By Thambu Kanagasabai LLM [Lond.], FCII, July 13, 2016
In the much expected 32nd session of Human Rights Council, the UN Human Rights High Commissioner delivered his oral statement evaluating the progress made by Sri Lanka regarding the implementation of various matters outlined in the Sri Lanka-US sponsored resolution passed on October 01, 2015. Nine months have elapsed since then. Nothing is more obvious than the almost zero ground action taken by Sri Lanka towards implementing the core recommendations. On the contrary, instead of implementing the said steps, Sri Lanka is facing allegations of continuing arbitrary arrest, torture and sexual violations, so also the military surveillance and harassment. “Slow release of some lands.” On the contrary, more lands are under seizure in the North and East with scant respect to the accusation of the UN High commissioner.
The UN High Commissioner has forthrightly voiced his concern over the following matters in his own words and suggested Sri Lanka Agree to:-
“international participation in accountability mechanism which would be a necessary guarantee for independence and impartiality of the process.”
“The structures and institutions culture that promoted these practices be dismantled to show there will be no tolerance for practices of the past”
“to take concrete steps to address impatience, anxiety reservations towards the process.”
“constitutional changes will not involve trade-offs and compromises on core issues of accountability, transitional justice and human rights”
“concerned about stoking nationalism against ethnic, religious and other ethnic minorities”
“new evidence of the usage of banned cluster bombs needed an independent and impartial investigation”
“current judicial institutions still lack credibility which is needed to gain the trust of the victim community.”
“magnitude, and complexities of the international crimes need to be investigated which the OHCHR investigation could amount to war crimes and crimes against humanity”
“militarization with heavy military presence in the North and East, surveillance and harassment still persisting which needs to be swiftly addressed”
“use of prevention of terrorism act 1979 still going on – torture and ill-treatment of detainees is still continuing – including the Tamils returning to Sri Lanka”
“should include voices abroad and further outreach in the diaspora in the process of implementation”
“military engagement in commercial activities including farming, tourism is giving rise to new levels of frustration and disenchantment”
“early successful prosecution would mark a turning point from the immunity of the past”
“more rapid and sustained progress could have been made on other issues by release of land, detainees, PTA and Witness Protection Law”
“establishment of full transitional justice mechanism will be needed”
“current unwieldy co-ordination, arrangements within Government should be changed for integrated co-ordination with participation of civil society, consultation process with victims and civil society”
“new office of missing persons will hopefully provide at least a form of immediate redress”
“UN High Commissioner for Human Rights reiterates the importance of all Sri Lankans to rally behind the process”
“UN High Commissioner for Human Rights commended the restoration of the Constitutional Council, an independent Human Rights Commission and the ratification of the Disappearance Convention and described them as important achievements that will leave a legacy for the future.”
After having made the above details of the above unattended and still lying in limbo matters, the UN High Commissioner for Human rights in his conclusion says
“overall the Human Rights Council should be encouraged thus far by the steps that the Government of Sri Lanka has taken to implement some of the key commitments made in resolution 30/1”.
Firstly one has to look at the steps taken by Sri Lanka to implement some of the key commitments as mentioned by the UN High Commissioner. The key commitments can be listed as follows: Requesting Sri Lanka to
[i] “Implement effectively the constructive recommendations made in the report of the Government’s own LLRC commission.” The report of Verite Research, an independent think tank has just reported that “only 20% of the 189 recommendations of LLRC have so far been implemented after a lapse of more than four years.
[ii] Allow participation in a Sri Lankan judicial mechanism, foreign judges, defence lawyers and authorized prosecutors and investigators.”
The fate of this proposal is already sealed by the President who has repeatedly declared his position and has vowed that “he will not allow any foreign elements in the investigation as long as he is in power” claiming that the Sri Lankan judicial system, structure and judges are fully competent to conduct the investigation into all allegations of war crimes, crimes against humanity etc. It is to be noted that Sri Lankan criminal laws have no provisions or chapters to deal with international crimes and the Government of Sri Lanka has yet to initiate any steps to incorporate these laws into its system. This core commitment is already buried in total defiance of the 30/1 Resolution. The call to reform the domestic laws is also hanging in balance thereby negating the effectiveness called for in the resolution of 30/1.
[iii] Call to introduce effective security sector reforms is yet to materialize and hardly any moves appear to have been initiated so far. This inaction is facilitating the retention of persons into the security forces who are involved in the violations of human rights, abuses and international humanitarian laws. This commitment is yet to see its serious consideration from the government.
[iv] 258 political prisoners detained under the DRACONIAN PTA LAW are languishing for several years with no hope of any judicial process to decide their fate despite the repeated promises given by the President and Prime Minister on various occasions.
[v] The call to accelerate the return of lands to its rightful civilian owners is another recommendation which is being handled willy-nilly almost as eyewash. In the Northern Province, out of the 69.992 acres seized by the security forces until 2015 only 2565 acres released end of 2015 leaving about 67,427 acres in the hands of the military where thousands of families are still homeless and landless. While some lands are released, moves are afoot to size more lands which are underway in other areas for military use. The President’s promise to release the land and resettle those displaced within six months ended with a whimper when the period ended on June 30, 2016. The request to end military involvement in civilian activities, running hotels, restaurants, cultivating vegetables in displaced civilians lands and marketing them, running schools for pre-school children etc. are continuing with scant respect to this recommendation. Business continues as usual depriving livelihood for the civilians in the North and East.
[vi] The call to investigate attacks on journalists, human rights defenders, members of minority groups as well as places of worship and to hold perpetrators of such attacks is still unheeded not to mention the various such investigations into some killings and even court proceedings are either stalled or moving at snail’s pace like Journalist Lasantha Wickremasingha and the brutal killings of five university students in Trincomalee [these are few the Government agreed to investigate in the LLRC Government’s own findings] eg. The recent attacks on Muslims and Mosques are an example where the perpetrators are moving freely until now without any prosecution.
[vii] The long time promised repeal of dreaded draconian Prevention of Terrorism Act 1983 is hanging in balance while it is vigorously enforced currently. So far 42 new arrests have been made in 2015 and ending July 6, 2016 when a Tamil couple were arrested in Mullaitivu.
[viii] Call “to fulfill commitments on the devolution of political authority and ensure all Provincial Councils are able to operate effectively in accordance with 13th Amendment.” This commitment is struggling between life and death with no visible signs of any political moves. The only commitments implemented are the setting up of an Office of Missing Persons, without consulting the involved victims, civil groups as requested in the resolution. As such hope of full justice from this office is in doubt and at the most this office will function to record statements of victims without powers to punish the guilty if any. The Government of Sri Lanka has ratified the convention relating to enforced disappearances and also passed the Witness Protection Law. However the Government of Sri Lanka has already made guarantees of protection to the security forces to shield them from any punishment for crimes and violations committed during the war. Field Marshal Sarath Fonsekera who conducted the war is a Minister now and the Prime Minister Ranil Wickremasinghe is relying on his political support to counter the former President Mahinda Rajapakse who was the commander-in-chief. Mahinda Rajapakse along with his brother Gotabaya Rajapakse are currently engaged in resurrecting their political fortunes with the group of SLFP [Sri Lanka Freedom Party members] and it will be a wonder if they are charged for any war crimes not to mention any punishment for them. The core of the resolution is elimination of the entrenched impunity practice in Sri Lanka for state officials, political big wigs and security forces and this core commitment appears to be doomed to meet its failure, as can be seen in the lukewarm and half-hearted steps and initiatives taken against the alleged past corrupt politicians who are flexing their muscles against the Government with total contempt.
The UN High Commissioner for Human Rights avoiding any castigation of the Sri Lankan Government has welcomed the following steps initiated by Sri Lankan Government which are encouraging for Human Rights council as he declared:-
 The setting up of the Office of Missing Persons is a welcome measure which as stated earlier had been set up without any input from the affected victioms is yet to commence its function and only time will tell how far it has served the causes of justice bearing in mind the futile outcome of numerous commissions set up by the Governments of the past. The UN High Commissioner has rightly stated that “this office will hopefully provide at least a form of immediate redress”, a hope against hope.
 Sri Lanka’s recent ratification of convention dealing with enforced disappearances is another welcome step of the government of Sri Lanka which can only succeed only when there is political will and complete commitment to carry out its provisions. It is to be noted that Sri Lanka has earlier ratified various conventions, particularly Convention Against Torture, Cruel, Inhuman and Degrading Treatment or Punishment in 1994 and the Convention on Elimination of all forms of Racial discrimination in 1982. The provisions of these conventions mostly lie as instruments of records without any dedication or commitment to follow or enforce their provisions as do happen in various other countries that have also ratified them. As such this ratification will continue or be treated as an addition to the other ratified and unenforced UN Conventions.
An independent Human Rights Commission set up by the government of Sri Lanka is another good step which it is hoped will function independently without any pressure or interference from any affected parties or influential politicians.
UN High Commissioner’s call for inquiry into the use of cluster bombs is a bold demand which is as usual met with hostile reaction and denial from the Government of Sri Lanka. Sri Lanka always has the habit of denying all wrongs like the denial of a single civilian death in the war from 2006 – 2009.
The UN High Commissioner has also solidly expressed his position in relation to the Sri Lankan military when he said that “Government of Sri Lanka has to assert full control over its military intelligence establishment.” Example of military assertiveness is its continued non co-operation with inquiries relating to political assassinations, besides the mysterious disappearance of military records relating to these cases and record of missing persons. Another irritant is the military’s unwillingness to release the occupied land disregarding Government’s stand on this matter. On the contrary continuing to size more lands shows the military’s hold on the Government. The Jaffna Army Commander Mahesh Senanayaka as reported recently by “Colombo Page” media has said “that there will not be any Army or Camp reductions in the North and East for another five to ten years, and government can then analyze the requirement’ This clearly shows the Army’s grip in the Government.
The UN High Commissioner also rightly concluded by saying that the “Government has not moved fast enough with tangible measures.”
The lapse of nine months since the resolution mattered him in this conclusion.
Think tank ‘Verite Research” has in a statement on July 4th said “only 20% of LLRC and 11% of UNHRC have only been implemented.” The Foreign Minister Mangala has now come out with his own “promise of complete resettlement and handing over all lands before 2018”. Only time will tell the fate of this promise. With about 8218 acres of civilian lands still occupied by the military in Jaffna with only 4, out of 30 resolutions of UNHRC have been implemented.
The prestigious ‘Hindu’ Newspaper in its editorial on July 03, 2016 stated “Sri Lanka must stay the course and ensure implementation of the resolution,” thereby doubting its sincere commitments.
The UK based “Freedom from Torture” body has lamented “the continuing Sri Lankan government failure to involve international involvement.”
Human Rights Watch has stated that “several of Sri Lanka’s key commitments remain unfulfilled’.
As such the overall picture is not rosy for the Tamils and their victims viewing the ground realities prevailing in Sri Lanka. While the Foreign Minister of Sri Lanka Mangala Samaraweera true and loyal to his portfolio is making his own promises to calm the foreign countries even dismissing the contrary statements of the President and Prime Minister,who are declaring the true position for the consumption of locals mixed with empty promises to satisfy the Tamils during visits to North and East.
The UN Commissioner’s statement that “inevitably the transformative process on which Sri Lanka is embarked will take time” has provided the shield to employ their official delaying tactics “and use it as a defence and answer to any allegations of undue delay, stalling or dilly dallying in the process of implementation of the resolutions. To expect all Sri Lankans particularly Tamils to rally behind the process which is not backed with any punitive actions or sanctions for non-compliance will only hardly succeed.
It is suggested that an independent accountability mechanism must be evolved by United Nations and put into place for enforcement by UN Human Rights Council or Security Council against rogue members who indulge in violations of the provisions of United Nations conventions with impunity including UN Charter. As long as this mechanism is absent, member states will continue to commit human rights violations with impunity avoiding accountability.
As for the Tamils, they can give only a guarded and cautious optimism while in the process making every efforts and encouraging the UN High Commissioner to live up to his commitments, also living up in maintaining HRC’s goals and objectives which are to ensure the compliance of the core issues of human rights which is the bedrock of UN and Human Rights Council. UN, HRC and Security Council have to function as the watchdogs of human rights with the duties to rein in violators giving no room or reliance on haphazard half-baked measures, empty promises or time buying tactics designed to hoodwink the international community at the expense of the victims.
The violations of human rights have to be judged on equal scales with no room for consideration of their political strength, clout or power wielding positions.
Accountability, justice and rule of law must prevail and be dispensed with allowing no room for flexibility, relaxation or half-baked palliative measures. The fate of any UNHRC resolution expected to be passed during the 34th session in March 2017 ultimately lies in the hands of Security Council and it is anybody’s guess as to its outcome. This depends on its members assessment of their political economic, geographical strategic interests as well as the extent and level of friendship maintained by Sri Lanka with its members.
Despite the calls by various countries including USA, EU, UK, Canada etc. to allow participation of international judges to show credibility, Sri Lanka has declared its determined position to flout its own resolution, testing the will and determination of UNHRC.
For the Tamils it is hoped that it would not end up as ‘a community with’ “JUSTICE DELAYED IS JUSTICE DENIED”
It is hoped that USA as a co-sponsor of the resolution will not shirk or shed its responsibility in the implementation of all recommendations in the resolution by Sri Lanka, and not to allow or condone any delay, deviation or dereliction.