Category: Featured Headlines

Sri Lanka has cancelled Pakistan Prime Minister Imran Khan’s address to the Parliament, scheduled for February 24, citing COVID-19 constraints. Khan is set to arrive in Colombo for a two-day visit on February 22.

Foreign Secretary Adm. Prof. Jayanath Colombage said Speaker Mahinda Yapa Abeywardena had written to the government, seeking a postponement of the event, saying that due to the COVID-19 pandemic and the virus variant, which has appeared in various parts of Colombo, he is unable to ensure full attendance in Parliament on the occasion.

According to Foreign Minister Dinesh Gunawardena, the government had agreed to a request by the Pakistan Prime Minister to address the Sri Lankan Parliament, and decided the address would be made on February 24. Indian Prime Minister Narendra Modi had addressed the Sri Lankan Parliament in March 2015.

According to unofficial but reliable sources, sections of the government had reservations about the decision to have the Pakistan Prime Minister address the Sri Lankan Parliament as it could sour relations with India. The sources believe India might apprehend the Pakistani leader would raise the Kashmir issue in his address.

Traditionally, the Sri Lankan government has been avoiding the Kashmir issue in deference to India’s sensitivity over the matter. But for Pakistan, the Kashmir issue has been the most important one, the fulcrum of the country’s foreign policy, as it were. If Imran Khan were to raise the issue in the Sri Lankan Parliament it would get him brownie points back home.

By seeking an opportunity to speak in the Sri Lankan Parliament, Imran Khan could also achieve parity with his regional rival, Indian Prime Minister Narendra Modi. But India might demur if Colombo were to equate it with Pakistan.

India-Sri Lanka relations are a bit fragile now, as India is nursing a wound inflicted on it by the sudden cancellation of a deal over the East Container Terminal in Colombo port.

According to an English language daily, the Pakistani Prime Minister is coming to Sri Lanka to strengthen ties with the only South Asian nation with which it has consistently close and good ties. It is undeniable that Sri Lanka-Pakistan relations have been cordial and strong right from the late 1940s when both got independence from Britain.

The All Ceylon Muslim League (ACML), headed by the renowned Muslim leader, the Late, T. B. Jaya, had been a firm supporter of the Pakistan movement through the 1940s. As the ACML was an ally of the then dominant United National Party (UNP), T.B. Jaya was sent to Pakistan as Ceylon’s envoy.

In the 1950s, both Ceylon and Pakistan were in the anti-communist US-led camp. The relationship remained strong even when Ceylon changed its political colour and became pro-Soviet and pro-Beijing during the premiership of Sirimavo Bandaranaike. In fact, Ceylon under Sirimavo Bandaranaike allowed Pakistani military aircraft to refuel in Colombo 174 times during the Bangladesh freedom struggle, when India had banned Pakistani aircraft from flying over its territory. To the latter’s surprise and dismay, Colombo ignored New Delhi’s objections.

Later, in the 1990s, when the West, as well as India, refused to sell or supply weapons to Sri Lanka to fight Tamil separatism and terrorism because they supported the Tamil minority’s political demands or were sympathetic to their plight from the human rights angle, Pakistan stepped into the breach and supplied much needed weaponry. Pakistan’s support had also come at some of the most critical junctures during the war. Pakistani pilots were on hand to advise the Sri Lankan Air Force, which had shifted to the offensive mode for the first time.

Pakistan (along with China and Russia) has been consistently and strongly supporting the Sri Lankan government in international forums on the issue of terrorism and separatism. It has consistently rejected the Western countries’ charge that the Lankan forces had committed “war crimes”.

Sri Lanka is eagerly waiting for Pakistan’s help to garner the support of Muslim countries in the 47-member UN Human Rights Council (UNHRC) in which a hostile resolution against it is likely to be introduced in March. The resolution is expected to call for Sri Lanka’s reference to the International Criminal Court at The Hague.

Pakistan and India are both members of the UNHRC and both can help Sri Lanka fight its case. As a result, Sri Lanka has to humour both, a delicate task.

A key issue that has created internal division in the country is the cremation of those who have succumbed to the Covid virus. This policy of enforced cremations has been mostly opposed by the Muslim community for whom the burial of the dead is a part of their faith. It has also brought international disapproval to the country. The UN Human Rights Commissioner’s January report on Sri Lanka states that “The COVID-19 pandemic has also impacted on religious freedom and exacerbated the prevailing marginalisation and discrimination suffered by the Muslim community. The High Commissioner is concerned that the Government’s decision to mandate cremations for all those affected by COVID-19 has prevented Muslims from practising their own burial religious rites, and has disproportionately affected religious minorities and exacerbated distress and tensions.”

The shift away from international practices with regard to the burial of Covid victims was initially justified on the basis of science. During the early part of the pandemic when less was known about the disease and more stringent methods were adopted to halt its spread, such as the two-month-long 24-hour curfew practised in Sri Lanka, there was a real fear that the coronavirus could be spread through dead bodies and water. However, when the practice of burying those who died of Covid internationally began to be better known and scientists worldwide, and in Sri Lanka, began to downplay the significance of water transmission of the virus, Sri Lanka’s unwillingness to change its policy began to take on another dimension.

Among those who most strongly opposed the burial of Covid victims have been nationalist ideologues and religious clerics with limited knowledge of science. Many of them placed their faith in indigenous cultural practices of producing antidotes to the virus that had no basis in science. These included measures such as pouring pots of water which had been chanted over into rivers and a concoction of honey and herbs as being efficacious in protecting against infection. There have been some amongst the scientific community itself who have identified with these positions on the grounds of belief in the efficacy of indigenous knowledge. The opposition to burial also took on an anti-Muslim sentiment that had escalated following the Easter bombings of April 2019.

Opposition Support

Over the past ten months the government has come under pressure from a variety of sources to change its policy with regard to enforced cremation on both political and humanitarian grounds but to no avail. The main source of pressure has been the Muslim community within the country and their political representatives. They have been supported by sections of the Christian community to whom burial is the traditional way of farewell to the dead. The human rights organisations in the country and internationally also have made numerous appeals including a campaign of tying white ribbons on burial grounds. A further source of pressure has been the international community with governments of Muslim countries making their own representations to the government.

However, the ramping up of local and international pressure only led the government to harden its stance. It appears that a strategy of the government when it is under pressure is to rally its nationalist voter base. The election-winning platform of the government was the need to uphold national sovereignty and not to yield to either international pressure or to the ethnic and religious minorities. The electoral rejection of the leaders of the previous government who were seen as appeasing both the international community and the minorities within the country has been a lesson that has made inroads into the thinking of the main opposition parties who have been cautious in the positions they take on controversial issues. However, when Sajith Premadasa, the main Opposition leader, led a protest against enforced cremations which was also attended by civil society groups, the prospects of a bipartisan approach to resolving the problem became possible.

Prime Minister Mahinda Rajapaksa’s declaration in parliament last week that burials would be permitted even in the case of Covid victims was welcomed both locally and internationally and has not been politicized by the opposition parties. Ironically, the prime minister’s statement has been contested within the government and not been immediately operationalized. A ruling party parliamentarian had the audacity to say that the prime minister was referring to burials in general and not to Covid burials in particular. The Minister of Health has announced that the matter still needs to be assessed by a committee of experts prior to a final decision being taken. The problem is that different committees of experts have been coming to different conclusions depending on the degree of nationalism they espouse.

International Support

President Gotabaya Rajapaksa is reported to have informed ambassadors of Western countries who met him that the political decision regarding Covid burials had been taken and what remains is to implement the decision through the Health Ministry. The president is trying to find his way amongst contending powerful forces. The fact that the mainstream opposition parties are also supportive of following the WHO guidelines with regard to the option of burials would be reassuring to the government that this matter would not be politicized to its disadvantage. The problem that the government faces would be confined to an internal one which can more easily be resolved as it is in the self-interest of government members to come to a unified position on these issues.

The manner in which the Covid burial issue is being addressed suggests the way forward with regard to the issue of the upcoming session of the UN Human Rights Council in Geneva. Sri Lanka has been at the receiving end of a very strong report by the UN Human Rights Commissioner which recommends that a variety of punitive sanctions be utilized against the government leaders and those accused of human rights violations. It warns of the accelerating militarization of civilian governmental functions, a reversal of important constitutional safeguards, political obstruction of accountability, intimidation of civil society, and the use of anti-terrorism laws. The report also has several recommendations to the Sri Lankan government. Addressing the issue of the UN report and the recommendations it makes needs to be seen as a national issue in which the government and opposition work together without politicizing the issue for their own partisan advantage.

The issues being canvassed in Geneva are primarily about matters that concern the people of Sri Lanka. The recent march by Tamil and Muslim political parties and civil society groups from the east to the north highlighted issues such as the takeover of land, settling of Sinhalese and construction of Buddhist temples, the neglect of families of the missing, stopping memorials to the dead, and problems faced by cattle farmers. These are matters that are in the interests of all Sri Lankans to peacefully resolve regardless of their communities and political affiliations. Just as the opposition leadership has given its support to the practice of WHO guidelines for the disposal of Covid bodies it needs to give its support to the resolution of these issues of the past and the present. If the government and opposition leaderships are united in their resolve to address the grievances of the ethnic and religious minorities we can be assured that the international community will seek to support Sri Lanka rather than to engage in punitive measures.

When the nationalist forces within the government led by Wimal Weerawansa opposed the 20th Amendment to the Constitution, including the clause that permitted dual citizens to hold public office, SLPP national organiser Basil Rajapaksa was able to garner the support of a group of Muslim MPs to vote in favour of the Amendment.

In this backdrop, it has now been revealed how Basil Rajapaksa was able to secure the support of Muslim parliamentarians. Members of the Sri Lanka Muslim Congress (SLMC) said that they supported the 20th Amendment to the Constitution because the government had stated their desire to allow the burial of Muslim Covid-19 victims.

SLMC MPs Faizal Cassim, H. M. M. Harees, M. S. Thowfeek and Anwer Shamed had voted in favour of the 20th Amendment.

Elaborating further, SLMC MP Faizal Cassim said,

However, leader of the SLMC, MP Rauff Hakeem, said that the party has decided to pardon the MPs who voted in favour of the 20th Amendment if they seek forgiveness from the party and the general public.

The decision to pardon the MPs subject to certain conditions was taken when the Supreme Council of the SLMC convened yesterday (14), SLMC leader Rauff Hakeem said.

Sri Lanka says there is no move to withdraw the Navy from the Chinese funded Hambantota Port.

The Government said that President Gotabaya Rajapaksa has clearly informed China that the security of the port will be in the hands of Sri Lanka.

Cabinet co-spokesman Udaya Gammanpila, speaking to reporters at the post Cabinet virtual press conference today, said that the President had conveyed Sri Lanka’s position during talks with the Chinese Government, just after after he took office.

Following the signing of an agreement in December 2017 with China, the Hambantota port operations were handed over to Hambantota International Port Group (HIPG) and Hambantota International Port Services (HIPS).

Concerns have been raised in the past, particularly by India, over China’s involvement with the Hambantota Port.

There had been concerns the port will be used by the Chinese for military activities but the Chinese Government rejected the claims.

(Editor’s Note: This is the sixth article of a series on the likely spotlight to be placed on allegations of war crimes and other abuses in Sri Lanka during the next session of the United Nations Human Rights Council, beginning Feb. 22. The series includes voices from former U.N. officials, international NGOs, human rights litigators, and researchers. The full list will appear, as installments are published, at the end of the first article, Spotlight on Sri Lanka as UN Human Rights Council Prepares Next Session.)

Former U.N. High Commissioner for Human Rights Navi Pillay says the Sri Lankan government has made clear it has no serious intention of pursuing accountability for alleged war crimes and crimes against humanity during the country’s civil war that ended in 2009, and that as a result, the U.N. Human Rights Council must act. Successive high commissioners have made increasingly strong statements calling for a comprehensive process of accountability, she said, based on successive U.N. reports outlining what she describes as “credible evidence that the Sri Lankan state itself committed international crimes.”

“It is time for the HRC to make a drastic departure from its customary complacency over the failures of the Sri Lankan government and hold it to account,” Pillay said.

I interviewed the former high commissioner, who served from 2008 to 2014, about the role of her office in addressing the humanitarian crisis in Sri Lanka in the final stages of the war and since that time, and her views on what the council should do at its upcoming session.

The last six months of Sri Lanka’s civil war inflicted mass numbers of civilian casualties and caused international outrage. What was your role as high commissioner in responding to this crisis?

The last six months of Sri Lanka’s civil war in 2009 were played out live on world television screens. We watched the Sri Lankan army shoot to death the alleged leaders of the terrorist group, the Liberation Tigers of Tamil Eelam (LTTE), even as they raised white flags in surrender. We watched extensive aerial bombing of Tamil civilians and destruction of their homes, hospitals, and places of refuge. The onslaught continued well after the capture and killing of the alleged terrorists. We heard the last cries for help from doctors who were treating the injured in hospitals that were being shelled.

International humanitarian law (IHL) protects the lives of civilians in armed conflict. The two firm principles of “distinction” and “proportionality” of the Geneva Conventions and Additional Protocols apply to both governments and non-state actors in all situations of armed conflict. Direct, indiscriminate, and disproportional military attacks violate the principle of proportionality where they exceed the anticipated concrete and direct military advantage. Distinction dictates that parties must distinguish between civilians and combatants.

Sri Lanka informed the international community that it was exercising its sovereign right to contain terrorism inside its territory; and so no international forum — not the U.N. Security Council, not the U.N. General Assembly, nor the Human Rights Council — addressed the situation until June 2, 2009 when, in my capacity as high commissioner for human rights, I placed the matter on the agenda of the Human Rights Council (HRC). I reported serious human rights violations to the HRC, including loss of thousands of civilian lives, rape and sexual violence against women and girls, and forced dislocation of Tamils. The HRC and U.N. bodies have a role in the protection of human rights in crisis situations. I recommended that the council establish an independent international inquiry into grave violations of International Human Rights Law (IHRL) and International Humanitarian Law (IHL).

In the absence of national investigations, international inquiries establish the facts and determine whether there is evidence of the commission of international crimes. Commissions of inquiry established by national and international bodies make critical contributions by providing independent factual accounts of events to inform international action and ensure accountability for serious human rights crimes. If international experts find evidence of crimes, then states have a duty to investigate and prosecute the perpetrators. International accountability mechanisms are considered appropriate when states are unwilling or unable to take action.

The Security Council set up commissions of inquiry in conflicts in former Yugoslavia and Rwanda before setting up the ad hoc international tribunals there, and mandated an inquiry into the Central African Republic. The General Assembly recently established the International, Impartial and Independent Mechanism (IIIM) for the conflict in Syria and the Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) in Iraq. The HRC established numerous international commissions of inquiry, including for Gaza, Syria, DPRK, Eritrea, and Libya, and ordered investigative reports on Sri Lanka and Ukraine.

There have been numerous U.N. reports about the atrocities committed during the conflict. How have you seen these used to advance accountability mechanisms in the case of Sri Lanka?

There have been numerous fact-based reports of atrocities committed during the conflict in Sri Lanka from the U.N., as well as credible reports from international and national NGOs and journalists. The U.N. reports serve as important levers to maintain the issue on the HRC agenda and are persuasive in motivating states to take action to protect against the excesses of the Sri Lankan authorities and to advance accountability mechanisms.

The U.S. ambassador to the HRC at the time, Eileen Chamberlain Donahoe, said that, “In light of the facts that came out in the report (of the U.N. Panel of Experts) the U.S. delegation simply felt compelled to help support a process of transitional justice in Sri Lanka.” The ambassador played an influential role in securing support for the early Sri Lankan resolutions, stating, “We felt that the clear and substantial evidence of war crimes and crimes against humanity committed during the final days of the Sri Lankan civil war simply could not be ignored.”

In 2015, the Sri Lankan government co-sponsored a resolution with the U.N. Human Rights Council that laid out a comprehensive transitional justice framework for the country, including criminal prosecutions with limited international involvement. What is the role of the Office of the High Commissioner for Human Rights (OHCHR) and the council to ensure the government lives up to these kinds of commitments?

Successive high commissioners, including Zeid Ra’ad Al Hussein and the current high commissioner, Michelle Bachelet, together with independent U.N. experts, have made even stronger calls than I did in 2009, calling for a comprehensive process of accountability. All three U.N. reports on Sri Lanka (report of the UNSG’s Panel of Experts, the internal review report and the OISL report) state that there is credible evidence that the Sri Lankan state itself committed international crimes.

All of us drew attention to the failure on the part of the government of Sri Lanka to honor its own obligations and the undertakings it made to the HRC to set up any kind of judicial mechanism to prosecute international crimes, let alone a domestic process. We drew attention to growing authoritarianism, intrusion by the military into civilian activities, attacks on democratic institutions, and persisting violations of the rights of Tamils. We warned of recurrence and pressed for urgent action from the HRC.

What are the trade-offs between domestic versus international accountability mechanisms, and how have these played out in the Sri Lankan context?

The HRC has adopted the course of encouraging Sri Lanka to undertake domestic investigations and reconstruction initiatives. This is in accordance with international law, which places primary responsibility on the state concerned to undertake justice and accountability measures. The international community will only intervene when the state is unwilling or unable to comply. The 2015 HRC resolution was welcomed at the time as an example of comprehensive, domestic transitional justice, with the U.N. playing a supportive role. The resolution received the support of the Sri Lankan government, together with their repeated undertakings to comply in full.

Twelve years on from the end of the war, the Sri Lankan government has failed to make any meaningful progress towards accountability for international crimes, reparation for victims, or accountability for disappearances and land dispossessions. Only a single perpetrator was convicted — in 2015, Army Sergeant Sunil Ratnayake was sentenced for the murder of eight civilians including a 5-year-old child in 2000. Both conviction and sentence were confirmed by the Supreme Court of Sri Lanka in May 2019. Yet the president pardoned Ratnayake, in willful defiance of international law against impunity.

What do you think of the most recent OHCHR report’s recommendation to establish an international investigative mechanism for Sri Lanka to collect evidence for international or foreign prosecutions under principles of universal jurisdiction?

In her recent report, the high commissioner for human rights makes several recommendations to states to exercise collective international action. The HRC, as a subsidiary body of the General Assembly, does not have authority to make a direct request to the Security Council for a referral of the Sri Lanka situation for investigation of international crimes by the International Criminal Court. The report invites individual member states to support such a referral.

The OHCHR report also calls for the exercise of universal jurisdiction by states, and recommends the establishment of an international investigative mechanism, such as the IIIM (the International, Impartial and Independent Mechanism) and UNITAD (the U.N. Investigative Team for Accountability) established by the UNGA for Syria and Iraq. Such a body will ensure the collection and preservation of evidence for future investigations or prosecutions by states under the principle of universal jurisdiction. This is an important step in the preservation of evidence and will enable an ICC prosecution in the event of a Security Council referral, or in the event of the establishment of an international criminal tribunal or for national prosecutions. It is hoped that the threat of universal jurisdiction cases will move the Sri Lankan government to at least prosecute the emblematic cases.

We often talk about the need to end impunity, not just for victims of past crimes, but to improve human rights conditions in the present. To what extent is this what we are seeing in Sri Lanka today?

The high commissioner’s report paints a graphic picture of a rapidly deteriorating human rights situation in Sri Lanka. Whereas previous reports of high commissioners recorded failures of compliance with HRC resolutions by the Sri Lankan government, the current report goes much further in detailing not just failures to act, but active obstruction by the government of any effort to secure justice and accountability. The alarm raised by the high commissioner to dangerous trends such as “exclusionary and majoritarian discourse,” giving rise to the risk of recurrence of grave violations of the past must be heeded.

Such a dire prediction of new violations to come from the failure of accountability for the past crimes was made by Zeid and I when we were in office. It is time for the HRC to make a drastic departure from its customary complacency over the failures of the Sri Lankan government and hold it to account for its non-compliance with HRC resolutions.

The bona fides of the government, in its commitment to establish a domestic judicial process for past crimes, was always in question, but is more so now with Gotabaya Rajapaksa assuming the office of the president. He was the minister of defense and commander of the armed forces during the conflict and is named in various reports as the individual most responsible for mass violations during the final attack in 2009. In my meeting with him in 2012, he proudly laid claim to having ended terrorism in Sri Lanka. His exploits are recorded in a book about him, titled “Gota’s War- The crushing of Tamil Tiger Terrorism in Sri Lanka.” Indeed, the LTTE was responsible for a reign of terror, but now that terrorism has ended, why is “Gota’s war“ continuing to be waged against human rights defenders and democratic institutions? (A copy of the book was gifted personally by Gotabhaya Rajapaksa to a high official in the South African Foreign Ministry, who in turn passed it on to me.)

How should the HRC address Sri Lanka at the upcoming meeting?

As the world watches in awe and respect, the swift action taken by the US Congress to impeach the departing strongman for insurrection and attacks on democratic institutions, lessons can be drawn for the HRC. It should similarly act decisively and accept the recommendations made by the HC for justice and accountability in Sri Lanka, and unequivocally hold the perpetrators of grave human rights violations against the Tamils accountable. “Gota’s war” against terrorism must not be allowed to become a war against the rule of law and International standards of conduct towards defeated peoples.

What do you think the United States can and should be doing at the forthcoming HRC session, since it is not a member of the council?

I referred above to the important lead taken by the U.S. in the adoption of the first resolutions against Sri Lanka in the HRC. Although the U.S. is not a member of the HRC and does not have the right to vote, it has the right to address the council as an observer state. There is a role for the U.S. to continue to press for justice and accountability even though President Trump withdrew from the council. The Biden-Harris administration should seize the opportunity to reinforce its support for justice and accountability and make known to the world its return to values-based leadership.

Source:justsecurity.org