The report of the United Nations High Commissioner for Human Rights Prince Zeid Ra’ad Al Hussein on Sri Lanka presented to the United Nations Human Rights Council (UNHRC) on Wednesday seems to have revived the controversy on the involvement of the foreign judges in the local mechanism that is to be created to investigate into the alleged violation of international human rights and Humanitarian laws during the war.   

Interestingly, the conflict on the matter is not between the ruling party and the Opposition alone, as usually happens, but between a group of bigwigs in the government on one hand and another group in the government itself as well as in the Opposition on the other.   

While some reports said that Foreign Minister Mangala Samaraweera had agreed to the international involvement in the human rights investigation mechanism during a discussion on the sidelines of the current UNHRC sessions in Geneva, Deputy Minister Karunaratne Paranawithana and State Minister Sujeeva Senasinghe had expressed a different view, according to local newspapers.   

Also it is well known that President Maithripala Sirisena too had expressed his view against foreign involvement early this year. In the Meantime, an umbrella organization of Sinhala nationalist organizations has called on the government to clarify the above agreement the Foreign Minister had arrived at with the Tamil National Alliance in Geneva.   

Another important point to be reckoned with is the fact that the UN Human Rights Chief who had apparently given his nod for an investigative mechanism without the involvement of foreign judges during his visit to Sri Lanka in February had again insisted in his report for the current UNHRC session the need for such an involvement.   

Days before the Human Rights High Commissioner’s visit to Sri Lanka, President Sirisena had told the BBC Sinhala service “Sandeshaya” on January 21 that he would never agree to international involvement in this matter. “We have more than enough specialists, experts and knowledgeable people in our country to solve our internal issues. This investigation should be internal and indigenous, without violating the laws of the country and I believe in the judicial system and other relevant authorities in this regard. The international community need not worry about matters of state interest”   
Since this statement ran counter to the resolution adopted in the UNHRC last year with the co-sponsorship of Sri Lanka, many expected a rebuttal from the high ranking UN official against it during his visit. However, after making a few ambiguous remarks on the matter Prince Al Hussein said in a media briefing at the end of his visit “though the Office of the High Commissioner for Human Rights (OHCHR) makes a recommendation on the judicial process into alleged war crimes or on the involvement of foreign judges, it was the sovereign right of Sri Lanka to decide.”   

But he had this to say in his latest report; “a key question remains the participation of international judges, prosecutors, investigators and lawyers in a judicial mechanism. In late May 2016, while addressing a large group of senior military officers, the Prime Minister was reported to have again ruled out international participation in a domestic Sri Lankan justice mechanism. The High Commissioner remains convinced that international participation in the accountability mechanisms would be a necessary guarantee for the independence and impartiality of the process in the eyes of victims, as Sri Lanka’s judicial institutions currently lack the credibility needed to gain their trust.”   
One would find it interesting to note that the President talks about the competency of the local judges while the Human Rights High Commissioner refers to credibility of them. The High commissioner had pointed out this in his last year’s report as well in order to justify his suggestion to create a “hybrid’ court to investigate into alleged human rights violations by both belligerent parties during the war. The suggestion was later amended in the UNHRC resolution as a local mechanism with the participation of foreign judges.   

It would not be prudent on the part of the government to find fault with the UNHRC or the High Commissioner for their insistence on the involvement of foreign judges after co-sponsoring the resolution. At the same time going back on the commitment made by the government in the resolution might be seen as a vindication of the High Commissioner’s point on the lack of credibility of Sri Lankan authorities in the process of accountability.   

This matter has to be discussed with the tone of the High commissioner’s latest report which has a slight departure from that of the one presented to the UNHRC last year. The report was full of praise, last year, on the government’s actions towards reconciliation and accountability for allegations of human rights violations, whereas in the latest report he, in a very mild diplomatic language, casts doubts on certain actions by the government and finds fault with the insufficient progress in certain areas, while showering praises for many actions government had taken.   

On the Constitutional reforms the report states “the full promise of governance reform, transitional justice and economic revival has yet to be delivered and risks stalling or dissipating. Negotiating party politics and power sharing within the coalition has proved complex as the Government seeks to build and retain the two-thirds majority in parliament necessary to reform the Constitution. This is manifest in an extensive Cabinet with overlapping ministerial mandates, and mixed messages on crucial issues such as accountability.”   

He also says “the High Commissioner hopes that the political process of adopting constitutional changes will not involve trade-offs and compromises on core issues of accountability, transitional justice and human rights.”   

Some other interesting points from the report that show the shift in the tone are quoted below;   
“In recent months, incidents targeting the Muslim community, evangelical Christian and LGBT groups have continued to be recorded. The High Commissioner encourages the Government to be more forthright in combating such discriminatory violence, including through appropriate legislation to regulate hate speech and incitement to violence.”   

“The Special Rapporteur on torture also highlighted at the end of his visit recurring allegations of torture and ill-treatment of security detainees, albeit with less frequency and severity than the past. Some groups have also reported cases of torture and sexual abuse of Tamils returning to Sri Lanka from abroad who are suspected of LTTE involvement.”   

“While the Government has been engaged in a variety of preparatory processes, overall progress in setting up of structures that would allow for the design and establishment of the different transitional justice components has been hesitant and slow.” “Another challenge for the Government is how to begin the process of security sector reform, including a comprehensive vetting process that would ensure that “no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law” “More rapid and sustained progress could have been made on other issues, such as the release of land and detainees and the revision of the PTA and witness protection laws, which would build confidence with the minority community.”   

One might remember the tone in the initial reports and resolutions of the UNHRC during the former regime were also mild. But with the passage of time and the failure of the Rajapaksa government to stand by its own commitments a hostile atmosphere between the government and the UN authorities was created.