By Kirsty Anantharajah –

Kirsty Anantharajah

Sri Lanka’s game playing at the Universal Periodic Review (UPR) during its first two reviews in 2008 and 2012 tested the ability of this human rights mechanism to achieve its aims and maintain the integrity of its principles, including objectivity and transparency. This post explores how the proactive participation of civil society pushed back against the rights ritualism displayed by the Sri Lankan state at the UPR.[i]

These analyses are particularly relevant to the Sri Lankan state, which is approaching its third review next year: Sri Lanka will be facing the UPR with a new government at its helm. Reflections on Sri Lanka’s previous two reviews must also communicate to Sri Lankan civil society its crucial role in human rights regulation through the UPR.

Narrating history

In both its reviews, Sri Lanka attempted to gloss over and conceal aspects of the nation’s recent experience of civil war, an ongoing rule of law crisis, and its peoples’ experience of human rights violations. The contributions of civil society through stakeholder submissions to the UPR provided a much needed alternative perspective.

Sri Lanka’s first review occurred in the temporal landscape of civil war that raged from 1983-2009 between Sri Lankan forces and the Tamil militant group the Liberation Tigers of Tamil Ealam (LTTE).

In its national report, Sri Lanka discussed constitutional and legislative measures facilitating racial equality, however, it avoided detailing the human rights situation on the ground. The stakeholder submissions stepped into this void, and laid the foundations for a more transparent review. According to the stakeholders, this temporal landscape was characterised by violence and discriminatory practices that targeted the nation’s ethnic Tamil minority. An increasingly endemic culture of ‘disappearances,’ torture and extra-judicial killings combined with growing state impunity marked the human rights situationduring this period. Sri Lanka’s first UPR cycle occurred in the later stages of this conflict. In its submission, a stakeholder expressed its fears, cautioning worse times ahead for Sri Lankan peoples:

…violations are likely to escalate further given [the] government’s failure to address impunity, increasing political interference of the government in the judiciary and other organs of the state, repression of dissent and ever more excessive powers to the security forces.

These concerns came to fruition during the final offensive of the civil war. This began only months after Sri Lanka’s initial review and concluded in May 2009. According to many stakeholders, this short period saw over 40 000 civilian deaths, and grave breaches of human rights law, humanitarian law and international law. A stakeholder’s submissionreflects the indiscriminant nature of the military offensive: ‘it made no difference between combatants and civilians.’ Another key feature of this offensive was ‘the repeated military action against Tamil people in the “no fire zones” established by the Government.’

Referring to this same offensive in its second national report, Sri Lanka congratulated itself for its victory over the LTTE. The final offensive was termed a ‘humanitarian operation,’ and the state detailed the ‘human rights focus’ of this military offensive. The report declared that ‘the humanitarian operation ensured for the people of the North and East their right to live in dignity and restored democratic freedoms. Sri Lanka blandly asserted that it had maintained a ‘zero civilian casualty policy.’

Sri Lanka’s second review occurred in the aftermath of its civil war. Submissions to Sri Lanka’s second review noted a continuing deterioration of human rights following the war. Torture and sexual violence against women by Sri Lanka’s security forces occurred against a backdrop of state impunity; enforced disappearances persisted; freedom of speech and human rights defenders were under serious attack; and discriminatory practices continued.

In its second report, Sri Lanka declared that the state had ‘achieved peace and social tranquillity’. In response to the international community’s concerns about disappearances perpetrated by the state, Sri Lanka declared: ‘the Police report a relatively good rate of success in tracing missing persons.’

Sri Lanka maintained a consistently self-congratulatory narrative in its provision of information to the UPR, and it was predominantly the UN and civil society organisations that provided the mechanism with a counter-narrative and information capable of shining a light into the ‘darkest corners of the world.’

 Follow up

The ongoing monitoring of the human rights situation in Sri Lanka by civil society highlighted the state’s inflated or false declarations of achievement.

Sri Lanka’s practice of demonstrating human rights progress by gesturing towards its complex bureaucracy and various special administrative bodies in its reports was confronted by civil society:

the standard response of the Government in the face of criticism of human rights abuses has been the creation of a multiplicity of ad hoc institutions, committees and commissions of inquiry, which…have done nothing to deter violations.

As a further example, Sri Lanka’s second national report made claims of successful de-militarisation:

with the…gradual restoration of normality, the strength of the military in the North has been reduced considerably. The present strength in the Jaffna Peninsula is approximately 15,000… The military is no longer involved in civil administration in the North and East.

These proclamations were directly contradicted in the stakeholders’ report:

[the] Northern province of Sri Lanka was under intense militarization…in the Jaffna peninsula, there are some 40,000 army personnel, a ratio of approximately 1:11 of military personnel to civilians. The situation in Vanni is much worse with the ratio reportedly being 1:3. The military has been given key civilian administrative positions, including the Governors of the Northern and Eastern Provinces.

 Truth telling

Sri Lanka’s adherence to a self-congratulatory narrative that was littered with jargon and falsities challenged the UPR’s principles of transparency and objectivity. But several instances of ‘truth telling’ by NGOs provided powerful support for these principles. Sri Lanka’s review highlights the ability of the UPR to empower and give voice to civil society, even in situations where its voice is not encouraged domestically.[ii]

The truth telling facilitated by civil society at the UPR somewhat countered the ritualistic participation of the Sri Lankan state. By comparison with the cynicism behind ritualistic engagement, truth telling can be a powerful public ritual with ‘the potential to curb the scourge of impunity, restore dignity to survivors, and contribute to the elusive possibility that such crimes will never happen again.’[iii] This role of truth telling is endorsed by survivors of the violence in Sri Lanka. A resounding theme in the testimonies of victims of human rights abuses in Sri Lanka is the desire to have their experienced recognised: ‘I want the UN to know … what I have gone through.’

One powerful moment of truth telling occurred during the plenary session following Sri Lanka’s second review. Dr Manoharan, a Sri Lankan citizen, was given the opportunity by Amnesty International to address the UPR and the Sri Lankan delegation. He gave an account of the brutal extra-judicial killing of his son and his friends in Trincomalee.[iv] Dr Manoharan was visibly emotional; his loss of composure provided voice to other accounts of indignity and suffering experienced by many Sri Lankans. He was able to address his account to not only the international community but also to high-ranking state officials: this is not a situation that could have conceivably occurred domestically. Dr Manoharan’s personal account invigorated the UPR’s rituals and formalities, highlighting the importance of truth telling in human rights forums.

The civil society push back against Sri Lanka’s game playing at the UPR demonstrates that this mechanism has the potential to facilitate truth telling. This should instill a level of optimism in early assessments of the capacity of the UPR to promote transparency and objectivity.

[i] For a discussion of ‘rights ritualism’, see Hilary Charlesworth, ‘Swimming to Cambodia: Justice and Ritual in Human Rights after Conflict’, Australian Yearbook of International Law, Vol. 29 (2011), 1-16, and Hilary Charlesworth and Emma Larking, ‘Introduction: The Regulatory Power of the Universal Periodic Review’ in Charlesworth and Larking (eds), Human Rights and the Universal Periodic Review: Rituals and Ritualism, Cambridge: Cambridge University Press, 2014, 1-21.

[ii] The UPR has exposed a culture of intimidation and violence against human rights defenders, journalists, etc.: Human Rights Council, Report of the Working Group on the Universal Periodic Review Sri Lanka, 8^th sess., UN Doc. A/HRC/8/46 (5 June 2008)

[iii] Nicola Henry, ‘The Impossibility of Bearing Witness: Wartime Rape and the Promise of Justice’ (2010) 16 Violence Against Women 1098, 1098.

[iv] UN Web TV, Consideration of Sri Lanka UPR Report 38th Meeting 22nd Regular Session Human Rights Council <Http://webtv.un.org/search/consideration-of-sri-lanka-upr-report-38th-meeting-22nd-regular-session-human-rights-council/2227262871001?term=sri%20lanka>

*Kirsty Anantharajah – Centre for International Governance and Justice, Australian National University.