By Dayan Jayatilleka – 

Dr. Dayan Jayatilleka

The global democratic community has a responsibility to prevent another Myanmar in Sri Lanka.

UN Human Rights High Commissioner Michelle Bachelet’s report sets out the current Sri Lankan context as she perceives it:  

“19. The following section highlights six of these broader trends: i) militarization of civilian government functions; ii) reversal of Constitutional safeguards; iii) political obstruction of accountability for crimes and human rights violations; iv) majoritarian and exclusionary rhetoric; v) surveillance and obstruction of civil society and shrinking democratic space; and vi) new and exacerbated human rights concerns. The High Commissioner is concerned these represent important early warning indicators that require the Human Rights Council’s urgent attention.”

What is of cardinal significance is that every one of these trends describe a process unleashed by the administration of President Gotabaya Rajapaksa. Taken together, they constitute a grimly alarming ‘scan report’ of the country and its prospects. All of them were unnecessary and avoidable. They exist only by conscious choice, i.e., because of the ideology, model and decisions of the Gotabaya presidency. It is these six trends that lend credibility and constitute the launchpad for the Human Rights High Commissioner to “urge” alternative options for justice, aimed at the Sri Lankan armed forces and the conduct of the last war. 

Latin America was for decades a laboratory of militarization including under elected Presidents. In the latter cases, military rule has been more cumulative degenerative process than conclusive dramatic episode; more creeping cancer than coup d’état. Militarization turned Latin America into a vast torture chamber, until after decades of horror, the continent was liberated by the protracted struggles of popular democratic forces. 

Michelle Bachelet was part of that history, that story. A Latin American, a democrat, a socialist, an ex-president, an ex-defense minister, an ex-prisoner, a daughter of a tortured and martyred General (a democratic dissenter), and a woman, she knows what she’s talking about and tells it like it is. 

Listed as the first of the disturbing trends she perceives as ‘early warning indicators’ is the Militarization of Civilian Governmental Functions. Paragraphs 20 to 23 paint a convincing and alarming picture, revisited in Paragraph 54 in the all-important Conclusions and Recommendations:

“54. …an increased militarization of the State. The Government has appointed active and former military personnel, including those credibly implicated in war crimes to key positions in the civilian administration, and created parallel task forces and commissions that encroach on civilian functions. Combined with the reversal of important institutional checks and balances on the executive by the 20^th Constitutional Amendment, this trend threatens democratic gains.” 

When she sees Sri Lanka over the past year, she perceives a military machine from which those who were responsible for terrible incidents in wartime have not been weeded-out over a decade later, being reactivated, empowered and handed increasing control over a long-standing democracy by an elected ex-military leader with questionable commitment to and controversial views, to say the least, on human rights.        

Having brought her enormous political experience as a two-term President of an important country of the global South (as well as her considerable academic training) to bear in scrutinizing the evidence of the recent structural changes and dynamics in Sri Lanka which are causing the rapid erosion of civilian control and democratic and civic space, she is alarmed by the prospect of renewed large-scale violence and a human rights catastrophe and is therefore sounding the alert, calling for a global effort of containment, deterrence and pre-emption/prevention of a bloodily tragic outcome. 

The UN’s Human Rights chief implies that in Sri Lanka today the dice is so heavily loaded by the 20^th amendment, the dominance of the military and ex-military brass, the thrust of monk-and-military task forces, and the incumbent regime’s implacable hostility to checks-and-balances and accountability, that counterbalancing or deflecting the extremely dangerous domestic dynamics which have achieved accelerated momentum can only come –or must primarily come–from outside, from the ensemble of the UN system, the international system of states, the ICC, national judiciaries of UN member-states and global society. 

The most crucial line in the text of the Report is literally the bottom-line of the Executive Summary: “She also urges Member States to pursue alternative international options for ensuring justice and reparations and support a dedicated capacity to advance these efforts.”

What exactly this means is spelled out in the Conclusions and Recommendations, Paragraph 59:

“59. Member states have a number of options to advance criminal accountability and provide measures of redress for victims. In addition to taking steps towards the referral of the situation in Sri Lanka to the International Criminal Court, Member States can actively pursue investigation and prosecution of international crimes committed by all parties in Sri Lanka before their own national courts, including under the principles of extraterritorial or universal jurisdiction.” 

This is reinforced in detail in Recommendations, Paragraph 61:

“The High Commissioner recommends that the Human Rights Council and Member States to: 

…Support a dedicated capacity to collect and preserve evidence for future accountability processes, to advocate for victims and survivors, and to support relevant judicial proceedings in Member States with competent jurisdiction; 

Cooperate with victims and their representatives to investigate and prosecute international crimes committed by all parties in Sri Lanka through judicial proceedings in domestic jurisdictions, including under the principles of extraterritorial or universal jurisdiction; 

Explore possible targeted sanctions such as asset freezes and travel bans against credibly alleged perpetrators of grave human rights violations and abuses …” 

Reading the past through the present and the future through the past and present, UN Human Rights High Commissioner Michelle Bachelet’s Report is intended as a clarion call to save human rights in Sri Lanka from a clear and present danger, by any legal means necessary. Her moral-ethical argument is not so much the Responsibility to Protect, but the Responsibility to Prevent.  

The OHCHR Report cannot be spun as part of a western imperialist conspiracy to punish a nationalist regime of the Global South. 

Firstly, Michelle Bachelet, the former Socialist President of Chile and former political figure in the resistance against the Pinochet military junta, is hardly a western imperialist puppet. 

Secondly, no UN Human Rights High Commissioner ever made such drastic recommendations during the tenure of President Mahinda Rajapaksa who stood up to external powers far more directly than his sibling-successor has done and is doing while prosecuting the war through to its decisive end. 

Thirdly, though the Secretary to the Ministry of External Affairs, Admiral Colombage just declared that “When you look at the composition of it [the UNHRC], it is global Political North dominated” (Daily Mirror, Jan 25^th 2021), that’s Trumpian ‘fake news’. Whatever is meant by ‘political North’ and ‘political South’, the truth is that the Institution-Building (IB) package, i.e., the Constitution or foundational text of the UNHRC, embedded ‘equitable geographic representation’ ensuring that 34 of the 47 member states are from the Asia-Pacific (13), Africa (13) and Latin America and the Caribbean (8), which means that the North is in a structural minority (13). 

I was an active participant in the negotiations to overcome a deadlock as a Vice-President of the UNHRC when the IB package was gaveled through in 2007 by Mexico’s Ambassador Luis Alfonso de Alba (whose letter of thanks I still have). 

It is the changed (target) profile of the Sri Lankan state and its policies and practices that have caused the escalation in Geneva, because these have set off many early warning alarms. That target profile was changed and those policies introduced or persisted in by President Gotabaya Rajapaksa. This is how one such policy, the burial/cremation issue, is seen by the UN Special Rapporteurs, and the conclusion arrived at about Sri Lankan trends under the Gotabaya dispensation:

‘… “The imposition of cremation as the only option for handling the bodies confirmed or suspected of COVID-19 amounts to a human rights violation. There has been no established medical or scientific evidence in Sri Lanka or other countries that burial of dead bodies leads to increased risk of spreading communicable diseases such as COVID-19,” said the experts.’ (Daily FT)

‘… “We deplore the implementation of such public health decisions based on discrimination, aggressive nationalism and ethnocentrism amounting to persecution of Muslims and other minorities in the country” the experts said. “Such hostility against the minorities exacerbates existing prejudices, intercommunal tensions, and religious intolerance, sowing fear and distrust while inciting further hatred and violence”, they added…’ (UN News)

This description is a damning indictment never deployed about Sri Lanka even in wartime. President Mahinda Rajapaksa was never accused by UN agencies or officials of “aggressive nationalism and ethnocentrism” or “persecution of Muslims and other minorities in the country”. That is what differentiates the military-studded ultranationalist regime of Gotabaya Rajapaksa from that of his war-winning elder brother. 

The President has counter-productively over-exposed the wartime command-and-control structure, including and especially every single one of his high-profile military/ex-military appointees across the state spectrum, as targets worldwide, vulnerable to asset-freezes, sanctions, and far worse, the global net of prosecutions that UN High Commissioner Bachelet “urges” through national courts in all UN member states, under the doctrine of extraterritorial and universal jurisdiction. 

It is the profile, conduct and character of the regime that is contaminating any credible defense in Geneva and globally, of the Sri Lankan state, its armed forces and its legitimate war (2006-2009). 

President Gotabaya Rajapaksa has made Sri Lanka utterly vulnerable to its critics and foes by distorting our ‘country profile’, neutralizing our traditional defensive advantage of being Asia’s oldest democracy; a proudly civilian one. There is no Great Wall of China to hide behind in Geneva.

*The writer was Sri Lanka’s Ambassador/Permanent Representative to the UN Geneva 2007-2009 and a Vice-President of the UN Human Rights Council 2007-2008.