Marga & CHA: Second Foray in Geneva, 25-26 September 2014

Asoka Gunawardene … being in further advocacy following the visit earlier in the month as reported in Thuppahi and before the visit to Washington described in https://thuppahis.com/wp-admin/post.php?post=18505&action=edit&postpost=v2

The visit was undertaken to follow-up on the presentation of a profiling of the implementation of the LLRC National Plan of Action (NPA) in Geneva so as to present action taken by GOSL to address issues of accountability arising from Commission’s recommendations. We had access to, in the public domain, the Oral Up-date of the UN High Commissioner for HR (HC) prior to our departure. We noted that the HCs update covered a broad spectrum of issues being subsumed under the OISL investigation into the alleged violations of IHL, IHRL and War Crimes, the period covered by the LLRC, 21^st February 2002 to 15^th November 2011 including “any contextual and other relevant information that may fall outside this timeframe which may provide better understanding of events or which may be pertinent regarding continuing human rights violation”. There were broadly three areas of concern.

First, the scope of the investigation defined by the timeframe seemed to suggest an implicit linking of post-war events to the presumed context of conduct during the war and pre-war period, a catch-all to argue a continuing pattern of violation of human rights. This amounts to equating issues in the conduct of the war with issues in the post-war adjustment, the latter being defined by several initiatives to address the humanitarian and development issues post-war. This includes notably, the LLRC/NPA, the National Action Plan for Human Rights (NHRAP) as well as several other programmes targeting rights-based assistance to the war-affected such as UNDP’s Access to Justice programme being continued under the current UNDP Country Programme.

Second, the definition of the timeframe also allows OISL to review the methods and findings of the LLRC. In this context we found the legal framework for the OISL, described as “the same as applied by the Lessons Learnt and Reconciliation Commission” to be somewhat ambiguous in the context of the qualification of the above legal framework by the requirement of its mandate “to apply international criminal law to the incidents and events under investigation in determining whether crimes have been perpetrated”. Whether this allows OISL to fall back on the application of IHL by the UNSG’s Panel of Experts (POE) or would move forward in examining the issues raised by the LLRC in the application of IHL (paras 4.327 and 4.329) to a conflict between a state and a non-state actor would constitute a moot point in the approach to the investigation to “establish the facts and circumstances of alleged violations, abuses and crimes by both parties”.

Third, the role of the Special Mandate Holders in the OISL investigation, especially in the context the reference in the TOR that the OISL would in its investigations would engage with special mandate holders. This aspect of the investigation was not quite discussed during the earlier visit. The Oral Update also made reference to engagement with human rights mechanisms while covering several events and incidents concerning human rights issues. The specific nature of engagement between the OISL and special mandate holders would seem to cause some ambiguity in GOSL engagement with the latter as the established process for engagement on HR complaints

We met with the following during the visit.

1. Rory Mungoven, Head, Asia-Pacific division.
2. Sandra Beidas, Coordinator, OISL.
3. Human Rights Officers, covering seven special procedure areas

Meeting with Mr. Mungoven

We presented our concerns regarding the approach to IHRL that does not make a distinction between the war and post-war situation and the focus on allegations of impunity as undermining rule of law to be inadequate if not partial. The context of the war was complex and IHRL issues should be examined in the context of issues of IHL (as addressed in the Third Narrative). The post-war context must be understood as a complex adjustment throughout Sri Lankan society in adjusting to post-conflict return to normalcy. The post war situation involved defining a new set of economic, social and political objectives. A rights discourse should be posited within such an agenda. It was noted that both LLRC and NHRAP sought to define the broad framework for such a rights discourse and that unfortunately the NHRAP has been neglected in the framing of the accountability discourse. It was reiterated that the larger objective of inclusive development should not be undermined in dealing with events and incidents that raise tights issues.

In the discussion that ensued, it was acknowledged that NHRAP had not received adequate attention. Following were raised as issues on the side of UNHCR.

1. Multiplicity of initiative by GOSL that do not add-up leading to fatigue in Geneva.
2. Need for a clear and comprehensive focus on victims, including acknowledgement of suffering, atonement and reparation with a centrality on truth.
3. The model of a Commission of Inquiry is not adequate as an approach to comprehensive reparation.
4. The need for a new comprehensive mechanism for multi-stakeholder consultation as the way forward in reconciliation.

The discussion addressed the question as to whether special mandate holders could provide an opportunity for engagement including benchmarking the status in the different areas of special procedure mechanisms and information update and exchange.

Meeting with Ms. Sandra Beidas

Ms. Beidas joined the meeting towards the later stages. The discussion focused on two matters. The first was the legal framework for the investigation and information gathering, in the context of the TOR stating that the legal framework adopted by the LLRC as being the legal framework for the OISL investigation. The specific issue raised was the LLRC’s position on the application of IHL to a conflict between a state and non-state actor and the need for review of the legal regime in the context of the Sri Lankan experience. While noting on the part of the OISL that the investigation had not yet got to the point where issues in the application of the law could be considered, the discussion on this issue closed on the note that the legal framework for the investigation is IHL/IHRL/War Crimes. The second was about the context for the review of events during the ceasefire period to which the response sought to separate political issues and monitoring of hostilities from human rights violations. It was however noted that ceasefire violations were also human rights violations and that it would not be possible to separate human rights violations from the context of ceasefire violations. In this regard it was noted that LTTE’s violation of the right of movement of the civilian population of the Wanni commenced during the ceasefire period. The discussion could not move forward to clarifying the ambiguities in the timeframe and the legal framework for the investigation due to seeming reluctance get into these aspects.

Meeting with Special Mandate Holders

There were seven Human Rights Officers/Assistant Human Rights Officers out of a total of ten who were present at the meeting with the special procedure desks at UNHCHR. i.e. Freedom Expression; Truth, Justice, Reparation and Guarantee of non-recurrence; HR of IDPs, HR of  Defenders, SR on Torture, Summary Executions, Working Group on Enforced or Involuntary Disappearances.

The preliminary remarks on our part set out the context of the war and the post war situation and the need to separate out the two in dealing with allegations of human rights violation, while noting that some alleged violations arising from the war would need to be addressed in a post-war reconciliation framework. It was also noted that the post-war human rights framework is defined by several GOSL initiatives including the LLRC, NHRAP, the work of the COI on missing persons. The discussion briefly reviewed the current status of engagement as far as the special mandate desks were concerned, noting that the OISL would engage with the Special Mandate Holders in conducting its investigations. It was further noted that a selective view of HR complaints is unlikely to be helpful the need to re-set the engagement within the framework of the Sri Lanka’s post-conflict reconciliation framework was noted. The discussion proceeded to examine current status of engagement in respect the different areas of special procedure mandates.

The discussion that followed was open and positive. Following are noted.

1. Overall the status of engagement in regard to cases of complaints being described as responsive though incomplete.
2. A transparent frame of reference for cases to be examined and reported as being helpful in making for a positive engagement.
3. A focus on victims, empowerment and civil society engagement as specific areas concern.
4. Modalities for the HR desks on disappearances and extra-judicial killings linking up with the domestic process established through the COI on Missing Persons.
5. The opportunity to learn from best practices adopted in other countries arising from the work of the special mandate holders.
6. Post-conflict HR agenda to complement a reconciliation policy framework.

 

A SELECT BIBLIOGRAPHY

Jeevan Thiagarajah: “Confronting the OCHR Investigation in Geneva, September 2014: Memorandum from Jeevan Thiagarajah,” 19 November 2015, https://thuppahis.com/2015/11/19/confronting-the-ochr-investigation-in-geneva-september-2014-memorandum-from-jeevan-thiagarajah/#more-18481

Sunday Times: “Marga/CHA confront the OISL Investigation in Geneva, September 2014: Godfrey Gunatilleke in Q and A with Lasanda Kurukulasuriya,” 19 November 2015, https://thuppahis.com/2015/11/19/margacha-confront-the-oisl-investigation-in-geneva-september-2014-godfrey-gunatilleke-in-q-and-a-with-lasanda-kurukulasuriya/#more-18492

Jeevan Thiagarajah: “Marga/CHA in Advocacy with BRIC Nations at Geneva, September 2014,” 19 November 2015, https://thuppahis.com/2015/11/19/margacha-in-advocacy-with-bric-nations-at-geneva-september-2014/#more-18498

“Marga & CHA Press Their Views in the Washington Den,” via Jeevan Thiagarajah: “Memo on Visit to Washington, 16-23^rd October 2014: Resetting the Discourse on Post-War Issues of Accountability,” 19 November 2015, https://thuppahis.com/wp-admin/post.php?post=18505&action=edit&postpost=v2