Things are looking pretty grim suddenly for the incumbent ‘rainbow’ government, three years and two months after it came to power on a promise to honour international community’s call to implement the co-sponsored UN Resolution 30/1, especially as it appears to be at a crossroads due to political infighting, crisis of leadership, and the recent spate of communal violence that shook the nation.
In response to the ugly communal clashes in Ampara and Kandy and the ‘no show’ on the meaningful reconciliation process by Sri Lanka, United Nations High Commissioner for Human Rights, Zeid bin Ra’ad Zeid al-Hussein, whose tenure ends this September, came down hard on Sri Lanka’s lack of interest to end impunity and requested member States to explore the possibility of applying the principle of universal jurisdiction to prosecute Sri Lanka’s war criminals.
He said in a statement, “I am very alarmed by recurring and continuing episodes of mob violence targeting ethnic and religious minorities, particularly Muslims, including most recently in Ampara and in several locations in the Kandy District, leading to the declaration of a nationwide State of Emergency for 10 days.
“There should be no impunity, either for the incitement that led to the attacks, or the attacks themselves. I have repeatedly urged the Government to advance its implementation of the transitional justice agenda.”
Adding that he regrets the absence of meaningful progress he also said that it is urgent for the sake of the victims that progress be made on accountability and transitional justice. “In the absence of such progress I would encourage Member States to explore the use of universal jurisdiction,” he stressed. It is also important to note that United Nations (UN) Political Chief Jeffrey Feltman, who was in Sri Lanka from 8 March and ended his tour yesterday (10), had visited the places where the riots took place.
He also met Tamil National Alliance Leader R. Sampanthan Friday who briefed him on the situation following the recently concluded Local Government elections and urged the Under-Secretary-General that the international community must play a constructive role in ensuring the Constitution-making process. If it abandons the process it would only means that the State is unable to comply with the Resolution unanimously adopted by the Sri Lankan Parliament for the enactment of a Constitution for Sri Lanka as one single undivided indivisible country.
He also stressed that the resolution must be implemented fully. Feltman responded that he has raised concerns with President Maithripala Sirisena with regard to some of these matters and assured further that he would brief the High Commissioner of the UNHRC on his return about the concerns raised by the TNA.
Sri Lanka in Geneva
Many factions within the Sri Lankan society, rights groups and politicians, have flown to Switzerland to attend the 37th session of the United Nations Human Rights Council (UNHRC) to voice their grievances, political agendas and human rights related issues.
The session has already began and Sri Lanka would be taken for review on 21 March 2018 and the expectations for this session have, to date, been fairly modest among all concerned, as there will not be a further Resolution at the Council this time around. Instead, High Commissioner Zeid will present his Interim Report on Res 30/1-34/1 and there will be opportunities for member States to make statements (either of concern or praise) during the general debate on 21 March. The real variables are really how many countries issue statements, and how strong they will be.
The government has clearly been ‘working hard’ to offer Council members something to be positive about. The appointment of the Office of the Missing Persons (OMP) officers, the passing of the ED Bill and the (rumoured) proposed new Sri Lankan Counter Terrorism Act (CTA) replacing the Prevention of Terrorism Act (PTA), that has drawn concerns are all rather conspicuously timed. However, it is speculated the recent anti-Muslim violence – combined with the Human Rights Chief Zeid’s very strong remarks – ‘may’ prompt Council members to reflect on some of the very fundamental issues that are yet to be addressed, in particular on accountability and ending the culture of impunity, and could lead to some quite robust responses from member States including those who, until a week ago may have been ‘on the fence’.
Also, Canada’s Minister of Foreign Affairs, Chrystia Freeland, on seeing the spate of communal violence has reminded Sri Lanka that the government should ensure the safety and security of all minorities, highlighted the frustration persisting among those trying to heal the wounds inflicted by Sri Lanka’s civil war. “Ensuring that diversity and pluralism are valued is critical to the work of reconciliation in the country,” she noted.
Human Rights defender Ruki Fernando who was in Geneva recently spoke of transitional justice commitments Sri Lanka has undertaken. He noted that the government re-affirmed it at the UNHRC Session in March 2017. The High Commissioner was asked to monitor and assist in the implementation of these commitments, and to present a final report to the UNHRC in March 2019 and an Interim Report in March 2018.
The Interim Report was published last week. However, Fernando noted there will be ‘no major decisions expected in relation to Sri Lanka after this discussion’.
“The Sri Lankan Government has the opportunity to report progress and challenges, and even make new commitments or withdraw commitments made. The UNHRC is a political body consisting of 47 countries represented by their governments, so as is normally the case for any country or thematic issue, the discussions on Sri Lanka is also likely to be held considering domestic politics (e.g. results of local government elections) and international politics (e.g. changing positions of the US Government under President Trump). Reports about 25 countries are expected to be presented and discussed in this way,” he said.
Fernando also said that the government has made very little progress in relation to commitments made two and half years ago. Not only repealing the PTA but also the draft legislation of institutions they promised to set up (Office of Reparations, Truth Commission and Special Court) has not been made available to the public for serious consultations. The government has said it will not fulfil the commitment made to have foreign judges, defence lawyers, prosecutors and investigators in the Special Court. This is reflected in year-long continuous roadside protests in five different locations in the North and East by families of disappeared and similar protests by those whose lands are still occupied by the military. Various other protests by families of political prisoners, students, workers, fisher folk, victims of mega development projects etc. have been happening. Rights activists (including trade unionists, student activists, lawyers, eyewitness of prison massacre, wife of a disappeared man leading a protest in Mullaitivu, a priest who organized a memorial for war dead) have been facing abductions, assaults, death threats, intimidation,
surveillance etc. Just like in other countries, it is natural that these people will try taking their grievances to UNHRC, as they have not been addressed in Sri Lanka, despite complaints, protests, and meetings. “They are likely to present their experiences and demands to member States of the UNHRC and UN officials, through direct meetings, public events like panel discussions and oral statements during the UNHRC. Tamil diaspora groups and groups claiming to represent the interests of the military, such as ones led by former MP and Navy Officer Sarath Weerasekera are also likely to be active in Geneva.”
Admiral Weerasekara’s role
Rear Admiral Sarath Weerasekera, a leading member of Global Sri Lanka Forum (GSLF) told that he is off to Geneva to point that the UNHRC and its Chief Zeid adopted the co-sponsored Resolution in 2015, without a vote from the UN member country, which he says is redundant. He noted he would be lobbying against the ongoing process Sri Lanka has undertaken and also would be speaking at the side events arranged by them. There will also be a photo exhibition and protests planned by the Sri Lankans in front of the UNHRC building.
‘It’s too late already’
Forecasting the upcoming review on Sri Lanka, President of Australian Advocacy for Good Governance in Sri Lanka and also an outspoken defender of human rights and social justice, Lionel Bopage, said that the government that cosponsored the Resolution has been slow in implementing it but suddenly rushes when closer to the deadline. He quotes the OMP as an example where the legislation was passed in 2016 but took two years or so to appoint the officials after Gazette Notification was in 2017. “The ongoing protests on the missing persons reach one year while it could have been addressed to a certain extent, he noted. The government also has delayed the constitutional reforms, repealing the PTA, releasing the private lands to the civilians and releasing the PTA detainees. “So it looks like the government is marking its time hoping ‘something would change’, is my opinion.”
He also noted that the Mahinda Rajapaksa comeback fear has nothing to do with the reform Bills as the former President in his manifesto has mentioned constitutional reforms, hence projecting such fears is baseless.
He added that the ongoing Syria crisis would top the agenda in Geneva, however, the international community and Sri Lankan civil societies should not stop pressurizing Sri Lanka to implement its undertakings in Geneva.
Enforced Disappearance Bill
Research Director Verité Research and a human rights lawyer, Gehan Gunatilleke who is based in UK on the other hand pointed out that an assessment of the implementation status of commitments in HRC Resolution 30/1 reveals that most commitments have not been fulfilled. Many council members may interpret this poor progress as a lack of will on the part of the Sri Lankan Government to fulfil its international commitments, he added.
Sri Lanka signed the International Convention for the Protection of All Persons from Enforced Disappearances, on Thursday (10) at the Treaty Session of the United Nations and the Bill was passed with a majority in Parliament but the Act is for only the future enforced disappearances and will not deal with the past and the incumbent government.
However, the Tamil National Alliance (TNA) criticized the Government for preparing the International Convention for the Protection of All Persons from Enforced Disappearance Act sans retrospective application.
The Joint Opposition also requested to postpone the debate on the Bill. The Bill had already been deferred twice in Parliament amidst objections from the JO ‘probably knowing the outcome of it’.
Gunatilleke is of the view that the enactment of the Enforced Disappearances Act could be a positive move depending on how it is interpreted and applied. He said that it must be interpreted in the broadest possible sense. “There are several elements to the offence of ‘enforced disappearance’. Merely abducting someone does not amount to an ‘enforced disappearance’. First, it has to be done by or with the support of the State. Second, the act must involve deprivation of liberty (such as an arrest or abduction). Third, there must be a further act such as denial of knowledge or a refusal to acknowledge the person’s fate or whereabouts. It is only when this last element is fulfilled that an ‘enforced disappearance’ takes place. The new Act criminalizes enforced disappearance that takes place after the Act comes into force.”
He disagreed with the position that the new Act cannot apply to past cases. “It can, as long as the third element is fulfilled after the Act comes into force. This is the nature of an enforced disappearance – it is a continuing offence. So, the Act’s failure to explicitly mention it as a continuing offence does not mean that it cannot apply to events that took place in the past.”
In the meantime, the Transnational Government of Tamil Eelam (TGTE) is lobbying in Geneva to push the UN member States to make Sri Lanka implement what it undertook in 2015. The TGTE says former US War Crimes Ambassador Stephen Rapp and renowned int’l lawyer Richard Rogers to speak at UN in Geneva on Sri Lanka tomorrow (Monday) in a side event in Geneva.
The TGTE would discuss ‘How the International System has failed to provide accountability for mass atrocities: Ongoing illegal detention, torture and sexual violence against Tamils in Sri Lanka’.
Consultation Task Force on Reconciliation Mechanisms (CTF) and founder Executive Director of the Centre for Policy Alternatives (CPA), Dr. Paikiasothy Saravanamuttu has also emphasized the pivotal importance of swift implementation of the Geneva pledges. While addressing media at the Centre for Society and Religion (CSR), Maradana he said that the four mechanisms were part of the mutually accepted Geneva package. While commending the OMP getting established after a lapse of more than a year, whether it would take the same period of time to implement the second mechanism and such dillydallying by the government is a major concern.
Dr. Nimalka Fernando, who is on the OMP board, said they would start full operation of the Office beginning from April this year and they are in the process of looking for a permanent premises and holding rigorous meetings to establish its full workforce.
200,000 signatures to UNHRC
President of Tamil National People’s Front (TNPF) Gajendrakumar Ponnambalam left for Geneva with some 200,000 signatures to urge the Security Council to engage in investigating the alleged war crimes.
A lawyer and former MP, Ponnambalam who secured nearly 80 seats at the recent LG polls in the Jaffna District alone also left for Geneva Friday and he is of the view that the UN member countries should push the Council to get Sri Lanka work on its initial promise to investigate war crimes with international judges but the government ‘managed’ to convince them to make it a local mechanism.
Over this, Ponnambalam began a signature campaign to hand it at the UNHRC urging the United Nations Security Council to investigate the accountability on the alleged war crimes. One of his Party members in Jaffna pointed out that roughly around 200,000 signatures has been recorded and it would be submitted at the UNHRC session by former MP Secretary of the TNPF Selvaraja Gajendrakumar who will be leaving soon for Geneva.
“The petition calling the UN Security Council to handle the alleged war crime accountability will reach Geneva before Review on Sri Lanka is taken up,” a member of the TNPF said.
He added that despite there is a claim Russia and China will veto, still they’re of the view that whatever happens, they would go ahead with doing their duty as promised to their people.