TGTE’s Call for Establishing a UN Monitored International Protection Mechanism in the NorthEast
This paper in the main addresses the question why there is an absolute and urgent necessity for putting in place a suitable UN Monitored International Protection Mechanism, involving a continuing human rights presence in the NorthEast as a form of protection for the Tamil people; in that context this paper seeks the engagement of scholars, human rights advocates and legal luminaries here assembled on the interventions and options available in this regard.
The best form of protection that would guarantee the safety, security, economic prosperity and freedom of the Tamil speaking people would be the restoration of an Independent and Sovereign State of Tamil Eelam. When the TGTE requested for the ‘freedom demands’ of the Tamil people in drafting the Tamil Eelam Freedom Charter, my husband wrote down his vision of Tamil Eelam:
A Tamil Eelam that boasts of an exemplary egalitarian society that is firmly rooted in a coherent and transparent socio-economic-political-legal system that promotes the welfare, mutual respect and dignity of all its citizens including its men, women, seniors, the poor, the handicapped, the infirm, war veterans, war widows and orphans. A Tamil Eelam that works towards eliminating economic disparities among its citizens and to protecting their human rights. That its governance is characterized by strict adherence to the rule of both national and international law as a means to delivering equal justice to all, thereby ensuring social, cultural, linguistic and gender equality and religious freedom; it facilitates equal and unhindered access to educational, employment and economic opportunities and healthcare for all its citizens; it upholds press freedom to buttress the rights of its citizens and their right to assemble freely and protest peacefully any perceived wrong doings and to seek appropriate remedies from an independent judiciary and an independent Human Rights Commission. A Tamil Eelam that aims to establish itself as an intellectual hub and a center for academic excellence that actively promotes innovation, cutting edge technology and enterprise, environmental protection and sustainable development, whilst preserving its natural resources and wealth.
Although the cause for a free Tamil Eelam continues relentlessly and will continue until it is won, given fresh impetus by the promulgation of the Tamil Eelam Freedom Charter, TGTE’s call for establishing a ‘UN Monitored International Protection Mechanism’ in the NorthEast is the right call to make and should be pursued robustly, considering the prevailing dire situation of a highly militarized NorthEast, of rampant and flagrant human rights abuses and need to halt the ongoing systematic structural genocide perpetrated on the Tamil Nationthat’s continuing unabated as we speak.
Other measures such as an ‘interim transitional administration’ in the NorthEast or one similar to the ISGA (Internal Self Governing Authority) proposal may also be considered as a form of protection, but is not within the scope of this paper.
Introduction: The Transnational Government of Tamil Eelam (TGTE) in its 3rd Annual Assembly convened inBuffalo,NY in December 2011 adopted a resolution for action in the ‘Matter of Protecting Human Rights in Tamil Eelam’. In compliance and with a view to giving “form and substance” to the resolution, a ‘task force’ made recommendations underscoring the need for an, “International Protection Mechanism specifically related and dealing with the ongoing violations of international human rights laws and norms committed in the homeland by the Sri Lankan Army of occupation and its political masters,” namely the Sri Lankan government led by Mahinda Rajapaksa.
The TGTE set out a “work programme” that included among other, “engaging constructively with the Office of the High Commissioner for UN Human Rights (OHCHR)and the UN Human Rights Council (UNHRC), pushing for periodic fact finding missions by eminent persons to the Northern and Eastern parts of the island, considering sending task force missions comprising individuals from Tamil Nadu similar to the ‘Green Peace Flotilla to Gaza’, calling on the Co-Chairs & India and other international players with influence to have a summit to discuss current issues and take steps to protect Tamils in the island, creating ‘Village Monitoring Groups’ in major countries (UK, Canada, Australia Geneva and France, etc) to obtain updated information on the ground realities and provide suggestions as to how to address the issues, formulating ideas as to what the international community can do and what the Diaspora Tamils can do, assisting and encouraging the international community in documenting abuses that are happening since the end of the war and take steps to addressing it, liaising with INGOs in dealing with gross human rights violations and identifying any other areas not mentioned in the work programme.”
The TGTE Senate in a document entitled, ‘The Roadmap to Achieving the Restoration of an Independent Sovereign State of Tamil Eelam – A Work in Progress’, presented at the 4th Annual Assembly convened in London, UK in Dec 2012, said it was pleased that the TGTE is giving this initiative high priority and made recommendations for action that included:
- Lobbying for the setting up of an ‘International Protection Mechanism’ to uphold the safety and rights of the Tamil people in theislandofSri Lanka.
- Drawing up a Paper on the legal issues, precedents and new possibilities; approach sympathetic governments, groups, and individuals to take this up at global forums.
- Calling for the immediate lifting of the ban by the Sri Lankan government “on credible international human rights organizations” obtaining free access into the NorthEast with recommendations to demand and campaign for the immediate admission without conditions and restrictions INGOs such as Amnesty International (a Nobel Peace Prize Winner), Human Rights Watch and International Crisis Group into the NorthEast.
- Demanding free access to the NorthEast to members of the International Media without conditions and restrictions.
- Encouraging Investigative Journalists to report on the situation (on the ground) in Sri Lanka.
The need for protecting the human rights of the Tamil people an urgent priority
In pursuing the initiative for an International Protection Mechanism’ the TGTE will continue to engage the UN and the international community to safeguard the physical security, the lives and human rights of the Tamil people in the island and also to help preserve and protect their national identity before it becomes extinct and their homeland is obliterated and lost forever.
The need for protecting the human rights of the Eelam Tamil people and for preserving the Tamil Nationfrom total obliteration has become an urgent priority. This being necessary after the genocidal massacre of tens of thousands of Tamil civilians by the Sri Lankan government of Mahinda Rajapaksa in the final stages of the war, the UN Panel of Experts finding credible allegations that war crimes and crimes against humanity were committed by both sides and that most of the civilian deaths were caused by government shelling. The TGTE however is calling for senior Sri Lankan political and military leaders to be tried for genocide in addition to war crimes and crimes against humanity.
Need to halt the ‘Structural Genocide of the Tamil Nation
Four years after the war it has now become vitally important for urgent action to be taken to halt the structural genocide of the Tamil Nation. When we mean structural genocide we mean the deliberate intention of the Sri Lankan government to destroy the Tamil Nationand to destroy the historical habitats of the Tamil people in the NorthEast that constitute the traditional Tamil homeland. The means by which the government has sought to achieve this end, among other is by maintaining the Tamil homeland as a highly militarized zone; by blurring the demography through colonization and by establishing Sinhala settlements, “grabbing” private land through expropriation and misusing state land, changing Tamil place names and redrawing boundaries; by destroying the Tamil national identity, the Tamil language, the Tamil culture, the Tamil people’s Hindu and Christian religious faiths, by desecrating and or taking over their places of worship, by building Buddhist shrines and erecting Buddha statues everywhere, by exerting Sinhala Buddhist hegemony over Tamils; by violating the Tamil people’s human rights enshrined in the UN Charter and Declaration of Human Rights and other UN Treaties and by plundering Tamil Eelam’s natural resources.
Intention to make the Tamil homeland a pervasive military camp
The Tamil NorthEast is an occupied zone. Four years after the war ended it was expected that in the name of peace and reconciliation the Sri Lankan government would have dismantled the High Security Zones, closed all army cantonments, removed army check points, given back the lands it stole from the people and would leave the NorthEast, paving the way for a political solution that devolved substantive powers to the NorthEast, the Tamil homeland. But on the contrary, a set of ‘infographics’ prepared by the Sri Lanka Campaign for Peace and Justice exposes alarming facts about the Sri Lankan military expansion in the Northeast. The horrifying reality is that this Sinhala army has no plans to leave but is here to stay, making Tamil Eelam a virtual army camp.
The Hindu newspaper has in a piece of investigative journalism said: “more than three years after winning the war against the LTTE, the Sri Lankan Army retains an overwhelming presence in the North and East of the island, deploying 16 out of its 19 divisions in the Tamil-dominated regions.” (Information available with The Hindu indicates that besides three divisions in Jaffna, there are three each in Killinochchi and Mullaithivu, while five divisions are stationed in Vavuniya. Another two divisions are deployed in the East. Three divisions are headquartered in southern Sri Lanka.)
According to the ‘infographics’, the ratio of soldiers to civilians is 1:3 in Vavuniya and the numbers within the Sri Lanka military has grown at a dangerously high rate since the end of the war. The 200,000 strong military at the end of the war has since grown to 300,000 in 2012 without any justification and has the potential to increase to 400,000 in 2015, posing a real threat to the safety, security, freedom and peaceful existence of the Tamil people and their right to a life without fear, intimidation and subjugation. The Tamil people now stand without any form of protection or means of defending themselves.
Tamil areas are akin to an occupied territory and the Sri Lankan army is acting as if it’s was going to war and in “operational readiness” and “not post-conflict repose” according to Colonel Hariharan, a renown military analyst and former member of the IPKF.
Military Governors the ‘New Colonial Masters’
That the army is interfering with every aspect of the everyday lives of the Tamil people and creating a culture of fear amongst the people is further exacerbated by the fact that the Rajapaksa administration has installed former army commanders as governors of the Northern and Eastern provinces who take orders directly from the Sri Lankan President and his brothers, namely Basil Rajapaksa from the Ministry of Economic and Rural development and Gotabaya Rajapaksa from the Ministry of Defence and Urban Development, notwithstanding the existence of the newly installed Eastern Provincial Council; and whether in the Eastern or for that matter if ever a proposed Northern Provincial Council were to be installed, there is no indication that the military governors’ posts will be eliminated.
It is the military governors who act as “colonial masters” and are the first point of contact for foreign dignitaries for briefing purposes, before Tamil elected representatives or members of the civil society. The existence of these military governors only in the Northern and Eastern provinces and not in other provinces belies the claim that there is a civil administration in existence in Tamil areas. It’s the Northern military governor Maj. General Chandrasiri who spoke for the people of the Northern Province approving the Divingeguma Bill (now enacted into law) satisfying a Supreme Court ruling that provincial councils had to first agree and give their approval to cede their financial powers over to the President’s brother, Basil Rajapaksa the Minister for Economic and Rural Development, that recommended a referendum on the question. It must be remembered that it is for this ruling that the Chief Justice was impeached; a move condemned by distinguished world legal personalities and considered a grave assault on the independence of the judiciary. Sri Lanka has the unique distinction of having two chief justices, not only creating a total lack of confidence in the judicial system, a break down in the rule of law and separation of powers; as for Tamils, government interference in the judiciary would further erode their chances of either receiving a fair trial or obtaining justice.
Army Checkpoints Mushrooming!
In Tamil areas the army is still building check points. The building of new army check points are ongoing and if left unchecked could fast become one of the means for the government to have control over people’s activities, to restrict freedom of movement and curb political activity especially in respect to the Northern Provincial Council elections the holding of which is still in limbo. The building of a checkpoint in Kanthi Kiramam in January 2013 is a case in point. According to a blog posting titled Militarization as a way of life: an ‘Orwellian’ note from Kilinochchi by ‘The Social Architects” (TSA). The military “justified’ the particular checkpoint as “necessary to curb illegal excavation of sand,” but the blog points out that the hidden reason is to heighten the “military presence” and the army’s “surveillance activities” in the area, pursuing the Military’s modus operandi of inculcating fear and the notion in the minds of the people that the military is watching their every move.
In addition in Kanthi Kiramam there have been incidents where “unidentified persons wearing black clothing have entered homes and scared the hell out of residents
The TSA asks if the “government of Sri Lanka really want to monitor illegal sand excavation? Or do they want to make sure that community members don’t forget that the military is watching? Or that the conclusion of war has resulted in de facto military occupation throughout the Northern Province?”
“….Nevertheless, it looks like these acts of violence are now being used to justify the checkpoint, as the military now seems to be citing security concerns as justification for continued state surveillance. The final report of the Lessons Learnt and Reconciliation Commission (LLRC) calls upon the Government of Sri Lanka (GoSL) to reduce the army’s presence in the North and the East. Such a measure would allow people to move freely and help them to regain some semblance of normalcy post-war. Some people wonder if the government intends to place even more members of the army in this area – using the abovementioned incidents as a pretext for a heightened military presence. Were that to happen, such actions should be met with skepticism because this is a regime that simply cannot be trusted.”
Colonization – Land Grab
Manipulation of Demographic Composition
The forcible expropriation of private land by the government for the building of army cantonments, Buddhist temples and Sinhala settlements is being accelerated to speed up the government’s colonization programme which is intended to manipulate the demographic composition of the Tamil homeland. The TNA MP, M A Sumanthiran in press release, ‘Replaying history: Land Grab in the North and East’ has exposed the Sri Lankan government’s duplicitous behaviour in cheating the Tamil people and stealing 6, 400 acres of their land in Valikamam North. This is tantamount to highway robbery, forceful and illegal land grabbing using the might of a murderous army to silence the people from staking their legitimate claims.
“Last week saw a hugely dangerous move by the government. Section 2 notices under the Land Acquisition Act were pasted on trees in Valikamam North in the Jaffna Peninsula indicating that an extent of approximately 6,400 acres of private lands belonging to several thousand Tamil people would be acquired for Military cantonments. Strangley, the notice says that the claimants are not traceable! The owners of these lands live just outside the so called illegal High Security Zone, in camps maintained by the government itself. They have lived there for over 25 years. And although their title to these lands were checked and cleared by a Committee appointed by the Supreme Court in 2006, they were not permitted to go and resettle on the false assertion that de-mining was not complete. That it is false is demonstrated by the sight of soldiers cultivating these lands from which the owners were kept away. Now suddenly, the government has shown its true face: these lands will be taken and given to others to occupy, who will become voters in the North. Similar notices have been issued in the Kilinochchi Distrct also. In the Eastern Province, instructions have gone out to acquire all the land that the military deems necessary for its purposes.
Issues relating to land have always been at the centre of the national question. In the past, misuse of land powers by the state resulted in violence and the worsening of ethnic relations between communities. Despite having ‘won the war’ however, the Sri Lankan government seems to be reluctant to learn lessons from this history in order to win the peace. Alarmingly, the history of land grabs seems to be repeating itself. People of the North and East, who according to the government were rescued by the military in a ‘humanitarian operation’ find their lands and with it their livelihoods, way of life, and birthright snatched from them by the selfsame military.”
The army’s involvement in business activities in the NorthEast is a great cause for concern. At the 22nd session of the UN Human Rights Council, Mahinda Samarasinghe speaking for the Sri Lankan government made an outlandish claim that ‘Social Progress’ has been achieved in the NorthEast through “strengthening of the civil administration” and by the “provision of livelihood support” both of which are hitherto not true.
The army is into agriculture having taken over 180 acres of arable land just in one location alone and is engaged in doing business, selling its produce to the public on a corporate scale; the kind of military corporate culture that exists in the Sri Lankan military is not found in any other military in any part of the world. According to another ‘infographics’ created by The Sri Lanka Campaign for Peace and Justice the army owns a Ferry Service, 11 Hotels and Resorts, 2 Whale Watching Trips, 3 Cricket Stadiums, a 180 acre Farm, many Restaurants and Cafes, 2 Planes and a Golf Course.
Colonization – Affecting the livelihood of the Tamil People
In addition Sinhala settlements are growing and Sinhalese are involved in commercial, fishing and farming activities depriving the Tamil people of their livelihood. All of the development are military centered; neither environmentally friendly nor promoting sustainable development. It seems Tamil Eelam’s resources and lands are sold off to foreign governments and entities to line the pockets of the Rajapaksas and keep them in power.
The government’s move to bring in ethnic Sinhalese to settle in Tamil areas, the take over of private and state owned land including arable land for military purposes, not to mention the movement of a disproportionate number of Sinhala fishermen into the area, have all negatively impacted the livelihood opportunities of the indigenous ethnic Tamil population. The 27% growth in the GDP in the North that Mr. Samarasinghe mentioned was very misleading. The 27% growth rate in the North does not reflect any improvement in quality of life of ordinary Tamil people but is due to the unbridled expansion of the Military in the NorthEast and the huge expenses including salaries that come with it, not to mention the ongoing military centered infrastructure development.
Resettlement of IDPs – 5Rs a Lie
Mr. Samarasinghe’s claim that the Sri Lankan government has achieved the 5 Rs i.e. Reconstruction Resettlement Rehabilitation, Reintegration and Reconciliation has been refuted by Dr. Paul Newman in his article: Lies Retold – The Annual Sri Lankan Ritual at the UNHRC:
“More than 93,000 people are estimated to be still displaced as of late December 2012, living in camps in Vavuniya, Jaffna and Trincomalee districts, in transit sites or with host communities. Source: Internal Displacement Monitoring Centre (January 24, 2013)….In Jaffna alone 70,000 Tamils are yet to return home as their land is occupied as High Security Zones. The entire village of Mullikulam is displaced into the jungles and a naval complex is coming up in the area. In Jaffna the Talsevana military resort has come up in the place of land occupied from Tamils.”
Biggest allocation from the 2013 Budget going to the Ministry of Defence
The biggest allocation from the 2013 Budget is going to the Ministry of Defence and Urban Development, as it was in the previous year, with nearly Rs. 290 billion allotted for Gotabaya Rajapaksa’s ministry. This amount shows an increase of nearly Rs. 60 billion from what was allocated to the Ministry in 2012. Meanwhile, in comparison the Ministry of Education has been allocated only Rs. 37.9 billion, up by around Rs. 3.43 billion over 2012, while the Ministry of Higher Education has been allocated Rs. 27.9 billion, up by around Rs 4.1 billion over 2012. This is a numbers game in a country where more than 20 million people live, but 70% of the national budget is controlled by one family,” the Asian Human Rights Council, has said.
Another development to watch is the new and disturbing practice of commissioning schools principles as ‘brevet colonels’. Under the guidance of the Secretary Defence and Urban Development Gotabaya Rajapaksa, 23 Class 1 Principals of Sri Lanka Education Administrative Service and officers of the Ministry of Education were Commissioned as Brevet Colonels at a ceremony held at the Defence Ministry premises on 08th October, (2012)” the Ministry of Defence announced.
The Indoctrination of Tamil children and Army involvement in the Lives of School Children
That in the NorthEast there is a systematic subtle indoctrination of school children being carried out by the army is obvious. The army’s involvement in schools, in the lives of school children and student activities are indeed a cause for great concern.
Tamils have No Right to Basic Freedoms
Furthermore the Sri Lankan military are continuing to violate the human, civil, political, and democratic rights of the NorthEast people. The people do not have the right to basic freedoms such as freedom of speech and assembly and have to live in fear of even mourning their dead and that they or their youth could be arrested and taken under the dreaded Prevention of Terrorism Act (PTA) on false allegations at any time is real, similar to what happened to the university students in Jaffna who were detained for weeks without charge.Sri Lanka’s human rights record in terms of enforced disappearances, extrajudicial killings, abductions, detention without charge and rape continues to be dismal.
That the army goes as far as restricting the free movement of people and the right to free speech and assembly in clear violation of their democratic rights was evidenced recently during the UNHRC session in March this year when about “thousand women” who had boarded buses from Vavuniya to join a protest rally in Colombo, calling for information on their disappeared relatives were prevented from proceeding by the military. According to Mano Ganesan, “the government forces and police had intimidated the bus drivers, warning them not to proceed with the journey,” on the false pretense that the buses had been stoned and that the army was acting to prevent clashes from occurring, which he condemned as a lie.
That Tamil Eelam continues to “be occupied, pillaged and violated” and the people are enslaved and held captive by the Sri Lankan military and the government, make the need for a Human Rights Protection Mechanism more crucial in the NorthEast than ever before.
Women preyed upon
Tamil women are being subject to rape and forced prostitution and have been coerced into joining the Sri Lankan army, the Tamil Guardian reported:
“Furthermore, according to the Sri Lanka Campaign for Peace and Justice, the military also intentionally preyed on young women, including “young widows and women who had to provide for seriously ill relatives”. They also claimed to have received information reporting that at least 20 women who were recently recruited to the 6th Brigade of the Sri Lankan Army had been admitted to the Kilinochchi district hospital on December 11th, as did Tamilnet further reported that many were unconscious and had been isolated from other patients, being treated only be Sri Lankan Army doctors and nurses.”
The Human Rights Watch reported on 75 cases of sexual abuse including rape and torture committed by members of the Sri Lankan armed forces on Tamil detainees. Latest reports from the ground reveal, the North is an open prison, people are overcome by fear; they want to flee: I got this raw unadulterated news straight from ground zero from the horse’s mouth: Women are being used as “sex slaves” and the families dare not disclose it to anyone. They watch as “silent partners in a crime” that they can’t report. The people are held captive against their wishes but can’t speak out. Any activity would elicit a visit from the “men in uniform”, the Rajapaksa government’s equivalent to armed Gestapo.
Sri Lanka’s Killing Fields a Tourist site
In a country where triumphalism rules, ‘Sri Lanka’s Killing Fields’ in the Tamil homeland has become a tourist site, built over the remains of tens of thousands of innocent Tamil civilians, complete with a Sinhala war memorial whilst the Tamil people cannot grieve for their dead and Tamil war memorials have been desecrated to build army cantonments.
Ensure International observers to oversee NPC elections
That no one in Tamil Eelam could express their true aspirations for a free Tamil Eelam as long as they are occupied by an alien military and the 6th amendment is in force, is a fact.
That the Tamil people could be disenfranchised and unable to vote in the Northern Provincial Council elections by the manipulation of voter registration is a serious possibility; that without international observers and without a system of thorough and intense scrutiny, the likelihood that the elections will be rigged is indeed a serious possibility. In March of this year a meeting convened in Kilinochchi by Tamil MPs was stoned and disrupted by unidentified thugs ending in injuries to 15 persons. The Sri Lanka Brief carried an article by DBS Jeyarajah under the caption “State Terrorists” Carrying Lion Flags Launch Stone Attack On TNA Meeting in Kilinochchi.
The assault on Tamil media
The persistent attacks on Uthayan Newspapers spell disaster not only for press freedom, not only for the Tamil media, but for Tamils, deprived of the right to freedom of information as they face a provincial council election; an election where they are unwilling participants, because a boycott would bring the scoundrels into the council, those who committed the dastardly acts, those subjugating our people as we speak.
Available Options in terms of UN Mechanisms
UN Human Rights Systems
Having examined the urgent necessity for an International Protection Mechanism, it is relevant to consider the options available to us to achieve it. Studying the ways and means of how the UN functions would reveal it has inbuilt within its structure ‘protection mechanisms: An article titled ‘United Nations and Human Rights published by the United Nations Department of Public Information in February 1996 states:
“The promotion and protection of human rights has been a major preoccupation for the United Nations since 1945, when the Organization’s founding nations resolved that the horrors of The Second World War should never be allowed to recur. Respect for human rights and human dignity “is the foundation of freedom, justice and peace in the world”, the General Assembly declared three years later in the Universal Declaration of Human Rights. Over the years, a whole network of human rights instruments and mechanisms has been developed to ensure the primacy of human rights and to confront human rights violations wherever they occur.”
Further the ‘The Human Rights Education Associates’ on ‘UN Human Rights System’ explains:
“The United Nations has created a global structure for protecting human rights, based largely on its Charter, non-binding declarations, legally binding treaties and on various activities aimed at advancing democracy and human rights throughout the world….The UN’s system of human rights protection has three main components: first, it establishes international standards through its Charter, legally binding treaties, non-binding declarations, agreements, and documents; next, it mandates Special Rapporteurs and experts, and groups, such as working groups, committees and treaty bodies, to work in various manners for the promotion and protection of human rights; finally, it offers technical assistance through the Voluntary Fund for Advisory Services and Technical Assistance in the field of Human Rights.”
Issue of Sovereignty
The issue of sovereignty vis a vis human rights, is explained in the article ‘In the Introduction to the UN Human Rights Treaty System’, a caveat for the Sri Lankan government which raises the sovereignty issue to avoid accountability:
“The U.N. treaty system definitively establishes the legitimacy of international interest in the protection of human rights. It is undisputed that sovereignty is limited with respect to human rights. International supervision is valid and states are accountable to international authorities for domestic acts affecting human rights. The treaty standards are the benchmark for assessment and concern.”
Must have our voices heard in other UN venues
Prof. Ted Orlin in his keynote speech at the TGTE Canadian event spoke of the significance of “having our voices heard at other venues, other than the UNHRC:
“We must continue, both Tamils and those who are committed to human rights, to have our voices heard at the UN and other venues – not just the Human Rights Council, but the Human Rights Committee overseeing the CCPR (Convention on Civil and Political Rights), CAT (Convention against Torture), CEDAW (Convention against the discrimination of women) and others”
UN Treaty Bodies are forms of protection mechanisms
The article Introduction to UN Human Rights Treaty System lists the names and functions of the various ‘Treaty Bodies’ in the UN:
The nine treaties are associated with nine treaty bodies which have the task of monitoring the implementation of treaty obligations. The treaty bodies meet primarily in Geneva, and are serviced by the Office of the UN High Commissioner for Human Rights (OHCHR). These are:
- the Committee on the Elimination of Racial Discrimination (CERD)
- the Human Rights Committee (HRC)
- the Committee on Economic, Social and Cultural Rights (CESCR)
- the Committee on the Elimination of Discrimination Against Women (CEDAW)
- the Committee Against Torture (CAT)
- the Committee on the Rights of the Child (CRC)
- the Committee on Migrant Workers (CMW)
- the Committee on the Rights of Persons with Disabilities (CRPD)
- the Committee on Enforced Disappearance (CED).
Meeting periodically throughout the year, the treaty bodies fulfill their monitoring function through one or more of several different methods.
First, all states parties are required by the treaties to produce state reports on the compliance of domestic standards and practices with treaty rights. These reports are reviewed at various intervals by the treaty bodies, normally in the presence of state representatives. Concluding observations, commenting on the adequacy of state compliance with treaty obligations, are issued by the treaty bodies following the review.
Second, in the case of all nine treaties there are provisions by which individuals may complain of violations of their rights under the treaty. These complaints are considered by the treaty body which expresses a view as to the presence or absence of a violation. The Committees are also able to take urgent action in appropriate cases by requesting the State party concerned take “interim measures” pending the final outcome of the communication. In the case of the Migrant Workers Convention (CMW), the Covenant on Economic, Social and Cultural Rights (CESCR OPT) and the Convention on the Rights of the Child (CRC OPT – Communications), this optional individual complaint mechanism is not yet in force.
UN Failure to protect Tamil civilians
In evaluating its own performance in promoting and protecting human rights the report of UN Internal Review Panel said outright the UN failed to protect Tamil civilians:
“Events in Sri Lanka mark a grave failure of the UN to adequately respond to early warnings and to the evolving situation during the final stages of the conflict and its aftermath, to the detriment of hundreds of thousands of civilians and in contradiction with the principles and responsibilities of the UN.”
Equally the UN Panel of Expert’s recommendation to the UN was to put its house in order:
“The Secretary-General should conduct a comprehensive review of actions by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates. The Panel’s report and its advice to the Secretary-General, as encapsulated in these recommendations, are inspired by the courage and resilience of victims of the war and civil society in Sri Lanka. If followed, the recommendations would comprise a genuine process of accountability that would satisfy the joint commitment and would set Sri Lanka on the course of justice, dignity and peace.”
TGTE’s Demand for Special Adviser on the Prevention of Genocide to release report on Tamil Genocide
Deluxon Morris, TGTE Minister for Investigation of Genocide, Crimes against Humanity and War Crimes, issued a call for a “commission of investigation on Sri Lanka” and asked that: “the prosecutions should not be limited to War Crimes and Crimes against Humanity and must include Genocide”; that the “Special Adviser to the UN Secretary-General on the Prevention of Genocide must make public the report on Tamil Genocide”; that “given the constraint on the mandate of the Lessons Learned and Reconciliation Commission (LLRC) coupled with the ‘lack of an enabling environment for a judicial follow up’ as stated… in the report, the Secretary-General need not wait till the exhaustion of the domestic remedies” and urged Ban Ki-moon to use his powers, “Under Article 99 of the UN Charter to appoint an International Commission of Inquiry as recommended by his own advisers.”
One of TGTE’s main demands was to call for the Special Adviser on the Prevention of Genocide to release the report on his predecessor’s concerns’ which “he raised” with the (Rajapaka) Government and Secretary-General over the situation initially but later decided not to disclose, telling the Government he would “not speak out,” favouring instead, in his words “quiet diplomacy”. However the panel also recorded the fact that “when his office later tried to issue a public statement this was not supported by UNHQ,” a matter that must investigated.
United Nations Commemorates the Halabja Genocide after 21 years
This may be a moment to remember the chemical weapons attack against the Kurdish people in 1988. The massacre was declared an act of genocide and commemorated in the United Nations on March 16, 2009 on the 21st anniversary of the Genocide. Atleast 5000 died and 7000 were injured in this tragedy: “Iraq’s Ambassador to the United Nations, Dr Hamid Al-Bayati, said holding the commemoration at the UN on the 21st anniversary of the genocide was an important milestone for the world to acknowledge the terror inflicted and the lack of action to protect the innocent and bring to justice those responsible.”
TGTE Must Praise the work of the UN High Commissioner for Human Rights
Despite the failure of the UN in protecting human rights and saving lives in the final stages of war in Sri Lanka, TGTE must praise the work of the Office of High Commissioner for Human Rights (OHCHR) and the High Commissioner Ms Navi Pillai in protecting and promoting human rights. The TGTE should be pleased with the progress made in the passage of the last two UNHRC resolutions sponsored by the US, one in the 19th and the other in the 22nd session and the contribution the OHCHR has made in putting the Sri Lankan government on notice as to its obligations through the OHCHR report which called for an “independent and credible” investigation into allegations of human rights violations.
UNHRC Resolution March 2013 a positive development
The UNHRC resolution at the 22nd session ‘promoting reconciliation and accountability’ was explicit in naming Sri Lanka’s ongoing violations: (Expressing) “concern at the continuing reports of violations of human rights in Sri Lanka, including enforced disappearances, extra-judicial killings, torture and violations of the rights of expression, association and peaceful assembly, as well as intimidation of and reprisals against human rights defenders, members of civil society and journalists, threats to judicial independence and the rule of law, and discrimination on the basis of religion and belief.”
The resolution among other clauses contained the following:
And I quote:
- “The Human Rights Council…..encourages the Government of Sri Lanka to implement the recommendations in the OHCHR report..
- ..reiterates its call to effectively implement the constructive recommendations in the LLRC report and to take all necessary additional steps to fulfill its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability including investigations of alleged violations of international humanitarian law and international human rights law, and reconciliation for all Sri Lankans…
- ..encourages the Government of Sri Lanka to cooperate with special procedures mandate holders and formally to respond to outstanding requests, including by providing unfettered access to the Special Rapporteurs on independence of judges and lawyers; human rights defenders; freedom of expression; freedom of association and assembly; extrajudicial, summary or arbitrary executions; minority issues; and the Working Group on enforced or involuntary disappearances; and discrimination against women…
- ..and requests the OHCHR with input from special procedures mandate holders, as appropriate, to present an oral report at the 24th session and a comprehensive report followed by a dedicated debate at the 25th session of the HRC on the implementation of this resolution.”
Excellent Analysis by S V Kirubaharan
Some excellent analysis on the “positive side” to both these resolutions can be found in the article entitled: UN High Commissioner for Human rights can now visit Sri Lanka with authority by S V Kirubaharan of TCHR. Quoting from Tamara Kunanayakam, Sri Lanka’s representative at the UN in Geneva, 2011-2012, in an interview on 17th March 2013 where she sums up the “US draft” as a means to the “establishment of an international mechanism to monitor an internal process.”
In his analysis, Mr. Kirubaharan makes the following salient (extracts only) points that possibly show we have come close to getting an international protection mechanism through the OHCHR:
And I quote:
- The resolution gives monitoring powers to the Office of the High Commissioner for Human Rights – OHCHR. An external mechanism is mandated to monitor the Government of Sri Lanka.
- With this resolution, the UN High Commissioner for Human Rights – HCHR can insist that a team from her office be allowed into Sri Lanka.
- The OHCHR has the right to have many human rights officers in Colombo, for monitoring future violations.
- This resolution allows the HCHR to visit Sri Lanka with authority, not once, but as many times as she likes. Therefore, ironically, Sri Lanka’s fervent wish that she visit the country will be accomplished at the earliest. Though it will be to scrutinise Sri Lanka’s human Rights record – rather than bolster its human rights image, as the government had wanted.
- The visit of the UN HCHR to Sri Lanka in the near future will be completely different to the visit made by her predecessor, Louis Arbour, which was in response to an invitation that was not backed by any UN resolution.
- If Sri Lanka says to the HCHR that she cannot visit and monitor, this will be clearly interpreted as bad faith. The Office of the High Commissioner already has an officer in Colombo, and will send more people to monitor and is mandated to do so.
- Now let me go into details of the latest resolution – A/HRC/CC/L.1,Rev1 on Sri Lanka. The effects of this resolution can be underestimated if various factors are not properly analysed. There is no point, however understandable it might be, in mixing the demand for immediate fulfillment of political aspirations (as some Tamils are tending to do) with the resolution process in the Human Rights Council – HRC.
- With 23 years of experience behind us, it is our duty to explain the depths of this resolution. If anyone still has doubts, they need only to look at the Sri Lankan’s government response to the resolution, which shows how worried and upset they are by it. To please their voters, of course, they make bold and defiant statements.
- In the eyes of Sri Lanka: Rajapakse’s envoy to the HRC rejected the resolution outright, condemning it as “highly intrusive.” He claimed that the government had “rehabilitated 12,000” Tamil detainees and that the Northern Province had experienced 27 per cent economic growth last year.
- Enough is enough. The HRC resolution is actively endorsed, guaranteed, by the international community. Let’s concentrate on the positive side of this resolution, rather than, in effect, joining hands with the Rajapaksa’s government by rejecting it.
- High Commissioner for Human Rights: The report (A/HRC/22/38/Add.1) of the UN High Commissioner for Human Rights, on advice and technical assistance for Sri Lanka, dated 11 February 2013, was widely appreciated. But many never realized that this report was the outcome of the Resolution passed on Sri Lanka in March 2012. In other words, without that resolution, the HCHR wouldn’t have had the authority to issue a special report on Sri Lanka. This example shows how practical and far-reaching benefits can result from a resolution.
- Of course, some people would like impractical issues to be included in the resolution in the UN Human Rights Council – HRC. As I said in the past, the HRC has its limitations. Of course, reference to International investigations can be included in the HRC resolution. The US and other supporting states are cautiously moving towards this. The US has already said that an ‘international investigation’ must be the next step.
Are we close to a ‘UN monitored International Protection Mechanism’?
Are we seeing the realization of a ‘UN monitored International Protection Mechanism’ through the Office of the High Commissioner for Human Rights who has been mandated to monitor the Sri Lankan government under monitoring powers authorized by the UN Human Rights Council Resolution passed at the 22nd session? Mr. Kirubaharan’s analysis, in my view, suggests we do.
As a consequence it is now conceivable that as per TGTE’s call a ‘UN monitored International Protection Mechanism’, in the form of UN field presence, even an office in the NorthEast to monitor human rights abuses might hopefully become a reality and must happen sooner than later considering the urgent need for monitoring in a highly militarized NorthEast that’s governed by an autocratic regime.
Forensic Examination of the War Zone
Before I conclude there is an issue that I wish to raise that may be relevant to an ‘International Protection Mechanism’ and to the question of an international investigation – that of protecting evidence. It has long been my concern that up to this day no forensic examination by UN experts of the war zone known as ‘Sri Lanka’s Killing fields’ has ever been undertaken notwithstanding the perpetrators have conducted the clean up and cover-up operations by now. Recently some pictures were published in the Sri Lanka Campaign for Peace and Justice Blog of Sri Lanka’s Killing Fields taken after the floods “where evidence of war crimes is now turning up due to heavy rain.”
A caption written by Frances Harrison reads:
“Local people who’ve recently travelled into Sri Lanka’s killing fields, where an estimated 40,000 people perished in 2009, say skulls and human bones have risen to the surface after this year’s flooding and abandoned belongings are strewn all over the landscape.”
The protection of forensic evidence of the warzone in my view is a priority as well, which the UN must look into seriously and act with urgency.
In pursuance of its call to ending the Sri Lankan military occupation of the NorthEast and to halting the systematic well orchestrated ongoing structural genocide of the Tamil homeland, TGTE will be continuing to advocate for a UN Monitored International Human Rights Protection Mechanism. It is hoped we have come close to getting one.
*Paper (unabridged version) presented by Usha S Sri-Skanda-Rajah Chair, TGTE Senate at the TGTE’s International Conference held in Lancaster, Pennsylvania, USA, held 15-18 May 2013.