By Sanja De Silva Jayatilleka –

Sanja De Silva Jayatilleka

Sri Lanka’s head of delegation to the Universal Periodic Review (UPR) in Geneva, Dr. Harsha de Silva, making his presentation to the UPR Working Group, said with reference to Resolutions 30/1 and 34/1, “I wish to reaffirm our firm commitment to ensuring their implementation”. He also said that the Unity government had ended the “acrimonious relationship that the former Government maintained with the Human Rights Council, by calling for repeated votes every year”, by cooperating to achieve a consensus and co-sponsoring the resolutions on Sri Lanka instead.

Secretary to the Foreign Ministry, Prasad Kariyawasam, responding to questions from member states, echoed this assurance when he said that Sri Lanka’s “commitment to implementation of Resolution 30/1 remained very firm”.

According to media reports, before the Sri Lankan delegation left for Geneva to attend the Review of Sri Lanka’s human rights record at the UN Human Rights Council, head of delegation Dr. Harsha de Silva said that Lord Naseby’s findings that the numbers of civilian deaths during the last stages of the war could well be under 8000 rather than 40,000 or more, was of no direct relevance to the UPR process.

President Sirisena had himself written to Lord Naseby, in addition to the letter sent by State Minister for Foreign Affairs, Mr. Vasantha Senanayake, thanking him for his efforts, indicating that the President views Lord Naseby’s revelations as relevant and welcome.

The President’s letter dated 2^nd November 2017 was tabled in parliament by State Minister Vasantha Senanayake on the 14^th of November and appears in the Hansard of Nov 14^th as a footnote to his speech. It is curious that the fact that the President had written to Lord Naseby to thank him did not appear in the media and that the Sri Lankan delegation to the UPR chose not to appraise the Council of the contents of Lord Naseby’s revelations. Even more curious, there is reliable information that while Lord Naseby is aware of the President’s gesture, the letter itself has not yet reached him, being strangely held up by someone, somewhere.

Sri Lanka’s renewed “very firm commitment” to Resolution 30/1 (of 2015) and 34/1 (of 2017) without any reservation whatsoever, will do nothing to deter the mythical figure of 40,000 from continuing to be repeatedly quoted in the global media.

The question remains for the citizens of Sri Lanka if this is also the view of President Sirisena, who has recently stated that the armed forces will not have to face a judicial inquiry based on unsubstantiated allegations. 

To recall some of the commitments in Resolution 30/1, the following paragraphs include some provisions that Sri Lanka reaffirmed its commitment to the implementation of:

“Takes note with appreciation of the oral update presented by the United Nations High Commissioner to the Human Rights Council at its twenty-seventh session, the report of the Office of the High Commissioner on promoting reconciliation and accountability in Sri Lanka and its investigation on Sri Lanka requested by the Human Rights Council in its resolution 25/1, 2 including its findings and conclusions, and encourages the Government of Sri Lanka to implement the recommendations contained therein when implementing measures for truth-seeking, justice, reparations and guarantees of non-recurrence;”

The Operative paragraphs of the Resolution includes the following:

“Welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system, notes with appreciation the proposal of the Government of Sri Lanka to establish 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 authorized prosecutors and investigators;”

“Also encourages the Government of Sri Lanka to introduce effective security sector reforms as part of its transitional justice process, which will help to enhance the reputation and professionalism of the military and include ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law, including members of the security and intelligence units;”

Despite Dr. Harsha de Silva’s assertion about the previous regime’s relationship with the Council, taking a vote in the Council is not considered “acrimonious” and is a legitimate and often used mechanism for ascertaining the majority view of the Council, although there may have been other indicators of an “acrimonious relationship”. As for Resolutions 30/1 and 34/1, when the country concerned co-sponsors a resolution, other countries don’t object to their adoption, although dissenting views were expressed at the time by some states.

In the official written submissions which form part of Sri Lanka’s review, there were a number of references to Resolution 30/1 by Governments, Special Rapporteurs and NGOs alike. This Resolution and the discourse surrounding it had been deeply influenced by the inclusion of the figure of 40,000 deaths by the Darusman panel and led to calls for Universal Jurisdiction to be applied by all member states of the UN, by the UN High Commissioner for Human Rights.

In addition, several NGOs referred to the following in their written submissions:

• Foreign participation in judicial mechanisms
• Hybrid mechanisms
• International investigators, forensic experts, defense lawyers
• War crimes
• Mass killings and rape
• Crimes against humanity
• Genocide committed against Tamil people

As such, it could reasonably be thought that any evidence that helps to established that the genocidal figure of 40,000 was indeed a baseless allegation and that credible sources including the British Defense attaché had in confidential communications suggested it was less than 8000 including combatants, would most certainly be directly relevant.

‘Transitional Justice’ which first made its appearance in Resolution 30/1, is supposed to apply when ‘massive past abuses’ are alleged. The ‘security sector reforms’ which form part of TJ surely flows from such an assumption as well.

At the UPR, the US, France, Germany, Canada, Ireland, Australia and Denmark were among others who recommended the implementation of 30/1, but they needn’t have worried. Canada was one of the countries that mentioned foreign investigators, judges, investigators and prosecutors.  Several countries mentioned Transitional Justice and the OMP.

Sri Lanka’s National Report was commended by many delegations due to its consultative process and its comprehensive nature. Many delegations also commended Sri Lanka’s progress on previous recommendations and the standing invitation to ‘mandate holders’ (UN Special Rapporteurs).  The Sri Lankan Permanent Mission had done its work competently in informing other member states of Sri Lanka’s progress and the many measures taken by Sri Lanka to improve all human rights in the country such as poverty reduction, women’s rights, right to education and right to health and its National Human Rights Action Plan among others. The UPR process was conducted in a cooperative and constructive manner by all member states.

In his concluding remarks Dr. Harsha de Silva informed the Council that Sri Lanka was the oldest democracy in Asia with a social market economy and the document proposing the government’s Vision 2025 had been distributed to all members of the Council.

The final report which will include the recommendations that Sri Lanka accepts, will be adopted on Friday the 17^th of November. This UPR has revealed beyond any doubt the present government’s “very firm commitment” to the implementation of the two Resolutions it co-sponsored, despite the President’s declared reservations on at least some of its provisions and their implementation.