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Sri Lanka, many shades of accountability

A long-awaited review on the conduct of United Nations agencies during the last stages of the war in Sri Lanka is still unpublished, and its terms of reference are shrouded in secrecy. There are further doubts over its authorship and process. All this raises questions over how seriously Ban Ki-moon and his colleagues take the issue, says a Sri Lankan observer who writes under the pen-name Vidura.

Vidura
29 October 2012

In the last stages of Sri Lanka's war in 2010, tens of thousands of civilians were killed in the north of the country. No one to date has been held to account for these deaths. Many people have discussed the question of the accountability of the government of Sri Lanka (GoSL) and demanded action, even as the UN secretary-general’s panel of experts (PoE) recommended that the government undertake independent and credible investigations.

While little has changed in the government’s position on the issue, "accountability" remains a problem for it, leading Sri Lanka's president, Mahinda Rajapakse, and his colleagues to retreat from their earlier claims of "zero casualties" and other such denials. The government was compelled to appoint a "Lessons Learnt and Reconciliation Commission" (LLRC) and military-inquiry panels. These are not enough: war-crimes and crimes against humanity are a serious matter, and they appear unlikely to fall off the agenda of the international community any time soon. Even more importantly, they will remain an issue in the country, for both killed and killers are Sri Lankans, and both the memories and the evidence are hard to extinguish.

But another entity, whose acts and omissions contributed to the deaths of thousands of civilians (and the internment of hundreds of thousands), also needs to held to account. Since the closing stages of the war the conduct of the United Nations in Sri Lanka has been under scrutiny for failing to live up to its protection mandate and to ensure that humanitarian principles (of which it was the custodian) were upheld. For many of the people affected by the war, the UN became at best an irrelevant actor and at worst complicit during a crucial time when they were at their most vulnerable - be it in the war-zone when they were held as human shields by the guerrillas of the LTTE, or being fired upon by the Sri Lankan armed forces, or subsequently when they were being processed through various checkpoints without witness and incarcerated in Menik Farm's "welfare" centres.

The United Nations and its various bodies, which were set up precisely to prevent such atrocities, failed in their mandate to protect these civilians. They let politics, negligence, vested interests and plain incompetence block what should have been a priority: protecting the lives of children, women and men in Sri Lanka. The weight of evidence implicating the UN compelled the panel of experts (PoE) to recommend to the secretary-general that he should "conduct a comprehensive review of actions by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates".

It is interesting to recall how the responses to the PoE's recommendations evolved. The government of Sri Lanka appointed a commission, conducted hearings and produced a coherent report. These had serious shortcomings, including some fatal flaws with regard to probing accountability. Both the process and the report's content were criticised by Sri Lanka's political parties and civil society, as well as international organisations such as the International Crisis Group, Human Rights Watch, Amnesty International and several others. Even the governments of the United States and India made their views known.

The Lessons Learnt and Reconciliation Commission (LLRC) at its inception was criticised for lacking independence and impartiality. It was said to be composed of individuals with serious conflict of interest whom the government handpicked for the job. Its mandate was limited and at best was ambiguous about accountability. The hearings were compromised by the militarised context and the absence of an adequate witness-protection mechanism. Above all it was accused, rightly so, of being a time-buying/wasting exercise by a president who had no interest in an independent investigation. Clearly, the Sri Lankan government should have done better.

The context

In light of this backdrop it is instructive to see how the UN review has progressed. It should in principle be relatively straightforward and less complicated. After all, no one was accusing the UN itself of war crimes or crimes against humanity. The charges against it - negligence, irrelevance, personal ambitions, incompetence and even complicity - had less consequential significance in terms of findings. Here was an opportunity for the UN to make an example and demonstrate to the Sri Lankan government how inquiries should be conducted. This could have greatly strengthened its demands for a credible investigation by the government. Instead, there was delay and evasion. In fact, the UN’s follow-up to the panel of experts' recommendations makes the Sri Lankan response look like a "best practice" benchmark!

The rot started from the top. The UN Security Council is hopelessly divided on Sri Lanka and was never forthcoming with the required mandate. Ban Ki-moon did not think that UN had failed in Sri Lanka, and always maintained that he did all that was politically possible in Sri Lanka. The testimony of senior UN officials in New York was that the secretary-general was visibly agitated whenever the subject of Sri Lanka and the UN’s failure was brought up. He wanted to distance himself from what ultimately turned out to be a tragic failure of epic proportions, so counting the dead or conducting a honest review was not a priority.

But the problem went deeper than an absence of political will on the part of the secretary-general, for there seems to have been tacit resistance from the heads of key UN institutions to any inquiry into their conduct. The embroilment of the secretary-general's chief-of-staff Vijay Nambiar in a controversial "surrender deal" that went awry was an added complication.

All this meant that it took more than two-and-a-half years since the end of the conflict - and only after a forceful recommendation by the PoE, and probably a ratcheting up of pressures from internal and powerful external actors - for Ban Ki-moon to commission a review.

The UN review is headed by a former UN staff member, supported by a team of current staff. Charles Petrie is simultaneously engaged in another significant piece of work, and - while he might prove to be the right person for the job and might produce an objective report - his part-time status is a worrying sign. The independence and impartiality that is often invoked in relation to such exercises could have been better served if the team had included eminent person(s) who had at least an arms-length distance from the UN. If an expert observer/participant had been drawn from among the donors, or another humanitarian agency or intergovernmental body conversant with the humanitarian-reform agenda, this might have better ensured objectivity.

While internal processes may be appropriate for routine reviews, and the involvement of individuals who have a nuanced understanding of UN practices might be very useful in diagnosing the institutional causes of a problem, the scale of the fiasco and the vested interests of the actors and agencies involved requires an external anchor for credibility. Indeed, this point resembles what is being demanded of the government of Sri Lanka.

The process

The timing of the review and the limited resources relative to the task allocated to it (according to those who are in the know about the process) raise the question of whether it amounts to a deliberate strategy on the part of high-ups in the UN to dilute the exercise. The inordinate delay in commissioning the review already makes the review difficult to conduct, as many key people would have moved on to other jobs and the materials of the period concerned (such as documents and correspondence) hard to trace. That the review team is only a handful of people (however good and committed they may be), working over a short time-frame and with few resources makes it even more limiting. In addition, they are working from outside Sri Lanka and have to rely on the goodwill of the senior officials of UN institutions, who are steeped in vested interests and have institutional reputations to protect.

President Rajapakse's initial announcement of the LLRC was met with a deluge of criticism on various grounds, including the composition of the commission and its mandate. Yet where the UN review exercise is concerned, no one - except for a few insiders - knows the details even of its terms of reference. The UN's few public announcements on the matter have been sketchy, and there seems to be a lot of secrecy over what the team is actually reviewing. Most human-rights activists in Sri Lanka and most experienced UN staffers in the country are also in the dark about the scope of the review.

By contrast, the LLRC - despite its shortcomings - engaged in a relatively public exercise of information gathering. It had public and private hearings in Colombo as well as in the field. Many people made use of the opportunity, even in intimidating and life-threatening circumstances. In contrast no one in Sri Lanka, except perhaps a few insiders, is privy to the UN review process or how to engage with it. There are, it seems, no drop-box or email addresses; no field visits by the review team where individuals or groups with concerns could make representations; no interim reports or drafts for comments.

There is a complete lack of transparency about the methodology and process the UN review team is adopting to arrive at its findings; no clarity about the methodology and process to be adopted to arrive at or validate conclusions; no mechanism for the affected communities and concerned activists to engage with the process and raise issues; nor even any apparent reaching out to gather the views of the government of Sri Lanka (which presumably could have complaints regarding the failure of the UN to get the LTTE to release civilians or to condemn the LTTE’s detention of UN staffers and family).

The challenge

An alternative to such an open-ended process could be a systematic sampling of key stakeholders. But there is no indication of any such system being in place. This raises the question of whether the UN team is arbitrarily selecting those from whom they would like to hear (perhaps from the very same "representatives" who were responsible for the decisions that led to the failure). I am aware that a few key UN staffers (both local and expatriate) and many locals who have pertinent information, have at the time of writing not been contacted by the team. Many of them were operating on the ground in the north, and have a critical perspective of the decisions and conduct of UN management in Sri Lanka. The communication between UN staff in Vanni and Colombo would provide a good deal of information on the extent of the failure of the in-country leadership. A couple of UN staff who were in Vanni said that they had been contacted, but only for cursory information; and left out of the process, as usual, are the views of the men and women whom the UN failed to protect.

Again, it is possible that Charles Petrie and his team have devised a mechanism that builds on the findings of the PoE to focus on the list of people they need to talk to in order to probe headline failures. Maybe the secrecy surrounding the whole exercise is a necessary and calculated strategy. In the face of severe internal reticence and/or political pressures from the five permanent members of the UN Security Council (plus India), this flying below the radar may be the best way to get the first-order findings into the public space before then making it mandatory for individual UN institutions to conduct more in-depth follow-up reviews to inform action. The point is, no one knows. While I am willing to reserve judgment on the team till I see the report, many others aren’t, and the flaws in the process are already alienating many concerned individuals and groups.

It is indeed regrettable that those who (rightly) criticised the government of Sri Lanka over the composition, mandate and modalities of the LLRC are silent on the same issues when it comes to the United Nations review. So it is all the more important that those concerned speak up now and make this review count.

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