Accepting international standards and moving forward

by Jehan Perera

December 18, 2017

The slowness with which the government is implementing many of the promises made to the international community in regard to human rights and justice issues that arose in the course of the war and post-war period have come in for criticism. It has led to doubts about the government’s intentions in regard to the implementation of the commitments it has made. The government’s slowness is attributed to bad faith by its human rights critics. The delay has been protracted even when it comes to setting up the Office of Missing Persons. The legislation was passed over a year and a half ago. But the institution has still to get off the ground and the commissioners have yet to be appointed.

Apart from the Office of Missing Persons the government has promised to establish three other key mechanisms that would enable the human rights violations of the past to be dealt with more substantially. These include a truth seeking commission, office of reparations and judicial accountability mechanism. It is reported that legislation pertaining to these institutions have been formulated but they are yet to be presented to the general public. The delay may also be attributed to resistance that comes from within the polity. The opposition has been claiming that the government policy on national security is being driven by sections of the international community and is detrimental to national unity and sovereignty.

In this context the government’s accession to two hitherto controversial international instruments that would protect human rights has passed without much political controversy within the country. These are the Optional Protocol on the Convention against Torture that allows for greater international scrutiny of a country’s detention facilities and the Ottawa Treaty to ban landmines. Successive Sri Lankan governments had resisted acceding to these international instruments even while agreeing to their content in principle. In the case of the mine ban treaty previous governments had supported the humanitarian objectives behind them and even voted in favour of UN General Assembly resolutions on the matter from 1997 onwards, but without acceding to the treaty.

PRIORITISING SECURITY

The government’s willingness to accede to the Optional Protocol on the Convention Against Torture and the Ottawa Treaty to ban landmines during the run up to local government elections suggests a consolidation of peace and confidence in issues of national security since the end of the war. In the past the war conditions on the ground served to block concrete actions towards reaching international standards on issues that impacted on national security. However, the accession to the Ottawa Treaty on banning landmines indicates that national security and human security are no longer seen in contradictory terms. In fact the most recent conceptions of national security do not see it as being in opposition to human security. Enhancing the human security of citizens and ensuring their human rights is now seen as contributing towards national security.

The main feature of the mine ban treaty is that it bans anti-personnel landmines, requires destruction of stockpiles and the clearance of mined areas, and assistance to victims who have suffered landmine injuries. In the past both the Sri Lankan military and LTTE used such mines in their military campaigns against each other. The Sri Lankan Army defended itself on the grounds that the use of mines by the military was strictly limited and restricted to defense purposes only, to demarcate and defend military installations. The mine ban treaty is forward looking in that it prohibits the future use of antipersonnel land mines. It does not deal with the past except to provide assistance to those who have become victims.

Similarly with regard to signing the Optional Protocol of the Convention against Torture, in terms of it the government has agreed to visits by independent international and national bodies to places of detention in order to prevent torture and other cruel, inhuman or degrading treatment. The member states that accede to the optional protocol are expected to give investigators access to places of detention, provide access to all information concerning the persons detained and their conditions of detention and also permit those detained to be interviewed. This too is a forward looking commitment as it seeks to ensure that present practices do not permit torture and the violation of human rights.

PROGRESSIVE ATTITUDE

Both of the international instruments that Sri Lanka has acceded to are about how it will act in the future. It reflects an analysis by the government that subscribing to international norms builds confidence in the international community about the country’s stability, which will attract more economic investments into the country. The focus on the future has also made it easier for both the government and the security forces to accept. The progressive attitude of the Sri Lankan security forces in regard to international standards has been facilitated by the end of the war. During times of war it is much more difficult to put humanitarian ideals into practice. This phenomenon can be seen in the case of wars fought elsewhere by the militaries of other countries.

In addition, new opportunities have arisen for Sri Lankan military personnel in international peacekeeping operations. The Sri Lankan experience in demining for instance would be relevant to international hotspots such as Syria which have been heavily mined by those who were fighting to control territory. Serving military personnel are now following courses in human rights and conflict resolution at local universities. Obtaining degrees and diplomas assists them when they apply for these international appointments. It is the past that is troubling to them, in which human rights violations and war crimes occurred.

The challenge for the government and for the security forces would be to accept the commitments to deal with issues that continue from the past. The commitments made by the government in Geneva before the UN Human Rights Council in October 2015 are about dealing with the past. The transitional justice mechanisms pertaining to truth seeking, finding missing persons, reparations and accountability are important to the victims. They are also important to the vast majority of members of the security forces who have a rational interest in clearing their names. There are over 400,000 members of the security forces and only a very small percentage of them would be guilty of war crimes.