by Dr. Laksiri Fernando
I refer to the editorial of The Island on 18 April titled "To implement or not to implement." As it correctly asks, ‘if the government believed that UNHRC resolutions are non - binding, "why on earth did it make such a song and dance?"
In my opinion, the government was in fact behaving like the ‘guilty party,’ both on the streets of Colombo and in Geneva; guilty of violations and vacillation over the implementation of the LLRC report. The editorial raises the important issue of Israel as a comparable case. Thanks for that.
Yes, it is true that Israel is refusing to implement the UNHRC resolutions; not only the last one but even before. But why on earth do we need to follow Israel particularly pretending to be the best chum of Palestine?
Our position should be the other way round. We should be a true friend of Palestine and argue against Israel and even be ‘exemplary’ in cooperating with the UNHRC on the implementation of the recent resolution on Sri Lanka. That resolution is not against Sri Lanka, in my opinion, although there may be certain embarrassing situations that the government or the armed forces have to face.
As I argued in my initial article to the Asian Tribune titled "UNHRC Resolution is obligatory on Sri Lanka" (18 April 2012), The Island editorial has referred to, Sri Lanka being a test case of ‘successful defeat of terrorism.’ This is exactly what the ‘defence establishment’ wanted to project aftermath of the defeat of the LTTE in battle. This is well and good, but as part and parcel of this test, it needs to be clearly ascertained ‘how far and to what extent the international human rights and humanitarian law was followed or breached.’
To pass the test, the victims should be properly compensated and perpetrators duly punished. There is a possibility to forgive some, like in the case of South Africa, if they have committed ‘crimes’ inadvertently and truly repent for the misdeeds. But others should be properly punished and purged from the armed forces. Otherwise their presence in the armed forces could be a major threat to the country.
Sri Lanka should look beyond the horizon! Right, Minister S. B. Dissanayake? Otherwise, as The Island editorial says "one will make the mistake of missing the wood for the trees, if one focuses only on Sri Lanka." Sorry for not dealing with other countries last time. But ‘the wood’ in this case means not only the ‘other trees’ like Israel or even US, but mainly the ‘principle behind the resolution’ which we all cannot escape or ignore.
Let me reiterate that principle which is in paragraph three of the Preamble.
It says, "States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law, as applicable."
This is an important principle whether Sri Lanka, US, Israel, India or Pakistan cannot ignore or refuse. This is and should be the future of the world in combating terrorism. Let me ask the esteemed Professor Peiris: Even if the UNHRC resolution is non-binding, isn’t Sri Lanka bound by the "international human rights, refugee and humanitarian law," as the resolution says "as applicable?"
Sri Lanka should be proud to be party to very many international treaties on human rights and humanitarian law although I am not going to cite them here in this response. Let me add however that Sri Lanka’s obligation to implement the controversial UNHRC resolution derives not only from the ‘resolution itself’ but also from the treaties, covenants and conventions that Sri Lanka is party to the human rights and humanitarian law.
I am not going to talk about the ‘other trees’ in detail but let us talk about ‘Our Tree’ at least briefly. I am using the nice ‘metaphor’ in The Island editorial.
Sri Lanka defeated terrorism or one of the worst terrorist organizations, the LTTE, within three years. Three years is an exemplary time-frame given the agony of around 30 years. It is a compact time-frame and especially the Wanni operation was quite squeezed.
We should not be oblivious to the fact that many things could have happened under the heat and proximity. It is also possible that the type of ‘patriotism’ advocated by some of our ‘mavericks’ and age old ‘prejudices’ or ‘hatred’ played a role. It is not very different to the US soldiers in Afghanistan or Iraq. The credible allegations should be investigated. An investigation should cover the horrendous LTTE atrocities as well.
There is more to the resolution. It is not against Sri Lanka in my view, like the resolution on Israel. It is not condemnatory. The main thrust of the resolution is to push or persuade the government to expeditiously implement what it calls the constructive recommendations of the LLRC.
After all, the LLRC was appointed for a ‘home grown solution.’ The recommendations are home grown. No one can say that the Commission was induced or influenced by the ‘treacherous’ international community or the NGOs. In my earnest view, the recommendations are mild, realistic and down to earth. They are left open for the parliamentary select committee to work out a political solution but recommended that it should be on the lines of devolution.
The commissioners apparently listened very carefully to the people and came up with their recommendations. In other words they listened to the Dukkha of the people and then looked into Samudaya with expert opinion. They have suggested a Magga in the recommendations as way for Nirodha and reconciliation. What more can be home grown?
Coming back to the resolution, it has three operative paragraphs. The first calls upon the government of Sri Lanka to implement constrictive recommendations of the LLRC and take additional measures to comply with international law.
The second requests the government of Sri Lanka to present expeditiously as possible a comprehensive action plan for the implementation of the recommendations. The third encourages both the Office of the Human Rights Commissioner and the Government to cooperate on the implementation of the resolution.
The necessary ‘concurrence of the government’ is something that India included into the resolution and Sri Lanka should be thankful for that. If not, there would have been an argument about undue international influence or interference. Even that is not there now.
Let me quote finally the seven salient recommendations of the LLRC that the resolution has highlighted.
1. Credible investigation of widespread allegations of extra-judicial killings and enforced disappearances (LTTE and Army).
2. Demilitarization of the North.
3. Implementation of impartial land dispute resolution mechanism.
4. Re-evaluation of detention policies.
5. Strengthening of formal independent institutions.
6. Reaching a political settlement on devolution of power to the provinces.
7. Promotion and protection of the rights of freedom of expression for
all and enactment of rule of law reforms.
Kala Gola Dilemma
The crux of the matter is whether we are for the implementation of these recommendations or not? All the above and many more are on the constructive side of the LLRC recommendations.
The government undoubtedly is in a Kala Gola dilemma, apparently on ill-advice; to be or not to be? The opposition might run away with Dikthala! This dilemma is partly because of the completely unwarranted demonstrations that they orchestrated in Colombo streets. Some have also expressed the view that "now if we implement the LLRC recommendations it may appear as we do it because of the resolution!" What a dilemma? But can the government just ignore the implementation of the LLRC recommendations?
So, let’s keep our fingers crossed.
Laksiri Fernando, Senior Professor of Political Science and Public Policy at the University of Colombo, is currently is a visiting scholar at the University of Sydney in retirement.