It is now official: The United Nations Human Rights Council (UNHRC) on Thursday passed a resolution mandating an inquiry in to alleged war crimes during the Eelam war. The resolution was adopted unanimously and Sri Lanka was a co-sponsor to the United States sponsored effort.
At least in public, all sides are happy, barring a few. The government in Colombo is satisfied with the outcome and so are the US and the UNHRC. Those, who are protesting, are the pro-Eelam lobby in the West and those at the nationalist ends of the political spectrum in Sri Lanka, both Sinhala and Tamil.
In the lead up to Thursday there were tense moments. In Colombo, there were fears of a ‘hybrid’ inquiry, mooted by United Nations High Commissioner for Human Rights, Zeid Hussein. Hussein was to renew his call for such a probe even on Thursday, with the resolution before the UNHRC.
Colombo had to eventually compromise, agreeing to a ‘Sri Lankan judicial mechanism, including the Special Counsel’s office of Commonwealth and other foreign judges, defence lawyers, authorized prosecutors and investigators’. What this means in practical terms is anybody’s guess at this stage.
The government in Colombo is insisting this is a diplomatic victory for the country and prevents a full scale international probe which was likely to be dominated by personalities with sympathies towards the Eelam lobby. That may indeed be the case. However, the shape and form of this inquiry is unclear.
If Sri Lanka is allowed to stage an inquiry where it sets the agenda, selects who its arbitrators are and defines what penalties may be imposed on those found guilty while at the same time ensuring an international presence in the probe that would possibly be the best case scenario for the country.
Whether the resolution is, in fact, a victory for Sri Lanka in the diplomatic war it is fighting with the Eelam lobby depends on how it would be implemented. The key to that is who will be taking major decisions regarding prosecutions, the panel of inquirers and what form the inquiry process would take
Whether the resolution is, in fact, a victory for Sri Lanka in the diplomatic war it is fighting with the Eelam lobby depends on how it would be implemented. The key to that is who will be taking major decisions regarding prosecutions, the panel of inquirers and what form the inquiry process would take.
If the government can navigate those diplomatic minefields without compromising the Sri Lankan state and its armed forces, it would indeed be a victory. There is optimism in the corridors of power that, with the softening of the US and Indian stances on Sri Lanka, this would be quite possible.
If, on the other hand, Colombo has to bow down to dictate from the west as to the modus operandi of the inquiry and every move comes under fire from the Eelam lobby and Western nations, the probe would amount to an ‘international’ inquiry, nothing less, with serious consequences for the country.
This is still not a clear cut process. Certainly, the existing judicial mechanism would not be able to cater to the requirements of the resolution and a new mechanism of inquiry would not only have to be devised, it would also have to be legislated in to the framework of the much amended Constitution.
There could be potential pitfalls in that exercise. Already, parties such as the Jathika Nidahas Peramuna and the Pivithuru Hela Urumaya have rushed to condemn the resolution. Principles apart, the mileage and support these smaller parties can gain through opposing the resolution is immense.
That is more so when all the major political parties – the United National Party, the Sri Lanka Freedom Party and the Tamil National Alliance – support the resolution. The stance of the Janatha Vimukthi Peramuna is unclear at this stage and some Freedom Party members may also oppose the resolution.
Although the government appears to have the two-thirds majority that would be required to ensure the passage of any constitutional amendments that would enable such an inquiry, challenges could also come in the form of petitions to the Supreme Court, even calling for a referendum on the issue.
The chances of successfully implementing the resolution would remain slim, if the issue becomes a political exercise targeting the previous regime led by former President Mahinda Rajapaksa. It could have the opposite effect of restoring Rajapaksa’s image as a hero, at least in the South of the country.
It would be prudent for the government to therefore to adopt an all-inclusive approach and make it as much an exercise in protecting the armed forces, their commanding officers and Rajapaksa in his role as Commander in Chief. That would ensure that the entire political spectrum would back the probe.
The coming months will be crucial. Sri Lanka may claim victory in this week’s battle at the UNHRC but the war has only just begun. Colombo must navigate its next steps with utmost caution. It must not make the mistakes that the previous regime did, nor must it cave in meekly to orders of the UNHRC.