By Jehan Perera –

Jehan Perera

The UN Human Rights Council sessions in Geneva no longer dominate the media headlines the way they used to. During the time of the previous government the UNHRC sessions in Geneva were utilized to rally popular support on the grounds that it was needed to counter the hostile intent of the Western-led component of the international community. The former government used to give the most detrimental interpretations to the intentions of the international community and gave the work of the UNHRC the maximum of negative publicity before, during and after those sessions. It accused the international community of seeking to punish those in the Sri Lankan military who had won the war and promised not to betray them. They gave a narrow interpretation to the successive resolutions of the UNHRC since 2009 as being motivated by the desire to punish Sri Lanka and its war heroes.

By way of contrast, the policy of constructive engagement of the successor government in office since 2015 has succeeded in assuaging the concerns of the general public about the actual nature of the threat posed to the country by the Western-led international community. Most people would now see the government as handling the international community with skill and with tact. More than nine months have elapsed since the government took the unexpected step of co-sponsoring the UNHRC resolution of October 2015 and turned former hostile countries in the UNHRC into friends once more. But the resolution itself is only implemented in part as yet. The pervasive culture of fear that existed under the former government is gone, but only one of the four transitional justice mechanisms that the government promised to establish has appeared, and that too only in draft form.

The UNHRC sessions in Geneva this did not catch the media headlines and stay there for two main reasons. The first is that the present government itself downplays the UNHRC sessions and does not give it publicity, unlike its predecessor. It is aware that what the international community is seeking from Sri Lanka in terms of addressing the human rights violations of the past is fraught with controversy. The three decade long war is over and the military battlefields have been cleared but the divisions of the past continue with the political demands of the Sinhalese, Tamil and Muslim communities not able to find a meeting point. In working out answers to the demands of the UNHRC process, the government prefers to do so with a minimum of publicity as it has not been able to find the meeting point that is minimally acceptable to all three communities.

Statesmanlike Appointment 

The second reason for the UNHRC sessions not to stay long on the media headlines this time was because the happenings in Geneva were eclipsed by domestic political controversies. One was the issue of the reappointment of the Central Bank Governor who had come under a cloud for bond transactions worth billions of rupees. This controversy pitted the two main constituent parties of the government against each other, the Prime Minister supporting the reappointment of the Governor but the President not willing to do so. Better sense has prevailed and a mutually acceptable choice for the position of the Governor of the Central Bank has been made. The appointment of Dr Indrajith Coomaraswamy to the top position in the Central Bank has brought a statesmanlike conclusion to a problem that was threatening to undermine the unity of the government.

Another domestic issue that pushed Geneva into the background has been the public agitation against the increase in the Value Added Tax (VAT) on goods and services. The increase in the cost of living that this has brought about is unpopular with the general population who are struggling to make ends meet. But the government also needs to increase tax revenue to bridge a massive budget deficit and to keep to the agreements regarding good governance and economic rationality that it has made to other financial institutions in order to get financial support from them. The opposition is cashing in on the opposition to the VAT induced price increases, and has been persuading shop owners in different parts of the country to put up their shutters as evidence of public protest. The government’s own position in regard to retention of VAT has been ambivalent with the President making statements that he will ensure the reversing of the tax.

However, it is important to note that the priority that the general public attaches to domestic issues at this time, and relative lack of interest in the human rights-centered processes in Geneva, does not mean that they will go along with the expectations of the international community on issues relating to the UNHRC resolution. The topics of war crimes, foreign judges and devolution of power are politically controversial within the country at this time as much as in the past, and pit the expectations of the ethnic communities against one another. Although they did not dominate the news headlines, there was adverse media commentary on the proceedings in Geneva right through the UNHRC sessions last month. This adverse commentary was not countered by the government, which gave free space to the nationalists on both sides to undermine the government’s credibility. The necessary counter-campaign was missing.

Sequencing Necessary

In his report to the UNHRC, High Commissioner for Human Rights Zeid Ra’ad Al Hussein, appreciated the progress made by the government in a number of areas, but also pointed out that the government has not moved fast enough with tangible measures to build confidence among victims and minority communities and that there are anxieties that the full promise of governance reform, transitional justice and economic revival, risks stalling or dissipating. He said the progress in identifying and releasing land in the North and East still held by the military has been slow. He also said that the military presence in the north and east remains heavy and that a culture of surveillance, and, in certain instances, intimidation, also persists. He said that the fate of persons detained under the Prevention of Terrorism Act (PTA) remains a concern and that while government released on bail 39 individuals detained without charge, the fate of around 250 detainees remain unclear and that more than 40 new arrests reportedly took place in 2015-16.

However, the main unaddressed issue that the High Commissioner made specific mention of was the government’s failure to set up a special court for war crimes and to bring foreign judges, prosecutors and investigators into it to make the accountability process a credible one. He expressed his view that “a valuable step for the Government to quickly build public and international confidence will be to advance some of the emblematic cases pending before the courts and achieve successful prosecutions.” He also said that “I remain convinced that international participation in the accountability mechanisms, as stipulated in the Human Rights Council’s resolution, would be a necessary guarantee for the credibility, independence and impartiality of the process in the eyes of victims given the magnitude and complexity of the alleged international crimes, which the OHCHR investigation found could amount to war crimes and crimes against humanity.”

The problem for the government is that any attempt at this stage to set up a war crimes court and bring in foreign judges will break the unity of the government and provide a fertile ground for the opposition to mobilize people on the streets against it. Already the government is facing severe stresses due to the different positions taken by the two main political parties that form the government on issues ranging from the Governor of the Central Bank to the Value Added Tax. On the other hand, both the international human rights community and Tamil polity are equally convinced that having non-partisan judges who are foreigners will be necessary to ensure the credibility of the accountability process. In these circumstances, the most pragmatic course of action for the government would be to sequence the decision on international participation in the accountability process to a later time. In the meantime the government needs to focus on meeting other targets such as release of land, demilitarization, economic development and improving the devolution of power in practice.