The leaked-UNSG’s Advisory Panel Report on Sri Lanka - Part One

The issue is only of academic interest now. The information published so far on the UNSG’s Advisory Panel Report (as leaked) and some of the comments relating to the commissioning of the Panel point that the UNSG had exceeded the norms followed in appointing advisory panels in this particular case.
by Bandu de Silva
“…..In the 18th and early 19th centuries, European writings assigned to Asia ‘the role of the “devil” in a morality play in which the good side was represented by the democratic republic or constitutional monarchy and private property of feudal lords and merchants.’

Even Marx inherited this line of thinking when in his younger years he wrote of Asian despotism, irrigation as a necessary function of the State, the absence of private property in land, and historical stagnation and immutability; and kept on returning to it even in his mature days. Marx inherited this broad skeleton of thought from Montesquieu , Hegel, Adam Smith, Richard Jones, James Mill and John Stuart Mill.”

(April 21, Colombo, Sri Lanka Guardian) That in summary is what the social scientist Bipan Chandra wrote in 1980 for UNESCO . Many other social scientists who worked on that project shared that view. I was privy to that discussion as I was at UNESCO at the time. Today, after three decades of the UNESCO study – Sociological theories: race and colonialism - could anyone say things are different from what it was in the 18th and 19th centuries? Not if the way the West is disposing of affairs when it comes to non-Western civilizations. Only the nomenclature has changed. Post WW II institutions like the UN are being manipulated to project Western norms despite the high expectations expressed by its founding fathers who even wrote some ideas from Indian/ Hindu-Buddhist concepts of morality into the founding tenets. In practice, however, the concept is that the non-Western world is still the “devil” and produces “rouge” nations which are suspected of manufacturing and possessing WMDs or are incapable of addressing violations of “international humanitarian and human right law” as Sri Lanka is now accused of in an Advisory Panel Report commissioned by the Secretary General of UN (UNSG). The fact that some panelists are drawn from the non-Western world makes no difference. What one hears is still the old “His Master’s Voice” (HMV) record. .

Before one examines the contents of UNSG’s “Advisory” Panel Report as it has come to be leaked so far there are several points to reflect upon. This article concentrates only on those points leaving out discussion of other details brought out in the leaked Report. I must acknowledge my indebtedness to J,B.Jeyraj (DBJ) for stimulating my thoughts on some of the points discussed here through the article published in his column recently. 

Why the emphasis on a “joint commitment”?

On may wonder why UN spokespersons have been laying emphasis over a “joint commitment” made by the President of Sri Lanka and the UNSG during the latter’s visit to Sri Lanka soon after the end of the war. The UNSG’s Advisory Panel Report (as leaked) also takes cognizance of the existence of such a “joint commitment” on an “accountability process”. If the UNSG has the right to seek legal and other advice and there was no procedural lapse as UN spokespersons seek to explain, the point arises why they should harp on this so called “joint commitment. The issue may seem academic but as DBJ discussed it, it has far more relevance to understanding the whole issue of the Advisory Panel’s Report and can be said to be at the bottom of the whole affair. 

It seems to me that the precedence quoted where Secretary General Moon had gone ahead with action of his own setting aside Security Council reservations, is not the important point to reflect on but it is why the UN Secretariat thought it fit to make reference to the “joint commitment” as the starting point for UN action on Sri Lanka, i.e. the appointment of an advisory panel to report to SG. 

Could this emphasis on the “joint commitment” then point to a realization of a felt need to buttress the argument for SG’s initiative on Sri Lanka? In that sense, it could be an admission of the weakness of hanging on to a debatable procedural situation over invoking SG’s right to take recourse to independent advice. For all intents and purposes, such an approach would then seem to give the impression that UNSG was following the natural trend arising from his meeting with the Sri Lankan President in Colombo and was not taking an exclusive initiative in the case of Sri Lanka. That could also invite broad consensus over the action taken by SG. 

For theoretical purpose, one could conclude that the issue of whether or not a “joint commitment” was made by the two leaders is very much in dispute. In the joint statement issued at the end of the visit it is stated that “Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations” On his part, it is also stated that UNSG underlined the importance of “an accountability process” for addressing violations of international humanitarian and human rights law”. However, finally, what was stated is that it was the GOSL which will take measures to address those grievances. The initiative was then left to the government. 

At this point one cannot fail to think of the U.S. government’s position. Under its laws the U.S. has precluded the prospects of any American citizens being subjected to investigation by the International Criminal Court (ICC). This was the reason why the U.S. refused to subscribe to the Rome Treaty and to come under the jurisdiction of the ICC. As will be seen, the U.S. position on Sri Lanka which country also did not support the Rome Treaty (it will be recalled that U.S. campaigned to keep other countries from signing the Treaty) had to be one which did not contradict with her own position. Therefore, one can understand why the U.S. was supportive of the GOSL conducting its own investigations. 

But lately, Assistant Secretary Robert Blake introduced a caveat which bereft of the jargon meant a joint investigation process (international and Sri Lankan) in the event GOSL’s own process fell short of expectations. That points to the U.S. government going a step beyond what it advocates in respect of its own citizens. It may be possible to draw a distinction between the two positions but for the present purpose, it is outside the scope of the present discussion. What matters is that there appears to be a close relationship between the U.S. position and that taken by UNSG, which may or may not be a deliberate relationship .

It seems to me that the introduction of the phraseology in the joint statement “for addressing violations of international humanitarian and human right law” presupposes that there could have been such violations but such a proposition has had no support from the government side. 

It is then clear that the idea of an “accountability process” had remained very much in SG’s mind but it had been left to the GOSL to take the initiative. The rather loosely worded phraseology in the joint statement is that GOSL “taking measures to address those grievances.” (note that the reference to “addressing violations of international humanitarian and human right law” which was part of SG’s thought has been modified when it came to the commitment on the part of the GOSL to one of “take[ing] take measures to address those grievances”). 

Here lies the difference in the understanding. What the joint statement then reveals is that no explicit or concrete assurance or pledge had been given by Sri Lanka that an “accountability process” as the Secretary General might have had in his own mind to be set up. This is very clear from the final paragraph of the joint statement. If the idea was floated by UN circles that there was an explicit agreement or even a “joint commitment” (now repeated in the Panel’s Report) between the SG and the President [suggestively where the UN would play a role] that appears to be the result of a post-visit development in response to growing pressure from certain interested circles. This then seems to me the first step to create space for the UN to intervene.

The argument about a “joint commitment” between GOSL and SG is then a new development not so much to coax the GOSL to take action to put an accountability process in place but for the UN to assert a role in it.

Initiative by Sri Lanka

The GOSL did initiate a ‘process’ through the appointment of the LLRC. The Panel’s Report as discussed later has not found the process launched by GOSL to its satisfaction. It even castigates it as ‘seriously flawed’ and “not in accordance with international standards.”. Even the choice of membership of the LLRC is stated to have “…compromised by its composition and deep –seated conflicts of interests of some of its members.”

However, despite these negative observations, the Panel Report does not give the impression that the responsibility now may be shifted from GOSL to the UN itself or be placed on another international body but still leaves it to the GOSL to do so. That accords with the position taken up by the U.S. government as advocated by Ambassador Butenis in Colombo and more positively by U.S. Assistant Secretary Robert Blake recently. 

The stand taken up by the UNSG’s Panel is contained in its Recommendation No.1 (as quoted by the media) which states that “Sri Lanka should initiate a ‘genuine’ investigation into violations of humanitarian and human rights law committed by both sides to the conflict.” Here again one sees the conflict in interpretation. The Panel’s position exactly accords with the UN Secretariat’s interpretation of “the commitment” made by the two sides in Colombo during SG’s visit in 2009. The only difference is that the Panel Report states that violations …… “committed by both sides to the conflict” need to be investigated. For practical reasons, that only makes a pretence of introducing a balance as prospects of investigating violations by the LTTE and punishment is now remote as the LTTE leadership has been eliminated. 

However, on closer examination, the reference to an internal investigation by the Advisory Panel seems to be only a façade. If Assistant Secretary Robert Blake spoke tongue in cheek language, the Panel Report is far more explicit on the point that it is advocating the setting up of “an independent international mechanism to monitor and assess the accountability process of the SL government” (Recommendation No.2) and that this independent mechanism “should concurrently conduct investigations independently into the alleged violations” (Recommendation No.3). . Read with the rejection of the GOSL’s commissioned LLRC as one which is “seriously flawed” and the fourth Recommendation that “this independent mechanism should collect and safeguard ‘for appropriate future use’ the information provided to it including information gathered by the panel and other bodies of the United Nations System” it is clear that Panel’s Report seeks to pass the initiative from the GOSL to the UN or other international body. It is significant that while the U.S. government has not commented negatively on the LLRC process but welcomed it, the Advisory Panel entertained no such inhibitions. It is not fair to speculate on a friendly government’s stance over the issue, but it is difficult not to note that the U.S. government and the UNSG’s Advisory Panel have followed nearly parallel courses, the former guarded in language but the latter quite open over the need for appointment of an international investigation. One could even ask if the UNSG’s Advisory Panel was performing what the U.S. government could not rush to do for internal reasons pointed out earlier or for bi-lateral niceties towards Sri Lanka. 

Issue over the UN Panel’s mandate 

The issue is only of academic interest now. The information published so far on the UNSG’s Advisory Panel Report (as leaked) and some of the comments relating to the commissioning of the Panel point that the UNSG had exceeded the norms followed in appointing advisory panels in this particular case. That is that there was no Security Council resolution or a General Assembly Resolution or a Resolution by the Human Rights Council in Geneva directing the appointment of an advisory panel as was applied in the case of East Timor and Yugoslavia. This position on the validity of UNSG’s action submitted by spokespersons on behalf of GOSL is countered by the UNSG’s outfit on the ground that SG could invoke the right that any head of an institution has to seek legal or other advice on any matter he deems fit. 

If one asks me I would decide in favour of the UN’s position that the SG should take certain initiatives in the polarized situation the Security Council has experienced throughout its history whether or not procedurally he can do so. An analogy is found in the U.S. where successive Presidents asserted executive power in War situations. That was a position I held even before joining the Sri Lankan Foreign Service over 56 years ago, and argued strongly as a young University teacher with the interview board which examined my suitability to join the Foreign Service. Nothing new has happened since except that successive UNSG have not asserted their role sufficiently enough for various reasons and this situation cannot be held as complimentary to the incumbents of that office.

Even in the present case, the issue is not one whether or not the present incumbent in office was correct in asserting his ‘right’ but whether or not he would apply the same criteria to similar situations elsewhere. The case of Libya presents itself as a case in point. Iraq was a shame on the UN which watched while a million children were starved and lead to death or through malnutrition resulting from UN approved sanctions. 

However, it is not easy to dispose of the issue like that. The position taken up by the UN on the UNSG’s right to initiate action may be correct but its exclusive use in the present case is significant and cannot be allowed to pass without comment. It points to several things not excluding pressures to which the UNSG is subjected to by interested parties, a pressure more complicated by personal stakes of an incumbent Secretary General who would, invariably be interested in running for office for a second term. These are not imaginary situations but realities one cannot refrain from discussing if one closely followed the history of the post of UN Secretary General. 

Boutros Ghali of Egypt who was considered too independent as Secretary General (and was also accused of not responding speedily to genocide in Rwanda) lost the second term as UNSG because of US using the veto against him. The more important question now is not the issue of Si Lanka but whether or not Secretary General Ban-ki-Moon would want Sri Lanka to prove to be his own Rwanda, though the situations are not parallel? This is because the situation over Sri Lanka has been built up to such unwanted heights compared to those in other parts of the world like Iraq, Afghanistan and Libya. 

Will Sri Lanka then become the sacrificial lamb to better serve the forthcoming ‘second-term of –SG- stakes’ of Ban-ki-Moon to gain the favours of the US and allies who matter much when it comes down to an issue of UNSG stakes? But the coin has two sides. Just as much as the US and her allies have a dominating influence on SG stakes, the vetoing powers of Russia and China are not to be forgotten. Already, Russia and China have raised procedural objection to the UN staff trying to steal the Panel Report on Sri Lanka on to the agenda of the Security Council as an item for discussion. Sri Lankan Defence Secretary Gotabhaya’s reported statement (Sunday Times, April 17,2011) that “Sri Lanka will be forced to look for protection from Russia and China”, though might have been said in lighter vein, and may only help polarization of the current situation, was not stated without reason. 

There are many considerations to reflect on before one could ask whether or not Russia or China would use the veto power against Ban-ki-Moon running for a second term, as the U.S. did in the case of Boutros Ghali over the former’s over-enthusiasm on the Sri Lankan issue. At least for the time being it could be expected that Ban-ki-Moon would try to play safe to please both sides of the divide at the Security Council. More on that later. 

There is no case of general repression of civilians here in Sri Lanka though individual cases are being highlighted. The GOSL successfully fought a war against what it and the international community designated as “terrorism”. There may be some residue matters to be gone into relating to that episode (and an initial process is already on) but that does not present reasons for intervention by the international community, the least by the UN whose track record should not be in favour of such a move. Sri Lanka as a democratic country has a proven record of capacity to deal with situations which can be of grave concerns to the international community but she cannot also refuse to take note of variables in the position of the international community and raise questions when there appears to be an exclusivity in application of norms. Ban-ki-Moon himself as UNSG cannot now escape the obligation of applying the same standard that the Panel has recommended in respect of Sri Lanka to other global situations like in Iraq and as existing now in Afghanistan and Libya. His own personal honesty will be tested on that performance but will he rise to the occasion?

To be Continued.....

[Writer’s Profile: The writer was a former member of the Sri Lankan Foreign Service with nearly four decades of diplomatic service. He was Sri Lankan Ambassador to France and UNESCO and WTO with concurrent accreditation to Switzerland, Spain and the Vatican and later the first resident Ambassador in Iran. He has served as a diplomat in China, Germany, Australia, Japan, France (twice) and Iran and was the senior-most Sri Lankan diplomat at the time of his retirement. He has represented Sri Lanka in many international Conferences hosted by the UN and UNESCO]

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