By Jehan Perera –
There are two aspects to the process unfolding in the UN Human Rights Council in Geneva at the present time. The first is the outcome of the report of the UN High Commissioner for Human Rights, Michelle Bachelet which was released on January 27. The second will be resolution of the UN Human Rights Council itself which is in the process of being finalized, and of which a draft is available. It is this latter document that will be debated in the final days of the 46th session of the UNHRC later this month. This will be the document that sets out the expectation of the UNHRC in terms of implementation by Sri Lanka.
So far it has been the report of the UN High Commissioner that has taken the centre stage of public attention in the country and being subjected to severe criticism by the government. Foreign Minister Dinesh Gunawardena has appealed to the member states of the UNHRC to reject the report and impending resolution as a “pure political move” against the country and asking that the issue be brought to a closure. The report arranges and sets out facts from a perspective that indicates that Sri Lanka is heading in the direction of contracting space for political freedom, weakening of checks and balances in governance and increased conflict between ethnic and religious communities. The picture painted is a bleak one, and includes incidents such as the detention of lawyer Hejaaz Hizbullah for nine months without formal charge.
However, even more serious than the opinion expressed about the negative direction that the country is taking are the recommendations given in the UN High Commissioner’s report. They are potentially calamitous ranging from freezing of assets, travel bans and targeted sanctions against public officials suspected of human rights violations and referral of such cases to international tribunals including the International Criminal Court and an invitation to individual countries to take action under the principle of universal jurisdiction.
The government has strongly refuted the UN report as being biased and over critical of the state of governance in the country. Foreign Minister Dinesh Gunawaredena said “Sri Lanka rejects the High Commissioner’s Report which has unjustifiably broadened its scope and mandate further, incorporating many issues of governance and matters that are essentially domestic for any self-respecting, sovereign country.” Over 20 countries have spoken against this report including China and Russia that possess veto powers in the UN Security Council which is the UN body authorized to permit international punitive actions. The problem is that the report opens the door to punitive actions by individual countries over which the countries that have pledged support to Sri Lanka will be unable to veto.
Another problem from the government’s perspective is that the UNHRC resolution had drawn inspiration from the report of the UN High Commissioner and has both observations and recommendations that are drawn from it. For instance, the draft resolution accepts the anticipated trajectory of Sri Lanka’s future political direction as presented by the UN High Commissioner’s report. There is a negative anticipation in this regard “over emerging trends over the past year, which represent clear early warning signs of a deteriorating human rights situation in Sri Lanka, including the accelerating militarization of civilian government functions, erosion of the independence of the judiciary and key institutions responsible for the promotion and protection of human rights, ongoing impunity and political obstruction of accountability for crimes and human rights violations in “emblematic cases”, policies that adversely affect the right to freedom of religion or belief, surveillance and intimidation of civil society and shrinking democratic space, arbitrary detentions, allegations of torture,” among others.
However, on the positive side the recommendations for action that are likely to be made in the UNHRC resolution on Sri Lanka are achievable ones on which action has already been taken in several instances. These are recommendations that the government can take on board and implement because they are meant to ensure a system of governance that is more just, law abiding and democratic for its multi ethnic, multi religious, multicultural and plural polity as described by Foreign Minister Dinesh Gunawardena at the UNHRC session in Geneva in February 2020.
The government is in a position to comply with most of the recommendations that are in the draft resolution. These are as follows:
a. Support the work of the Office on Missing Persons and the Office for Reparations and allow them to proceed with interim relief measures for affected vulnerable families and resolve the many cases of enforced disappearances so that families of the disappeared can know their fate and whereabouts;
b. Set up a comprehensive accountability process for all violations and abuses of human rights committed in Sri Lanka, including those by the Liberation Tigers of Tamil Eelam, as highlighted in the OISL report of September 2015
c. Deal with the prevailing marginalisation and discrimination suffered by the Muslim community, and that the Government of Sri Lanka’s decision to mandate cremations for all those deceased from COVID-19 has prevented Muslims and members of other religions from practicing their own burial religious rites;
d. Ensure the prompt, thorough and impartial investigation and, if warranted, prosecution of all allegations of gross human rights violations and serious violations of international humanitarian law including for longstanding emblematic cases; and ensure reversal of non judicial closure of cases involving rights violation or major crimes;
e. Ensure the effective and independent functioning of the National Human Rights Commission, the Office on Missing Persons, and the Office for Reparations;
f. Ensure a safe and enabling environment in which civil society can operate free from hindrance, insecurity, and reprisals;
g. Review the Prevention of Terrorism Act and ensure that any legislation to combat terrorism complies with its international human rights and humanitarian law obligations;
h. Foster religious freedom and pluralism by promoting the ability of all religious communities to manifest their religion, and to contribute openly and on an equal footing to society;
i. Continue to cooperate with special procedures mandate holders, including responding formally to outstanding requests and obtain advice and technical assistance on implementing the above-mentioned steps.
It is to be noted that the government has already taken preliminary action with regard to several of the recommendations including those dealing with the Office on Missing Persons and Office for Reparations. It has also acted fully with regard to another one of the recommendations in the draft resolution. This is with regard to the issue of enforced cremation of Covid victims. Even though ten months late, the government’s decision to permit the burial of Covid victims in the face of strong internal opposition needs to be commended. It is likely to have a positive bearing on the discussions in the forthcoming discussions in the UNHRC, where the issue of enforced Covid cremation was a matter of censure. This decision will also contribute to make Muslims citizens of Sri Lanka feel that the government has finally responded to their deeply felt sentiments. Likewise, the government needs to be responsive to the Tamil citizens of Sri Lanka, their political aspirations and in particular whose grievances that continue to remain unaddressed eleven years after the end of the war.
It appears that the government is prepared to take action with regard to yet another one of the recommendations in the draft resolution. President Gotabaya Rajapaksa has expressed his desire to meet with the families of missing persons. This is a highly visible group of people who have been protesting for years that they want more information about their family members who went missing during the war and its immediate aftermath. Their unresolved grievances have been internationalized due to the inability and unwillingness of successive governments to offer a solution to this issue. Foreign Secretary Admiral Prof Jayanath Colombage has been quoted as saying that the president “wants to listen to them identify their actual grievances, rather than what politicians might say and give them a solution. It will happen very soon.”
The indications are that the resolution on Sri Lanka and its post-war reconciliation process will be presented by a group of likeminded countries with majority support in the UNHRC. The government is in a position to agree to most of these recommendations that advance the rights and privileges of Sri Lankan citizens, strengthen principles of good governance and are in keeping with the parameters of Sri Lankan sovereignty. The Lessons Learnt and Reconciliation Commission that the government appointed in 2010 in the face of a previous UNHRC resolution came up with a factual record and analysis that won both national and international recognition and some of its recommendations were adopted by the government. But more remains to be done. Instead of trying to mobilize countries in the UNHRC who themselves have questionable human rights track records to reject the resolution, the acceptance of those sections of the resolution that advance the quality of life of the Sri Lankan people and their human rights could take the country in a direction in which there will be no need for future resolutions by the UNHRC.