Many states flay flawed Darusman Report

Text of the Cabinet paper presented by Plantation Industries Minister Mahinda Samarasinghe on Sri Lanka’s participation at the United Nations Human Rights Council (UNHRC) 18th session from September 12 to 30, 2011

The UNHRC held its 18th Regular Session from September 12 to 30, 2011 in Geneva. The Sri Lanka delegation to the UNHRC was led by me in my capacity as the Special Envoy of the President on Human Rights.

The members of the delegation included, Irrigation and Water Resources Management Minister Nimal Siripala de Silva, Environment Minister Anura Priyadarshana Yapa, Sajin De Vass Gunawardena; monitoring MP of the Ministry of External Affairs, Mohan Pieris, former Attorney-General and Senior Advisor to the Cabinet of Ministers on Legal Affairs, Ambassador Tamara Kunanayakam, Permanent Representative to the UN in Geneva, Kshenuka Senewiratne, Additional Secretary of the Ministry of Foreign Affairs, S B Divaratne Secretary, Presidential Task Force on Resettlement, Development and Security, Imelda Sukumar, Government Agent, Jaffna, W D G S Gunatilleke, Additional Government Analyst, Dr Hemantha Beneragama, Director, Medical Supplies Division of the Health Ministry, W J S Fernando, A H M D Nawaz, Additional Solicitors General and N Pulle, Senior State Counsel of the Attorney-General’s Department, M Keegel, Acting Director Political (West) of External Affairs Ministry and Nishan Muthukrishna, Consultant, UN Joint Programme on Human Rights.

Western countries

Sri Lanka forestalled an attempt to discuss the final phases of the armed conflict in 2009 and also precluded an attempt by certain Western countries to focus on attempts to prejudge the national reconciliation process pursuant to the hearings and forthcoming conclusions of the Lessons Learnt and Reconciliation Commission (LLRC), at the next UN Human Rights Council (HRC) in March 2012.

The delegation successfully countered an attempt to introduce the UN Secretary-General’s (UNSG’s) Advisory Panel of Experts’ Report (known as the Darusman Report) at the Council. When it learnt that the UNSG had communicated the report to the UN High Commissioner for Human Rights, Navanethem Pillay, and also to the President of the Human Rights Council, Sri Lanka expressed its reservations as to the formality and procedural propriety of such communication by way of a written intimation of our displeasure.

This was followed by intense diplomatic engagement, under my direction, by the Sri Lankan delegation, which protested the fact that the report was communicated by UNSG Ban ki-Moon’s office to Geneva without advice to the country concerned. Sri Lanka’s stand won the support of most members and observer nations at the Council.

Darusman Report

Moreover, Sri Lanka pointed out the impropriety in UN High Commissioner for Human Rights, Navanethem Pillay communicating the fact (of the transmission of the report to Geneva) to a grouping of Western nations before informing Sri Lanka of this development. Due to these procedural deficiencies and anomalies relating to customary practice, many Member States and observers of the HRC expressed their opposition, along with Sri Lanka, to any attempt to introduce the flawed Darusman Report to the Council. The delegation also pointed out the lack of any intergovernmental body calling for, or mandating, such a report.

Post-conflict development

The many fallacies, false assumptions and informities of the report which is based on hearsay and secondary sources without being verified or tested against any evidentiary standards, was pointed out by the delegation.

A final attempt to introduce the report as a mere information document in the HRC was also successfully resisted due to the procedural and substantive weaknesses in the report and the appreciation of the national position.

G L Peiris, Minister of External Affairs who joined the Sri Lankan delegation in Geneva in advance of the Sessions, met with Ambassadors and senior representatives of Council Member States at two briefing sessions on September 9 where Sri Lanka’s progress in post war reconstruction and initiatives to bring about reconciliation were explained, in addition to other current developments in the post-armed conflict era. These points were reiterated during my address to the plenary of the HRC on September 12.

Consequently, Sri Lanka hosted a ‘side event’ chaired by me with the participation of Irrigation and Water Resources Management Minister Nimal Siripala de Silva, Environment Minister Anura Priyadharshana Yapa, and Sajin De Vaas Gunawardena MP, Monitoring MP for Ministry of External Affairs and Mohan Peiris, Senior Advisor to the Cabinet of Ministers on Legal Affairs and other experts from Sri Lanka and the Permanent Representative of UN/Geneva on the post-conflict development of conflict affected areas and the achievements in the past two years to restore normality and civilian life in those areas.

The presentation was themed ‘Sri Lanka - Humanitarian Operations: A Factual Analysis’ and based on material provided by the Ministries of Defence and Economic Development. The centerpiece of the Sri Lankan presentation was the Defence Ministry video: ‘Lies Agreed Upon’ - selected excerpts of which were shown to the audience.

The full video and several informational materials were distributed to those attending the event. The event was well-attended with several national delegations, international non-governmental organizations and special interest groups (representing the LTTE agenda, Tamil and anti-LTTE diaspora) also participating.

The former Attorney-General and present Senior Advisor to the Cabinet on Legal Affairs extensively briefed the gathering on the legal implications and practical effect of the lifting of the state of emergency as at September 1 and the consequential provisions made.

Different perspectives

During the event, the Sri Lankan delegation emphasized that the government needed the time and space to bring to fruition the many efforts - political, social and economic - that it had commenced. An interactive session ensued during which there was open and candid discussion on different perspectives of the situation in Sri Lanka.

The delegation also held discussions with the Maldivian delegation headed by its President Mohamed Nasheed, President of the HRC Laura Dupuy Lassere (Uruguay), UN High Commissioner for Human Rights Pillay, the Member States of the Latin American Countries and the Caribbean (GRULAC) Chaired by Cuba, the organization of Islamic Cooperation (OIC) Chaired by Pakistan, the Asian Group at the HRC Chaired by Japan, the Non-Aligned Movement (NAM) Chaired by Egypt as well as the African Group, during the first week of the HRC Session (between September 12 and 15).

Due to the Sri Lankan delegation’s efforts exemplified by Ambassador Kunanayakam’s communication of September 14 to the President of the HRC per my advice, the delegation of Pakistan addressed a letter co-signed by Cuba, Algeria, Bangladesh, Malaysia, Philippines, the Russian Federation and China, to the President of the HRC on September 15 stressing that the ‘Darusman Report’ had no ‘status whatsoever’ and urging “that any initiative to introduce this even as a document for information, be clearly resisted as it would only give legitimacy and standing to an unverified, unsubstantiated and manifestly flawed document. We would like to inform you that any attempt to do so is likely to be challenged in the Council on procedural grounds”.

The Sri Lankan stand on this issue was thus resoundingly endorsed and supported by many countries. Thus, any attempt to communicate the ‘Darusman Report’ officially to the HRC was successfully forestalled.

The next issue to be addressed was an initiative taken by the Canadian delegation (a move first proposed by the United States in June 2011) to request an interactive dialogue based on the forthcoming report of the LLRC during the upcoming 19th Session of the HRC in March 2012.

I returned to join Sri Lanka’s delegation to Geneva and held wide consultations on the proposal. On my advice, Senior Advisor to the Cabinet of Ministers on Legal Affairs Mohan Pieris addressed an informal consultative meeting convened by the Canadian delegation at which the Sri Lankan position was fully explained setting out the substantive and procedural inconsistencies and the potential for undue and unwarranted pre-judgement of an established domestic process following an internal conflict.

Pakistan, Cuba, China, the Russian Federation, Thailand, Chile, Malaysia and Algeria among many other countries were supportive of Sri Lanka’s position. Consequently, the Canadian initiative did not materialize as they were aware that they would not receive the majority support of the countries to carry it through.

Political negotiations

I then also led discussions with several high level representatives at which the Sri Lankan delegation explained its position on several issues including, post-armed conflict reconstruction, ongoing political negotiations, rehabilitation of ex-combatants, the lifting of the Emergency and broadly the many faceted efforts of the government to restore normality, peace and economic development in Sri Lanka.

Between September 22 and 29 senior members of the delegation and I met with representatives of India, Burkina Faso, Cameroon, Thailand, Pakistan, Uganda, Indonesia, Algeria, South Africa, Malaysia, the Philippines, Cuba, Kuwait, Botswana, Saudi Arabia, Qatar, Chile, Benin, Senegal and Djibouti, to further elucidate Sri Lanka’s position based on the factual achievements on the ground and realistic prospects for sustainable peace, economic development and national integration. Most meetings were at the Ambassadorial level (denotes CDA or Deputy Head of Mission).

The meetings were also aimed at maintaining the level of support that Sri Lanka will require to withstand any further Western initiatives during the 19th Sessions of the HRC in March 2012 and to stress that Sri Lanka welcomes the opportunity to engage in an open and full dialogue on all relevant matters during the upcoming Universal Periodic Review in October 2012.

The delegation explained that political initiatives presently under way and the implementation of the LLRC recommendations (0nce they are known in November 2011) would show considerable progress by October 2012.

Sri Lanka’s position was also greatly strengthened by the interactions of the President at the UN General Assembly in New York with several Heads of State and Government, at which the current situation in the country was extensively discussed.

External Affairs Minister, Professor G L Peiris, also held several meetings with his counterparts in the international community and communicated our position in writing, which also assisted in clarifying Sri Lanka’s position.