Sri Lanka and UNHRC Resolution 30/1 – No further forward

July 15, 2016 OPINION/NEWS

Reuters photo

 

By

Thambu Kanagasabai

United Nations High Commissioner’s Report on Sri Lanka on UNHRC Resolution 30/1  –  Ample space for Sri Lanka testing its Commitments & Credibilities

 

In the much expected 32nd session of the Human Rights Council, the UN Human Rights High Commissioner delivered its oral statement evaluating the progress made by Sri Lanka regarding the implementation of various matters outlined in the Sri Lanka-US sponsored resolution passed on October 01, 2015.

Nine months have elapsed since then. Nothing is more obvious than the almost zero ground action taken by Sri Lanka towards implementing the core recommendations. On the contrary, instead of implementing said steps, Sri Lanka is facing allegations of continuing arbitrary arrests, torture and sexual violations, in addition to military surveillance and harassment. “Slow release of some lands.” On the contrary, more lands are under seizure in the North and East with scant respect to the accusation of the UN High commissioner.

 

The UN High Commissioner has forthrightly voiced its concern over the following matters in its own words and suggested Sri Lanka Agree to:-

 

“International participation in accountability mechanism which would be a necessary guarantee for independence and impartiality of the process.”

“The structures and institutions culture that promoted these practices be dismantled to show there will be no tolerance for practices of the past.”

“To take concrete steps to address impatience, anxiety reservations towards the process.”

“Constitutional changes will not involve trade-offs and compromises on core issues of accountability, transitional justice and human rights.”

“Concerned about stoking nationalism against ethnic, religious and other ethnic minorities.”

“New evidence of the usage of banned cluster bombs needed an independent and impartial investigation.”

“Current judicial institutions still lack credibility which is needed to gain the trust of the victim community.”

“Magnitude and complexities of the international crimes need to be investigated which the OHCHR investigation could amount to war crimes and crimes against humanity.”

“Militarization with heavy military presence in the North and East, surveillance and harassment still persisting which needs to be swiftly addressed.”

“Use of Prevention of Terrorism Act 1979 still going on – torture and ill-treatment of detainees is still continuing – including the Tamils returning to Sri Lanka.”

“Should include voices abroad and further outreach in the diaspora in the process of implementation.”

“Military engagement in commercial activities including farming, tourism is giving rise to new levels of frustration and disenchantment.”

“Early successful prosecution would mark a turning point from the immunity of the past.”

“More rapid and sustained progress could have been made on other issues by release of land, detainees, PTA and Witness Protection Law.”

“Establishment of full transitional justice mechanism will be needed.”

“Current unwieldy co-ordination, arrangements within Government should be changed for integrated co-ordination with participation of civil society, consultation process with victims and civil society.”

“New office of missing persons will hopefully provide at least a form of immediate redress.”

“UN High Commissioner for Human Rights reiterates the importance of all Sri Lankans to rally behind the process.”

“UN High Commissioner for Human Rights commended the restoration of the Constitutional Council, an independent Human Rights Commission and the ratification of the Disappearance Convention and described them as important achievements that will leave a legacy for the future.”

 

After having left the above unattended and matters still lying in limbo, the UN High Commissioner for Human rights in its conclusion says:

“Overall the Human Rights Council should be encouraged thus far by the steps that the Government of Sri Lanka has taken to implement some of the key commitments made in resolution 30/1.”

 

Firstly one has to look at the steps taken by Sri Lanka to implement some of the key commitments as mentioned by the UN High Commissioner. The key commitments can be listed as follows. Requesting Sri Lanka to:

 

[i] “Implement effectively the constructive recommendations made in the report of the Government’s own LLRC commission.” The report of Verite Research, an independent think tank, has just reported that “only 20% of the 189 recommendations of LLRC have so far been implemented after a lapse of more than four years.”

[ii] Allow participation in a Sri Lankan judicial mechanism, foreign judges, defence lawyers and authorized prosecutors and investigators.”

The fate of this proposal is already sealed by the President who has repeatedly declared his position and vowed that “he will not allow any foreign elements in the investigation as long as he is in power,” claiming that the Sri Lankan judicial system, structure and judges are fully competent to conduct the investigation into all allegations of war crimes, crimes against humanity, etc. It is to be noted that Sri Lankan criminal laws have no provisions or chapters to deal with international crimes and the Government of Sri Lanka has yet to initiate any steps to incorporate these laws into its system. This core commitment is already buried in total defiance of the 30/1 Resolution. The call to reform the domestic laws is also hanging in balance thereby negating the effectiveness called for in the Resolution of 30/1.

[iii] Call to introduce effective security sector reforms is yet to materialize and hardly any moves appear to have been initiated so far.  This inaction is facilitating the retention of persons into the security forces who are involved in the violations of human rights, abuses and international humanitarian laws. This commitment is yet to see its serious consideration from the government.

[iv] 258 political prisoners detained under the draconian PTA law have been languishing for several years with no hope of any judicial process to decide their fate despite the repeated promises given by the President and Prime Minister on various occasions.

[v] The call to accelerate the return of lands to its rightful civilian owners is another recommendation which is being handled willy-nilly almost as eyewash. In the Northern Province, out of the 69,992 acres seized by the security forces, until 2015 only 2565 acres had been released by the end of 2015, leaving approximately 67,427 acres in the hands of the military where thousands of families are still homeless and landless. While some lands are released, moves are afoot to size more lands which are underway in other areas for military use. The President’s promise to release the land and resettle those displaced within six months ended with a whimper when the period ended on June 30, 2016. The request to end military involvement in civilian activities, running hotels, restaurants, cultivating vegetables in displaced civilians lands and marketing them, running schools for pre-school children etc, are continuing  with scant respect to this recommendation. Business continues as usual depriving livelihood for the civilians in the North and East.

[vi] The call to investigate attacks on journalists, human rights defenders, members of minority groups as well as places of worship and to hold perpetrators of such attacks is still unheeded, not to mention the various such investigations into some killings and even court proceedings are either stalled or moving at snail’s pace, like journalist Lasantha Wickrematunge and the brutal killings of five university students in Trincomalee [these the few the Government agreed to investigate in the LLRC Government’s own findings] eg. The recent attacks on Muslims and Mosques are an example where the perpetrators are moving freely until now without any prosecution.

[vii] The long time promised repeal of the dreaded draconian Prevention of Terrorism Act 1983 is hanging in the balance while it is vigorously enforced currently. So far 42 new arrests have been made in 2015 and ending July 6, 2016 when a Tamil couple were arrested in Mullaitivu.

[viii] Call “to fulfill commitments on the devolution of political authority and ensure all Provincial Councils are able to operate effectively in accordance with 13th Amendment.”

This commitment is struggling between life and death with no visible signs of any political moves. The only commitments implemented are the setting up of an Office of Missing Persons, without consulting the involved victims and civil groups as requested in the resolution. As such hope of full justice from this office is in doubt and at the most this office will function to record statements of victims without powers to punish the guilty if any. The Government of Sri Lanka has ratified the convention relating to enforced disappearances and also passed the Witness Protection Law. However the Government of Sri Lanka has already made guarantees of protection to the security forces to shield them from any punishment for crimes and violations committed during the war.

Field Marshal Sarath Fonsekera, who conducted the war, is a Minister now and the Prime Minister Ranil Wickremasinghe is relying on his political support to counter the former President Mahinda Rajapaksa who was the commander-in-chief. Mahinda Rajapakse, along with his brother Gotabaya Rajapaksa, is currently engaged in resurrecting their political fortunes with the group of SLFP [Sri Lanka Freedom Party members] and it will be a wonder if they are charged for any war crimes, not to mention any punishment for them. The core of the resolution is elimination of the entrenched impunity practice in Sri Lanka for state officials, political big wigs and security forces and this core commitment appears to be doomed to meet its failure, as can be seen in the lukewarm and half-hearted steps and initiatives taken against the alleged past corrupt politicians who are flexing their muscles against the Government with total contempt.

 

The UN High Commissioner for Human Rights avoiding any castigation of the Sri Lankan Government has welcomed the following steps initiated by the Sri Lankan Government which are encouraging for Human Rights council as he declared:-

 

[1] The setting up of the Office of Missing Persons is a welcome measure which, as stated earlier had been set up without any input from the affected victims, is yet to commence its function and only time will tell how far it has served the causes of justice bearing in mind the futile outcome of numerous commissions set up by the Governments of the past. The UN High Commissioner has rightly stated that “this office will hopefully provide at least a form of immediate redress,” a hope against hope.

[2] Sri Lanka’s recent ratification of convention dealing with enforced disappearances is another welcome step of the government of Sri Lanka which can succeed only when there is political will and complete commitment to carry out its provisions. It is to be noted that Sri Lanka has earlier ratified various conventions, particularly Convention Against Torture, Cruel, Inhuman and Degrading Treatment or Punishment in 1994 and the Convention on Elimination of all forms of Racial discrimination in 1982. The provisions of these conventions mostly lie as instruments of records without any dedication or commitment to follow or enforce their provisions as happens in various other countries that have also ratified them. As such this ratification will continue or be treated as an addition to the other ratified and unenforced UN Conventions.

 

An independent Human Rights Commission set up by the government of Sri Lanka is another good step which it is hoped will function independently without any pressure or interference from any affected parties or influential politicians.

The UN High Commissioner’s call for an inquiry into the use of cluster bombs is a bold demand which is as usual met with hostile reaction and denial from the Government of Sri Lanka. Sri Lanka always has the habit of denying all wrongs like the denial of a single civilian death in the war from 2006 – 2009.

The UN High Commissioner has also solidly expressed its position in relation to the Sri Lankan military when they said that “The Government of Sri Lanka has to assert full control over its military intelligence establishment.” An example of military assertiveness is its continued non co-operation with inquiries relating to political assassinations, besides the mysterious disappearance of military records relating to these cases and record of missing persons. Another irritant is the military’s unwillingness to release the occupied land disregarding the Government’s stand on this matter. On the contrary, continuing to seize more lands shows the military’s hold on the Government. The Jaffna Army Commander Mahesh Senanayake, as reported recently by ‘Colombo Page’ media, said “that there will not be any Army or Camp reductions in the North and East for another five to ten years, and the government can then analyze the requirement.” This clearly shows the Army’s grip on the Government.

 

The UN High Commissioner also rightly concluded by saying that the “Government has not moved fast enough with tangible measures.” The lapse of nine months since the resolution mattered to him in this conclusion.

Think tank ‘Verite Research’ in a statement on July 4th said “only 20% of LLRC and 11% of UNHRC have been implemented.” The Foreign Minister Mangala Samaraweera has now come out with his own “promise of complete resettlement and handing over all lands before 2018.” Only time will tell the fate of this promise. With approximately 8218 acres of civilian lands still occupied by the military in Jaffna, only 4 out of 30 UNHRC resolutions have been implemented.

The prestigious ‘Hindu’ Newspaper in its editorial on July 03, 2016 stated “Sri Lanka must stay the course and ensure implementation of the resolution.” Thereby doubting its sincere commitments.

The UK based ‘Freedom from Torture‘ body has lamented “the continuing Sri Lankan government failure to involve international involvement.”

Human Rights Watch‘ has stated that “several of Sri Lanka’s key commitments remain unfulfilled.”

 

As such the overall picture is not rosy for the Tamils and their victims viewing the ground realities prevailing in Sri Lanka. While the Foreign Minister of Sri Lanka Mangala Samaraweera, true and loyal to his portfolio, is making his own promises to calm the foreign countries even dismissing the contrary statements of the President and Prime Minister, who are declaring the true position for the consumption of locals mixed with empty promises to satisfy the Tamils during visits to North and East.

The UN Commissioner’s statement that “inevitably the transformative process on which Sri Lanka is embarked will take time” has provided the shield to employ their official delaying tactics “and use it as a defence and answer to any allegations of undue delay, stalling or dilly dallying in the process of implementation of the resolutions. To expect all Sri Lankans, particularly Tamils, to rally behind the process which is not backed with any punitive actions or sanctions for non-compliance will only hardly succeed.

It is suggested that an independent accountability mechanism must be evolved by the United Nations and put into place for enforcement by the UN Human Rights Council or Security Council against rogue members who indulge in violations of the provisions of United Nations conventions with impunity including the UN Charter. As long as this mechanism is absent, member states will continue to commit human rights violations with impunity avoiding accountability.

As for the Tamils, they can give only a guarded and cautious optimism while in the process making every effort and encouraging the UN High Commissioner to live up to its commitments, also living up to maintaining HRC’s goals and objectives which are to ensure the compliance of the core issues of human rights, the bedrock of the UN and Human Rights Council. The UN, HRC and Security Council have to function as the watchdogs of human rights with the duties to rein in violators giving no room or reliance on haphazard half-baked measures, empty promises or time buying tactics designed to hoodwink the international community at the expense of the victims.

The violations of human rights have to be judged on equal scales with no room for consideration of their political strength, clout or power wielding positions.

Accountability, justice and rule of law must prevail and be dispensed with allowing no room for flexibility, relaxation or half-baked palliative measures. The fate of any UNHRC resolution expected to be passed during the 34th session in March 2017 ultimately lies in the hands of the Security Council and it is anybody’s guess as to the outcome. This depends on its members’ assessment of their political economic, geographical strategic interests as well as the extent and level of friendship maintained by Sri Lanka with its members.

Despite the calls by various countries including USA, EU, UK, Canada, etc, to allow participation of international judges to show credibility, Sri Lanka has declared its determined position to flout its own resolution, testing the will and determination of UNHRC.

For the Tamils it is hoped that it would not end up as ‘a community with’ “Justice delayed is Justice denied.”

It is hoped that the United States as a co-sponsor of the resolution will not shirk or shed its responsibility in the implementation of all recommendations in the Resolution by Sri Lanka, and not allow or condone any delay, deviation or dereliction.

 

 

 

 

 

 

 

Thambu Kanagasabai

Thambu Kanagasabai LL.M (London) – Former Lecturer in Law, University Of Colombo, Sri Lanka.

5 Comments

  1. Thanga July 18, at 16:27

    Mr.Kumarathasan is another Wimal Weerawansa among the Thamils. He has a letter pad organization styled The Tamil Canadian Elders for Human Rights. On behalf of this pseudo he writes impolite, undiplomatic, bombastic and nonsensical letters to Thamil leaders. Following is a sample of a letter he wrote to Hon. Mano Ganesan MP and Minister. It displays his colours and upbringing and scholarship! Dear Mr. Mano Genesan Rule of Law and justice system in Sri Lanka - What is the difference from the previous regime and the present regime you represent:????????? We, the Tamil Canadian Elders for Human Rights Organization and the Tamil is Canada are very deeply worried about the new regime which you represent and holding a very responsible post. Some time back you came out with and stated that you are going to resign from your ministerial post - even after your call for good governance and rule of law so many things have happened. Please note :- .......................................................... Kumarathasan is a lackey of Mahinda Rajapaksa. He supported him at the presidential elections in 2015. He also supported Gajendrakumar's All Ceylon Tamil Congress at the August 2015 parliamentary elections. The Tamil Congress lost deposits in all the 5 districts it contested in the Northeast. This speaks volumes about Kumarathan's political acumen and judgements.

    Reply
  2. Thanga July 18, at 00:06

    Kumar Rasasingam is an ardent supporter of Mahinda Rajapaksa. To him Mahinda Rajapaksa and Maithripala Sirisena are the same. No difference except the name. The criticism that the government is moving slowly is valid. However, the criticism that government has done practically nothing is stupid. This problem is 67 years old. Both the 27 years non-violent struggle and 25 years armed struggle ended in "failure." Now the Thamils are fighting on the diplomatic front. No body can deny the fact that our people in the Northeast are breathing freely. There are no more white vans, grease ghosts, mid-night knocks at the door etc. Diaspora Thamils are visiting their friends and relatives at the drop of a hat.

    Reply
    • Kumarathasan Rasingam July 18, at 03:50

      Mr. Thanga agent of [TNA - Sirisena Govt;] always writes nonsense to serve his masters [washing their dirty linen] If anyone come out with truth regarding the new regime or TNA Mr. Thangavelu jumps up and down and tries to cover up the truth. This is a statement not from me, but from a think tank in Colombo. “Lanka fulfilled only 11 % of pledges to UNHRC and 20% of pledges to LLRC”, says study COLOMBO: Sri Lanka has fulfilled only 11 percent of the pledges it had made to the UN Human Rights Council (UNHRC) in September 2015, and only 20 percent of the commitments it had made to the Lessons Learnt and Reconciliation Commission (LLRC) in 2011, according to a study by the Colombo-based think tank Verite Research. Of the commitments made to the UNHRC, the report says: “Overall, the implementation is slow. Of the 36 commitments made in regard to Resolution 30/1, only four have been fully implemented. Progress in the implementation of a majority of commitments - 22 commitments – has been poor.” In 61.1 percent of the cases, progress has been “poor”. In 25 percent of the cases there has been “partial progress”; and in 2.8 percent of the cases there has been “no progress”. The government has met its commitments in 11.1 percent of the cases.

      Reply
  3. Kumarathasan Rasingam July 16, at 10:35

    This article very clearly exposes the Sri Lankan Governments delaying tactics and false promises. the failures of implementing so many recommendations is showing the mindset of Sri Lanka. The United Nation's failure to take strong stand and the International community's failure to warn Sri Lanka for the non implementation of the resolution is hurting the victims of war and their families,. New evidences of the usage of banned cluster bombs is a very serious matter to be investigated. UN and the IC must take a very strong stand on the independent International investigation on this matter.

    Reply
  4. tom Arms July 15, at 17:03

    I think you need to stick your head above the parapet and say what action by the co-sponsors is required to ensure that the Sri Lankan government does not continue to ignore the UN recommendations.

    Reply

Leave a Reply