Annai Poopathy remembered in Batticaloa 31 years on

190327 Annai Poopathy remembrance EA 4.jpg

28 March 2019

Annai Poopathy, who fasted unto death in protest against the atrocities committed by Indian Peace Keeping Forces (IPKF), was remembered yesterday by the Tamil National People's Front (TNPF) in Kurunthaiyadi Munmaari village in Batticaloa. 

As member of the Navatkerny Mother's Front, Poopathy Kanapathipillai from Batticaloa, commenced a fast unto death on March 19, 1988 to protest the injustices and atrocities committed by the Indian Peace Keeping Force (IPKF). 

She had called for an immediate ceasefire and peace talks between the IPKF and the LTTE.

Her fast ended on April 19 with her death. 

Her 28 year old son was shot dead by the Sri Lankan army and another son randomly shot dead by the Special Task Force. Another son, arrested during round up operations, was held in Boosa army camp and subjected to severe torture.

An Open Letter To The High Commissioner For Human Rights

By Brian Senewiratne –      MARCH 29, 2019                                                                                                             

Dr. Brian Senewiratne

29/3/2019

Michelle Bachelet

High Commissioner for Human Rights

Geneva

Switzerland

Promoting reconciliation, accountability and human rights in Sri Lanka

Dear High Commissioner Bachelet

I am writing to express my outrage of the document released at the 40th Session of the UN HCHR

25 February – 22 March 2019.

I am an Australian, originally from Sri Lanka, ethnically a Sinhalese from the majority community and not from the brutalised Tamil community. I have campaigned for the past 70 years for the right of the Tamil people to live with equality, dignity and without discrimination in the country of their birth, Sri Lanka.

I am, like you, a doctor of medicine. I am not a politician but sadly I come from a family that has produced two Prime Ministers and a President, all of whom have wrecked Sri Lanka.

I have published numerous articles, some of which have been collected in a book “The struggle for Justice of the Tamil people of Sri Lanka” which will be sent to you when it is published. I have already published a book “Sri Lanka: Sexual Violence of Tamils by the Armed Forces”. The 1st Edition was published in April 2015, and the 2nd Edition in April 2017. The book has doubled in size and is now 265 pages. It indicates the rate at which sexual violence is progressing. The Foreword was written by a Senator in the Australian parliament. It was handed over to Justice Navanethem Pillay, one of the finest UN Human Rights Commissioners your organisation will ever have. She wrote to me thanking me for writing the book and thanking me for sending her a copy.

In March 2009, Canadians for Genocide Education – an umbrella organization comprising some 48 multiracial and multi-religious organizations selected me to receive the prestigious ‘Educators Award’. I accepted the Award and spoke on “Peace with Justice in Sri Lanka. Genocide of Sri Lankan Tamils. Its causes and solution”.

In April 2018, I was awarded the Nelson Mandela Memorial Award  presented  to a person from any country who is deemed to be promoting peace and reconciliation and for fearlessly advocating on behalf of War Victims, Refugees, Stateless persons, Victims of Torture, prisoners of conscience, ethnic and national minorities  and de-territorialised population in any country or State across the globe. I was only the second person in the world to receive this Award, the first being Yasmin Sooka the Executive Director of the Foundation for Human Rights, South Africa.

I am writing all this to get the point across to you that where Sri Lanka is concerned, I know what I am talking about.

106 Tamil Diaspora Groups

On 1 March 2019, in an unprecedented show of solidarity, 106 Tamil diaspora groups around the world, jointly urged the UNHRC: 1) Not to give any more additional time to Sri Lanka stating that giving an extension of time will permanently deny justice for the Tamils.  2) To refer Sri Lanka to the International Criminal Court (ICC) or to specifically create an internationally credible tribunal for Sri Lanka and 3) To appoint a UN Special Rapporteur to Sri Lanka to monitor and report to the Council every six months about the plight of the war affected and other international human rights and humanitarian issues.

Not one of these was done. 106 Tamil diaspora groups consist of more than a million people.

Tamil areas in Sri Lanka come to a standstill

On 17 March 2019, tens of thousands of Tamils held a massive protest rally in the northern city of Jaffna, Sri Lanka, against attempts to give any extension time to Sri Lanka by the UN Human Rights Council for War Crimes and Crimes Against Humanity including sexual assaults and rape committed by the Sri Lankan Security Forces.

They also urged the UN HRC to refer Sri Lanka to the International Criminal Court and appoint a Special Rapporteur for the war affected.

The Tamil areas came to a standstill. Schools, shops, offices and markets shut down in solidarity with the rally. Busses and other public transportation vehicles did not operate. Very few private vehicles were seen on the roads.

High Commissioner, it is a matter of serious concern if tens of thousands of ordinary civilians protest. They are the people on the ground that have to put up with the dreadful situation in the Tamil North and East which I will set out below.

Two Submissions

I have  two Submissions. One of them is an extensive 31-page document which was obviously written by you. The other is a 2-page scrap of paper that says nothing. I gather that it was this useless document put together by the “Core Group” on Sri Lanka that was finally released as the UN HRC document on Sri Lanka.

I was going to deal with your document in detail but since it is not going anywhere, I thought it was an exercise in futility. I will therefore deal with just a few points – if only for your information.

You have gone into everything in detail except the things that matter. You do not mention that the Tamil North and East are not under the Sri Lankan government but under the military/police. This of crucial importance – far more important than anything you have dealt with.

You have not commented on the massive Military – much larger than the military in France or the UK. Is this not important?

You have not even mentioned the mass relocation by the Government of Sinhalese from the South into the Tamil North and East – “Sinhalisation’ of the Tamil areas to use a new word. If this goes on at the current rate, there the entire North and East will be full of Sinhalese and there will be no Tamil ‘homeland’. The agenda of the Sinhalese government is to make multiethnic, multicultural, multireligious, multilingual Sri Lanka into a Sinhala-Buddhist nation. What then happens to the Tamils who are not Sinhalese or Buddhists? Is that acceptable?

You state that “No developments were reported in 2018 with regard to the case filed in 201 by several human rights groups in Brazil and Columbia, under universal jurisdiction principles against retired Army General Jagath Jayasuriya”. What you do not say is what you propose to do about this. Let it die a natural death?

In paragraph 57 you express concern at the appointment if Major General Shavendra Silva as the Chief of Staff of the Sri Lanka Army. You go on to state that he was the commanding officer of the 58thArmy Division during the last stages of the war, and allegations were documented against troops under his command with violations of international humanitarian law and international human rights law, including by the Panel of Experts on Accountability in Sri Lanka appointed by the Secretary-General in its report and the OHCHR on Sri Lanka. What you fail to point out is that this man was a Major General under the Army Commander, who in turn was under the so-called ‘Defence Secretary’, Gotabaya Rajapaksa, the former President’s brother. There is overwhelming evidence that Gotabaya Rajapaksa gave orders directly to those in the Armed Forces, some of which were to execute those who had who had surrendered – the “White Flag” murder. To execute those who have surrendered and are Hors de Combat is a serious war crime.

I need hardly draw your attention to “Command Responsibility”- the Yamashita standard – which is a  legal doctrine of hierarchical accountability for war crimes.   The Japanese General Tomoyuki Yamashita was prosecuted in 1945 for atrocities committed by troops under his command in the Philippines during World War 11. He was charged in a military court in the Philippines  with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes”.  The court found Yamashita guilty and sentenced him to death. He appealed the sentence to General MacArthur, who refused to alter it. He then appealed to the Supreme Court of the   Philippines and the Supreme Court of the United States, both of which declined to review the verdict  An appeal for clemency was made to U.S. President Harry S. Truman, who declined to intervene. Yamashita was sent back to the Philippines where he was executed by hanging.

Just for the record, on 23 December 1948, Yamashita’s chief of staff in the Philippines, Akira Mutō, was executed after having been found guilty of war crimes by the International Military Tribunal for the Far East.

High Commissioner Bachelet, there are several ‘Yamashitas’ in Sri Lanka, some in military uniform and others not in military uniform.   They must all be charged. My concern is that one of them might be the next President of Sri Lanka.

I refer again to paragraph 51 of your document. “Some segments of civil society have continued to call for international investigations and for the Security Council to refer the situation in Sri Lanka to the International Criminal Court (ICC) for international prosecutions and adjudication of those most responsible for these crimes”. High Commissioner, this is not something that civil society can do. It is something that you must do. You must be realistic. Do you seriously believe that if any member of civil society which I am part of asks the Security Council to refer Sri Lanka to the ICC it will be taken seriously? If you do, you are not in the real world.

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Practicality of 'federalism'

The Constitutional Madhouse - Part 8

 

By C. A. Chandraprema-March 28, 2019, 7:20 pm

The present constitutional reform process in Sri Lanka is driven entirely by the Northern lobby which is one reason why it has failed to get off the ground. The Muslims and the Up-country Tamils are largely indifferent to the reform proposals. There is little or no appetite among the Sinhala population as well for the devolution proposals that go hand in hand with this constitutional reform process. The Sinhala majority which sees the devolution proposals in the new constitution as a stepping stone to separatism should perhaps be thankful for the self-centered and blinkered attitude of the Northern lobby pushing the constitutional reform process because they have ensured that these reform proposals will not have the support of the vast mass of the minority communities in the country much less that of the Sinhala majority. The proposed new constitution is often described as a ‘federal constitution’. It is certainly that in all but name.

No one should be misled by the rhetoric of the promoters and think that a federal constitution is being proposed for Sri Lanka because federalism is a better form of government than a unitary state. A federal constitution is being proposed only as a measure meant to appease the Northern lobby, to provide a kind of consolation prize after losing a decades long war to carve out a separate state in the North and East of Sri Lanka. None of the other minority communities have aspired to a separate state and in fact when it comes to the Muslims living in the North and East, the creation of a federal state is directly antithetical to their own interests. Clause 237(3) in the proposed draft constitution which provides for the merger of the North and East, subject to a referendum to be held in each of the provinces that are to be merged, is proof that the concerns of the other minority communities have not been taken into account in drafting them.

If the merger of the Northern and Eastern provinces actually takes place, the end result will be that the Tamils will be united in one merged province whereas the Sinhalese will be divided into seven different federal units and the Muslims in the North and East will find themselves a minority within a Tamil majority unit. The origin of the Sri Lanka Muslim Congress was due to the setting up of the provincial councils system and what was described at the time as the ‘sell out’ of the Muslims in the North and East.

Federalism can come in two forms; there is the kind of federalism when previously independent entities join to create a federal state of their own free will. Australia, Canada and the United States of America are prime examples of that. The other kind of federalism is where a previously unitary state is broken up into federal units as a way to settle conflicts and demands for separation. In the past several decades, the Western powers have seen federalism as the cure all solution to resolve conflicts within a country. After the end of the cold war in the late 1980s, most of the conflicts that raged in various parts of the world were internal conflicts within states rather than conflicts between states. Thus, federalism came to enjoy a boom as a conflict resolution measure. As the one-size-fits-all solution that the Western powers have for any internal conflict, federalism was imposed from outside on countries like Bosnia -Herzegovina. Sri Lanka is also a country on which the devolution of power (which stops short of fully fledged federalism) was imposed from outside with the Indian intervention of the 1980s.

Federalism as a failed ‘cure all’

Even today, the resolutions and reports against Sri Lanka presented to the UN Human Rights Council routinely includes a call for more devolution of power in Sri Lanka. Given half a chance, the Western powers would impose a federal solution on Sri Lanka as they did in Bosnia-Herzegovina. One important matter that all advocates of federalism in Sri Lanka both local and foreign tends to overlook is that a federal system will never work in Sri Lanka because of the intermixed nature of the population. Even though the call for federalism is driven by the Northern lobby, large numbers of Tamils live outside the North and East. The entire Indian Tamil population is resident outside the North and East. The vast majority of the Muslims live outside the East. Even the war that raged in this country for over 30 years, did not alter the demographics of the country. Even at the height of the war, large numbers of Tamils continued to migrate from the North and East to Colombo.

Theoretically, or at least according to the propaganda of its proponents, federalism is supposed to give minority groups limited control over their own economic, political and social affairs, while maintaining the territorial integrity of the extant state. But what happens when the majority of the minority population (in the case of Sri Lanka Tamils) who are supposed to be the recipients of the devolved power, permanently live outside the proposed Tamil majority federal unit/s? When Bosnia-Herzegovina declared its independence from Yugoslavia, in 1992, there was no call for a federal state because Bosnia’s population was intermixed and there were no ethnically homogeneous enclaves. However a civil war broke out in Bosnia soon after independence and very soon there were homogeneous ethnic enclaves due to ethnic cleansing.

Scholars have pointed out that it was the ethnic cleansing of the war that made a federal system possible in Bosnia-Herzegovina Bosnia.

We, too, had a war that would have made anything that took place in Bosnia look like a picnic. But no ethnic cleansing took place except in the North. The majority of ethnic Tamils still live outside the North and East and the majority of the Muslims outside the East. When Bosnia was in a similar situation, the leaders of that country were sensible enough not to even talk of federalism. In fact, the Bosnian people or leaders had never wanted federalism at all and federalism was imposed on Bosnia-Herzegovina from outside as a solution to Serb and Croat separatism.

In India, the vast majority of Tamils live in Tamil Nadu even though there are sizable Tamil communities living in neighbouring states like Karnataka and Kerala and further away in places like Delhi and Mumbai. In Switzerland, there are 26-Cantons and of these, 17 are German speaking, four are French speaking, one Italian speaking, and there three bilingual Cantons and one trilingual Canton. That would give an idea of how little communal dispersal there is in Switzerland with the speakers of the various languages living in clearly defined communities.

If power is to be devolved on a territorial basis to confer rights on a minority community then it makes sense to expect the recipients of that power to be living within that territorial unit. How is a territory based devolution of power to succeed if the majority of the recipients of the devolved power are permanently resident outside that unit?

In any event, many scholars are skeptical of the efficacy of federalism as a conflict resolution strategy, especially in societies where a general will to live together in the same state is missing. We all know that in Sri Lanka, the Northern lobby wants a separate state and federalism is being demanded only as a consolation prize and a possible stepping stone to a separate state in the future. As many scholars have pointed out, it is an illusion to assume that federalism will be able to solve all problems in deeply divided societies, especially those that have endured violent ethnic conflict. Challenges to territorial integrity and calls for secession will not disappear despite the establishment of federal systems and this truth applies in equal measure to prosperous democracies such as Canada, Spain and the UK as well as to new federations in post-conflict societies, such as Bosnia and Iraq. We saw what happened in Spain during the Catalonian revolt of 2017. There is a lesson in all this for Sri Lanka.

(Concluded)

Human rights: and the right to the truth

30 March 2019

This week the United Nations marked the International day for the right to the truth concerning gross human rights violations and for the dignity of victims. In a statement, the world body says, the right to the truth is often invoked in the context of gross violations of human rights and grave breaches of humanitarian law. The relatives of victims of summary executions, enforced disappearance, missing persons, abducted children and torture victims, require to know what happened to them. The right to the truth implies knowing the full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place and the reasons for them.   

According to the UN, each year on March 24, the international day for the right to the truth concerning gross human rights violations and for the dignity of victims is observed.This annual observance pays tribute to the memory of Archbishop Óscar Romero who was murdered on March 24. 1980. Archbishop Romero, now beatified, was actively engaged in denouncing violations of the human rights of the most vulnerable people in El Salvador.   

The purpose of the Day is to honour the memory of victims of gross and systematic human rights violations and promote the importance of the right to truth and justice. The event also pays tribute to those who have devoted their lives to, and lost their lives in, the struggle to promote and protect human rights for all. It is also meant to recognize, in particular, the important work and values of Archbishop Romero.   

On December21, 2010, the UN General Assembly proclaimed this day. In a study conducted in 2006 the UN High Commissioner for Human Rights said that the right to the truth about gross human rights violations and serious violations of human rights law was an inalienable and autonomous right. It was linked to the duty and obligation of the State to protect and guarantee human rights, to conduct effective investigations and to guarantee effective remedy and reparations.   

The study affirmed that the right to the truth implies knowing the full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place, and the reasons for them.   

In a 2009 report on the Right to the Truth, the UNHRC’s Office identified best practices for the effective implementation of this right, in particular practices relating to archives and records concerning gross violations of human rights, and programmes on the protection of witnesses and other persons involved in trials connected with such violations.   

In El Salvador, a Truth Commission was established in accordance with the Mexico Agreements of April 27, 1991 to investigate serious acts of violence that had occurred since 1980 and whose impact on society was deemed to require an urgent public knowledge of the truth. In its report of March 15, 1993, the Commission documented the facts of the assassination of Archbishop Romero by pro-government forces, the so-called “death squads”. He was shot dead by an assassin as he celebrated holy mass.   

In Sri Lanka, after the devastating 30 – year war, the then President Mahinda Rajapaksa met the then UN Secretary General Ban Ki Moon, who came here to investigate alleged war crimes by the troops and the Liberation Tigers of Tamil Eelam (LTTE), one of the most ruthless terrorist movements in the world. The matter went before the Geneva - based UN Human rights council where Sri Lanka is still going through ups and downs, with political twists and turns.   

A wide powered Office of Missing Persons has been set up and hundreds of acres of land, had been handed back to the civilians and other comprehensive relief measures taken. On Thursday, for the first time a Buddhist conference was held in Vavuniya and the aim was to promote reconciliation through inter – religious dailogue. Significantly, presiding at the conference was the Northern Province Governer Suren Raghavan. The conference was attended by high ranking Buddhist prelates and religious leaders representing the Hindus, Christians and Muslims. They agree that dialogue was the best way to lasting reconciliation and we hope many such inter-

religious and inter-racial conferences will be held as part of finding solutions and building a just, peaceful and all-inclusive society through unity in diversity.   

The Case for Foreign Judges in a Judicial Mechanism in Sri Lanka: Countering Falsehoods

Photo taken at the protest by families of the disappeared in Kilinochchi 

BHAVANI FONSEKA AND LUWIE GANESHATHASAN-03/28/2019

In a few weeks, Sri Lanka marks a decade since the end of its brutal war, but its long legacy of abuses remains unaddressed. Decades of inaction, denial and silencing have contributed to and exacerbated a culture of impunity that protected perpetrators and at times, even promoted them. In 2015 the Government of Sri Lanka signalled a change from the past when it officially recognised the need for a comprehensive strategy of addressing past wrongs, finding answers, providing reparations and, most importantly, fighting impunity. With the adoption of Resolution 30/1 at the 30th Session of the United Nations Human Rights Council (UNHRC), the Government of Sri Lanka formally acknowledged key areas for reform including in the accountability realm. The Resolution notes the need to uphold the rule of law and build confidence in the justice system with the establishment of a “judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorised prosecutors and investigators”

This commitment was further reinforced in Resolution 34/1 in March 2017 when the UNHRC provided further time for the full implementation of commitments made in 2015. Despite the passage of time, delays and setbacks were evident and a further two years was granted to Sri Lanka with Resolution 40/1 at the UNHRC Session that concluded last week.

This may have not generated much interest nationally and internationally if not for the statements and actions by key actors in Sri Lanka in the lead up to 20th March when Sri Lanka was discussed at the UNHRC. The curiously assembled delegation of Sri Lanka spared no punches when the head of delegation, Foreign Affairs Minister Thilak Marapana, in a written statement critiqued the report presented by the High Commissioner for Human Rights which incidentally contained data shared by the Government of Sri Lanka. Notable in this statement was the revisiting of an argument used without success by some in 2015 to prevent the inclusion of the participation of foreign judges, lawyers and others called for in Resolution 30/1.

This article specifically addresses the falsehood that there is an apparent constitutional bar preventing foreign judges from sitting in a judicial mechanism in Sri Lanka. It also presents past examples involving international involvement in investigations and justifies why internationals must be fully integrated in a future judicial mechanism if it is to move beyond past exercises of mere ‘advice’ and ‘monitoring’. Finally, the article also reiterates the call made by many across Sri Lanka on the need for truth and justice and why it is critical to heed this call if the Government and other stakeholders are genuinely interested in tackling the culture of impunity in Sri Lanka.

Constitutional Framework

Prior to and subsequent to the adoption of Resolution 30/1, there was much hype as to the inclusion of foreign judges and lawyers in a domestic judicial process. The authors dealt with this issue in greater detail here in 2016 but feel the issue requires revisiting considering the falsehoods promoted by some in power.

At the outset, it must be noted that the Sri Lankan Constitution does not contain an explicit bar to have foreign judges in a judicial mechanism in Sri Lanka. What seems to attract attention is more the simplistic rhetoric of not allowing internationals to be part of a judicial mechanism located within the Sri Lankan legal system. It is indeed unfortunate that those who oppose the participation of foreign judges conflate legal arguments with political arguments based on their narrow understanding of national sovereignty. These arguments are all the more incredible considering that judges from Sri Lanka’s superior courts and senior lawyers, including those from the Attorney General’s Department, have served and continue to serve as judges in foreign jurisdictions.

Article 105 of the Constitution recognises the Supreme Court, the Court of Appeal, the High Court and other Courts of First Instance as institutions for the administration of justice for the purpose of protecting, vindicating and enforcing the rights of ‘the People’. This Article also confers on Parliament the power to “ordain and establish” any additional Courts of First Instance and/or institutions as it deems fit.

The Constitution further outlines the jurisdiction, powers and composition of the Supreme Court and the Court of Appeal and allows Parliament to provide  the same for the High Court (The Constitution specifies the powers allocated to High Courts under Article 154P, through the Thirteenth Amendment). In relation to judges of the High Court, the Constitution only provides that the President should make such appointments on the recommendation of the JSC which needs to consult the Attorney-General.

The Constitution also provides for the appointment procedure of Supreme Court and Court of Appeal judges, including the number of judges, the ages of retirement and security of office of such judges. However, there is no provision in the Constitution that requires Sri Lankan citizenship as a criterion of eligibility in appointing judges.

The appointment of other judges and judicial officers of Courts of First Instance is not directly provided for in the Constitution. It should, however, be noted that the Constitution vests in the JSC the power to appoint, promote, transfer and exercise disciplinary control over a judge, presiding officer, or member of any Court of First Instance, tribunal or institution created and established for the administration of justice. The JSC may make rules regarding the schemes of recruitment and training, appointment promotion and transfer of judicial officers.

However as the Constitution authorises Parliament to ‘ordain and establish’ Courts of First Instance as it deems fit, there appears to be no bar for Parliament to provide for criteria regarding the appointment of judges and judicial officers of Courts of First Instance. In fact Parliament has on several occasions in the past provided for criteria through statute.

It must also be noted that the Constitution makes it mandatory for any Judge of the Superior Courts, or any judge, presiding officer or member of any other Court of First Instance, tribunal or adjudication institution, to take an oath swearing that they will faithfully perform the duties and function of their office in accordance with the Sri Lanka’s Constitution and laws; be faithful to the Republic of Sri Lanka; and uphold and defend the Constitution.

Thus, there is no express bar for non-citizens of Sri Lanka to subscribe to this oath. Nor does the oath require the person taking it to renounce fidelity or allegiance to any other country or sovereign. In light of these constitutional provisions, it is incumbent on those asserting that there is a legal barrier to explain the legal basis of this assertion.

Continuous Failure By Successive Governments to Deliver on Accountability

The larger question though arises around whether the present structural framework can provide for accountability for serious violations of international human rights law and international humanitarian law. Despite numerous promises, limited progress has been made since 2015 to hold alleged perpetrators to account. This inability to prosecute and convict can be attributed to a range of reasons including the politicisation of processes and institutions, interference with investigations, impairing the integrity of evidence and protection issues among others.

A recent study done by the Centre for Policy Alternatives (CPA) highlighted several reasons for the delays with investigations and prosecutions that contributed to the entrenched culture of impunity. The levels of impunity ascribed to former military officials was most recently evidentin the Supreme Court when a leading President’s Counsel even alluded to how ‘war heroes’ could have ‘killed anyone and suppressed it’ in 2009.

The lack of genuine progress with prosecutions and convictions compound why justice will remain elusive to victims in the present domestic structure. Recent successful attempts to prevent arrests in key cases is also an indicator of how some are able to manipulate the justice system in Sri Lanka, raising with it the question whether the judiciary is truly independent.

The authors have previously noted the need to consider the contours of a judicial mechanism and the composition of both national and international actors in such a structure. Sri Lanka has had several prior instances where internationals have advised and monitored processes. This include the appointment of commonwealth justices to the Commission of Inquiry investigating the killing of Lieutenant General Denzil Kobbekaduwa; the appointment of the International Independent Group of Eminent Persons (IIGEP) in 2005; and the Advisory Council in 2014. Incidentally, the IIGEP and the Advisory Council were both appointed by former President Mahinda Rajapaksa, who is at present one of the most vocal opponents of foreign participation in a judicial mechanism.

Furthermore, in a national consultation conducted in 2016 to gather views of the public on the proposed transitional justice mechanisms, the Consultation Task Force (CTF) was able to speak to thousands across Sri Lanka with findings demonstrating a lack of trust and confidence with existing mechanisms. A key finding in their deliberations and one that has been most contentious is the need for the participation of foreign judges in a future judicial mechanism.

While the CTF and others who promoted the need for foreign participation were attacked, mostly on nationalist lines rather than any coherent legal argument, there is no denying that justice in the domestic courts remains elusive to many. Despite the legacy of commissions established by numerous governments, many victims have no answers as to the whereabouts of their loved one. In other instances where information is known, there is no or limited progress with justice. This has contributed to a lack of trust with the present system and is what fuels calls for justice in international settings.

The Need for Truth and Justice in Sri Lanka

Recent statements contradicting what was committed to in 2015, viewed in context with previous statements by some senior members in Government, indicate the diverse and vociferous opposition towards a genuine and credible justice process within Sri Lanka. These oppositions are often cloaked in arguments of public sentiment. However, despite perceptions to the contrary, there is considerable public support for accountability. In a recent surveyconducted by the Social Indicator 49.3% of the participants said it was extremely necessary that redress for victims affected by civil unrest in the past is addressed while 22.5% believe that it is somewhat necessary to investigate into and hold the perpetrators accountable before the law. Respondents from all communities were of this opinion, with the highest support being among the Muslim community (89.4%) followed by the Up Country Tamil community (87.4%), the Tamil community (86.2%) and the Sinhala Community (67%).

The same survey indicated that 72.4% of Sri Lankans believe that it is important to know the truth about alleged crimes against humanity committed by all parties during the three-decade long conflict in Sri Lanka. The support for accountability and truth-seeking comes at a time when both were promised but progress limited. These findings, taken with the findings by the CTF and others, demonstrate that there is a significant number who support truth and justice in Sri Lanka.

In spite of this support, leaders within the present Government continue with slogans of “looking forward, not back” and of “not opening old wounds” or of the importance of “restorative justice as opposed to retributive justice”. However, here again their rhetoric lacks substance and does not deal directly with the demands of citizens for truth and justice. The rhetoric is also disingenuous as it fails to provide any articulation of how the Sri Lankan State can prevent future cycles of violence or as to how there can be genuine reconciliation in a context where there are widely differing narratives of the causes of the war and circumstances in which it ended.

In this context, the lack of real progress with accountability have entrenched the mistrust held by victims and many others in state institutions and actors. But the need for justice cannot be discounted. It is in this context the need to inject energy into the transitional justice process in Sri Lanka is critical. The Sri Lankan State is responsible for the prevention of future cycles of violence and ensuring long term peace and stability. In the context of the UNHRC resolutions, this means initiating time bound steps to fully implement what was promised in 2015. Having obtained two more years the Government must not squander this moment by making false excuses to address accountability. We must demand for what was promised. Sri Lankan citizens deserve nothing less.

Editor’s Note: Also read ‘UPDATE: Flip-flopping on Accountability – A Timeline’ and ‘A Question of Political Will: Unpacking de Silva’s Comments on Foreign Judges’

Another UN Human Rights Council resolution on Sri Lanka… (an explainer)

Mar 29, 2019

Been following recent developments on Sri Lanka at the UN Human Rights Council but unsure of what it all means? In this explainer, we try to answer some of the key questions.

I gather something important happened in Geneva last week. What’s it all about?

That’s right. The United Nations Human Rights Council (HRC), which is based in Geneva, adopted a resolution – a kind of written decision – on ‘promoting reconciliation, accountability and human rights in Sri Lanka.’ The resolution requests the Office of the UN High Commissioner for Human Rights (OHCHR) to continue to monitor the government of Sri Lanka’s progress in dealing with these issues over the next two years.

Hang on. What is the Human Rights Council anyway? And who is the UN High Commissioner for Human Rights?

The UN Human Rights Council is the world’s foremost body for the promotion and protection of human rights around the world. It is made up of 47 member states (i.e. countries) who come together to deliberate and take decisions at the the three ‘sessions’ of the HRC that are generally held each year. This month saw the HRC’s 40th session, hence why you may have heard the meeting being referred to as ‘HRC 40’ and why the resolution mentioned above is called ‘Resolution 40/1’.

The UN High Commissioner for Human Rights is the most senior official within the United Nations system with responsibility for human rights. The wider office which they preside over is known as OHCHR, the Office of the UN High Commissioner for Human Rights. Their job is to help coordinate the UN’s work with respect to human rights, and to champion human rights globally. The current UN High Commissioner for Human Rights is Michele Bachelet, who replaced Zeid Ra’ad al Hussein in September 2018.

This sounds familiar. Hasn’t Sri Lanka come before the HRC before?

Yes. More than once. In October 2015, shortly after Sri Lanka’s former President Rajapaksa was ousted from power, the HRC adopted Resolution 30/1, which was also on ‘promoting reconciliation, accountability and human rights in Sri Lanka’. It followed the release of a ground-breaking UN report, known as the ‘OISL report,’ which found credible evidence of atrocities being committed during the final stages of Sri Lanka’s civil war in 2009.

That particular resolution was significant in that it was adopted with the unanimous support of HRC member states, and co-sponsored (i.e. formally supported) by Sri Lanka’s then recently elected national unity government, headed by President Sirisena and Prime Minister Wickremesinghe. The resolution marked a welcome change from earlier attempts by the HRC to engage with Sri Lanka in the aftermath of the civil war – efforts which had previously been rejected by the government of Mahinda Rajapaksa, and which left HRC members divided.

What’s the point of all these resolutions? And why have there been so many?

When it was adopted in October 2015, Resolution 30/1 was envisaged as a kind of blueprint for action by the government of Sri Lanka. It contained a range of specific commitments designed to help improve the human rights situation and to address the legacy of Sri Lanka’s war – a war in which tens of thousands of civilians are believed to have been killed, mostly by government forces, and in which both sides are alleged to have committed grave human rights violations.

There are about 25 specific pledges in total, covering things like returning military held lands to civilian owners, setting up a mechanism to trace disappeared persons and, crucially, establishing a justice mechanism with international involvement to investigate alleged war crimes. The full range of measures are often referred to under the umbrella label of ‘transitional justice’.

Over the past three-and-a-half years, we’ve been monitoring the government of Sri Lanka’s progress in implementing its commitments. As our latest findings attest, the pace of change has been extremely disappointing. That is a view that appears to be shared by the UN High Commissioner for Human Rights who, in her recent report on the matter, highlighted the absence of “concrete results,” the growing “mistrust among victims”, as well as the “risk of new violations” posed by the failure to deal with past ones.

The purpose of Resolution 40/1 is therefore to renew the commitments contained in Resolution 30/1, and to ensure that international scrutiny of Sri Lanka’s efforts to deal with the past continues. It is the second such ‘roll-over’ resolution, the process already having been extended once by Resolution 34/1 in March 2017.

But why does the government of Sri Lanka continue to support a process which it seems to have so little interest in delivering on?

Good question.

To be sure, it’s important to recognise that the government of Sri Lanka has made some (albeit very limited) progress as a result of the Geneva process, including for example establishing an Office on Missing Persons and returning lands to civilian owners. But it is impossible to ignore that the government has failed to deliver on the overwhelming majority of it pledges, and indeed that it has openly rejected some of its most important ones.

The government of Sri Lanka’s delegation to the latest HRC session provided a striking demonstration of this when, in the very same speech in which they stated that they would co-sponsor Resolution 40/1, they emphasised that Sri Lanka could not and would not establish an accountability mechanism with international involvement do handle war crimes allegations. Such a mechanism is regarded by many as essential for ensuring that the perpetrators of serious human rights violations can be brought to justice.

Prior to the recent session, there had also been concerns that the government of Sri Lanka would seek to withdraw its support from the HRC process entirely. These were fanned when President Sirisena’s announced his decision – later partly reversed under pressure – that his country’s delegation would include several individuals well known for their opposition to previous resolutions.

In the event, it appears that the government of Sri Lanka calculated that signing up to the resolution was preferable to opposing it, possibly fearing the prospect of a ‘contested resolution’ being adopted by a majority of HRC members, and the souring of diplomatic relations that that would likely entail.

So… is the passing of the latest resolution a good thing?

Insofar as it keeps the government of Sri Lanka in the spotlight, and under pressure to deliver truth, justice and reconciliation to those who have suffered serious human rights violations, the adoption of Resolution 40/1 represents a victory.

That said, it will be hard for many – particularly victims – to feel overly enthused about the extension of a process which has delivered so little to date and which the government is, in many respects, openly hostile to. The growing frustration of war-affected communities, particularly Tamils in the North and East of Sri Lanka, is reflected in the often-heard remark that the continuation of the Geneva process amounts to little more than a ‘time-buying exercise’ on the part of the government.

It is a legitimate line of criticism that members of the international community would do well to heed. Besides a push for the government of Sri Lanka to adopt a ‘time-bound implementation strategy’, there appears to be little else being put on the table at this moment in time that might  seriously alter the government’s current calculation that a minimalist approach to dealing with the past is in its best interests.

That needs to change, and it is up to the international community to help make it happen. Despite a welcome intensificationof language from HRC members during the recent session on the urgent need for accountability in Sri Lanka, it is essential that this now translates into concrete action.

Such action could include, for example, a strengthening of efforts to investigate and prosecute those responsible for serious human rights violations outside the country in accordance with the doctrine of ‘universal jurisdiction.’ Or it could mean looking seriously at the idea of establishing a mechanism – as currently in operation in relation to the war in Syria – to collect, consolidate and preserve evidence of war crimes so as to improve the chances of prosecutions in the future.

So too, countries ought to be urgently reviewing whether the current levels of cooperation and support being extended to the Sri Lankan armed forces is really appropriate in a context in which perpetrators of mass atrocities are not only being protected but actively promoted – and in which allegations of serious ongoing violations, including torture and sexual violence, persist.[1]

What’s next then?

To put it mildly, things are not off to a good start. Just days after attending the HRC session in Geneva, a member of Sri Lanka’s official delegation, Suren Raghavan, claimed in a Sri Lankan newspaper that the UN High Commissioner for Human Rights had, during a private discussion with him, disowned parts of her recent report on Sri Lanka. This was met with a rapid and robust response from OHCHR, who stated in a press release that Raghavan’s claims “seriously misrepresent[ed]” the discussions with the High Commissioner, and that they were based on either misunderstanding or misquotation.

Things then went from bad to worse yesterday, when President Sirisena delivered a speech in which he sought to deny having any knowledge of his government’s support for the resolution, and that it represented a “betrayal” of Sri Lanka’s armed forces which he would not “in any way accept.” He is also reported to have taken aim at the National Human Rights Commission and the Office on Missing Persons – whose recent work has represented one of the few areas of progress in recent times – as the product of an LTTE (‘Tamil Tiger’) inspired conspiracy.

All of this underscores the scale of the challenge before the international community. Not only must they find ways to navigate the prevailing state of political dysfunction in Colombo, which seems to be the source of so much of the gallery-playing rhetoric highlighted above. They must also get to grips with the fact that, by and large, Sri Lanka’s current government is no longer (if it ever truly was) a willing and cooperative partner in efforts to seriously and meaningfully deal with the past.

It is that assumption which has been one of the central pillars upon which the international community’s engagement with Sri Lanka in recent years has rested. As that pillar weakens, it is essential that the world shifts its weight accordingly.

Footnotes:

[1] In a striking and important passage of her report, the UN High Commissioner corroborated such allegations, stating in paragraph 56 that: “OHCHR has continued to receive credible information about cases of abduction, unlawful detention, torture and sexual violence by Sri Lanka security forces, which allegedly took place in 2016 to 2018. A preliminary assessment of the information received indicates that there are reasonable grounds to believe that accounts of unlawful abductions and detention and of torture, including incidents of sexual violence against men and women, are credible, and that such practices might be continuing in northern Sri Lanka.”