United Nations Special Rapporteur Chaloka Beyani, center, listens to a Sri Lankan ethnic Tamil war survivor during his visit to a former battle field in Mullaitivu, Sri Lanka in December. Pic: AP.

The Sri Lanka resolution adopted by the United Nations Human Rights Council (UNHRC) Thursday establishes an international investigation mechanism to probe alleged war crimes of the past as well as monitor ongoing human rights violations in the country. While politicians worldwide spoke of the passing of the resolution in terms of victory and defeat, for those working for justice and accountability in the country it was a day of sober reflection on the work ahead. While the resolution partly fulfils the demand for justice and accountability, its weaknesses could also be a cause for serious setbacks.

The final text in the document calls on the UN high commissioner for human rights to undertake a comprehensive independent investigation into “alleged serious violations” by both the government troops and the LTTE rebels. The text was a compromise in which the 47 countries that comprise the UNHRC balanced hard-headed national interests with the demands of international law. Even then not all agreed: 23 countries voted for the resolution, while 12 did not support it; 12 abstained.

While there are a number of interrelated issues on which the multi-clause resolution focuses, the core of the document is the international investigation mechanism. Ideally the backers of an international investigation hoped for a commission of inquiry (CoI) to be appointed by the UNHRC. But what the fractious council member states could agree to was for an international inquiry mechanism to be appointed by the Office High Commissioner for Human Rights (OHCHR).

The difference between a CoI appointed by the UNHRC and an international inquiry mechanism by OHCHR is significant because of its acceptability and for next steps. The UNHRC is an intergovernmental body. The high commissioner is the principal human rights official of the UN. He or she does not run or manage the UNHRC but is simply the chief expert that would advise the intergovernmental body. A CoI reports back to the state parties that appoint it. On the other hand, if the OHCHR is mandated to carry out the investigation the investigator is appointed by high commissioner and he/she reports back to the OHCHR. This body in turn will report back to the UNHRC, whereupon the states will decide whether to take action on the OHCHR’s advice or ignore it.

Therefore, in the case of an OHCHR-appointed investigation there is one more layer of uncertainty in implementing findings than if the inquiry is conducted through a CoI.

There are other uncertainties too. It is understood that High Commissioner Navi Pillay is to appoint an expert as the lead investigator. With the vote on the resolution imminent Sri Lankan and international civil society groups were scrambling last week to make recommendations on personnel they considered suitable for positions in the investigating team. The worldview and integrity of the single lead investigator could affect the outcome of the investigation very significantly.

The third issue is a timeframe that limits the international inquiry to the period covered by the Lessons Learned and Reconciliation Commission (LLRC). The LLRC, which was a domestic commission of inquiry appointed by the Government, covered the period beginning February 2002 when the Ceasefire Agreement was signed between Colombo and the LTTE rebels, to 19 May 2009 when Sri Lanka’s civil war ended.

If the investigator abides rigidly by those dates, there is fear that many of the alleged war crimes perpetrated in the immediate aftermath of the war – Sri Lankan soldiers executing captured and surrendered rebels, the inhuman treatment of Tamil internally displaced people by the government and acts of sexual violence towards female LTTE cadre and civilian women, and the disappearances that occurred in the South in 2010 such as the abduction of Prageeth Ekneligoda – might not come under the scope of the investigation.

While all of the above deals with accountability, there is also the issue of reconciliation. The resolution aimed to deal with reconciliation by referring to the Northern Provincial Council (NPC) in the text. Under the 13th Amendment to the Constitution, limited powers are devolved to provincial councils (PCs) so they have control over local economic development and providing services.

The NPC is the only council of the nine in Sri Lanka which is Tamil dominated and the international community has long held that elections to the Northern Province and establishing the NPC would be the first step toward power sharing and reconciliation. It is for this reason that the 2013 resolution called for holding of this election. Despite the NPC being established, the central government in Colombo has used political and administrative roadblocks to prevent the NPC exercising even the limited power available to it under the 13th Amendment.

To remedy this, the original draft of the UNHRC 2014 resolution asked the Sri Lanka Government to provide the NPC and its chief minister with “resources and authority to govern as required” under the 13th Amendment. However the text was changed to state “all provincial councils including the [NPC]…” In other words, although it was only the NPC of the nine PCs that was in conflict with the central government over power and resources, the modified resolution asks that all councils be treated alike.

The reason for treating the NPC differently from the others was not because other PCs have no problems of their own. It is because NPC has special issues. But by introducing language that treats all PCs similarly, the special problems of NPC need not be addressed by Colombo. Or as they have done in the past the other eight PCs will pass resolutions that will give Colombo an excuse not to address the NPC’s exclusive issues. Hence the language of the resolution undermines one of its stated goals.

The initial draft of resolution was weaker than anticipated. That allowed Colombo to use its allies to dilute the draft even further. However, those who worked to have this resolution adopted worked tirelessly for it. And that has to be commended.

Despite its weaknesses, the resolution was necessary. It is the first independent international inquiry where an intergovernmental body has recognised the allegations of war crimes were well founded and voted to have the allegations more closely examined. It also goes to show that if there is sufficient political will in the international community they can act to bring some measure of relief to survivors of gross war crimes and gross human rights violations.

This is why perhaps politicians backing the resolution have chosen to interpret the vote in the UNHRC mandating the appointment of an international inquiry as a victory.  For survivors of war crimes and those confronted by the everyday brutality of the government forces however, the consequences of this resolution remain uncertain. Therefore those working for justice and accountability in Sri Lanka have a great task ahead in bridging this dichotomy.