Time to Deliver Justice

For War Victims in Sri Lanka

UNITED NATIONS HUMAN RIGHTS COUNCIL’S MARCH 2019 SESSIONS

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

The 40th Sessions of Human Rights Council is scheduled to be held in Geneva from February 22nd to March 22, 2019.  This Session assumes greater importance for the victims of the genocidal war in Sri Lanka as the Council is about to debate Sri Lanka’s track record regarding the implementation of Recommendations jointly sponsored by USA and Sri Lanka in the 30-01-2015 Resolution and 30-04-2017 Resolution.  United Nations High Commissioner’s for Human Rights final report and Special Rapporteurs reports are expected to be submitted to the Council for discussion, debate and a Resolution on March 22, 2019.  42 months have lapsed since the co-sponsored Resolution was passed which included two years extension as requested by Sri Lanka to allow time to fully implement those Recommendations.

This Session will draw Human Rights Organizations, Tamil Human Rights activists, Representatives for the affected Tamil victims, besides a Sri Lankan Government’s Delegation is expected to be led by its Foreign Minister. In addition about twenty side-group meetings are expected to be held by Human Rights Watch, Amnesty International and other human rights groups focusing on accountability and justice to the victimized Tamils.

Regarding the quality and quantity of implementation of the 20 or more recommendations of the UNHRC Resolutions, the short and simple answer is simply dismal and deceptive except the passing of three pieces of legislation –, The Office of the Missing Persons Act, A Reparation Bill and an Act on Involuntary Disappearances. As usual most of them still remain on paper form for the past 42 months without moving even an inch forward.

Furthermore, The Office of the Missing Persons Act passed in 2016 lacks the flesh and blood to make it fully effective and fulfilling. It is an Act to protect the Security Forces from any civil or criminal liability and burdens the victims resort to remedies through Courts cumbersome and protracted. As far as the “Involuntary and Enforced Disappearances Act” same practical difficulties to haul up the culprits are present as presumably it would drag the Security Forces for the alleged disappearances.

In the forthcoming Sessions of UNHRC, the UN High Commissioner for Human Rights will present her Annual Report concerning Human Rights around the world. Three Reports are expected to be presented concerning Sri Lanka along with UN High Commissioner’s Report on Sri Lanka on March 20, 2019. A debate or even two debates will follow regarding the contents of Reports before the passing of a Resolution which is expected on March 22, 2019. To recap the matters, it has to be stated that the earlier Resolutions 30/1 and 30/4 concentrated on ‘Accountability, Justice and Reconciliation’ as Sri Lanka’s commitments and implementation. Regarding accountability, the United Nations, UNHRC and International Community are well aware of the way and how they are treated and enforced in Sri Lanka as mentioned and confirmed by UN Rapporteurs and UN High Commissioner’s Reports with the culture of impunity being part and parcel of Sri Lanka’s Administrative and Judicial System barring a few occasions where the delivery of justice is however allowed to move at snail’s pace like the cases involving the Security Forces for the massacre of five Tamil students in Trincomalee on January 02, 2006. It is well known that accountability concept is a dead letter as the Sri Lankan leaders have openly declared their state policy of impunity for any member of Security Forces who are hailed as “War Heroes”. The recent promotion of Major General Shavendra de Silva, an alleged war criminal as the Chief-of-Staff of Army is nothing but a slap on the face of United Nations, UNHRC which declares and confirms the state’s culture of impunity as official irreversible and entrenched. With this act of open challenge and defiance of United Nations and UNHRC, it can be stated that this cornerstone of an independent judicial mechanism of a democratic Government has been buried lock, stock and barrel without resurrection. Instead of punishment for the alleged war crimes committed by an Army General, reward and appreciation for the alleged crimes have been showered making accountability a mockery.

With Accountability being made irrelevant in Sri Lanka, the principle of justice for the victims suffers the collateral damage, as justice flows from the observance of accountability. With justice also suffering the same demise as accountability, the victims of war are left with no other alternative other than to cry and seek out help from third parties, like United Nations, HUHRC, and/or International Community.

UNHRC Resolutions dealing with reconciliation also needed to be mentioned. The history of Reconciliation between the various communities particularly Sinhalese and Tamils commenced its journey in 1956 and it is still continuing as an insolvable, incurable disease. Efforts of all successive Governments since 1956 were brought down to nil results being unable to withstand and defeat the evils of racism, communalism and hegemony aided and encouraged by ‘Maha Sanga’  and Buddhist Clergy’s tight hold on the direction of politics in Sri Lanka. As a result the Tamils have been living on hopes for the last 70 years, and they appear to be destined to live with hopes only due to the ongoing State’s agenda of Sinhalisization and Buddhisization set in motion from 1948.

Viewing the Sri Lanka’s declared defiance and intention to defeat the Recommendations of the UNHRC, a huge burden and responsibility lies on this august Institution to reinforce and assert its credibility, reliance. resolve and strength to the rogue states that trample human rights with no questions asked like Sri Lanka which has buried the core principle of accountability lock, stock and barrel while upholding impunity. Example:- Promotion of alleged war criminal Shavendra de Silva. Sri Lanka’s notable refusals and disregards of UNHRC  and European Union can be seen from the breach of promises to repeal the draconian Prevention of Terrorism Act [PTA} and initiation of international or even internal judicial mechanism to investigate the alleged war crimes. Various promises made by the President and Prime Minister also remain dead and frozen like the release of Tamil political prisoners, complete release of civilian lands to owners before the end of year 2017, as promised by the President in October 2018 during his visit to North.

To sum up, it is the fervent hope of all the victims in Sri Lanka that UNHRC will rise to the occasion in the forthcoming Sessions in March 2019 and pass a Resolution fulfilling the expectations and dispense the much awaited redress and remedies to the traumatized victims of war crimes. It is also seriously hoped that the UNHRC’S Resolution is followed with further action possibly through United Nations and/or UN Security Council to translate the Resolution into active and meaningful steps like UN sponsored investigations and a referral to International Criminal Court by Security Council.

A Resolution without follow up action will allow and encourage Sri Lanka to continue its program of structural genocide while shielding the genocidal crimes committed since 1958 [Pogroms against the Tamils in 1956, 1958, 1971, 1971, 1977, 1983 and genocidal war from 2006-2009 – more than 200,000 lives lost]. Besides treating the Resolution with contempt and as an interference viewing Sri Lanka’s abysmal record of almost zero implementation of the twenty or more recommendations despite the lapse of forty two months, it would be only a superficial and vain hope to expect Sri Lanka to comply with all Recommendations only when further extension is given, which Sri Lanka will accept with relish.

UN Human Rights Council instead of giving any further extension must focus to pass a provision giving a time limit to implement the recommendations with provisions and calling for punitive measures like economic/political or diplomatic sanctions in the event of non-compliance.

A further extension will be a gift for Sri Lanka which it will wholeheartedly welcome with relish, as this would provide the leeway to free from the tightening hold of UNHRC  in the March 2019 Sessions and enabling to stultify the Recommendations.

It is hoped UNHRC and United Nations will live up to their tasks and standings to uphold accountability and justice while initiating steps for Reconciliation as mandated in the Resolutions 30/1 and 30/4.

A solemn duty and responsibility also lies on the International Community particularly USA and European Union to vindicate their roles as champions of world human rights. In this respect the statement of USA’s Foreign Affairs Committee Chairman Right Honorable Elliot Engel on January 15 2019 gives hopes for victims of war. He stated that “Appointing someone the UN believes is a war criminal to serve as Chief of Army staff will not help to demonstrate and prove sincerity of Sri Lanka to hold war criminals to accountable”.

Madam Yasmin Sooka Executive Director of International Truth and Justice Project [ITJP] commented “Appointing Silva is a shocking new low for Sri Lanka”. Similar condemnations were also made by Amnesty International, Human Rights Watch and several other Human Rights Groups.

What is needed is a UNHRC Resolution with clear bench marks, time-frame, UN monitoring system and UN sponsored International investigation and a Security Council Resolution to refer Sri Lanka to International Criminal Court. In this respect it is the hope of all human rights groups, countries and affected victims that USA will take the lead initiative with the support of other member countries to realize the above steps as a warning and lesson to member countries who indulge in violation of human rights with impunity.

Justice delayed is justice denied and any allowance of delays or extensions to the fulfillment of commitments if granted to Sri Lanka will surely defeat the purposes and existence of UNHRC, UN and Security Council while belittling their stature as guardians and upholders of human rights according to the Charters and specific provisions of United Nations, UNHRC and Security Council.

It has to be stated that Sri Lanka as usual will carry out few cosmetic measures before the UNHRC Sessions like release of few acres of land as crumbs.

However for the victims it is “Enough is enough” and what they want is no more dilly-dallying and hoodwinking the Tamils, their leaders including the UN, UNHRC and the International Community.

WHEN ACCOUNTABILITY IS DENIED JUSTICE AND RECONCILIATION ALSO DIE ALONG WITH IT.

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