The Tamil Tiger rebels were defeated militarily two years ago but for the government of President Mahinda Rajapaksa the fight is far from over. Instead, the battle lines just keep shifting. On Monday - despite Sri Lanka's intractable position that the UN Secretary-General must not release a controversial report by a panel of experts he constituted to examine the last stages of Sri Lanka's war with the Liberation Tigers of Tamil Eelam – Ban Ki-moon went public. Given that the contents of the report were already widely known, it seemed a redundant move. But diplomatically, Sri Lanka will treat this as an open affront by an official under whose administration the country's relations with the UN Secretariat have plummeted to abysmal depths. The hostility is now almost palpable. The report, which alleges that most civilian killings during the final stages of the war were caused by military shelling, was shared confidentially with Sri Lanka on April 12. Mr. Ban told the government he was willing to publicize its response alongside the report. The government countered mutinously that the panel's findings were fundamentally flawed and based on patently biased, unverified information. It did not provide a formal reaction to be released with the report, insisting that the UN secretary-general must not make it public. Mr. Ban went ahead anyway. It remains to be seen what the government will do next. President Rajapaksa must find it hard to decide whether the report's release – and, indeed, its contents – is a bane or a boon to him, politically. On the one hand, the more cornered he is internationally, the more popular he becomes at home. On the other hand, the president has on his hands a real diplomatic muddle to untangle and the pursuit of belligerence is unlikely to serve national interest. The report itself is damning. It was drawn up by a three-member panel comprising Indonesia's Marzuki Darusman, Yasmin Sooka of South Africa and Steven Ratner of the United States. The group was appointed in June 2010 to advise Mr. Ban on “the issue of accountability with regard to any alleged violations of international human rights and humanitarian law” during the final stages of the conflict in 2009. Rejecting outright the government's position that it followed a policy of “zero civilian casualties”, the experts claim they have credible evidence to prove the military caused large numbers of civilian deaths through large-scale and widespread shelling. The report also condemns the LTTE for serious violations of international humanitarian and human rights laws and the UN for not having acted to prevent a catastrophe. But it primarily contains page after page of allegations and recriminations against the state. This might have been what the government feared when it lobbied furiously against the setting up of this panel to begin with. Back then, a cabinet minister even launched a fast-unto-death opposite the UN headquarters in Colombo calling for the group to be dismantled. He stopped well short of death but the message was clear. Mr. Ban was meddling in Sri Lanka's internal affairs when he clearly had no business to do so. The government had initially hoped to pre-empt any international investigation by setting up a domestic mechanism to probe the same allegations. That materialized in the form of the Lessons Learnt and Reconciliation Commission (LLRC) which was appointed by President Rajapaksa in May 2010. The effort flopped when Mr. Ban, under relentless pressure from human rights lobbyists, persisted with his panel and later ignored Sri Lanka's demands for its withdrawal. In a sense, the government fell into a trap of its own making. Mr. Ban – already under attack for not having done more to prevent civilian deaths – visited Sri Lanka in May 2009, shortly after victory was declared. The blood was still fresh, so as to speak. A joint statement was issued in which the secretary-general underlined the importance of “an accountability process for addressing violations of international humanitarian and human rights law”. The government pledged in this statement that it would take measures to address those grievances. It then dithered for months, doing nothing. Under tremendous pressure and eager not to look a fool – particularly with a re-election bid on the horizon – Mr. Ban acted, if only to save his own hide. When the LLRC was set up, it was too late. With Mr. Ban refusing to dismantle the panel, the government then embarked on the path of non-cooperation, rejecting any possibility of the experts visiting the country in the conduct of their duties. But in a development that belied discreet negotiations between Sri Lanka and the UN Secretariat, the government announced in January that visas will be issued for the panel if only to testify before the LLRC. Perhaps to save face locally, this, too, was later retracted. The panel report, therefore, was produced without the experts ever having visited the scene of the crime. It could be argued that the experts have revealed nothing new; that organizations like Human Rights Watch, Amnesty International or the International Crisis Group (all of whom have doggedly remained on Sri Lanka's case) have said it all before. But this was different because a body appointed by a UN secretary-general said it. Certainly, questions can be asked about the strange procedure Mr. Ban adopted. For a start, he set up a panel without sanction from the Security Council or Human Rights Council, purportedly to advise him in a personal capacity on alleged war crimes in Sri Lanka. Then he went public with it, without giving the LLRC an opportunity to produce its own final report. To be fair, though, the expert panel's findings were first leaked in Sri Lanka to a pro-Rajapaksa newspaper, The Island. The government then questionably claimed it had nothing to do with the leak. It was only after this initial breach that excerpts of the report and, finally, its full contents, appeared in other publications and websites. Mr. Ban may not have any choice but to “go public” when the report was already public. It is now understood that the LLRC, which earlier planned to hand over its findings to President Rajapaksa in May, is likely to delay this to take into account - “to process locally” – the revelations contained in the expert panel's report. What next? Mr. Ban has already made his position clear. In a statement issued this week, he says he is reviewing the report's conclusions and recommendations. He says he will take the panel's advice to review UN actions regarding the implementation of its humanitarian and protection mandates during the war in Sri Lanka, particularly in the last stages. But with regards to the recommendation that he establish an international investigation mechanism, Mr. Ban says he will need host country consent or a decision from member states through an appropriate intergovernmental forum. This will likely be treated by human rights lobby groups and the pro-LTTE diaspora as an invitation to use their influence predominantly in Western capitals to get some resolutions drafted. Already the pro-LTTE Transnational Government of Tamil Eelam launched a signature campaign to urge Mr. Ban to refer Sri Lanka to the International Criminal Court and to appoint a commission of inquiry to investigate war crimes. President Rajapaksa has also to consider his options. Rather than encourage nationalists to rampage about like bulls in a china shop, he would fare better to seriously weigh the benefits of engaging with those factions of the international community that are converging on Sri Lanka. It would not suffice to count on Russian and Chinese support to pull the country through when those nations have habitually adopted different stances at different times on different issues. It would not do, also, to ignore India's tacit support to Mr. Ban in the appointment of and process surrounding his panel. “We should have and must engage in preventive diplomacy,” said a senior diplomat on condition of anonymity. “Reactive diplomacy is what we are doing and history tells us that is not the prudent way to go because you get into an adversarial lock with one side having to give in.” Sri Lanka could shout itself hoarse from the rooftops that the country was being unfairly targeted while crimes committed by powerful nations are ignored or excused. But this is a reality that no amount of bellyaching will change. As the diplomat astutely pointed out, “We can't appeal to morality, we have to handle the issue.” And that does not mean to kill the messenger. The writer is a senior journalist in Colombo. __
