UNHRC losing credibility again on Sri Lanka?

By N Sathiya Moorthy

If media reports are to be believed, then UNHRC chief Michelle Bachelet’s draft on allegations of war crimes in the country seems to have been pulled out of the Tamil Diaspora’s long list of demands, ahead of the Council’s half-yearly session commencing next week. Coming as it does after the yet-to-be explained ‘leakage’ of the three-member Darusman Report, where it all began, and not just once, the proposed recommendations of High Commissioner Bachelet lacks credibility and integrity, which was said to be lacking in the earlier Government initiative.

There is no denying the other side of the story. President Gotabaya Rajapaksa’s after-thought of the appointment of a three-member committee to review the work of predecessor panels that had looked into accountability and reconciliation since the end of the war a decade ago. That includes the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC), appointed by the post-war Rajapaksa Government of President Mahinda R, now Prime Minister.

Clearly, the Gota Government did not move a single finger in this direction over the past more than a year since the presidential polls of November 2019. Neither did he pick up the LLRC Report from the Mahinda regime had left, nor did he appoint the review committee all these months. The Covid cannot be held responsible for either. The Government has moved all around, especially including the creation of a new panel for a new Constitution.

Interestingly, President Gota’s poll manifesto, nor that of Prime Minister Mahinda’s ahead of the parliamentary polls, contained anything in regard to the LLRC or political and ethnic reconciliation of the kind that is now being very vaguely hinted at – again with no commitment of any kind, on what the Government intended doing with its recommendations. Nor there seems to be any clarification in the mind of the people as to what the new panel is to do, though the expectation is that it would design a report, as if it were flowing out of the upcoming UNHRC session, but then in the reverse.

Targeted sanctions

As the media indicates, High Commissioner Bachelet’s draft report has already mentioned targeted sanctions against individuals and also a reference to the International Criminal Court (ICC) as possible next steps from the Council meet, ending in mid-March. The recommendations, especially targeted sanctions, including ban on travel and freezing of assets, a harsh measure, but a lot depends on the credibility of the processes, as they have been thus far.

The issue is not about what happened in Mullivaikkal, but about what a credible international inquiry should have been all about. The Darusman Report, commanded by then UN Secretary-General Ban Ki-moon, said 40,000 Tamils lost their lives, but did not produce any evidence, recorded or otherwise.

The Secretary-General, initially, said that it was only for his personal reading, as if it were a thriller fiction, commissioned by a billionaire-business man for his past-time engagement / entertainment. Later, he forwarded it to UNHRC chief of the time, the irreplicable Navaneetham Pillai, again, as if it were for personal consumption.  But then, the Report found its way to the UNHRC, where it was voted upon.

It is not as if the UNHRC process was flawed but the base document on which the processes were initiated and proceeded with, was even more. This should not preclude the fact that early on the Darusman Report itself got leaked, not once, but twice. First, the draft report was leaked, and months later, the final report.

Clearly, someone was pressuring the Secretary-General or the UN Secretariat or the UNHCRC member-States from within the system. No questions were asked, why and how this leak. Nor had the UN authorities put any other additional precaution in place after the first leak, to check against a repeat of the same.

Even the ardent defenders of the UN/UNHRC processes in the country, outside of the Tamil victim community, had any answers to their doubts and suspicions about those very processes. Barring the politically committed, others in the country that favoured a war crimes probe felt uncomfortable at the turn of events. They did not belong to the families of the solider class, who were ‘class accused’ in this instance.

Copied document?

Now comes the question of High Commissioner Bachelet’s draft report to the Council and the recommendations that it is said to contain. Over the past weeks and months, various Tamil Diaspora groups have been demanding that the war crimes probe in the country be taken to the ICC. They too have not made out any solid, evidence-driven, documented case to this end.

More recently, the three major Tamil political grouping in the country, did the very meaningful thing of signing a joint memorandum to the UNHRC, where again ICC was among their major demands. Given the sequence of events and the short time gap between their memorandum and High Commissioner Bachelet’s missive to the Government, one can only guess, which of the two documents, borrowed / coped from the other. Either the Tamil groups knew what was going to be their in the High Commissioner’s Report, or the Report was waiting for the Tamils’ memorandum, to be, ‘finalised’ (?).

There can be no third way about it, a honest way at that, not after what had happened with the Darusman Report. Maybe, the Office of the High Commissioner for Human Rights (OHCHR) can come out and confess that their draft had also got ‘leaked’ – and that they don’t know who had leaked it.

All of it matters not when the UNHRC is going to vote on political lines, and the ICC too may be following a similar path, if and when moved. But the credibility of the international scheme, which various member-nations have been questioning at different points, runs the risks, if the defenders of the Sri Lankan Government’s cause at Geneva, began challenging the course of the current recommendations, whatever their motives and intentions – just as member-nations backing the report will have their own, and against the Sri Lankan State, especially in the incumbent Government, as with the previous Rajapaksa dispensation.

And to think that the Tamil groups nearer home have not done their homework even a decade later, and have never ever appended any testimony of any of the 40,000 or more victims that the Darusman Report had divined without explanation, should show the thin ice that they are traversing. Not only member-nations, but also High Commissioner Bachelet, in her personal capacity, should instead be asking herself if the kind of non-evidence produced thus war would merit any serious criminal action in her own nation. Chile, leave alone even more conscientious naitons of the West!

(The writer is Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: sathiyam54@nsathiyamoorthy.com)