In June 2010, the United Nations Secretary General (UNSG) Ban Ki-moon set up a ‘Panel of Experts on accountability in Sri Lanka’, to ‘advise him on accountability during the final stages of the war in Sri Lanka’ – accountability for violations by the parties to the conflict as well as the UN’s own actions during the final stages of the Sri Lanka government’s military campaign against the last remaining Liberation Tamil Tigers of Eelam (LTTE) territory in the Wanni region, from August 2008- May 2009.
The Panel of Experts found that in the last stages of this 26 year conflict between the Sri Lankan government and LTTE rebels for control of territory in northern Sri Lanka, at least 40 000 people were killed in the space of five months alone. Hundreds of thousands were forcibly displaced to internment camps and there are ‘still no confirmed figures for tens of thousands of civilian deaths in the last months of battle’. The Panel found that war crimes may have been committed by both the LTTE and Sri Lankan government forces.
Regarding the actions of the UN, the overall view of the Panel was that ‘some agencies and individuals had failed in their mandates to protect people, had under-reported Government violations, and suppressed reporting efforts by their field staff’. The UN ‘did not adequately invoke principles of human rights that are the foundation of the UN but appeared instead to do what was necessary to avoid confrontation with the government’. It also noted that the failure to act by Member States was a particular ‘low mark’.
The Panel of Experts also recommended that the UN examine its own role in more detail. In April 2012, the Secretary-General established an Internal Review Panel on UN actions in Sri Lanka to (i) provide an overview and assessment of UN actions during the final stages of the war in Sri Lanka and its aftermath, particularly regarding the implementation of its humanitarian and protection mandates; (ii) assess the contribution and effectiveness of the UN system in responding to the escalating fighting and in supporting the Secretary-General’s political engagement; (iii) identify institutional and structural strengths and weaknesses, and providing recommendations for the UN and its Member States in dealing with similar situations; and (iv) make recommendations on UN policies or guidelines pertaining to protection and humanitarian responsibilities, and on strengthening the system of UN Country Teams (UNCTs) and the capacity of the UN as a whole to respond effectively to similar situations of escalated conflict. The Review Panel was headed by Charles Petrie, a British and French national with twenty years experience with the UN, including as the organization’s envoy to Burundi.
This week the draft report of the Internal Review Panel was leaked to the BBC and New York Times. It was also handed to the Secretary-General and released to the public. In this blog, we ask Alex Bellamy, Director of Human Protection Hub, to discuss the report’s findings and its implications for the future.
Q. What were the main findings and recommendations of this report?
The main finding of the report was that the UN failed to adequately respond to the protection crisis in Sri Lanka. It argued that ‘when confronted by similar situations, the UN must be able to meet a much higher standard in fulfilling its protection and humanitarian responsibilities’ (para. 88).
In particular, the report found that the UN was not prepared to take sufficient action to improve the protection of civilians caught up in the crisis and that UN officials were consistently prepared to make tradeoffs between protection and human rights concerns on the one hand and the perceived needs to secure humanitarian access and maintain a cordial relationship with the Sri Lankan government on the other.
With particular reference to RtoP, the panel found that:
“74. The Concept of a Responsibility to Protect was raised occasionally during the final stages of the conflict, but to no useful result. Differing perceptions among Member States and the Secretariat of the concept’s meaning and use had become so contentious as to nullify its potential value. Indeed, making reference to the Responsibility to Protect was seen as more likely to weaken rather than strengthen UN action. The events in Sri Lanka highlight the urgent need for the UN to update its strategy for engagement with Member States in situations where civilian populations caught up in the midst of armed conflicts are not protected in accordance with international human rights and humanitarian law”.
This is obviously sharp criticism of the state of play with respect to RtoP in 2008-09. However, it needs to be borne in mind that almost all of these events predated the release of the Secretary-General’s first report on the Implementation of RtoP (31 July 2009) and predates the establishment of the Office for Genocide Prevention and RtoP. The July 2009 report on RtoP and three subsequent reports and informal dialogues within the General Assembly have done much to reduce differences on the meaning and use of RtoP. The principle has been used to good effect in several subsequent cases, notably Libya, Cote d’Ivoire, Yemen, and South Sudan. Nonetheless, the findings from the Internal Review Panel show that much more work is needed to embed RtoP into the lived practice of the UN system and its engagement with Member States.
The panel attributed the failure to protect in Sri Lanka to three interrelated sets of problems:
1) Cultural challenges: because the UN relied on the support of the Sri Lankan Government’s for the delivery of humanitarian and other essential assistance, it was reluctant to criticize that government for serious violations of international law. The report argued that: “There was a continued reluctance among UN Country Team institutions to stand up for the rights of the people they were mandated to assist. In Colombo, some senior staff did not perceive the prevention of killing of civilians as their responsibility…’ (para. 76).
2) Framework of action: the overall structure of the UN’s engagement with Sri Lanka was not appropriately configured to the organization’s responsibilities, given the situation on the ground. Despite the adoption of a number of core protection standards, including international human rights law, international humanitarian law, and the Responsibility to Protect, which all UN entities are expected to implement, and despite the situation in Sri Lanka, the UN Country Team was primarily configured to support development. Although changes were made, including the addition of a Humanitarian Coordinator, the staffing composition and structural posture of the Country Team remained unchanged. It was clearly unsuitable for discharging the UN’s human rights and humanitarian responsibilities during the crisis (para. 78).
3) Systemic failure: The UN system failed to respond adequately to early warning signals because (i) it lacked an adequate and shared sense of responsibility for human rights violations; (ii) of an incoherent internal UN crisis-management structure which failed to conceive and execute a strategy in response to early warnings; (iii) an ineffective dispersal of UNHQ’s structures due to overlapping human rights and humanitarian law mandates; (iv) a model of UN action in the field designed more for development than crisis response; (v) lack of sufficient training and experience among senior staff; (vi) inadequate political support from Member States; (vii) a framework for Member State engagement with international human rights and humanitarian law protection that was outdated and unworkable, in part because it did not enable Member States to reach a sufficiently early and full political consensus on the situation and the UN response (para. 80).
Q: Was it significant that the Secretary-General Ban Ki-moon agreed to this internal review of the UN actions during the last months of Sri Lankan civil conflict?
Yes, I think it was very significant. In fact, the Review Panel itself described the Secretary-General’s decision ‘a courageous step’ (para. 88). It was not surprising, though. From the time of his candidacy for the position of Secretary-General, Ban Ki-moon has exhibited a strong personal commitment to the concept of ‘Responsibility to Protect’ and the goals of genocide prevention and human protection more broadly. He has continued to push the issue in a number of ways. Most obviously, he appointed a Special Adviser for the Responsibility to Protect (RtoP), Edward Luck, and established an Office for Genocide Prevention and RtoP with a mandate, among other things, to provide advice on situations containing the threat of imminent genocide, war crimes, ethnic cleansing and crimes against humanity and operate a convening mechanism that would bring senior UN officials together to provide consolidated advice to the Secretary-General in times of crisis. The Secretary-General has also spoken out against the perpetration and incitement of the four crimes, offered his good-offices in support of efforts to prevent or end the crimes, lent practical and political support to the efforts of others, prodded and cajoled the Security Council, and developed and advanced conceptual and institutional thinking about the protection of populations from these crimes. All the while, he has paid careful attention to protecting and growing RtoP’s most valuable asset: the global consensus on which it is based. That consensus is deeper, wider and more meaningful because of the Secretary-General’s personal commitment and the impressive work of Edward Luck. What all of this has done is place human protection at the very core of the UN’s business – the basis used by the Internal Review Panel to criticize the organization’s actions with regards to Sri Lanka. The challenge, as this report makes only too clear, is to translate this core business into a daily lived reality.
There will, of course, always be new situations that pose very serious practical and political challenges. Sri Lanka was one such situation in which a combination of factors – notably the international political context, the aggressive and skillful diplomacy exhibited by the host government, the complexity of the situation, the apparent inability or unwillingness of multiple warring parties to comply with their legal obligations, and an exceptionally difficult operating environment – conspired to create a crisis that was both very severe and very difficult to navigate. Clearly, as the Internal Review Panel has noted, the UN failed the challenge of protection posed by the situation in Sri Lanka in late 2008/early 2009. The mark of a Secretary-General is made by how he or she responds. Not only did the Secretary-General convene the Internal Review Panel, he did so immediately on being advised to that effect, granted the Panel extraordinary access to sensitive documents, including emails and other records of informal communication, and in appointing Charles Petrie to lead the review gave the task to a well-regarded UN-insider with a reputation for being outspoken and hawkish on reform. It is precisely for those reasons that we now have such a detailed and robust report that the UN can use as a basis for fine-tuning its response to major crises.
Q: What are the implications of the report for the relationship between ‘UN responsibility’ and ‘state responsibility’ for the protection of populations from grave abuses?
The report is very clear in ascribing protection responsibilities to the UN. It was not the first report to do so, and it lends further credence to the now widely accepted view that the UN has a responsibility to protect populations from grave violations of international human rights and humanitarian law irrespective of its specific mandate in any given situation. It is worth remembering, in that regard, that the international community’s commitment to RtoP specifically calls for action through the UN system. The fact that at this has been specifically reaffirmed by the Security Council (Resolutions 1674 and 1894) reinforces this basic point.
However, it is important to stress that states have important responsibilities too and that whilst the UN has proven willing to review its actions in relation to the crisis in Sri Lanka, few – if any – Member States have done so. In fact, of course, the primary responsibility to protect populations in Sri Lanka lies with the Sri Lankan government itself. Any failings on the UN’s part are multiplied several times over when we come to regard the Sri Lankan government’s own failings. Multiple reports have now documented that not only did the Sri Lankan government fail to protect its population, its forces were in all likelihood also responsible for the commission of war crimes.
The Internal Review Report also makes clear, however, that the wider UN membership failed as well. UN Member States have committed themselves to RtoP, which gives them responsibilities to assist states under stress and to take timely and decisive action when a government manifestly fails to protect its population from war crimes and other related crimes. Yet in the case of Sri Lanka, Member States preferred inaction: they were reluctant to receive briefings, showed little interest in adopting measures to protect populations or hold responsible actors to account, and failed to speak in support of UN officials who were reporting various forms of harassment and intimidation. In short, it was UN Member States that created the political context which pushed the UN Secretariat to make tradeoffs to protect its limited humanitarian access and encouraged senior officials to adopt the stance that they did. The message here is clear – if UN Member States are serious about their commitment to the responsibility to protect they need to actively encourage the flow of information from the Secretariat, accept and welcome briefings, and be prepared to consider the adoption of measures at an earlier stage in the crisis. Member States cannot on the one hand proclaim their support for the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity whilst on the other hand closing their ears to relevant information and refusing to accept briefings and policy initiatives.
Q: What will happen now after this report’s findings within the UN?
To his great credit, the Secretary-General has already committed to establishing a high-level committee to examine the report’s recommendations and ways of implementing them. By making the committee high-level (Under-Secretaries-General), he has ensured that this process will remain in the spotlight and will have the institutional clout it needs to generate meaningful outcomes and ensure that they are implemented. The report itself calls for the articulation of an implementation road map (para. 87). Ideally, this should be a pragmatic and practical exercise that includes actionable items, timelines, and reporting mechanisms. This could be done in conjunction with other initiatives such as the mainstreaming of Responsibility to Protect goals throughout the UN system (called for in the Secretary-General’s 2009 report on RtoP), the development of strategies for prevention and protection, and the assessment and strengthening of the system’s capacity for prevention (as called for in a 2012 speech by the Secretary-General). Indeed, several of the specific recommendations overlap directly with the goals of these other initiatives.
There were six substantive recommendations, all of which are well worth summarizing in detail (all from para. 87):
First, the Secretary-General should renew a vision of the UN’s most fundamental responsibilities regarding large-scale violations of international human rights and humanitarian law, especially among senior staff. In other words, the UN’s senior staff need to be repeatedly reminded that above all else, and irrespective of its specific mandates in individual countries, the UN is judged by the world community on its ability to protect populations from grave abuses.
Second, embed a human rights perspective into UN strategies. The report calls for measures to ensure that international human rights, humanitarian and criminal law perspectives are brought into overall UN analysis and strategies when needed and that the UN’s capacity to secure support from Member States for advocacy and action should also be strengthened. The report identifies several ways of doing this, including: (1) ensuring that the Secretary-General’s office has suitably senior staff with relevant backgrounds in human rights and humanitarian law; (2) giving the Office of the High Commissioner for Human Rights (OHCHR) an oversight role over all human rights and humanitarian law aspects of crisis response and consolidating staff working in this and cognate areas within the OHCHR’s New York office; (3) strengthening day-to-day collaboration between the Department of Political Affairs (DPA) and OHCHR; (4) establishing small teams of experts that could be rapidly deployed into crises areas.
Third, strengthen the management of the whole-of-United Nations crisis response. The UN’s response to crises involving large-scale risks to civilians should be made more coherent. In particular: (1) one senior official should be given responsibility for overseeing crisis response (UN Senior Official); (2) there should be a single coordinating mechanism per crisis situation and this should provide proper information to the Policy Committee to allow real discussion and debate; (3) in crisis situations the UN must be prepared to generate and publicly release the best available information; (4) field-level coordinators should have relevant expertise in crises involving violations of international human rights or humanitarian law and should report to a relevant headquarters entity (including the UN’s Senior Official).
Fourth, promote accountability and responsibility. The UN should strengthen its internal mechanisms to ensure that it responds promptly and effectively to human rights crises. In particular, departments and agencies should conduct minimum human rights ‘due diligence’ and regularly request information from the OHCHR on serious human rights concerns. The UN should also review its actions in response to every crisis involving large-scale risks to civilian populations.
Fifth, improve UN engagement with Member States and build political support. The Secretary-General and Secretariat must be able to provide full information to Member States and suggest actions. To facilitate this: (1) the Secretary-General should invite interested Member States to attend briefings by the heads of the DPA, OHCHR, and OCHA; (2) the Secretary-General should make explicit use of his convening authority under Article 99; (3) the Secretary-General should work with Member States to suggest new models by which they could convene and begin consideration of a crisis at an earlier stage; (4) the Secretary-General should use RtoP as a ‘convening’ initiative to invite Member States to receive and consider relevant information; (5) the Secretariat should make use of digital media to brief Member States.
Sixth, better address violations of privileges and immunities. The Secretary-General should invite Member States to consider actions in situation where one Member State engages in sustained actions against UN personnel and institutions. More work is needed on the UN’s support to staff under threat.
The Secretary-General’s committee should review these recommendations and develop an action plan. There is every indication that this is, indeed, what will happen.
Q: What should happen regarding those individuals – Sri Lankan government and military, as well as LTTE figures – that the 2011 Panel found were possibly guilty of war crimes?
Ending impunity is a critical ingredient of atrocity prevention and a core part of the implementation of RtoP. Atrocity crimes are more likely to be committed when would-be perpetrators believe that they are likely to get away with it. With regards to those from the government side, if the government of Sri Lanka proves unable or unwilling to properly investigate alleged crimes and prosecute the perpetrators – and there are multiple reports which suggest that it has already proved unwilling to investigate properly, let alone bring prosecutions – the Security Council ought to consider referring the matter to the prosecutor of the International Criminal Court. Failure to do so would only encourage other potential perpetrators to think that there might be situations in which they could escape legal accountability for the commission of war crimes. It is more likely, of course, that crimes committed by the LTTE will be prosecuted by the government, but both the process itself and the conduct should be closely monitored to ensure its compliance with basic minimum standards.
Q: Does this report have any relevance for the UN in relation to the current situations in Syria and Mali?
The short answer to this question is an unequivocal ‘yes’. As I noted earlier, the report covers a crisis that occurred immediately prior to the beginning of formal efforts to implement RtoP at the UN. Many of the recommendations the report puts forward are reflected in proposals brought forward and steps already taken in the context of implementing RtoP since 2009. Most notable in this regard are: the mainstreaming of RtoP goals throughout the UN system, the adoption of an atrocity prevention lens, the integration of atrocity prevention and protection concerns into the work of the UN’s Framework Team, the establishment of an early warning and assessment capacity, and the approval of a convening mechanism that would bring together the key departments under the chair of the Office of Genocide Prevention and RtoP to develop coherent policy options for the Secretary-General in situations of crisis involving the actual or imminent commission of genocide, war crimes, ethnic cleansing and crimes against humanity.
Each situation is different, of course, and brings with it its own challenges. However, the UN’s responses to the situations in Syria and Mali show that some lessons may already have been learned from Sri Lanka. The situation in Syria is no less complicated and politically fraught than that in Sri Lanka in 2008-9, yet in the Syrian case the UN Secretariat has shared information, adopted a strong stance on the suspected commission of war crimes and crimes against humanity, developed and articulated policy actions, and cajoled and even criticized the Security Council. The UN Secretariat has also repeatedly warned about the trajectory Syria is on, to such an extent that almost everything that has transpired was predicted in advance by UN officials. As a result, we can say that the failure to respond adequately to the protection needs of civilians in Syria is almost entirely one of the Syrian government and UN Member States. That, of course, is little comfort to the victims but it does reaffirm that it is not just the UN that has a responsibility to reflect on its practice in such cases.
The situation in Mali is different again. The lead international actor in this crisis is the sub-regional organization, ECOWAS. The principal role of the UN has been to assist the work of ECOWAS. As with Syria, the UN has generated and shared information, especially in relation to grave violations of human rights. It has also provided advice and counsel aimed at minimizing potential unintended negative effects arising from the expected ECOWAS intervention and ensuring that any international action be comprehensive in nature, dealing with both the immediate crisis and the deeper issues that gave rise to it: most notably, Mali’s constitutional crisis and discrimination against the Tuareg. Perhaps the key failing in this case was the inability to predict and mitigate the crisis in advance, especially given the role played by the fall of the Gaddafi regime in Libya in its escalation. Implementing the Petrie report’s recommendations with regards to strengthening the coherence of the UN’s reporting on early warning and human rights violations and raising the profile of these considerations in wider policy deliberations would be a useful way of responding to this challenge.
The implications of the Internal Review Panel’s report for the implementation of RtoP are far-reaching. I will reflect on this in more detail in a subsequent post.