by Thambu Kanagasabai LLM [Lond], Former Lecturer in Law University of Colombo, Sri Lanka, February 5, 2018
The 37th UN Human Rights Council is scheduled to commence on 26th February 2018 and concludes on 23rd March. During this session, United Nations High Commissioner for Human Rights is expected to present his written interim report on Sri Lanka, while Special Rapporteurs who visited Sri Lanka in 2017 are also expected to present their reports.
The High Commissioner’s Report will be crucial for the war victims and Tamils in Sri Lanka who have been longing, yearning and clamouring for accountability and justice from the United Nations and International Community after the denial and delaying tactics from the Sri Lankan Government and Sri Lanka’s judicial system, while there is a culture of impunity embedded in Sri Lanka’s state mechanisms.
UNHRC Resolution 30/1 of October, 2015, jointly sponsored by Sri Lanka, the USA and other countries, laid down comprehensive and constructive proposals and recommendations designed to uphold accountability and justice with proposals to promote and establish permanent reconciliation between communities, particularly for the Tamils.
The Sri Lankan Government made twenty-five undertakings in the Resolution, but did not give a timetable for their implementation, although most member states were optimistic for speedy action based on Sri Lanka’s promises.
The Sri Lankan Government as usual did not pay any attention to this Resolution and the almost all the 25 recommendations are still lying in paper form except initiating a legislation to deal with missing persons which is about 65,000. The legislation is still lying without any steps taken to make the Office of the Missing Persons operational and functional with the involvement of victims of disappeared.
However, Sri Lankan Government successfully manoeuvred and obtained another two year extension to implement all the recommendations. Twenty-eight months have now lapsed since the Resolution and undertakings of the Government of Sri Lanka.
The review of Sri Lanka’s record of implementation of these 25 recommendations only reveal defiance, disrespect and discarding them along with open statements of rejection and therefore no need for Sri Lanka implement them, considering their lack of enforcement measures. [The UNHRC has no enforcement power, unlike the Security Council.]
The President, Prime Minister and Foreign Minister have all made public statements to this effect, some of which are as follows.
- 1. President Maithripala Sirisena on September 03, 2017 said that, “He will not allow the international community to even lay a hand on former Army Commander Gen. Jagath Jayasuriya or any of Sri Lanka’s military chiefs or war heroes for that matter”. The President made these comments during the 66th anniversary celebrations of the Sri Lanka Freedom Party (SLFP), held at Campbell Park Grounds in Borella.
[Adaderana.lk of Sept. 03, 2017]
- “I have clearly said that I am not prepared to serve charge sheets to our soldiers or to have foreign judges to try our security forces,” Mr. Sirisena said.“It is my duty to protect the troops,” he said. In short blanket impunity has been granted. [The Hindu – March 05, 2017]
- Prime Minister Ranil Wickremasinghe stated that “Most of the disappeared are dead”, thereby the government has almost closed all the investigations in to the disappeared.[Channel 4 Interview: https://www.youtube.com/watch?v=pKkhLlBRzyc
- “No withdrawal of security forces from the North.” This in effect is guaranteeing their permanent residence.
The core Recommendations of the UNHRC Resolution emphasized the principles of justice and accountability and they involved in the following:
[a] Human Rights Violations investigations while ensuring a credible judicial process with the participation of Commonwealth and foreign judges in an internal judicial mechanism.
[b] Return of land to its rightful civilian owners.
[c] Security Sector reform.
[d] Repeal the [Draconian] Prevention of Terrorism Act [PTA]
[e] Setting up of Commission for Truth, Justice, Reconciliation, Office of the Missing Persons and an Office for Repatriation.
Regarding Reconciliation, the Resolution calls on Sri Lanka to fulfill its commitments on the devolution of political authority and to ensure that all Provincial Councils are able to operate effectively in accordance the 13th Amendment to the constitution of Sri Lanka.
Except the return of about 6,000 Acres of land in the Jaffna Peninsula, there is still about 5,000 acres in the hands of Army. Similarly, partial returns have taken place in Kilinochi, Mullitivu and Mannar districts.
The sum position is that none of the 25 Recommendations has been fully implemented and there is no likelihood that they will be ever implemented.
Even the Office of Missing Persons Act which was passed in August 2016 is still battling between life and death. It is now in the books of legislature, already signed by the President. There is no sign of this Act becoming fully operational in the selected locations. Neither an office nor staff nor Commissioners has been found and/or selected, though much talk is going on in this respect without action, due to political wrangling.
The Government has also indicated that no more military withdrawal in the North and so that the release of lands is also becoming a matter of uncertainty and unknown to the affected.
The Prevention of Terrorism Act [PTA] of 1979 is in full operation, though Sri Lanka promised to repeal same with legislation with contemporary international best practices. Various pleas and requests from Human Rights bodies, United Nations, European Union and other democratic countries have been ignored, uncared and un-responded. The United Nations, UNHRC and the International community cannot shy away from the defiance, denigration and disrespectful attitude and approach of Sri Lanka towards the Recommendations of the UNHRC Resolution.
Often official statements have been made which confirm the Government’s determination to by-pass and avoid compliance of the Resolutions, Recommendations, which was ironically co-authored and submitted by Sri Lanka for adoption in the UNHRC.
Similarly the reconciliation progress is also in a stalemate without any finality and consensus among the political parties involved as to the settlement proposals.
The past experiences show that ultimately South chauvinism and “Mahavamsa mindset” will prevail and sabotage the reconciliation process and co-operation extended by TNA, while leaving the Tamil community to search for alternatives.
While various promises given to Tamils and Tamil leaders have been un-conscionably dishonoured and ignored – like release of political prisoners arrested under PTA, release of civilians’ legal lands, promise made by the President to release the whereabouts of the missing persons arrested by the military/police and those who surrendered to the military during the last stage of the war, internal judicial investigation into war crimes etc, the pending much talked about promise of once and for all settling the ethnic problem through the proposed new constitution is also likely to suffer the same fate like other promises.
There is still neither consensus among the political parties nor any agreement as to any settlement proposals. The Government is confusing the people using terms like ‘Aekiya Rajyaya” and “Aekiya Raajyaya,” the former interpreted as ‘one rule’ and the latter as ‘one country’ which denotes a ‘unitary form’ of Government. It appears the ‘one country’ term is meant to cajole and hoodwink the Tamils while the ‘one rule’ or unitary form is actually intended and meant for the Sinhalese and for the whole country.
The government hopes to succeed by fishing in the troubled waters using these contradictory and confusing terms. It can be safely assumed that the Tamils will be left with no acceptable political settlement, if in case a new constitution comes into being, the possibility of which is mired with uncertainty due to the political tug-of-war going on between the major Sinhalese political parties and the rising opposition from extremist Buddhist clergy members and South chauvinists.
Therefore, the forthcoming UNHRC sessions assumes much importance as the United Nations High Commissioner for Human Rights Report is expected to reveal the Sri Lankan Governments’ past record and steps taken, steps avoided, steps rejected/steps delayed in relation to the 24 UNHRC Resolution’s Recommendations.
As mentioned earlier, Sri Lankan Government has hardly anything to place before the UNHRC except its usual tantrums of doling out convincing promises accompanied with hollow reasons for the delay and default in implementing the Recommendations.
Already the Sri Lanka’s Minister of Foreign Affairs has indicated that “The Government will yet again request for another two year extension,” while on various occasions the Minister has stated that “Sri Lanka is not bound by the UNHRC Resolution or its Recommendations and it is up to Sri Lanka to pick up and choose what to implement if it chooses to do so.
It is relevant to quote what Human Rights Watch Director Brad Adams in his Annual Report 2017 on Sri Lanka dated January 26, 2018. “The Sri Lankan Government has been all talk and no action on repealing the reviled PTA” and “Sri Lankan leaders appear to be backtracking on key human rights obligations including reforming the Police”.
The four pillars of transitional justice are:
[ii] Truth seeking and reparation
[iv]Justice for the disappeared
All of which remain unfulfilled.
In addition Benjamin Dix, who served as the United Nations Communications Manager in Vanni war zone from 2004 to 2008 in an interview with Press Trust of India on January 27, 2018 stated that “It is very fair to say that the army committed genocide. The atrocities in Sri Lanka were definitely towards ethnic cleansing”.
“Army did not liberate Tamils from the Tamil leadership. It was not liberation but destruction of Tamil community”.
“Atrocities continue in terms of removing the Tamil history. There is a huge drive to change the demography of North of Sri Lanka”. (See Economic Times of India, January 28, 2018)
Sri Lanka having nothing to brag about the forthcoming UNHRC Sessions, it is hoped that UNHRC will not trust nor be swayed by Sri Lanka’s pet promises or undertakings made only at occasions with little value involving the International Community and Leaders.
A solemn and heavy duty therefore lies on UNHRC and its member states to dispense justice to the victimised Tamils, besides justice to the findings of several United Nations Special Rapporteurs who painstakingly compiled their reports after visiting Sri Lanka and interacting with victims and witnesses. The last hope of victims is the UNHRC, United Nations and the Security Council, and if they shirk or falter to deliver the denied justice to the victims who waited so long yearning for justice, the credibility and relevance of the UN system is bound to be questioned by the International Community, Human Rights Organizations and Human Rights Activists.
United Nations and UNHRC must not be viewed and described as “Talking Shops” and places of sojourn to exchange greetings and pleasantries.
Shunning any dominance and influence exerted by the powerful mighty nations is another malaise which has to be taken care of by the UNHRC and United Nations to maintain their credibility.
Mere statements of condemnation and patting encouragement for compliance by the human rights violators is not the need of the hour, but holding the perpetrators accountable through appropriate political economic and diplomatic punishing measures will only sanctify human rights and guarantee their universal observance and intended respect.
It is fervently hoped that UNHRC will fulfil its commitments and perform its mandated role as the last resort for victims of human rights all over the world.
It can be safely concluded that any further extension by the UNHRC to Sri Lanka will lead to nothing but only resulting in the signing of death certificate for the UNHRC October 1, 2015 Resolution.