL included one-time Human Rights Minister Mahinda Samarasinghe in Dinesh Gunawardena’s delegation.

In June 2016, TNA heavyweight M.A. Sumanthiran revealed in Washington the existence of a tripartite agreement among the GoSL, the US and his party to establish hybrid accountability mechanism. The declaration was made at the ‘Congressional Caucus for Ethnic and Religious Freedom in Sri Lanka’

On behalf of the TNA, lawmaker Sumanthiran claimed to have reached a tripartite consensus in respect of foreign judges, defence attorneys, investigators, etc., in a Sri Lankan judicial mechanism to probe war crimes. According to the Jaffna District MP, the agreement had been reached before Sri Lanka co-sponsored the Geneva resolution, in Oct 2015. The presence of the then Sri Lanka’s Ambassador in Washington, Prasad Kariyawasam, at the Congressional Caucus for Ethnic and Religious Freedom in Sri Lanka revealed the Foreign Ministry’s complicity in the project. Let us hope Foreign Relations Minister Gunawardena, on behalf of the GoSL, would refer to relevant developments in his Geneva speech.

Sri Lanka never bothered to critically examine all available information, nor present them in Geneva. A proper assessment would have certainly exposed the discrepancy in accusations directed at the war-winning Sri Lankan military.

Pivotal issues

Let me list key developments since the successful conclusion of the war in May 2009:

(1) March 2011 UNSG Panel of Experts (PoE) alleged that Sri Lankan military killed 40,000 on the Vanni front.

(2) In June 2011, US Defence Advisor in Colombo, Lt. Col. Lawrence Smith, disputed accusations pertaining to battle-field executions following an agreement between the government and the LTTE.

(3) In Sept 2011, London headquartered Amnesty International placed the number of civilian deaths at 10,000.

(4) In Sept 2011, the UK parliament was told 100,000 persons, including 60,000 LTTE combatants, were killed in 2009. For some strange reason, Sri Lanka never bothered at least to point out the discrepancy in various figures quoted by interested parties, hell bent on hauling Sri Lanka before the international war crimes court.

(5) Sri Lanka’s failure to highlight/point out discrepancy in the number of deaths is very surprising, against the backdrop of the United Nations Country Team (UNCT) contradicting the PoE assertion that 40,000 civilians perished in the offensive. The UNCT, on the basis of information secured from those based in wartime Vanni, placed the number of dead at 7,721 and wounded at 18,479. Sri Lanka owed an explanation as to why this was not taken up with those who accused Sri Lanka of massacring innocent people.

 (6) Interestingly, the March 2011 PoE report, that alleged Sri Lanka of killing 40,000, revealed the existence of UNCT report yet to be released over a decade after the end of the war. For want of a cohesive strategy, Sri Lanka never really brought up issues that should have been dealt with. A case in point is the UN ruling that prevented examination/verification of accusations for a period of 20 years, since the March 31, 2011, releasing of the PoE report. The bottom line is that on the basis of unsubstantiated accusations, collected under mysterious circumstances, the UN engaged in a process that finally led to the treacherous UNP-SLFP combine backing the Oct 2015 Geneva resolution.

 (7) Sri Lanka co-sponsored the Geneva resolution, just over a week, after finding fault with it. The then Permanent Representative in Geneva, Ambassador Ravinatha Aryasinha, who objected to the draft resolution, was instructed to endorse it. Aryasinha did. In spite of President Sirisena repeatedly dissociating his government from the Geneva resolution, he conveniently refrained from taking remedial measures. The Geneva resolution stands today unchanged.

 (8) In June 2016, Geneva referred to a new constitution making process in Sri Lanka. Geneva represented the interests of the Western powers. In the same month, lawmaker M.A. Sumanthiran, PC, in the presence of then Sri Lanka Ambassador to Washington, Prasad Kariyawasam, revealed the existence of a tripartite agreement on the accountability mechanisms. In other words, he declared the Sirisena-Wickremesinghe government acceptance of foreign judges and other foreign personnel. With Kariyawasam on his side, Sumanthiran declared that foreign judges being allowed in domestic war crimes courts was in line with the Constitution.

 (9) The House of Lords was told, in Oct 2017, there was no basis for the PoE claim of 40,000 deaths in the Vanni. Recently, Lord Naseby reiterated in the House of Lords that there were only 6,000 deaths. Of them, one fourth were LTTE combatants. (Once Lord Naseby referred to 7,000 to 8,000 deaths) It would be pertinent to mention Lord Naseby based his statement on wartime British High Commission dispatches from Colombo. Sri Lanka is yet to take up Lord Naseby’s disclosure with the UN. Farhan Aziz Haq, Deputy Spokesperson for UNSG António Guterres, said that decisions regarding actions taken by the UNHRC were solely in the hands of the members of the Human Rights Council. Haq said it would be up to the member states of the Human Rights Council to decide whether to revisit Sri Lanka’s case. The UNHRC comprises 47 countries divided into five zones.
The UN spokesperson said so when The Island asked him whether there was a possibility in the UN revisiting Geneva Resolution in the wake of Lord Naseby assertion that the Vanni death toll was maximum 7,000 to 8,000 not 40,000 as reported by UNSG Panel of Experts (PoE) in March 2011 and that the GoSL never targeted civilians purposely.

The Island raised the issue with the UN in the wake of Sri Lanka Parliament taking up the issue twice since Lord Naseby’s Oct 12,2017 bombshell statement in the House of Lords.

Sri Lanka ignored the opportunity given by Haq as well. In fact, Sri Lanka also turned a blind eye to the UK efforts to suppress dispatches which cleared Sri Lanka. UNHRC member UK didn’t release dispatches until Lord Naseby sought the intervention of UK Information Commissioner in accordance with the Freedom of Information Act (2000). Had the Foreign and Commonwealth Office released the required information, as requested in early Nov 2014, Western powers would have found it difficult to justify the Geneva Resolution. Western powers engineered the change of government, in January 2015, to ensure the passage of the Geneva resolution meant to facilitate the constitutional process, tailor made by the West. The final objective was to bring in the new Constitution. As pointed out by Dr. Gunadasa Amarasekera, who played a significant role in the overall resistance against the anti-Sri Lanka project, pointed out, in a letter to the writer, the threat remains. In fact, the threat is growing. The possibility of the Parliament being used to achieve separatist project cannot be ruled out.

(10) Sri Lankan leadership lacked insight to point out as to how the UN contributed to the Tiger despicable project of using of civilians as a human shield to halt the advance of security forces - March-May 2009. The LTTE, in early 2007, detained Tamil UN workers who had helped those who lived in areas under LTTE control to safely cross the Vanni frontline. Sri Lanka never took up this issue with the UN though the UN mission here was found to have deceived both the government and its New York headquarters. The PoE comprising Marzuki Darusman (Chairman), Stevan R. Ratner and Yasmin Zooka (South Africa) ended the report with the following recommendation: "The Secretary-General should conduct a comprehensive review of actions by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates."