Upholding or Upending Accountability & Justice

byThambu Kanagasabai LLM [London] Former Lecturer in Law, University of Colombo, Sri Lanka, March 4, 2021.

The 46th Session of UNHRC now in progress has generated heated comments and discussions in Sri Lanka and elsewhere among Tamils as well as the Council is readying to pass a final Resolution against Sri Lanka after five tiring years which witnessed 3 Resolutions earlier.[ 30/1. 34/1, 40/1]. It is a distressing fact to note Sri Lanka’s non-implementation of most of the crucial Recommendations pertaining to Accountability, and Justice. The expected final Resolution comes in the wake of Sri Lanka’s rejecting and withdrawal from compliance of all the Resolutions and their Recommendations. Still Sri Lanka remains as a defiant member of UNHRC while committed to observe and comply with the provisions  of UNHRC Charter and pledging several times to implement its Recommendations.

In the current Session on February 23rd the Foreign Minister of Sri Lanka Mr. Dinesh Gunawardene as usual exploded with rhetoric peppered with naked lies while levelling much and often heard repeated wild accusations against member countries who are sponsoring the final Resolution which they are duty bound to submit as Core members discharging their UNHRC universal obligations.

It is stomach turning to note Sri Lanka’s flagrant rejection and deserting its oral and written pledges to UNHRC and UN Office on several occasions while reinforcing their commitments to honor the UNHRC Recommendations.

Foreign Minister Dinesh Gunawardene’s statement in defiance of Sri Lanka is plainly contemptuous and slings mud on countries who are finalizing the Resolution brandishing  them as supreme rulers of the Council lwhile casting slurs on the credibility of several Rapporteurs, Human Rights Organizations and independent human rights activists including former UN Secretary General Ban-ki-Moon and former UN High Commissioners for Human Rights.

The Foreign Minister confirms the usual stand of Sri Lanka in defence of its blood stained record of human rights violations. He has stated that:-

• The armed forces of Sri Lanka are heroic for defeating the LTTE
• Terrorism of LTTE was ended
• Hegemonic forces are now in collusion against Sri Lanka in bringing an unsubstantiated Resolution against Sri Lanka.
• The commitments on the Resolution 30/1 also co-sponsored by Sri Lanka are not deliverable and they are not in conformity with the constitution in Sri Lanka
• We will remain engaged in the UN system including UNHRC
• Elements working against Sri Lanka intend to table another Resolution on the basis of OHCHR Reports in domestic matters
• UNHRC must not depend on hearsay or oral one angled double source.

When dealing with each of the above substanceless assertions, one would see them as hiding the whole pumpkin in a bowl of rice. –  a well known proverb –  His assertions are plainly concocted and woven with tissue of lies and contradictions insulting the intelligentsia, erudites, international observers and jurists. The first assertion of heroic armed forces is partly true as the alleged heroism was partly contributed by the military and logistical assistance given by 22 countries as admitted by the former President Mahinada Rajapakshe. Also one would remember the ‘heroic acts’ performed by a group of so called disciplined soldiers who indulged in rapes, tortures and killing of captured and/or surrendered prisoners. The notorious incident involved ‘Isaiperiya. [well known journalist who was raped and killed ending with celebrations by the soldiers who participated in this ugly war crime. The secomd assertion that terrorism was ended was not true and correct as  root cause of alleged terrorism is perpetrated by Sri Lankan scurity forces while  unleasing of state terrorism against Tamils since 1956 [followed in 1958, 1971, 1977, 1983 & Genocidal war from 2006-2009] While alleged terrorism by militants is an offshoot of non-violent struggle against the state to obtain justice, equality and independence of the battered Tamils. Instead of protecting its own citizens Sri Lanka employed state terrorism against its own citizens which is not the behaviour and action of a democratic state but only by a brutal dictator who is the ruling  the country.

The statement of UN High Commissioner Madam Michelle Bachelet is worth quoting. She calls on “UNHRC to explore new ways to advance various types of accountability” and points to the “Warning signs that past patterns of violations could be repeated. The third assertion described USA, UK, Germany etc. as hegemonic forces acting in collusion on an unsubstantiated Resolution. This is like an ostrich burying its head under the sand believing that the whole world is dark. It is well known that heaps of Reports by UN Officials including UN High Commissioners who visited Sri Lanka are in the custody of UNHRC containing irrebuttable evidence which included statements of victims, documents, ground evidences, correspondences, videos, photos and satellite imagery analysis, for example killing of Isaiperiya and others stripped and naked prisoners is one many several videos and photos seen by the whole world. As such the assertion that UNHRC depends on hearsay or oral one angled source is a frivolous statement which will not be bought by anyone.

The next assertion is that the Recommendations  in 30/1 Resolution are not deliverable for example to state that the Recommendation calling for “Individual prosecutions are not deliverable is an affront to the concept of accountability, justice, and rule of law for it is largely true as far as Sri Lanka is concerned because it follows the entrenched culture of impunity from 1956.

The next assertion is that the Recommendations are not in conformity with the constitution of Sri Lanka. However  Sri Lanka has opted to set up an independent local investigative mechanism headed by a Special Counsel in conformation with its constitution. As expected, so far Sri Lanka has not taken any steps to set up this mechanism and the truth is that it will never be set up.

The assertion that the Resolution is based on domestic matters is illogical and unacceptable as Sri Lanka having subscribed to UN and UNHRC Charters including various UN Conventions like the Convention on Enforced Disappearances, pledging to observe them, it is just simple chicanery to deny or discard their commitments to human rights laws and international humanitarian laws. Viewing this position, human rights and their violations are not domestic matters for Sri Lanka due to its membership in UN, UNHRC and accessions  to several UN Conventions. The defence of violation of sovereignty is also not sustainable as 30/1 Resolution. “Reaffirms   its commitments to the sovereignty, independence, unity and territorial integrity of Sri Lanka.” To sum up, the quality and validity of Sri Lanka’s Foreign Minister statement is simply unconvincing and defies sense and logic devoid of any subsistence..

The contents of the Council’s corrected new Resolution leave much to be desired for the victims and human rights activists  who have been pressing for a much stronger and demanding Resolution against Sri Lanka. The glaring omission is the referral to the International Criminal Court as justice and accountability for war crimes etc.committed by the Sri Lanka’s security forces is only possible through the ICC as Sri Lanka has vowed to protect its security forces from any prosecution internally or externally. With this crucial omission, Sri Lanka has succeeded in crossing its major hurdle though it is still possible for the affected victims to approach the ICC through a member country which can agree to take a complaint to the ICC Special Prosecutor by submitting comprehensive reliable evidence,by way of documents, statements, witnesses and victim’s direct evidences. It could be a difficult task but not an impossible one.The Core members should nevertheless at least consider the Recommendation of Universal Jurisdiction along with Magnitsky Act sanctions leaving each UN member state to opt for one of the above measures.  In this respect, USA has set up an example by banning Army Commander Shevindra de Silva’s visit to USA and President Joe Bidens’ proposed actions against alleged killers of Jamal Khashoggi are infusing hopes for victims of human rights and warning to rogue countries who indulged and are indulging  in human rights violations. Similarly President Gotabaya during a meeting with former US Ambassador At Aarge for Aar Crimes Stephen Rapp in 2012 stated that “I KILLED THEM’ ‘I KILLED THEM’ referring to the  killings of more than hundreds of  LTTE cadres who surrendered to the security forces in 2009. By making these statements, he has designated himself as a ‘War Criminal”. It is puzzling to note the International Community including UN”s continuing deadly silence by not taking any action in this matter. If he is let off, then it can only be considered as an acquiescence with bestowing of impunity for the confessed commission of a horrible war crime by the President.

All in all International Organization  where the war victims can obtain some relief through its forceful recommendations for follow up actions by the UN and or Security Council.

In this respect, the recent comments of UN Special Rapporteur Pablo de Greiff who stated “UNHRC will not be able to deliver anything for the Tamil victims and also exerted them to seek alternative measures for their grievances.” are worth quoting.

To sum up, a Resolution incorporating the Recommendations of UN HIGH Commissioner for Human Rights Madam Michelle Bachelet would have delivered accountability and justice for the victims. Instead a diluted and shredded Resolution will only go to protect the war criminals and shielding Sri Lanka while encouraging it to continue and possibly expand its human rights violations in all walks of life in Sri Lanka with a President accused of war crimes is controlling the legislature, judiciary and executive exercising dictatorial powers under the 20th Amendment to the constitution.

For some unexplained reasons, the UNHRC Resolutions and also the word ‘GENOCIDE’ which withno inch of doubt satisfies the request of its definition in the UN Convention 1948. In view of the above circumstances. It appears that certain the victimized Tamils are constrained for a long haul under a ‘LOCKED DOWN’ while Sri Lanka succeeds by employing its usual tactics of  “ Delay, Distract, Dilute, Deny and Defeat” any or all actions of UNHRC and UN.

Lord Buddah’s teachings of ‘MAY ALL BEING BE SAFE, FREE FROM SUFFERINGS AND BE HAPPY are followed in Sri Lanka as ‘LIVE WITH FEAR, INSECURITY AND WORRIES”.