Sri Lanka: Extending Tamils’ woes and the evasion of Accountability and Justice

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By

Thambu Kanagasabai

At the much awaited 40th Session of the UNHRC, the Commissioner Her Excellency Michelle Bachelet released her Report on March 3rd 2019 and then made her oral statement on March 20th regarding Sri Lanka’s progress as to implementation of its commitments specified in the Resolutions 30/1 of 2015 and 34/1 of 2017. The Human Rights Council then passed its Resolution on March 20, 2019 granting a further extension up to March 2021 requesting Sri Lanka fulfil all its remaining undertakings as on March 20, 2019.

The High Commissioner’s Report was frank, forthright and with no holds barred it detailed the Recommendations unimplemented and partially implemented as well as the attitude of Sri Lanka in treating most of the Recommendations which lacked enthusiasm and sincerity.

Some of her important Recommendations requested Sri Lanka:

[1] To implement fully the measures identified by the Council in its Resolution 30/1 that are outstanding;

[2] To adopt a time-bound implementation strategy to implement all Recommendations in 30/1;

She also noted that:

[3]” Slow progress in establishing meaningful Transitional Justice Mechanism and lack of time plan for it”;

[4] “Lagging of Government in the actual implementation of its own commitments.”

The Commissioner recommended the Member Countries “To consider using the Universal Jurisdiction Process or explore other options for investigations and prosecution for alleged war crimes, etc. as since 2015, no progress has been made as to investigating or prosecuting of war crimes, particularly relating to military operations at the end of the war, and in the absence of a credible domestic process.”

“Sri Lanka must set up a hybrid court with the participation of international judges to investigate allegations of violations and abuses of international human rights and humanitarian laws.” Requesting also that Sri Lanka accedes to the Roman Statute and recognize the jurisdiction of International Criminal Court.

The UN Human Rights Commissioner in her oral statement stated that “There has been minimal progress in accountability, continuing impunity risks fuelling communal or inter-racial violence.” She highlighted Major General Savendra Silva a suspected war criminal being promoted “As a worrying development.” She also commented on the “Lack of a common vision among the country’s highest leadership.”

She also emphasised that “Sri Lanka by co-sponsoring Resolutions 30/1 & 34/1, has recognized the need to address the past in order to build a future securely grounded in accountability, respect for human rights and the rule of law for the victims and for society this need continues.”

She further commented that “Sri Lanka has made virtually no progress on the investigations of war crimes.”

The UNHRC Resolution 40/1 passed on March 20, 2019 granted a further two year extension to Sri Lanka to fully fulfil its commitments numbering more than thirty five, after noting the failure of Sri Lanka in implementing them fully during the past four years. Added to the non-compliances is the defiance of Sri Lanka and its rejection to its own agreed undertakings like the setting up of an international judicial mechanism with the participation of foreign judges and the release of lands, while challenging the legal validity of UNHRC Resolutions.

Sri Lanka’s response to the Report is not a surprising one. It simply rejects it and goes on to slander it. A Member of Sri Lanka’s delegation to Geneva said that “UNHRC Report is atrocious lie.” President Maithiripala Srisena has also rejected it while Prime Minister Ranil Wickremasinghe has rejected any entry of foreign judges to Sri Lanka as well as of any form of international investigation.” Opposition leader Mahinda Rajapakshe cashing in on the situation has blamed Ranil Wickremasinghe’s Government for sponsoring the Resolution besides saying that “Co-sponsoring by Sri Lanka is unconstitutional and is a betrayal of the Military”. Prime Minister Ranil Wickremasinghe also rejected the request of the Commissioner to establish a United Nations Office in Sri Lanka to assess and monitor the progress.”

Ranil’s claim as to “His preserving Sri Lanka’s sovereignty is simply fallacious as Sri Lanka being a member of United Nations, UNHRC and having signed most of the United Nations Conventions dealing with human rights, has accepted their provisions and committed to comply with them, as those Conventions reflect and evolved from customary practises, International Humanitarian and Human Rights Laws. United Nations UNHRC and Security Council are functioning to maintain world order and peace among all citizens of United Nations including the protection and preservation of human rights and never interfere in the democratic function of a United Nations member state.

It is to be recalled that Foreign Jurists from eleven countries [International Group of Eminent Persons] visited Sri Lanka in November 2006 at the invitation of the then President Mahinda Rajapakshe to make their observations as to the functioning of a President Commission which was investigating Human Rights violations since August 2005. The Mission ended its sessions in 2008. One of their main concerns was “The lack of political will from Sri Lanka to support a search for truth”. This is an instance when Foreign Jurists were invited and allowed to get involved in local issues and conducted investigations.

In this respect, the statements of some countries and Human Rights Organizations are worth quoting for information. Canada, UK and Switzerland have called for “A time bound strategy to implement the Recommendations, while Amnesty International in a statement in Geneva said that “Sri Lanka has been backtracking on Accountability.”

The United States “Urged Sri Lanka to ensure time bound actions on Justice, Accountability and Reconciliation.” [US State Department Bureau of South Asian Affairs].

Human Rights Watch, in a statement expressed its concerns by saying that “Insufficient progress to date and rising frustrations that any accountability process seems to be stalled.”

Asian Forum for Human Rights Development, in a statement “Requested member states to consider using the Universal Jurisdiction principles and explore other avenues to advance accountability in the absence of credible domestic progress.”

Germany commented “on the lack of accountability for the crimes committed.”

In summary. most of the UN member states including European Union called for a time bound strategy to fully implement the 30/1 Recommendations.

Verite Research on Sri Lanka published in February 2019 stated that “Sri Lanka has made poor progress in implementing UNHRC’S Recommendations and out of the 36 commitments only 6 have been fulfilled.”

The UN Human Rights Council after reviewing the Reports of the UN High Commissioner and observations of member states passed its Resolution 40/1 on March 21st 2019 without any vote. The Resolution is just a replica of the earlier Resolutions and the only exception is the Provision calling for a time bound strategy by Sri Lanka to fulfil all the remaining Recommendations of 30/1 and 30/4. Disappointingly the said Resolution adds insult to injury to the war victims and also pays minimal concerns to Justice and Accountability, besides encouraging Sri Lanka to pursue its entrenched culture of impunity without any rebuke or reprisals from United Nations and UNHRC as “Impunity in Sri Lanka has become institutionalized and systematized” {ICJ’S Report 2012]

The Resolution has utterly disappointed the victims, human rights activists and human rights organizations who all expected deliverance for the traumatized war victims. It is also dismaying to note that the pain staking comprehensive Report of UN High Commissioner was almost treated with minimal value and respect as none of her Recommendations has been considered to worthy for inclusion in the UNHRC’ S Resolution. Like rubbing salt to the wounds, a further two years extension has been given to Sri Lanka enabling to drag on, delay and finally for it to exit with a blank record and empty performance with further hollow promises and undertakings to the UNHRC and International Community and probably getting another extension in 2021.

In view of the defiant stands taken by the political leadership in Sri Lanka as mentioned above, it is nothing but foolhardy to expect them to comply with any Recommendations as political interests and electoral gains remain the priorities to please the majority Sinhalese at the expense of brutalized Tamils by keeping their grievances frozen. Whatever hopes the Tamils had on United Nations & UNHRC have almost vanished with the UNHRC Resolution and so also the loss of credibility, standing and faith kept on UNHRC and United Nations. The stark truth is geo-political interests prevail over Human Rights and each state in the UNHRC is assessed and scaled accordingly. Statements of some UNHRC members at the Council called for accountability and justice, but they finally ended up as mere rhetoric as the Resolution has failed to incorporate any provision as to final time limits for Sri Lanka with threat of punitive measures in the event of non-compliance within the time limit.

One option available for the Tamils living all over the world is to mobilize campaigns to convince member countries to resort to Universal Jurisdiction to prosecute and punish the war criminals whenever they are visiting their countries as recommended by the UN High Commissioner.

Another option is to agitate for International Investigation or set up of an Ad-hoc International Tribunal to dispense the justice and accountability which are the pillars of UNHRC requesting United Nations and Security Council to refer the matter to the International Criminal Court.

A third option is to approach the Security Council members through available sources, means and channels to agree to refer the matter to the International Criminal Court. Another option is to authorize a Referendum in the North and East on the principle of self-determination as enshrined in the UN Convention.

The United Nations, UNHRC and International Community are shouldering a heavy burden as well as responsibility to promote Justice, Accountability and Rule of Law for human rights affected citizens, anywhere in the world, and if they shrink on these vital and honored duties, there is not an iota of doubt to state that world order will be shaken up paving the way for rebels and rebellions to dominate, dividing societies forcing with threats to international peace and security.

In this respect, the initiative of TGTE [Transnational Government of Tamil Eelam] to set up a Justice Commission is timely and laudable which can go to heal the wounded Tamils, and this move deserves the backing and support of all Tamils to make it a success.

Thambu Kanagasabai

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