by Thambu Kanagasabai LLM [Lond.] Former Lecturer in Law, University of Colombo, Sri Lanka, February 8, 2020
In the UN Human Rights Council’s March 2020 Sessions, the UN High Commissioner for Human Rights will be presenting an update on Sri Lanka’s progress on Sri Lanka’s progress in implementing its 30-01-2015 Resolution which had more than 25 core recommendations.
This Session is particularly crucial for the victimized Tamils who have pinned their hopes only on UNHRC and the United Nations to deliver justice and remedy their political grievances which were set in motion by Sri Lanka’s successive Governments since 1956.
Since the passing of the Resolution in October 2015, UNHRC Officials and Rapporteurs have been making several visits to Sri Lanka to monitor the progress and assess the ground situation in Sri Lanka. Most of their published Reports revealed a lack of progress, delaying tactics and inducing promises of compliance.
The sum result is nothing but disappointment while Sri Lanka continues to defy the United Nations and UNHRC by challenging their rights to interfere with the internal affairs of Sri Lanka including its integrity and sovereignty. This approach and defiance is nothing but a slap on the International Organization’s stature, and functioning after accepting and becoming a member of the United Nations and UNHRC bound to comply with their written obligations.
In the face of the defying statements of the President and the Prime Minister who have vowed to shield and protect the Security Forces from prosecution and appearing in courts, it would be futile to expect the fulfillment of accountability commitment by Sri Lanka which is a strict follower of the culture of impunity to Armed Forces since 1958. Even few prosecutions initiated against some members of the Security Forces have been dragging on for many years to the dismay and frustration of the traumatized victims, mostly Tamils.
Adding insult to injury, the present Government headed by President Gotabaya, an accused war criminal, instead of investigating top security officials accused of war crimes etc. has rewarded them with promotions, high Government posts and positions in various Sri Lanka’s foreign missions. Rubbing salt to the wounds of victims even convicted security and intelligent officials have been released from jail by the President.
Adding further insult to victims of the disappeared, President Gotabaya on January 19, 2020 during his meeting with UN Official Hanaa Singer blatantly stated that “The thousands of forcefully disappeared and missing are actually dead”. This callous and casual statement depicts the zero value and worth of disappeared citizens whose unlawful killings are not worthy to probe.
With accountability being disowned and discarded by Sri Lankan state machinery, the victims seeking justice are left with no other alternative than to seek the intervention and assistance of United Nations, UNHRC and the International Community. It is hoped that the World Bodies will rise up to the occasion and buttress their credibility and commitments to uphold human rights of all citizens of all member countries.
Regarding UNHRC’s Recommendations to ensure “Full enjoyment of human rights by all members of Sri Lankas’ population” it can be stated that full enjoyment for Tamils has been stripped and curtailed since the passing of the draconian Prevention of Terrorism Act [PTA] of 1979. The heavy presence of Army Personnel in the North and East is diluting the basic human rights of movement of people and their rights to live and earn their livelihood in their own historical and traditional lands. The Security forces [95% Buddhist/Sinhalese] are mostly engaged in surveillance of the civilians and instilling fear and insecurity even after the end of the war almost 10 years ago. Besides military is engaged in civilian activities like running farms in civilian lands, running hotels, shops and even primary schools to Tamil children.
To summarise, Sri Lanka has comprehensively failed to implement the following UNHRC Recommendations:-
[ i ] “Expediting the process of delivery of durable solutions for all internally displaced persons.”
According to I – Trans Report [International Tamil Refugee Assistance Network] published in October 2018, 90,000 families in Northern Province are homeless and living in shanties and slums” This process is haphazardly carried out without any firm road map or agenda.
[ii] Torture is still practiced and going on as per the UN Rapporteurs and media.
Torture of Tamil detainees in Sri Lanka has continued, says charity https://www.theguardian.com/world/2015/aug/13/torture-tamil-detainees-sri-lanka-report-alleges
[iii] An independent oversight of the security system has not yet been set up. It is doubtful it will ever be carried out due to the present structure and inbuilt system.
[iv] Independent, impartial and transparent judicial mechanism manned by impartial professionals has still not been set up to redress past abused and violations to ensure credible accountability process including initiation of prosecutions. Viewing the state’s policy and culture of impunity, this recommendation will probably face a slow death.
[v] Has failed to honor its commitment to the devolution of political authority to the Northern and Eastern Provinces.
[vi] Has failed to implement its own Lessons Learnt and Reconciliation Commission [LLRC] recommendations.
[vii] Sri Lanka’s proposal to establish a judicial mechanism with a Special Counsel to investigate all allegations of violations, and abuses of human rights and violations of International Humanitarian Law, remains almost dead.
[viii] Recommendation to reform Sri Lanka’s domestic law is yet to be initiated, including “Introduction of effective Security Sector Reforms as part of International Justice Process.” So far there is neither any indication nor any steps taken to look in to these matters.
[ix] Recommendation to accelerate the return of land to its rightful civilian owners remains unfulfilled. It is estimated that 16,105 acres of land in the Northern Province and 3185 acres of land in the Eastern Province remain in the hands of Security Forces, although there were occasional releases of few acres of land with much publicity and fanfare. The recommended “Ending of Military involvement in civilian activities” is yet to begin and no firm instructions have still been issued to this effect.
[x] Recommended repeal of Prevention of Terrorism Act [PTA] is yet to materialize which is generously and exclusively applied to Tamil youths. An alternate draft is lying awaiting its passing and full effect, which is said to be like an old wine in a new bottle.
[xi] Recommendations to ensure that all Provincial Councils are able to operate effectively in accordance to the 13th Amendment to the constitution has been treated contemptuously by the Centre despite the Provincial Councils’ repeated requests to implement the provisions such as granting Police and Land powers to the Provinces.
[xii] Recommendation to Government to prohibit acts of torture, rape and sexual violence by Security Forces is yet to be fully complied with as Reports of Torture and Sexual violence have been exposed by UN Officials, with hardly any investigation and punishment being meted out to the perpetrators.
However, the Sri Lankan Government has passed the Office of Missing Persons Act and an Act dealing with Enforced Disappearances. Sad to say the proposed Acts, with many flaws, are still not operational with no firm commitment by the Government to deal with the approximate 65,000 or more persons said to have disappeared during the final stages of war. Most of the disappeared are those who surrendered to the Military during the war and those arbitrarily arrested by the Military/Police during and after the war. The Government has also refused to provide details and statistics as to the identities of disappeared, surrendered, detained or killed. As the President has now declared that all those missing are actually dead, OMP has become redundant and purposeless as according to President’ statement “All are dead and gone”. The President has thus chopped the principle of accountability and buried this issue paying no heed to the cries of the disappeared relatives who are in a sit in protest for the last three years.
President Gotabaya’s in his Independent Day speech on February 4th and Throne Speech on January 3, 2020 completely ignored the 70 years old ethnic problem but emphasized his dedication and march towards making Sri Lanka a Buddhist/Sinhala State.
In summary, it is abundantly clear that the Sri Lankan Government has deliberately and stubbornly discarded the core recommendations of the UNHRC and has made a mockery of Justice, Accountability and Reconciliation as promoted and safe-guarded by the UNHRC, United Nations and UN Security Council.
There is no doubt that Sri Lanka will continue its policy of holding out promises and delaying tactics to weaken the Resolutions of UNHRC and United Nations hoping for ultimate slow death of the Resolutions.
There is no gainsaying of the fact that Sri Lankan Tamils can be considered the worst sufferers of human rights in the world since 1958 and the International Community, UNHRC and United Nations simply ignored and miserably failed to stop the hidden agenda of Genocide set in motion from 1948 against the minority communities to make Sri Lanka a Buddhist/Sinhala State which reached its climax in 2009 and still continues at rapid speed.
It is of the utmost urgency and importance that UNHRC, United Nations and UN Security Council initiate appropriate steps to ensure justice and allow the Tamils to choose their own destiny through a Referendum in the Northern and Eastern Provinces [Traditional and historical homeland of the Tamils for centuries] in accordance with UN Conventions under UN supervision.
To ensure and uphold accountability, a reference to the International Criminal Court and setting up of an UN sponsored international investigation must be given priority for consideration by the UNHRC, United Nations and Security Council.
The victimized Tamils still pin their hopes on the UNHRC, United Nations and UN Security Council to guarantee their dignified existence in their traditional and historical homeland in Sri Lanka.
Time has come for the UNHRC and United Nations to ensure the compliance of UNHRC Recommendations by Sri Lanka by imposing a time limit backed with the imposition of punitive measures if and when Sri Lanka fails to observe them.