An
analysis of notices published by the UN Panel of Experts (POE) calling for
submissions and email correspondence this writer has had with the Panel show
that the Panel has effectively denied the citizens of Sri Lanka an opportunity
to be heard by the Panel.
The
POE has surreptitiously given more time for detractors of the Government of Sri
Lanka (GOSL) by publishing on scribd.com a notice calling for submissions which
few were aware of. Even an emailed reply
to those who enquired less than two weeks before the end December 2010 deadline,
did not mention the impending deadline although it had been extended for reasons
best known to the POE.
They
have in this manner systematically favoured the receipt of submissions against
the Government of Sri Lanka (GOSL).
Compelling
evidence demands that the UN Secretary General Ban Ki-moon should officially
reject the Report of the Panel of Experts (POE) on Sri Lanka for not adhering
to accepted norms of objectivity, transparency and accountability.
Sri Lankans Denied
Opportunity to Make Submissions
It
was in 1952 that the UN began its work in Sri Lanka, three years before the
country was formally admitted as a member state of the world body. Despite
having been in the country for sixty years, the UN did not see it fit to
publish in the local media, its call for submissions. An enquiry directed to
the UN offices in Sri Lanka by this writer via their website asking whether the
UN in Sri Lanka was involved in publishing any notices in the local media on
behalf of the POE calling for submissions from Sri Lankans, remains unanswered.
According
to a recent report by Nielsen Sri Lanka, internet users in Sri Lanka represent
only 14 percent of the population. Despite huge advances in recent years, the
use of traditional media is a must for effective mass communications in Sri
Lanka.
The
UN has thus effectively denied the citizens of Sri Lanka the opportunity to be
heard before the Panel. Yet, the recommendations have been recycled by
interested parties clothing the so-called “credible allegations” in a veneer of
respectability, to the point of becoming indictments against the GOSL. These
allegations are made without a shred of evidence and no recourse to the legal
system of Sri Lanka.
Panel Report Fails on
Accountability
The UN Panel
of Experts (POE) Report on Sri Lanka should have been a clear-cut document
that embodied facts with substantiating evidence based on international norms
and best practices and some clear recommendations based on its terms of
reference, for the UN Secretary General to act upon. Instead, it has stirred
controversy and been widely condemned in Sri Lanka, by the very people whom it
was intended to benefit.
That
this report could have far reaching implications for Sri Lanka need hardly be
said. The wider implication however, is that it could prove a precedent for all
member countries of the United Nations.
That
precisely is the reason that the UN Panel of Experts Report on Sri Lanka should
be subject to exacting standards of accountability; and it is there that it
fails.
The
Panel has failed to adopt a methodology by which they could arrive at impartial
conclusions and has created a serious doubt as to whether it was pursuing an
agenda designed to indict Sri Lanka for ‘war crimes’.
Flaws show up in Email
Response
It was
on October 18, 2010 that the POE invited submissions with a deadline of
December 15, 2010. However, this notice was not published on the UN website. Having
found the notice posted on Scribd.com via a search on the internet, this writer
sent an email on October 21, 2010 seeking further information. Since no reply
was received, a reminder was sent to the POE on November 21, 2010.
On
December 18, 2010 the following reply was received:
Dear Sir,
Madam,
Thank you for
writing to the Secretary-General's Panel of Experts. The Panel appreciates the
time you have taken to your share your contribution with it.
The Panel is
unable to reply to each individual given the volume of messages received.
The responses
to a number of frequently asked questions are thus set out below.
Q.: Can I
write in Sinhala or Tamil?
A.: Yes,
though English, being the Panel's working language, is preferred.
Q.: Is my
submission confidential?
A.: Yes, your
submission will be treated as confidential. Neither your name nor identifying
particulars will be specified in the Panel's report.
Q.: When will
the Panel make its report?
A.: The Panel
anticipates submitting its report in January 2011.
Q.: Will the Panel's
report be made public?
A.: The report
is to the United Nations Secretary-General. He will decide whether to make the
report public.
Q.: Can I
speak to the Panel in person?
A.: The Panel
has a limited time for its work and has therefore chosen to request
contributions in the written form detailed in the notice.
Q.: Can I make
multiple submissions?
A.: You are
requested to raise all issues you wish to raise within the one, single
submission.
Q: Can I send my submission in hard copy to a
physical address?
A.: Yes. You
may send materials to the following address within the timeframe set out in the
notice:
Secretary-General's Panel of Experts on Sri
Lanka
UN Secretariat (Library Building, L-0330 L)
New York, NY 10017
United States of America
Q: Can I submit non-written materials, such as
photographs and film clips?
A.: Yes. Please enclose such materials as
attachments to your email or mail them to the above address.
Thank you
again for taking this opportunity to be in contact with the Panel.
Yours
sincerely,
Secretariat of
the Panel of Experts
Reluctance
to Mention Deadline
Significantly, the POE did not mention the new deadline
in the reply. The change of deadline was reflected in an amended notice
published on scribd.com which was sourced through an internet search. It
is this amended notice that has since been posted on the UN website where the
filename identifies it as revision 1. (Note the revised filename.)
A December 20, 2010 Inner City Press report stated:
In the run up to the
initial December 15 deadline, Inner City Press asked Haq and his office about
bounced e-mails and Federal Express overnight packages of evidence which the Panel
refused or could not receive. Haq said that he thought an extension would be
announced -- but then did not announce one.
On December 20, having received more complaints about
packages refused by the Panel, Inner City Press again asked Haq about the
projected extension. Staring down at note, Haq said it is extended to the end
of the year. (Emphasis
mine.)
Lack of Transparency
An
obvious lack of transparency on the part of the UN can be observed. That this
writer received a reply in December just two weeks prior to the deadline which
was not mentioned in the mail, and nearly two months after the initial enquiry,
suggests deliberate action on the part of the UN POE. The contents of the
report suggest that the Panel was selective in its collection of submissions
and wished to deny submissions from affected persons in Sri Lanka.
For
a clearer understanding of the methodology employed by the Panel, the UNSG
should identify the dates on which the various announcements were officially
made on the UN website and the dates on which the various submissions were made
to the Panel. It should be quite revealing.
The
results of a flawed methodology should not be used to tarnish the reputation or
cause harm to Sri Lanka as a member state of the United Nations.
Analyses of the POE
Report by an Eminent Sri Lankan
Godfrey
Gunatilleke, Chairman Emeritus and Senior Advisor of the Marga Institute (a
leading development studies think-tank in Sri Lanka) has aptly
deconstructed the UN POE Report and its criticisms into three key areas
that warrant analysis.
Firstly,
although the Panelists must have impeccable credentials, Gunatilleke has shown
how they do not qualify. As he points out, all three of them have either
personally held or belonged to organisations which held, views critical of the Government
of Sri Lanka (GOSL) thus making them less likely to come to objective or
impartial conclusions with regard to the GOSL. As Gunatlilleke outlines
further:
“One set of responses to the report which seeks
to reject it outright deals with issues concerning the appointment and status
of the panel, the mandate given to the Panel and the way the Panel has
interpreted it, the composition of the Panel and the capacity of the panel to
arrive at fair and impartial conclusions particularly regarding the actions of
the Sri Lankan Army (SLA) and the Government of Sri Lanka (G0SL). Many of these criticisms question the bona
fides of the initiative taken by the UNSG.
A second category of responses deal with more
substantive issues relating to the central part of the report – the issues of
accountability and the case made against the government in particular. These
issues relate to the methodology the panel has adopted, its transparency, the
sources it has been able to access, its account of the last stages of the war
based on these sources, the framework of accountability it has adopted and the
conclusions it reaches.
A
third category focuses
on the parts
of the report
which deal directly
with the process
of domestic accountability and the Panel’s recommendation for improving
that process.”
Panel Has Exceeded the
Mandate
In
para 51 of the Report the Panel states:
“While the Panel’s mandate precludes fact-finding or investigation, the Panel believed it
essential to assess whether the allegations that are in the public domain are
sufficiently credible to warrant further investigations. Determining the scope
and nature of these allegations allows the Panel to properly frame the
accountability issues, which arise from them. The Panel has determined an allegation to be credible if there is a
reasonable basis to believe that the underlying act or event occurred. This
standard used by the Panel - that of a reasonable
basis to believe that the underlying act or event occurred – gives rise to a responsibility under
domestic and international law for the State or other actors to respond.” (Emphasis
mine.)
The
Panel has proceeded to do exactly what it was specifically excluded from doing;
fact-finding or investigation. It has also proceeded to be the prosecutor,
judge and the jury at the same time, while going way beyond its mandate by
freely interpreting the legal responsibilities of a member country of the United
Nations and towards it (interestingly) by unnamed
actors.
Critical Assessment by
Sri Lanka’s Business Community
The
recently released Sri
Lanka Private Sector Assessment of the Panel of Experts’ Advisory Report to the
UN Secretary General has also criticized the manner in which the Panel has
determined allegations to be ‘credible’.
“The
POE claims that
it treated an
allegation as credible
only when the information was
“based on primary
sources that the Panel deemed
relevant and trustworthy”. Contrary to this claim, which suggests that
the allegations were substantiated
by victims and
witnesses present on
the ground, the
POE seems to have relied exclusively on uncorroborated open sources for some of its findings.”
“While it is noted that at this juncture there is
no expectation to have the exact identities of the witnesses interviewed disclosed,
necessity for confidentiality does not
preclude the POE
from identifying the
categories of the witnesses so
interviewed, such as victims, members of the Sri Lanka Army (SLA), Government
officials, members of
the NGOs/INGOs, journalists etc.” (Emphasis mine.)
Contradictory Positions
on Confidentiality
In
comments on the Lessons Learnt and Reconciliation Commission (LLRC) the Panel
Report states at para 312:
The history of
previous Commissions of Inquiry in Sri Lanka shows a pattern of non-disclosure
of findings and recommendations undermining public confidence in the process,
dramatically reducing the practical impact of the work undertaken and
possibilities for follow-up and making it impossible to assess whether the work
of that commission responded to its mandate. (Emphasis mine.)
Could
this be a statement about Sri Lanka’s Lessons Learnt and Reconciliation
Commission by an eminent Panel of the august body? One appointed by the
Secretary General himself to advise him on accountability in Sri Lanka? Or,
could it be that they were thinking of themselves and substituted the LLRC in a
moment of amnesia? Yes, have they forgotten what they’ve written elsewhere in
their report that their own records are subject to 20-years of secrecy?
As
the Sri Lanka Private Sector Assessment notes:
“Further the
POE has classified “nearly all of the Panel’s substantive records as strictly
confidential.” Therefore, “nearly all” of the
material purportedly supporting
the POE’s conclusions will remain confidential at least for the next twenty years. While
the necessity for
such extensive confidentiality for sources providing information to support
a private advisory to the UNSG can be appreciated, since the advisory has been
released into the public domain by the
UNSG, “natural justice” necessitates the sources or at the very least the nature/character of
those sources to be revealed to the public.” (Emphasis mine.)
UN Needs to Reestablish
Public Confidence in its Ability to Carry Forward the Objectives Specified in
the Charter
The
UN is the only body of its kind and its General Assembly is the only forum where
countries discuss, debate and seek consensus as a body, on matters that affect
human beings in an increasingly globalized world. Any subversion of the powers
of the General Assembly by individual countries – however powerful they may be
– or by any of the myriad agencies of the UN would only create chaos.
Institutions
which under the guise of championing human rights seek to advance vested
interests and have observer status at the UN should be periodically reviewed to
ensure that the UN is not made a vehicle for the interests of a powerful few.
The flawed manner in which the Panel has sought
to discharge its mandate makes it imperative that the UN Secretary General
should officially reject the Report of the Panel of Experts on Sri Lanka and
withdraw same from the UN’s presence in the public domain so that Sri Lankans,
as indeed the world population, can restore their confidence in the United
Nations as presently constituted, as a body capable of upholding the Charter.
END.
No comments:
Post a Comment