By Brian Senewiratne –

Sri Lanka recently co-sponsored a resolution at the 34th session of the UN Human Rights Council (UNHRC), allowing Sri Lanka two more years to implement the recommendations made in Resolution 30/1 of 2015. The outrageous decision is devastating for the survival of the Tamil people in the North and East of Sri Lanka and also calls into question the credibility of the UNHRC.

On the very day it was passed in Geneva, President Sirisena in Colombo promoted a war criminal to a senior position in the Armed Forces, sending a clear message to the international community in general and the UNHRC in particular that he had not the slightest intention of doing what Sri Lanka undertook to do in Geneva. It was all a joke, not to be taken seriously. It has reduced the Human Rights Council to irrelevance.

There is talk of the “slow progress” made the Government of Sri Lanka (GoSL). Where the Tamils North & East are concerned, it is “no progress”. The North – East continues to be under the heel of the brutal Sri Lankan Armed Forces that has committed all these atrocities and continues to do so. So where is the progress – ‘slow’ or otherwise?

The Tamils in the N&E are not concerned with the ‘benefits’ to those in the rest of the country from the change in Government from the dreadful Rajapaksa regime to that of Mahinda Rajapaksa’s friend and former colleague, Maithripala Sirisena. Their problem is an entirely justifiable fear – fear of the Armed Forces that control the area and who treat the area as ‘conquered territory’ and the inhabitants as the ‘spoils of war’. For them the change from Rajapaksa to Sirisena is only a name-change of no consequence.

Of serious concern is the extensive relocation of Sinhalese from the South to the Tamil areas – ‘Sinhalisation’. This is proceeding at such a pace that the Tamils will become a minority in the only area where they are a majority. Sri Lanka will be a Sinhala-Buddhist nation – the Mahavamsa mind-set – that Buddha ‘gave’ Lanka to the Sinhalese to foster his doctrine.

If Sri Lanka is a Sinhala-Buddhist country, what then happens to those who are not Sinhalese and not Buddhists? There are only 4 things that can happen – 1) to leave the country – as a million Tamils already have done, 2) to involuntarily ‘disappear’ 3) to become ‘non-people’ with no land, no occupation, and no rights 4) to die – slowly but surely, which is genocide of the Tamil people.

There are scores of publications on this disastrous situation. Countries in the HRC are fully aware of all this, or should be aware, since it is common knowledge. To claim that they are unaware is nonsense.

The HRC is an inter-governmental body within the United Nations system made up of 47 States responsible for the promotion and protection of all human rights around the globe.

To claim that ‘promotion and protection’ of human rights of the Tamil people in the N&E has been done by the United Nations (UN) or the UNHRC, is arrant nonsense.

Let us look at the past activities of both the UN and the UNHRC. The current (March 2017) decision of the UNHRC to give another two years for the GoSL (to continue to do what it has done all these years – to make Sri Lanka into a Sinhala-Buddhist nation) is simply a continuation of what has gone on for years. To claim that this is “Promoting reconciliation, accountability and human rights” is not only nonsense but dangerous nonsense. It is a gross irresponsibility by both the UN and the UNHRC.

The only thing that has changed is that Ban Ki-moon, the worst Secretary General the UN has ever had, has been replaced by Antonio Guterres, the former High Commissioner for Refugees (2012-2015) and prior to that the Prime Minister of Portugal (1995-2002). Whether Guterres will be better than Ban Ki-moon, is too early to tell. He certainly cannot be worse.

May 2009 – A UNHRC disaster

On 27 May 2009, just a week after the end of the slaughter of Tamil civilians in Sri Lanka’s N&E, the UNHRC passed a deeply flawed resolution at a ‘Special Session’ on Sri Lanka. It praised the GoSL whose Armed Forces were responsible for the repeated indiscriminate shelling of civilians. There was not even an expression of concern for the thousands of Tamil civilians killed and the 350,000 men, women and children locked up in the largest open air detention centre in the world. The gross violation of human rights and humanitarian law committed by the Government Armed Forces was ignored. The crucial message that the GoSL needed to hear – to ensure access to displaced civilians and uphold human rights – was not sent. This undermined the very purpose of the Council.

The majority of Council members, including China, South Africa and Uruguay, ignored a call for accountability and justice for the victims made by the then High Commissioner for Human Rights, Navanethem Pillay. She called for an independent international investigation into violations of international human rights and humanitarian law. Here is what she said: “The images of terrified and emaciated women, men and children fleeing the battle zone ought to be etched in our collective memory. We must act”.

Instead the resolution reaffirmed the principle of non-interference in the domestic jurisdiction of States, a backward step by the Human Rights Council.

Human Rights Watch in a Report released on the same day (27 May 2009): “Sri Lanka: UN Rights Council Fails Victims. Member States Ignore Need for Inquiry into Wartime Violations” expressed serious concerns.

The Report rightly blamed Ban Ki-moon: “Secretary General Ban Ki-moon regrettably undercut efforts to produce a strong resolution with his recent comments on Sri Lanka. Ban publicly praised the Sri Lankan government for “doing its utmost” and for its “tremendous efforts” while accepting government assurances, repeatedly broken in the past, that it would ensure humanitarian access to civilians in need”.

Ban Ki-moon also distanced himself from the entirely appropriate warnings by the UN Under-Secretary for Humanitarian Affairs, John Holmes, April 2009, that the fighting in Sri Lanka could result in a “bloodbath”. Unlike the UN High Commissioner for Human Rights, Navi Pillay, Ban Ki-moon failed to press for an international inquiry.

The Report ended with: “Secretary General Ban shares the blame for the Human Rights Council’s poor showing on Sri Lanka. This adds to a crisis of confidence in UN bodies to speak out clearly on pressing human rights issues”.

As recently as March 29, 2017, Nikki Haley, U.S. Permanent Representative on the U.N. Security Council, dismissed the UNHRC as “so corrupt”. Addressing a meeting on Foreign Relations in New York she said,: “I mean, the Human Rights Council is so corrupt that it includes ‘bad actors’ who use it to protect themselves”.

Geoffrey Robertson

The best description of the UN HRC came for Geoffrey Robertson, a world authority on human rights. Soon after the dreadful resolution was passed, the BBC interviewed him. The full interview is on my dvd, Sri Lanka: Genocide, Violation of Human Rights and International Law. Here is a part of what he said:

“The Human Rights Council is a highly politicised body. It is made up, not of experts on human rights, but of paltering diplomats. Europe is allocated only 7 of the 47 seats and we have countries like Russia and China obviously concerned to keep their own internal problems down and away from international oversight. (‘Paltering’ is not a commonly used word. To ‘palter’ is to talk or act insincerely or deceitfully; to lie or use trickery.)

So the decision (to commend Sri Lanka – which the UNHCR did) is not really surprising. Sri Lanka is a member of this highly politicised Council, despite the efforts of Desmond Tutu and Jimmy Carter last year to stop them gaining membership and they passed this rather self-congratulatory motion.

Although the Human Rights Council has set up an important investigation into the Israeli-Palestinian conflict over Gaza looking at both sides, they weren’t prepared to look at both sides (in the Sri Lankan conflict).

There are however other possibilities – the Convention on Torture, the Convention on Rights of the Child, even the Genocide Convention, could all be applied in due course, So there are ways and means of finding out – fact-finding in effect – as to whether there have been breaches of the Geneva Convention, the targeting of civilians, the bombing of hospitals, and so forth, as has been alleged.”

International concerns

Several bodies have called for Sri Lanka to include foreign judges in its accountability process. UN’s High Commissioner for Human Rights, Zeid Ra’ad Al Hussein commented on Sri Lanka’s ‘slow progress’ on transitional justice when presenting a report on Sri Lanka and added, “Continuing unwillingness or inability to address impunity reinforced the need for international participation in a judicial mechanism. That mechanism should include a special counsel, foreign judges and defence lawyers, and authorised prosecutors and investigators.”

After Zeid’s report, the United States said: “The Government’s statement against international participation in any future Sri Lankan judicial mechanism raises understandable concerns among victims and families about the integrity of any judicial process.”

Human Rights Watch said: “Sri Lanka’s increased unwillingness to consider international involvement directly contravenes the call by the UN High Commissioner for Human Rights for a “hybrid” justice mechanism given the shortcomings of domestic institutions to ensure impartial investigations and witness protection…… It is a core component of the resolution, which the Sri Lankan government embraced through its co-sponsorship of the resolution”.

Amnesty International in a statement to the Human Rights Council said: “Sri Lanka must not back away from the commitment [to include international investigators, prosecutors and judges]. International support will…… encourage trust and a perception of fairness on the part of victims, many of whom express deep disillusionment regarding the implementation of Sri Lanka’s commitments.”

A common thread running through these statements is the need for credibility in any accountability mechanism. The reason that credibility has become such a central issue stems from the Government itself. Over the past two years, the Government has issued many confusing (and often directly contradictory) statements on accountability.

International Criminal Court (ICC)

There is much talk about referring Sri Lanka to the ICC. The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court (ICC). The ICC can only investigate and prosecute countries that have signed the Rome Statute. The only exception is if the UN Security Council authorises the ICC to act.

1. Sri Lanka has not signed or ratified the Rome Statute and is very unlikely to do so.
2. To get the UN Security Council to refer Sri Lanka to the ICC is also unlikely because the situation in Sri Lanka must be a global threat to peace and security. Which country is going to back this?None. As such, this option will not apply.

The idea of taking Sri Lanka to the ICC is bizarre. It will not happen.

Human Rights Council (UNHRC)

The UNHRC is a talk shop. Resolutions coming from this talk-shop can be ignored. There is no penalty for non-compliance. If there is no penalty, why comply? It has been claimed that if there is non-compliance, there will be a reputational and diplomatic cost. The arrogance of the GoSL, past, present and almost certainly the future, is that this is of no consequence to Sri Lanka.
As Geoffrey Robertson QC has stated, participants in the UNHRC are, “paltering diplomats”- i.e diplomats who lie. So all that Sri Lanka has to do is to find some liars to present the situation in Sri Lanka in Geneva (and elsewhere). There is an abundance “paltering diplomats” in Sri Lanka.

To make a bad situation worse, the elected parliamentary members of the Tamil people in the N&E, the TNA (Tamil National Alliance)- at least their leaders and spokesmen, are in bed with the Sri Lankan government for personal gain.

The Sri Lankan government and the Human Rights Council

The GoSL is well aware that the HRC is a talk-shop and is not in a position to do anything. As such, Resolutions coming from the HRC can be ignored. If there is no penalty for non-compliance, why should the GoSL comply?

If the participants in the UNHRC are, “paltering diplomats”- i.e diplomats who lie, as Geoffrey Robertson said, does the HRC have any credibility? The answer is “No”. Combine this with what the Nikki Haley, U.S. Representative on the U.N. Security Council, recently said: “I mean, the Human Rights Council is so corrupt that it includes ‘bad actors’ who use it to protect themselves”. What emerges is a talk-shop that does not need to be taken seriously.

What will Sri Lanka do in the next two years?

Will it address the problems for which a further two years have been given – “Promoting reconciliation, accountability and human rights”? No, it will not do anything of the sort. Why not? Because there is no penalty.

All that the Government will do is to do what it is already doing – keeping the Tamil people in the North and East in a Military/Police State, and moving Sinhalese into the Tamil area ie ‘Sinhalisation’. If there is no time to complete this process in two years, I am sure that another two (or more) years will be asked for and given.

All that is necessary in March 2019 is for Sri Lanka to send another ‘paltering diplomat’ to Geneva to lie. The HRC is most unlikely to send an independent observer to see whether what is being presented by Sri Lanka is true.

If the necessary strings are pulled by Sri Lanka, there might even be a repeat of what happened in May 2009 – Sri Lanka being commended and praised. History does have a habit of repeating itself and this is not an exception.

The appointment of Shavendra Silva

I can do no better than to quote Yasmin Sooka’s International Truth and Justice Project, Sri Lanka (ITJPSL):

“The appointment of Major General Shavendra Silva, an alleged war criminal, as the chief administrative officer of the Sri Lankan Army is a slap in the face to tens of thousands of victims still waiting for justice eight years after the war ended. The Sri Lankan Army announced on Thursday (23/3/17) that he had been sworn in as Adjutant General.

This appointment coming just days after the Human Rights Council session ended in Geneva shows that the GoSL is not serious about accountability, reconciliation or human rights. This is a man whom the former High Commissioner for Human Rights, Navi Pillai, said had, at the very least, a case to answer regarding international crimes.

In the UN Human Rights Resolution the Sri Lankan Government co-sponsored in Geneva, it undertook to deal with accountability, reconciliation and human rights. The appointment of Shavendra Silva to a top position in the Armed Forces is not just an affront to victims but also the international community.

The UN should suspend the deployment of all new peacekeeping troops from Sri Lanka as they clearly cannot be trusted to vet personnel they send abroad for their alleged involvement in war crimes if they keep on rewarding alleged perpetrators at home.

Background of Shavendra Silva

Major General Shavendra Silva commanded the notorious 58 Division during the final phase of Sri Lanka’s ethnic conflict. An independent UN investigation found reasonable grounds to believe that the 58 Division was among units that shelled the Puttumattalan Hospital in 2009. The makeshift hospital, the GPS coordinates of which were sent to the military, was also visible with the naked eye from the 58 Division’s positions across the lagoon.

War survivors speak of the hospital overflowing with injured civilians and coming under repeated attack. Major General Silva however has asserted that the hospital was only used to treat LTTE fighters and contained no civilians. Nevertheless, targeting combatants who are injured and hors de combat constitutes a crime under international humanitarian law.

Silva also confirmed that he was the officer who led the assault to recapture Puttumattalan in April 2009, which survivors say resulted in extensive civilian loss of life. He says that he was aided by drones, which means he knew that large numbers of civilians were present during the attack and that it was foreseeable that they would be injured and killed.

According to the UN, the 58 Division under Shavendra Silva was present in the area where LTTE military and political leaders and their families surrendered on 18 May 2009, hundreds of whom were subsequently either summarily executed or subjected to enforced disappearance. In 2014, the ITJP compiled a list of surrendees seen by eyewitnesses in army custody who subsequently disappeared; the list includes women and young children who were put with LTTE cadres on buses.

Silva is also alleged to have been at the location of the “white flag” surrenders on the morning of 18 May 2009 and has said he was in overall command of the area. In a 2014 report on the “white flag” incident, the ITJP quoted an eyewitness who said he saw Shavendra Silva shake hands with the LTTE political wing leaders who surrendered to him; their corpses were seen on the roadside a few hours later.

The UN’s Investigation said LTTE leaders were summarily executed, despite assurances from the Government that they could safely surrender. The UN further reported that the 58 Division is alleged to have been involved in torture.

Forensic examination of photographs of the corpses suggested one had been shot multiple times in the back while his hands were bound behind his back.

After the war, Shavendra Silva was sent as Sri Lanka’s deputy representative to the UN in New York, affording him diplomatic immunity from prosecution. In 2012, he was removed from a top UN peacekeeping advisory committee because of the allegations of war crimes and crimes against humanity against him. He was then prevented from being posted as a diplomat to South African by NGOs who argued in a legal brief that there were substantial allegations that he was involved in war crimes, and crimes against humanity which rendered him ineligible for the post, and compelled South Africa to refuse to receive him.

This is the man whom President Sirisena thought fit to appoint to a senior position in the Armed Forces!

What about the Tamil people in the North and East?

The Tamil people in the N&E of Sri Lanka who are facing a massive violation of their human rights bordering in genocide, will have to look elsewhere for help. It will not come from the UN Human Rights Council.

They might well have to look at other options such as total non-cooperation, civil disobedience – grinding the North and East to a halt.

This was seen on 24th September 2016. There was a massive protest in Jaffna, in the Tamil North, where some 15,000 Tamils took part in the biggest protest since the end of the armed conflict more than 7 years ago. Called ‘Ezhuka Thamizh’ (Let Tamils rise), thousands of Tamils from all eight provinces in the North and East came for the protest. The massive crowd surged through Jaffna town grinding Jaffna to a halt. All shops in the peninsula were closed in solidarity with the rally.

It was an excellent example of ‘people power’, of what is possible when people decide to act.

200,000 members of the Armed Forces were no deterrent. The crowd could not care less.

There was a recently a heart-warming incident in Jaffna. On 3 March 2017, three Tamil students in Jaffna Hindu College with outstanding courage, demanded that both TNA ‘leaders’ – the elected leader. R.Sampanthan MP and de facto leader and chief spokesman, M.A.Sumanthiran MP resign, saying in no uncertain terms, that they were bought by the Sinhala (‘Sri Lankan’) government. It was particularly courageous because one of the MPs referred to, was in the audience. What was also important was the reaction of the (massive) audience who applauded every sentence, indicating that what the three students said was widely supported. These three Tamil students will hopefully come forward as Tamil political leaders which is what the Tamil people need.

This is what is needed, not guns or violence. This is what Gandhi did when he had to take on the British Empire. At a time when Britain was at the height of its power, it could not cope with a ‘half-naked’ man in a loin cloth. Every time he was thrown into jail, Gandhi said, “I have won”. And he had. So did the 15,000 people who marched across Jaffna and the three Tamil students showed with commendable courage.

What the Tamils need most is a leader(s) who can stand up to the Sri Lankan (Sinhalese) leaders, not get into bed with them as some of the so-called Tamil ‘leaders’ are doing today for personal gain. I cannot think of a single instance where Gandhi compromised his stance and got into bed with the British. That is why he succeeded in what was thought to be impossible – to bring the world’s largest empire at that time, to its knees.

This sort of non-violent mass action is far more likely to yield results than useless Resolutions passed by a useless body such as the Human Rights Council.