UNHRC Resolution 46/1

A welcome move for the United Nations, Security Council and International Community to uphold accountability and rein in Sri Lanka.

by Thambu Kanagasabai, LLM [London] Former Lecturer in Law; University of Colombo, Sri Lanka, March 31, 2021

At the 46th Session of UNHRC, the final Resolution on Sri Lanka was passed with 22 members voting for it, with 11 opposing and 14 abstentions

In this article some of the Resolutions’ vital recommendations are analyzed in the face of Sri Lanka’s rejection and withdrawal from them.

It is a well known fact that the Recommendation welcoming the resolve of Sri Lanka to seek a political settlement to bring out lasting peace is battling for life and death, as the said resolve has dissipated and is surviving as a political slogan for all political parties or for political mileage and electoral gains.

The 5th Para of the Resolution deals with the prime responsibility of a state to respect and ensure the freedom of enjoyment of human rights and fundamental freedoms of its entire population. However, Sri Lanka is an exception to this rule. as these have remained as the monopoly of the majority Sinhala people particularly Government supporters including ruling members while fear, insecurity, discrimination and marginalization being the monopoly of Tamils and Muslims.

The 7th Para has conspicuously omitted to mention the 20th Amendment to the Sri Lankan’s constitution which has entrenched a dictatorial President with full impunity paralysing democratic governance and independent oversight of key institutions..

The 8th Para calls upon the Government to fulfill its commitments on the devolution of political autonomy including the effective functioning of North and East provincial councils. This recommendation is already dead and buried by the Sri Lankan Governments and even a resurrection is not a reality as Sinhalese based polity is vehemently opposed to the provincial council system due to suffering from paranoia. It is learnt that the proposed new constitution will completely do away with this provincial council system of administration in Sri Lanka.

The 14th Para emphasizes the importance of a comprehensive approach to dealing with the past [JUDICIAL AND NON JUDICIAL MEASURES] to ensure accountability, to serve justice, provide remedies and avoid the recurrence of human rights violations.

It can be stated that these recommendations will sustain active lives as a kicking agenda on Sri Lanka, as in the face of an entrenched culture of impunity prevailing in Sri Lanka since 1958 in all spheres of political actions for  acts of abuses and crimes, this recommendation is a conclusive one because it will be entrenched in any UNHRC Resolutions.

It is to be noted that only a handful of Security personnel have been convicted from 1958 for violent crimes committed against the civilians and even convicted criminals are pardoned and freed to roam free like the Army Sergeant Sunil Ratnayake who was found guitly for the murder of eight civilians in Mirusuvl , Jaffna and has been sentenced to death by the Colombo High Court. This act by the President is making a mockery of the judicial system and accountability.

The 15th Para stressed the importance of an independent, impartial and transparent mechanism  to redress past abuses and violations. This is a constructive  and much needed one, but the million dollar question is where, when, how and by whom this recommendation can be fully implemented to achieve its objections. This is a constructive and practical recommendation, but the million dollar question is where, when and how you can obtain an impartial, independent and transparent mechanism in Sri Lanka as In Sri Lanka impunity is an anathema to any government when dealing with crimes allegedly committed by state security forces, ministers or officials. For example, the President, an alleged war criminal is  clothed with full impunity confirming its entrenchment.

The 16th Para deals with the responsibility of each state to comply with human rights laws and International Humanitarian Laws and where applicable to prosecute those responsible for gross violations of the said above laws. As far as Sri Lanka, these laws are complied with more breaches than in implementation as it has engaged in the violation of both laws since 1958 with impunity and non prosecution of those responsible. As such this recommendation will continue to remain intact with a full life term. To call for prosecutions of the alleged war criminals to be initiated by those who are  alleged to have committed the war crimes etc. is like knowingly marrying a sterile woman to produce a baby.

The second one calling Sri Lanka to implement the recommendations made by the Office of the UN High Commissioner will maintain its status quo with no interruptions as this  has been confirmed by the Foreign Secretary Jayanth Colombage who stated that “Even if we lose in the UNHRC nothing will happen in Sri Lanka” along with the statement of the Foreign Minister Dinesh Gunawardene who said “Allegations are politically biased and are false allegations”.

Recommendation No. 3:  Requesting Sri Lanka to ensure effective functioning  of Missing Persons [OMP] and Office for Reparations will continue to remain frozen and possibly leading to their demises with the passage of time without any progress and follow up action for the already issued reports of OMP Commissioner with the fate of about 15,000 reported victims of enforced disappearances possibly for ever remaining unresolved and shrouded with secrecy and undisclosed for the affected and the concerned parties.

Recommendation No 4:  Calling for comprehensive accountability process for all violations and abuses by the Sri Lankan Forces and LTTE will also be met with stony silence and inaction as in Sri Lanka accountability process is loathed and shunned to shield the impunity of Security Forces alleged to have committed war crimes etc.

Recommendation No 5:  This Recommendation has irrefutably confirmed the lack of faith and trust in any democratic mechanism in Sri Lanka to uphold accountability as any or all State Commission dealing with accountability issues affecting Tamils, Muslims and non Buddhists do not possess any value and credibility to provide the required remedies for the victims of Human Rights violations.

Recommendation No 6:  This is a welcome and confidence building one as it requested the UN High Commissioner to collect, preserve and analyze evidences relating to Human Rights violations and abuses and related crimes to advance accountability, analyze and preserve information and evidences to devolve possible status for future accountability process for UNHRC crimes and international humanitarian law crimes to support the victims and survivors and relevant judicial and other proceedings including member states with competent jurisdiction.

This recommendation relating to evidence is a vital one to initiate a judicial process backed by strong evidence for prosecution. Besides, the said evidence and information wil enable any state which has accepted the Universal Jurisdiction to successfully prosecute persons alleged to have committed war crimes etc.

Recommendation 7 :  This Recommendation is the most down to earth one which connfirms the following which prevails in Sri Lanka:-

1. Signs of a deteriorating situation of human rights over the past years.

2. Acceleration of militarization of civilian and government functions.

3. Erosion of independent judiciary and key institutions involved in problems of human rights.

4. Ongoing impunity and political obstruction of accountability for crimes for both present and past involving state machinery.

5. Increased marginalization of Tamil and Muslim communities. This acknowledges the pre-existing marginalization of Tamils and Muslims for a very long period.

6. Arbitrary detention, torture, cruel and inhuman treatment or punishment.

7. Risk of recurrence of policies and practices  for the rise of past grave violations.

All of the above alleged by UNHRC in short have reinforced the total failure of Sri Lanka in the fields of human rights and accountability.

The Recommendation calling for the review of the Prevention of Terrorism Act [PTA[ as usual is treated with contempt by the Government while this PTA is implemented with full force and vigor. For example, a PTA regulation has been recently used to detain persons under rehabilitation for two years or more without any chance for release.

In conclusion, it has to be stated that the most glaring and inimical omissions in the UNHRC Resolution are:-

[a] Referral of Sri Lanka to the International Criminal Court [ICC] nor the express mention of Independent International Impartial Mechanism [IIIM] as advocated by UNHRC groups. UNHRC High Commissioner and human rights activists.

[b] The omission to mention genocide or even genocidal crimes carried out by Sri Lankan security forces..

The genocidal agenda including structural genocide against the Tamils which was initiated in 1948 is an open book as the commissions of those crimes have been reported and revealed ny UN Rapporteures, UN Human Rights High Commissioners and other human rights groups and human rights activists.

Without any referral to the International Criminal Court and without an IIIM, accountability and justice have received a step-motherly treatment inflicting the victims with more wounds while opening up channels of escape and evasion for the alleged war criminals. The ultimate outcome of the Resolution is well known as it has been pre-emptively rejected and withdrawn by Sri Lanka. It is nothing but naive and foolhardy to expect Sri Lanka to implement this Resolution when  it has successfully delayed earlier Resolutions for five and a half years and finally rejected them on March 21, 2021.

Above all, the victims demand justice without delay and UNHRC, UN and Security Council owe the duties and responsibilities to deliver it, if not they will face possible backlash and revival of militancy as a choice which UN and International Community should note without any hesitation.

In this respect, it is hoped that any geo-political and economic interests of core members must not outweigh  and take priority before the application of human rights, accountability and justice for the victims of war crimes. The option to exercise universal jurisdiction and imposition of sanctions is always at the disposal of a nation and should be exercised without delay as they do not warrant any resolution of UNHRC or UN.

However, Sri Lankan Minister of Education is moving a Bill in Parliament to “Ensure that Military Officials cannot be prosecuted by entities outside the country”. How far this move will succeed is anybody’s guess as no state can pass a Bill against another sovereign state compelling it to not to resort to universal jurisdiction, an international legal norm which has been endorsed by more than 125 countries in the world.

In this respect US Secretary of State  Antony J. Blinken’s  statement is relevant.

“UN Resolution must ensure that accountability and institutional reform in Sri Lanka remains a priority in the international stage”.