Holding Sri Lanka to Account

A dream or a reality?

By: Thambu Kanagasabai   LLM [Lond],
Former Lecturer in Law University of Colombo, Sri Lanka.

Sri Lanka’s political and economic history from the day of independence in 1948 until 1956 was considered a role model for developing countries, even envied by the late Prime Minister of Singapore Lee Kwan Yew.  Communal harmony and economic prosperity were the keys of its success.  The whole peaceful scenario was turned upside down with the entry of S.W.R.D. Bandaranayake who chose the Sinhalese language as a useful political weapon and a convenient and easy mean to reach the goal of political power.  The Sinhala Only Act of 1956 heralded the beginning of a divided Sri Lanka with communal tensions, polarization of communities and mistrust between the majority and minority communities.  There was no let up in the process of majority domination along with the growth of communal politics.  The inevitable consequences were the pogroms against the Tamils in 1958, 1977, 1983 and 2006-2009.  These pogroms harvested more than 100,000 lives, lost mostly during the 2009 war as a result of war crimes, crimes against humanity, etc.  Tamil civilians were the target who bore the brunt of the hidden genocidal war with more than ten thousand Liberation Tigers of Tamil Eelam fighters also killed during the war.

Sri Lankan security forces who also carried out more than 156 massacres from late 1980s to 2009 have so far avoided any judicial process to determine their culpability. The culture of impunity is well entrenched in the judicial and security system and there is no hope that it would be eliminated unless United Nations or UN Security Council takes steps to rein in the Sri Lankan Government to carry out appropriate judicial reforms. Mere recommendations like the UNHRC Resolution of 30/1/2015 do not hold any leverage on the Sri Lankan Government unless accompanied by enforcement measures like political, diplomatic or economic sanctions or referral to UN Security Council as suggested by UN Special Rapporteur Ben Emmerson.

Sri Lanka has successfully obtained a two year extension up to March 2019 to implement the recommendations passed in October 2015 UNHRC Resolution. It is now 22 months since the passing of the Resolution and Sri Lanka is yet to show its sincerity and determination to implement the recommendations except the passing of the Office of the Missing Persons Act which will function only to solicit information as to the more than 65,000 disappeared. It will conclude as an office of compilation and not as an office to invoke judicial process to haul up the perpetrators, the security personnel to face prosecutions.  Already the victims of disappeared have voiced their rejection of this office and it is likely that the victims will boycott this office once it is set up.

Sri Lankan government is now in the radar of United Nations and UNHRC and is facing numerous reports compiled by various UN special Rapporteurs UNHRC Officials and UN High Commissioner throughout from 2011 to 2017 until recently in June 2017, by Ben Emmerson – A UN Special Rapporteur on Human Rights and Counter Terrorism.

It is to be noted that Sri Lanka never and ever admits any commission of crime by its security forces. It is always outright denial at first and then buckles down to partial admission, later resorting to time buying and delaying tactics  including stalling and/or making the recommendations stale and possibly forgotten with the passage of time.

SOME OF THE LATEST CONCLUSIONS AND RECOMMENDATIONS OF UNITED NATIONS SPECIAL RAPPORTEURS MADE DURING 2016 AND 2017

1. The United Nations Special Rapporteur on Minority Issues: Rita Izsak Ndiaye who visited Sri Lanka in October 2016, among other matters, emphasized the following in her Report in February 2017. “It is important for the Government to put in place some important and concrete measures to clearly demonstrate its political will and commitment to better protect country’s minorities”.“Must step up the release to the civilians populations of the remaining 6,124 acres of land currently held by the military in the North as well as other lands and coastal areas occupied by the military.”“The representatives of smaller minority groups should participate in a meaningful way in all stages of policy formulation, programs design and implementation of decisions that affect them”The Special Rapporteur also recommended the immediate repeal of PTA.

5. The United Nations Special Rapporteur on Torture etc. Juan Mendez who visited Sri Lanka during April and May 2016 submitted his report in December 2016. Some of his conclusions are:- “The issue of torture and other cruel, inhuman or degrading treatment is part of the legacy of the country’s armed conflict, and citizens of Sri Lanka to live without minimal guarantees of protection against the power of the state in particular its security forces PTA allows for prolonged arbitrary detention without trial. This enables an open door policy for Police investigators to use torture and ill treatment as routine method of work’.The Rapporteur recommended “The establishment of a transitional justice mechanism as an important aspect of the reform process in Sri Lanka and may contribute to the elimination of torture and provide for reparations to be effective. It must be implemented in good faith and trusted by victims and other stake holders, without this, there will be lack of confidence in the transitional justice system.”
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6. The United Nations Special Rapporteur on the Promotion of Truth – December 27, 2016Focuses on national consultation process and emphasizes the importance of broad participation in transitional justice measures, including by victims. They are intended as contributions to clarifying the rhetoric of transitional justice and matching it in practice.”
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7. The United Nations Committee Against Torture:
   “Has called on Sri Lanka for an independent mechanism to investigate allegations of torture and sexual violence in the Rehabilitation Program for 12,000 suspected cadres.”The Committee says “Allegations of unlawful detention, torture and sexual violence by Security Forces in Sri Lanka should be investigated by an independent body and torture is a common practice in Sri Lanka.”The committee “Also calls for revision of the Witness Protection Act  – saying the Protection authority needs to be independent of police” .
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8. The Report of Working Group on enforced Disappearances: Published in Geneva in July 2016 Among other matters it concludes that “Enforced disappearances have been used in a massive and systematic way in Sri Lanka for many decades to suppress political dissent, counter – terrorist activities or in the internal armed conflict. Given the contest in which they occurred, many enforced disappearances could be considered as war crimes or crimes against humanity”.
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9. The Special Rapporteur on Independence of Judges – Monica Pinto – After her visit to Sri Lanka in May 2016 among other matters, made the following observations and recommendations:-
   [a] Need for a justice system reflecting the diversity of society.
   [b] Must strengthen an independent administration of justice.
   [c] There should be independent, impartial and transparent institutions.
   [d] Ensuring fair and proper judicial accountability.
   [e] Implementation of International Human Rights Law.
   [f] Ensuring access to a lawyer and other due process guaranteed.
   [g] Unfettered access to justice.
   [h] Independent and impartial transitional justice mechanism.
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10. The United Nations Committee on Protection of the Rights of all Migrant Workers and their Families – Issued a second Report on Sri Lanka [cmw/c/sr/333-4] on Sept. 2016
    It recommended the following among others:-
    [i] Adopt a comprehensive legislation on migration and take the steps necessary to ensure that its national laws and policies are in line with United Nations Convention dealing with labor rights, trafficking of persons, ILO’s Employment Policy Convention 2016.
    [ii] Guaranteeing all migrants workers, the right to take part in trade union activities and to join trade union freely.
    [iii] Make proactive protection of migrant workers including those in an irregular situation and those working in isolated conditions, a priority concern for its diplomatic mission in destination stages.
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11. The Special Rapporteur on Human Rights and Counter-Terrorism Ben Emmerson who visited Sri Lanka from 10^th July to 16^th July 2017: bares the various acts of violation and the systems prevailing in Sri Lanka. It is to be noted that this is the first occasion when a United Nations Official felt the necessity to refer Sri Lanka to the Security Council or face a range of measures if it fails to honor its commitments to the UNHRC Resolution. Among other matters the following are worth mentioning:[A] “The PTA has fostered the endemic and systematic use of torture and the Tamil community has borne the brunt of the states well-oiled torture apparatus.”[B] “The progress in achieving key goals set out in the UNHRC Resolution is not only slow, but seems to have ground to a virtual halt.”[C] “There is little evidence that perpetrators of war crimes committed by members of the Sri Lankan armed forces are being brought to justice.” The government has thus so far done nothing to hold them to account for gross human rights violations during and after the conflict.[D] Sri Lanka has fallen short of its international commitment to achieve a lasting and just solution to its underlying problems, for the benefit of all its communities, to establish a meaningful transitional system of justice governed by the principles of equality and accountability.[E] The hands of the judiciary have been tied by the executive in a manner that is incompatible with the rule of law, or basic precepts of democratic justice.

    [F] Sri Lanka has failed to deliver the wider package of transitional justice measures which it committed to deliver two years ago. This inertia reflects the continuing influence of certain vested interests in the security sector, who are resistant to change and above all to accountability.

    [G] There must be prohibition altogether of the use of confessions made to the police which must conform to international human rights standards.

    [H] Calls on Sri Lankan Government. Immediately to provide for effective judicial revival of the legality of the definition of those still behind bars, and submit individuals charged under the PTA to a fair trial with all guarantee of due process.

    The Government is still operating the cruel and unjust PTA system, which has overwhelmingly impacted on the Tamil community.
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12. International Truth and Justice Project – Sri Lanka –  Jasmin Sooka, Executive Director June 2017  Reported as follows: “The violations remain systematic and officially sanctioned by command structures within the security forces. Victims describe senior officials coming into their torture chambers, involving three security forces teams – one abduction, one interrogation and another releasing for money. When one of the victims has fled, their family remains under surveillance by intelligent services in order to keep them quiet.”

    “These are precisely the conditions likely to produce festering grievances, to foster unrest and even to reignite conflict”

In the face of the Government’s stand not to implement the UNHRC recommendations as declared by the former Foreign Minister Mangala Samaraweera, the UN and Security Council are thrown with a challenge to prove their credibility and commitment.

It is to be noted that President Maithiripala Sirisena expressed his anger at the foreign ministry for allowing UN Special Rapporteur Ben Emmerson to interview the Tamil prisoners for breaching the Government’s policy of hiding the truth for outside world. As usual, the Minister of Justice, Wijayadasa Rajapakshe has lashed out at the UN Official with character assassination, lack of manners and professional incompetence and accusing him of compiling report on unsubstantiated evidence. Furthermore the Justice Minister maintained the Government’s policy of flat denial of any war crime but also going well far to say that “no war took place in Sri Lanka, but it was only a humanitarian operation.” Sri Lanka is thus holding a unique record of humanitarian operations which produced more than 100,000 Tamil civilians killed, thousands disappeared and wounded, hundreds raped and tortured.

Initial denial by the former President Mahinda Rajapakshe’s Government was that  not one civilian was killed during the 2006 to 2009 war but later admitted  the figures of about 7,000 killed after the surfacing of evidence of massive killings.
The United Nations Human Rights Council, United Nations and Security Council are well aware of the Sri Lankan Government’s cruel record of human rights violations during the past 60 years. It is not late for these organs who promote peace, rule of law and justice, to fulfill their enshrined duties and responsibilities as guardians of those democratic concepts and not falling for hollow promises and undertakings.

It would only a wishful thinking to expect any Sri Lankan Government to honor its pledges and commitments made to anyone including United Nations, United Nations Human Rights Council or other political leaders particularly to the Tamil leaders when Sri Lanka has in the past contemptuously dumped the recommendations of its own Lessons Learnt and Reconciliation Commission’s and also its own Consultation Task Force Report and even the 13^th Amendment dealing with Police and Land powers.

The need of the hour for the desperate Tamils is an energetic leadership which steers a course of strength and political determination taking bold initiatives without falling for the plums and perks of Offices, and to the charming wiles and guiles of south politicians and political parties who always bond together and become united to defeat even any mere concessions to Tamils with the political advice and blessings of MAHA SANGA who holds the balance of power and the final voice in Sri Lankan politics.