and defiling of human rights and accountability
by: Thambu Kanagasabai – LLM [Lond.] Former Lecturer in Law, University of Colombo, Sri Lanka.
The United Nations Human Rights Council was established in 2006 by the UN to investigate allegations of human rights violations against member states. After investigations, it makes recommendations for implementation by the state alleged to have committed human rights violations as laid down in the UN Charter and other UN Conventions dealing with human rights. The Council consists of 47 members elected from different global regions representing the five continents.
It is to be noted that the resolutions ofthe council are not legally binding on the affected member state, but contain strong political commitments of a member state, like 30/1 of 2015 Resolution on Sri Lanka which has 25 core Recommendations with Sri Lanka’s commitments to implement them.
Resolutions are usually passed by UNHRC, United Nations and Security Council to ensure their effective implementation of human rights as guaranteed by International Law and various instruments of UN. Above all, the Resolutions serve as triggering points for actions against defaulting members by UN Secretary General, UN Human Rights Commissioner and/or Security Council. However, a drawback is the difficulties to oversee how far these Resolutions are being implemented because there is no systematic process of a follow up. However, UNHRC, UN or Security Council can send questions to states on human rights issues and developments though the concerned state can opt not to respond.
The 30/1 of 2015 Resolution on Sri Lanka was passed to promote accountability and reconciliation in Sri Lanka which witnessed a brutal civil war resulting in mass violations of human rights and killings of innocent civilians by Sri Lanka’s Security Forces, as confirmed by several UN Rapporteurs. Resolutions giving extensions to Sri Lanka were also passed in 2017 and 2019. The 30/1 of 2015 and 40/1 of 2019 Resolutions was co-sponsored by Sri Lanka along with four other countries.
It is to be noted that Sri Lanka has failed to implement those recommendations barring the setting up of Office of Missing Persons [OMP] and the Office of Reparations which do not focus in meeting and remedying the grievances of the affected victims. The Sri Lankan Government has successfully employed the evasive and dilly-dallying tactics to make the Resolutions sterile and fade away.
Now the final nailing of the coffin has been carried out by President Gotabaya’s Government and Prime Minister Mahinda Rajapakshe who on February 19, 2020 stated the withdrawal of his Government from co-sponsoring UN Resolutions on accountability for war crimes. The withdrawal was officially stated by the Foreign Minister Dinesh Gunawardena on February 26, 2020 at the UNHRC’s Sessions in Geneva. He mentioned the reason for the withdrawal as the lack of approval by the then President Maithiripala Sirisena. It has to be stated that the Foreign Minister Mangala Samaraweera would not have approved it without obtaining the prior approval before co-sponsoring it.
However, the obvious reason is that the full implementation of the recommendations would have hauled up the Security Forces along with their battlefield Commanders including the present President Gotabaya and Prime Minister Mahinda who were the de-facto Commanders of the genocidal war under the principle of command liability.
Certainly no Government leader or leaders will dare holding, allowing or consenting for investigations into their own conducts and commission of war crimes, crimes against humanity etc. One can safely conclude that Sri Lanka will never and ever hold any impartial and independent investigations unless and until UN and Security Council intervene in this matter. Besides, Sri Lanka has to stick to and uphold its culture of entrenched impunity for Security Forces followed from 1956 and hoping for it to reverse this official position is like forcing a horse to drink water. However, hope is not lost for the victims of war as the UNHRC can act decisively and firmly using its powers during its sessions and pass Resolutions to uphold accountability, justice and ensure the observance of human rights and rule of law
Foreign Minister Dinesh Gunawardene on February 19, 2020 at the Presidential Secretariat stated that the “Implementation of the Resolutions under the prevailing political realities does not agree with the policies of the present Government”. There is no doubt that his statement frankly admits the ‘prevailing political realities’, which any observer can confirm the aggressive militarization of Government in civil administration, stationing Security Forces in all areas, particularly in the North and East with numerous military check points, threats and intimidations of journalists, promoting accused war criminals and posting them to run civilian departments like Customs Department etc. A climate of fear and insecurity is slowly developing and enveloping the country and critics are warning of a military rule emerging if this authoritarianism is allowed to overtake the country.
Naturally in this toxic atmosphere, there is no time or space for the Government to think or concern about UNHRC, UN and their Resolutions, which target the Security Establishments for accountability for the alleged crimes etc. The main reason for Sri Lanka’s rejection of UNHRC and UN actions to promote and uphold human rights as stated by the Government is the position that “Sri Lanka is a sovereign state” and cannot be dictated by Foreign Countries or International Organizations like UNHRC. UN Chief in his statement on February 24, 2020 at the UN repulsed this lame-duck argument by stating that “National sovereignty should not be used as a pretext for human rights violations. Instead promotion of human rights strengthens states and executive, thereby reinforcing sovereignty”. Sri Lanka being a member of UN is bound to comply with its provisions and by joining UN, a member state will not be infringing its sovereignty. On the contrary, it allows it to protect and strengthen its sovereignty.
UNHRC’S role in correcting and punishing states which commit human rights violations with impunity is unimpeachable and valuable. For instance, UNHRC’S past Resolutions in 1999, 2011, 2013 led to the creation of International Commission of Inquiry into allegations of human rights violations, crimes against humanity in East Timor, Libya, Ivory Coast, Syria and North Korea. UNHRC also recommended UN to suspend Libya’s UN membership in 2013.
UNHRC can on its own establish a Commission of Inquiry as in Ivory Coast in 2011. Sri Lanka’s Foreign Minister’s undertaking at the UNHRC Sessions on February 26, 2020to set up a commission of inquiry to review human rights violations reported in their own earlier commissions is nothing but a ploy which will not be bought by any member state. UN High Commissioner for Human Rights has clearly stated this position on February 26, 2020 by stating that “I am not convinced that the appointment of just another commission of inquiry would amount to any accountability for human rights violations as in Sri Lanka’s domestic processes have consistently failed to deliver accountability in the past”. There can be no doubt that UNHRC members as well as UN and International Community will take serious notice of Sri Lanka’s evasion and rejection of accountability and justice and act promptly to initiate and “Explore all possible avenues for advancing accountability” as urged by UN High Commissioner for Human Rights on February 26, 2020.
The possible avenues are a referral to International Criminal Court or setting up of an International Commission of inquiry as well as applying the Universal Jurisdiction including the filing of a complaint against Sri Lanka in the International Court of Justice [ICJ] by a member state. In this respect the co-sponsors of the Resolutions; particularly USA, UK, Canada and Germany owe heavier duties and obligations to act expeditiously to deliver justice and break the shield of impunity and sovereignty exploited by Sri Lanka to free from its International commitments and obligations.
In this respect, UN, Security Council and International Community must not falter in their obligation to uphold accountability, justice and rule of law. Sri Lanka’s defiance and contempt of world community and Bodies throwing a challenge to them to dare action against it for its open rejection of its commitments in the UNHRC Resolutions has to be dealt with under the UN Article No. 6 which deprives a member state for its persistence human rights violations.
Diaspora Tamils and Tamils along with Human Rights Organizations and activists shoulder the responsibilities to spearhead a campaign to refer Sri Lanka to International Criminal Court and/or initiate action in International Court of Justice including exerting pressure on International Community to impost economic, political and diplomatic sanctions against Sri Lanka.