Screening of peacekeeping personnel from Sri Lanka
By Neville Ladduwahetty
This response is strictly limited to the issue of screening Peace Keeping personnel from Sri Lanka to UN Peacekeeping Operations, and not about the alleged threats by Rear Admiral (Dr.) Sarath Weerasekara to those involved with the process or to the condemnations by academics and prominent members of civil society that followed, because it was the delays associated with the screening that became the primary cause to precipitate these exchanges.
An Inter Press Service report dated April 22, 2018, cites the UN Peacekeeping spokesman Nick Bimback as having stated:
"Compliance with these arrangements will be required before the UN can receive any further requirements or rotations from Sri Lanka … Member States that provide personnel to UN peacekeeping operations have the responsibility to certify that all these personnel have not been involved, by act or omission, in violations of international humanitarian law or human rights law, and not been repatriated on disciplinary grounds from a UN operation".
Mr. Bimback is reported to have also stated: "In the case of Sri Lanka, where there are specific human rights concerns, we put in place additional screening measures in 2016 to help ensure that deployed personnel meet our standards, he said. Prior to their deployment to UNIFIL, the Permanent Mission in Sri Lanka provided an attestation certifying that the contingent had not been involved in any violations".
THE SCREENING PROCESS
During the course of an interview the Chair of the Human Rights Commission of Sri Lanka (HRCSL) is reported to have stated: ‘Vetting (screening) does not come under the HRC mandate, outlined in the parent statute. In 2016, however the Ministry of Foreign Affairs (MFA) wrote to the Commission and requested it to take on the task. Vetting was earlier carried out by the UN. But the MFA said that Sri Lanka was the first to be invited to do it locally’. "The Foreign Ministry’s position was the Human Rights Commission was the obvious choice as it was an independent institution now under the 19Th Amendment and had the credibility to take it on ", Dr. Udagama said’.
The task undertaken by the Commission is that: ‘All Member States that nominate or provide personnel to serve with the UN must screen and certify that such personnel have not committed, or are alleged to have committed, criminal offences and/or violations of international human rights law and international humanitarian law. Those who seek to serve with the UN must attest the same and, where necessary provide relevant information. The processes by which this can be done are outlined in Decision 2012/18 of the UN Secretary General’s Policy Committee’ (IPS, April 22, 2018).
Decision 20112/18 states:
"This policy was approved by the Secretary-General's Policy Committee in Decision 2012/18 on 11 December, 2012. The policy outlines the principles and methodology by which the United Nations will pursue human rights screening of personnel. It outlines processes by which (i) Member States who nominate or provide personnel to serve with the United Nations are requested to screen their personnel and to certify that they have not committed, or are alleged to have committed criminal offences and/or violations of international human rights law and international humanitarian law; (ii) individuals who seek to serve with the United Nations are requested to attest that they have not committed, or are alleged to have committed, criminal offences and/or violations of international human rights law and international humanitarian law and, where necessary, to provide relevant information; and (iii) the United Nations Secretariat will establish an information exchange mechanism, such as a focal point network, and procedures to support the exchange of information on prior human rights conduct of candidates/nominees for the purpose of screening".
ISSUE OF COMPETANCE
Having admitted that the task assigned by the Ministry of Foreign Affairs is beyond the mandate of the HRCSL, which according to Act No. 21 of 1996 that set up the Human Rights Commission, is limited to "rights declared and recognized by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights", the question that arises is whether the HRCSL has the competence to certify that the personnel they clear have not committed, or are alleged to have committed criminal offences and/or violations of international humanitarian law, and if they do not, how credible would be their clearance?
The context in which the HRCSL should conduct its screening/vetting should be clearly understood. The conflict in Sri Lanka was an armed conflict that was conducted under conditions of a declared emergency. Therefore, the applicable law is international humanitarian law; a fact acknowledged by the UN Secretary General’s Panel of Experts and the Office of the High Commissioner for Human Rights in Geneva. Consequently, human rights are derogated except for laws that are recognized by the International Covenant on Civil and Political Rights which are Articles 6 - right to life, Article 7 - prohibition of torture and Article 8 - slavery. Therefore, the issue is whether HRCSL has the competence to evaluate whether humanitarian law violations were committed during the armed conflict and thereafter until normalcy was restored.
It is because of a perception that Sri Lanka does not have the competency to evaluate violations of international humanitarian law that Paragraph 6 of the UNHRC Resolution 30/1 calls for the "Government of Sri Lanka to establish a judicial mechanism with special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable…" . The Consultation Task Force on Reconciliation Mechanisms also recommended a hybrid court to investigate violations committed during the armed conflict in Sri Lanka, despite the fact that complying with the provision for a hybrid court amounts to a violation of the constitution, which perhaps is the primary reason why the accountability process has stalled.
In such a background, is it realistically possible for the HRCSL to all of a sudden acquire a competence to evaluate whether violations of international humanitarian law were committed by the prospective peacekeeping personnel whom they screen on a case by case basis, when they are structured and organized to deal only with human rights violations? And, if it had acquired the skills needed to address humanitarian law violations, the HRCSL should undertake the entire exercise of addressing issues relating to accountability nationally, and relating to international humanitarian law violations by any of the security forces associated with the conflict, instead of limiting its activities only to screening the peacekeepers.
CREDIBILITY of the SCREENING PROCESS
This brings up the question of credibility of the screening processes; a fact that has been the source for angst among the prospective peacekeeping personnel and others associated with their welfare. The process of screening has to begin with a list of peacekeepers forwarded by the security establishment. The process would then involve ascertaining whether there are any allegations against any of the names in the list. This means having to identify each individual by name and rank with details of what offence was committed and when, including the circumstances relating to the incident. Such acts should then be considered as violations under provisions of international humanitarian law committed during an armed conflict under emergency conditions and not human rights law. If the HRCSL does not have the competency or the resources to make a judgment the screening process would be arbitrary and cause a grave violation of the human rights of the person concerned because he/she would be branded for life without an opportunity for defense.
Such arbitrariness could be avoided if the list of names submitted does not contain any names of individuals who were involved directly with the armed conflict. Such an approach would be an act of discrimination against those who participated in the armed conflict, because it would deny them from any benefits, however clean their records. Furthermore, it would arbitrarily brand each and every combatant who actively participated in the conflict as a violator of international humanitarian law. In addition, by limiting peacekeeping only to those who did not see active service, the UN Missions would be denied experienced personnel to make their operations effective.
In the background that it was this Ministry of Foreign Affairs (MFA) that co-sponsored the UNHRC Resolution 30/1, one cannot hope to expect any better from it other than to cave in and accept "additional screening measures" to become the "first nation to be granted the opportunity to vet military personnel for peacekeeping operations by a national Human Rights Commission" (IPS report cited above). Having committed itself to undertake an unpleasant task ,the MFA appears to have passed the buck to the HRCSL. The fact that the HRCSL did not have the courage to exercise its independence and state that it was not equipped to handle international humanitarian law certifications due to lack of skills and resources, and because of these limitations would bring into question the credibility of certifications by the HRCSL. Does this not bring into question standards of personal integrity?
According to the Human Rights Commission Act, the Chair is nominated by the President. The president is also the Commander-in-Chief of the forces who are being subjected to "additional screening measures". Is this another instance of confused leadership, or what?