Will UNHRC live up to its commitments to Sri Lanka?

AP photo

By

Thambu Kanagasabai

Sri Lanka became a member of the United Nations in 1955, bound with obligations to observe the provisions of the United Nations and other United Nations Conventions, and as a member of the Human Rights Council.

Some of the most important Conventions ratified by Sri Lanka are as follows:-

1. International Convention on the Elimination of all forms of Racial Discrimination 1982

2. International Convention for the Protection of all persons from Enforced Disappearances 2016.

3. United Nations Convention against Torture, Cruel and Inhuman Treatment -1984

4. International Convention on Civil and Political Rights 1980

5. International Convention on Economic, Social and Cultural Rights – 1980

The United Nations Security Council and Human Rights Council, (UNHRC) has maintained inexplicable and depressing silence over the several incidents of massacres, racial pogroms, including extra-judicial killings and torture which were blatantly carried out by the security forces and political party hooligans in 1956, 1958, 1961, 1971, 1977, 1983, 1989 and from 2006 to May 2009. The United Nations and other Western democratic countries watched those crimes committed by Sri Lankan Armed Forces against its own citizens and chose to ignore them with no concern. Most probably the involved parties did not carry any political, economic, military or strategic interests to impact their countries’ interests. Western countries however adopted the policy of accommodating the Tamil refugees fleeing to save their lives from the rampant security forces and hoodlums.

More than one million Tamils are now said to be living in various countries with the first wave of migration starting in 1983 after the racial violence which engulfed Sri Lanka with the active support of the ruling United National Party Government led by the late president J. R. Jayawardene.

The 2006-2009 war between Liberation Tigers of Tamil Eelam (LTTE) owed its origin due to the Governments’ betrayals, breaches of pacts, and resultant failures to offer a just durable and permanent political settlement by the Sri Lankan governments’ in power since 1956. LTTE Chief Prabhakaran had another reason to justify the armed struggle when he attributed it to the failure of Sinhala leaders to follow the path and principles of Buddhism, laid down by the greatest saint Lord Buddha.

So far, an estimated 150,000 Tamil civilians have lost their lives from 1956 to 2009, which also includes several massacres commencing from 1956 in Gal Oya in the Eastern Province and Colombo.

With the Buddhisisation and Sinhalasisation agenda, set in motion in 1948 by the late Prime Minister D. S. Senanayake in the form of Sinhala colonization in the Eastern province and discrimination in employment and university admissions, the marginalization of Tamils and reducing their status to second class citizens was complete despite various non violent and peaceful agitations by Tamil political leaders. The alternative armed struggle of the Liberation Tigers of Tamil Eelam was snuffed out with the complicity of some foreign powers, while the United Nations played the role of spectator of the GENOCIDAL killings which were watched with unconcern and disdain by the world’s communities.

The war without witness conducted by the Sri Lankan government ended in May 2009, with UNHRC passing a resolution in May 2009 praising Sri Lanka for finishing the ‘war on terrorism’ against the Liberation Tigers of Tamil Eelam without any discussion or hindsight as to the root causes of the war and why the Liberation Tigers of T’amil Eelam resorted to armed struggle.

UNITED NATION’S ACTIONS ON SRI LANKA

Thanks to the painstaking efforts of the British media, particularly Channel 4 and other human rights groups, the United Nations and UN Human Rights Council found themselves at the receiving end, after seeing and hearing the graphic gruesome killings and inhuman sufferings of the Tamil civilians. Due to the widespread protests and condemnations from several human rights groups including the Diaspora Tamils, United Nations Secretary General Ban-ki-Moon appointed a panel of experts on June 2010. Prior to this move, the UN Secretary General made a visit to Sri Lanka immediately after the end of war in May 2009 touring selected areas and viewing from the air. He later expressed his opinion by describing the ‘situation of refugees as unprecedented.’ This Panel of Experts was headed by Hon. Marzuki Darusman.

The Report which was issued on March 31, 2011, stated among other things:
‘Indeed the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace.’

Following this report, the UN Secretary General appointed Hon. Charles Petrie to examine the United Nation’s role in the Sri Lankan conflict.

The Internal Review Panel made its report in November 2012. The report, inter alia stated that ‘According to the UN data, most casualties are caused by government’s fire.’ It also stated that ‘The UN headquarters and staff were subjected to the Sri Lankan government’s obstruction and manipulation.’

This report also mentioned that there were ‘credible estimates for civilian casualties of 70,000.’ The report also confirmed ‘that the events marked a grave failure of United Nations to adequately respond to early warnings.’

Following the UN Human Rights Council’s resolution in March 2013, UN High Commissioner for Human Rights Navanethem Pillay visited Sri Lanka in August 2013. Despite protests by Sinhala extremists and branding her as ‘Tigress’, she completed her mission undeterred as mandated.

On September 25, 2013, she made a 27 point oral update to the UNHRC. Consequently, UNHRC’s Resolution No. 22 “called upon the government to conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law.”

The UN High commissioner for Human Rights on February 2014, after noting the failure of Sri Lanka to ensure independent and credible investigations recommended the “establishment of an Independent International Inquiry Mechanism which would contribute to establishing the truth where domestic inquiry mechanisms have failed.”

In response, UNHRC adopted a resolution in March 2014 requesting the UN High Commissioner for Human Rights undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka from 2002 to 2011. Three experts undertook the task of preparing this report [OISL] which was published in September 2015 which among others recommended a hybrid mechanism and mandating for a set up of special court in Sri Lanka pointing out that the “violations are among the most serious crimes of concern to the international community as a whole.”

For the sake of information, some of the important persons who have undertaken visits to Sri Lanka from May 2009 until now and their reports are as follows:-

1. United Nations Secretary General HE Ban-Ki-moon May 20, 2009 and September 16, 2016

2. Special Rapporteur of Promotion of Truth, Justice Etc. HE Pablo De Greiff March 2015 and January 2016.

3. US Assistant Secretaries of State Madam Biswal and Hon. Malinowski February 14 and July 2015.

4. Special Rapporteurs on Torture, Inhuman treatment etc. Hon. Juan Mendez and Hon. Monica Pinto May 2016.

5. United Nations Working Group on Enforced Disappearances Hon. Tae-Ung-Baik, Hon. Bernard Duhaime and Hon. Ariel Dulitzky from November 9 to 18, 2016.

6. United Nations Human Rights High Commissioner HE Zeid Ra’ad al-Hussein February 2016.

7. United Nations Special Rapporteur on Minority Rights Hon. Rita Izsak Ndiaye October 2016.

HE Ban-Ki-moon and Hon. Mahinda Rajapaksa issued a joint statement on May 21, 2009, where Hon. Mahinda Rajapaksa agreed to address the aspirations and grievances of all communities and working towards a lasting political solution. Rajapaksa also expressed his firm resolve to proceed with the implementation of the 13^th Amendment and engaging in dialogues with all parties to bring about lasting peace including commitment to the promotion and protection of human rights in keeping with international human rights standards and Sri Lanka’ s international obligations.

This joint statement and Hon. Mahinda’s undertakings faced their inevitable demise as usual and expected ending in an insulting breach.

Some of the important Reports issued by United Nations, UNHRC and UN Special Rapporteurs are:-

1. UN Panel of Experts on Accountability March 31, 2011

2. UN Internal Review Panel – November 2012

3. UN’s Final Report to UNHRC [OSIL] – September 16, 2015

4. Working Group on Enforced Disappearances – July 18, 2016

5. Special Rapporteur on Torture etc. May 17, 2016

6. Special Rapporteur on Minority Rights October 20, 2016

7. United Nations Human Rights Council 2016

8. UN Committee Against Torture and its observations in Geneva in November 2016.

So far, the United Nations Human Rights Council has issued eight reports from 2011 to 2016 [The numbers being 22, 26, 29, 30, 32, 33, 07, 08], besides reports by Human Rights Watch, Amnesty International, International Crisis Group, Oakland Institute and other groups dealt with the human rights violations in Sri Lanka and called for redress, remedies, reparation, accountability and justice.

Some of the findings and comments of the UN Personnel who visited Sri Lanka are worth repetition.

The UN Report [OSIL] published in September 2015 “ has laid bare the horrific level of violations and abuses that occurred in Sri Lanka between 2002 and 2011.”

The Experts Panel Reports published in March 2011 stated that “the conduct of the war represented a grave Assault on the entire regime of International law designed to protect individual dignity during war and peace.” The report also revealed “United Nations involvement in Sri Lanka to be a grave failure” in preventing the atrocities and crimes which occurred during the war from 2006 to 2009.

United Nations High Commissioner for Human Rights HE Zeid Al- Hussein while in Sri Lanka stated in February 2016 “that having an impartial and independent court is fundamental because it must address the needs of victims on all sides and victims must feel justice is done.”

UN Special Rapporteur on Torture & Inhuman Treatment Hon. Juan De Mendez who visited Sri Lanka in May 2016 “lamented the culture of impunity and lack of accountability with only six prosecutions against state security officials since 1994 and without any conviction so far.”

The Permanent Peoples Tribunal in its verdict after its hearing in Bremen, Germany in 2013 reached a consensus ruling that the “state of Sri Lanka is guilty of the crime of genocide against Eelam Tamils and that the consequences of the genocide continue to the present day with ongoing acts of genocide against the Tamils.”

The Oakland Institute’s independent report published in May 2015, confirmed the “systematic violations of human rights of Tamils and other minorities which also exposed the military occupation and colonization of Tamils areas in Sri Lanka.”

UN Sectary General Ban-Ki-moon while in Sri Lanka in September 2016 stated that “something more terrible serious happened in the past in 1994, In Rwanda, there was a massacre. More than one million people were massacred. United Nations felt responsible for that. We said repeatedly ‘never again, never again. It happened just one year after in Srebrenica. We did again in Sri Lanka.”

By this statement, UN Secretary General has made a sweeping statement by bracketing Sri Lanka along with Rwanda and Srebrenica for having committed the international crime of genocide.

Thus, Sri Lanka stands accused of ‘GENOCIDE’ by the UN Secretary General whose firm conclusion should not be brushed aside or treated lightly. On the contrary, the UN Secretary General is legally and morally duty bound to take up this matter in the United Nations Security Council and or UN Human Rights Council for a follow up process.

During its fourth visit to Sri Lanka, the Working Group on Enforced Disappearances made its report on July 08, 2016 confirming the following: “Enforced disappearances are being used in a massive and systematic way in Sri Lanka for many decades to suppress political dissent, counter terrorist activities or in the internal armed conflict.” Given the context in which they occurred, many enforced disappearances could be considered as war crimes or crimes against humanity if addressed in a court of law.”

The UN Report on Minority Issues was published on October 20, 2016. Among various concerns highlighted in the report it concluded “there is a trust deficit vis-a-vis state as well as between the communities in Sri Lanka.” “Government should publicly condemn religious intolerance and hold perpetrators of hate crimes and violence accountable.” “The Government must put in place some urgent, important and concrete measures to clearly demonstrate its political will and commitments to better protect Sri Lanka’s minorities including continued return of lands to their owners, charging or releasing all security-related detainees, making progress in finding disappeared persons and taking visible steps to gradually transfer military powers to civilian authorities.”

It is to be noted that all the UN Reports have called for the repeal of the Prevention of Terrorism Act and replace it with another which is in conformity with international obligations reiterating that the chronic pattern of impunity still exists with regard to cases of enforced disappearances.”

The Working Group also requested Sri Lanka to submit a timetable within 90 days, showing the steps it will take to implement the present recommendations once the report is submitted to the UN Human Rights Council.

The UN Report on September 2015 resulted in the passing of a resolution sponsored by USA, UK, Northern Ireland, Macedonia, Montenegro and Sri Lanka on October 01, 2015. The Resolution had proposals encouraging Sri Lanka to implement them, without any legally binding effect or any sanctions if Sri Lanka fails to comply with these recommendations.

SRI LANKA’S RESPONSES AND REACTIONS SINCE 2009

The UNHRC Resolution passed on October 1, 2015 still remains intact and unimplemented except for the setting up of the Office of Missing Persons which is without any teething provisions to haul up and convict perpetrators involved in the disappearances as the process and procedure to hold them liable is also lengthy and cumbersome for a complainant.

The other proposals in the Resolution are gathering dust and it is most likely that they will remain so until and unless mandatory directives are issued by the United Nations and/or other countries, which scenario is also unlikely to happen in the near future.

The Sri Lankan government has on various occasions declared its stand very strongly on the following issues and allegations against it.
Sri Lankan President HE Maithripala Sirisena has stated that “no general amnesty will be granted to the Tamil political prisoners” languishing in jail for more than ten years. Minister of Justice Hon. Wijayadasa Rajapakse further stated that “there are no political prisoners in the country”.

The government has also rejected the hybrid court mechanism as well as participation of international judges, lawyers, etc. Even the internal judicial mechanism promised by Sri Lanka is yet to see its light.

About the approximately 65,000 disappeared persons, Prime Minister Hon. Ranil Wickremesinghe has stated that “most of them are probably dead” and “many have left the country”. The President and Prime Minister have again and again reiterated that ‘soldiers who participated in the war against LTTE will be protected at any cost from any prosecution for crimes committed during the war.’ As such a blanket advanced impunity has been granted to the security forces defying and ignoring the criticisms of United Nations, UNHRC and other bodies.

Reforms on domestic laws have also not been initiated so far which should include amendments to criminal laws to incorporate war crimes and crimes against humanity in compliance with international obligations to conduct prosecution against war criminals.

Return of lands to the rightful owners in the North and East is proceeding at a snail pace with uncertainty and in piecemeal while moves are afoot to size more lands by the security forces. The security personnel’s numerous earlier business activities have now extended to running kindergarten schools in the North which show no sign of halting any activities but only signs of expansion visible.

The Sri Lankan government has again and again reiterated that it will never withdraw the security forces from the North. Therefore the presence of security forces in the North is confirmed permanently disregarding the calls of UNHRC and UN Secretary General.

No measures have been taken to reverse and halt the atrocious practice of torture which has been practised for decades as confirmed by the UN Special Rapporteur on Torture, Jens Molding and also by the Sri Lanka Human Rights Council in their report to the United Nations Committee Against torture in Geneva in November 2016. The Committee has confirmed that “Torture was a common practice in Sri Lanka” and called for an independent investigation in to allegations of torture and sexual violence in the rehabilitation program of 12169 suspected former carders.”

The much maligned Prevention of Terrorism Act is still in force and a new act replacing it is in the cards, the details of which are yet to be published.

The continuing erection of Buddha statues and buildings of Buddhist Viharas in Tamil areas without worshipers is condoned and encouraged by the state which also casts doubts on the reconciliation genuineness of government. A free run by some extreme Buddhist Monks indulging in violence, and hate speeches against the minorities particularly against the Muslims in recent days does not add anything to the sincerity of government and its duty to uphold the rule of law to punish those who engage in acts promoting communal hatred, disharmony and desecration of religious sites and shrines.

Sri Lanka’s political ills of communalism, racism and religionism appearing to be rising and spreading unchecked, also fueled by opposition group along with patronised extreme Buddhist monks. If these inimical forces are allowed to pursue a majority Buddhist, Sinhala agenda program of hegemony the prospect of a just, political settlement for the Tamils in the proposed new constitution will be like chasing a mirage as water in the desert.

It is high time for the United Nations to act with firm resolve, commitment and will to ensure its recommendations and resolutions are implemented by Sri Lanka without leaving any room for excuses, delays and empty promises and surface level gestures.

It can be stated that the United Nations failed to protect the minorities since 1958 and most horribly during the genocidal war as admitted by the UN Secretary General after his visit to Sri Lanka in 2016.

So far Sri Lanka has failed to implement most of the UNHRC’s and other dignitaries’ recommendations and has also not initiated any palpable moves in this direction. On the contrary, compliance of recommendations is observed with defiant breaches thus throwing challenges to the United Nation’s credibility, foundations, determination and adherence to its principles.

It is the hope of the Tamils and Muslims that the United Nations and UN Human rights Council will live up to maintain, uphold and enforce the human rights provisions embodied in their charters without faltering or succumbing to diplomatic pressure from any quarters, intending to sabotage the process by adopting time tactics, particularly during the forthcoming Human Rights Council Session in March 2017, when Sri Lanka is coming up for review as to its actions regarding the implementations and compliance of the UN and UNHRC recommendations.

It is not an exaggeration to state that the United Nations is morally and legally duty bound to do justice to its own Special Rapporteurs and Experts’ recommendations while dispensing the long delayed justice to the Tamils.

It is hoped that the United Nations will demonstrate its commitments to protect victims and punish offenders and upholding its universal human rights principles without giving much weight and importance to the veiled and hollow recent gestures of Sri Lanka, like allowing the observance of remembrance day for those killed during the war, singing of the national anthem in Tamil which is a constitutional requirement and the release of some lands while entrenching its firm hold on the majority of seized lands.

The recent apology of the Prime Minister for the burning of the Jaffna public library in 1981 after 35 years is nothing but a shoddy exhibition of genuine regret by the government to placate and mislead the Tamils and particularly the United Nations, UNHRC and the International Community.

In conclusion, it is hoped that the US Government will stand firm and resolute in the full implementation of its own UNHRC resolution of October 1, 2015, and not to join hands with Sri Lanka which is straining its muscles to make its own co-sponsored resolution irrelevant and impotent by adopting time buying tactics and trying to create a precedent of only a paper value for any UN or UNHRC resolutions.

The statement of Madam Rita Ndiaye, Special Rapporteur on Minority Issues sums up the causes of malady in Sri Lanka:

“A dominant Sinhala-Buddhist majoritarian leadership and the failure of successive governments precipitated the conflict and a long civil war that seriously damaged the social fabric.”

Thambu Kanagasabai

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