The Government of Sri Lanka is set to reject almost out of hand the early draft of the 2021 UN Human Rights Council resolution on Sri Lanka, which activists are condemning as a bitter disappointment that does not take into account the scathing report by the High Commissioner for Human Rights.
The draft resolution does not even come close to the text of the resolution adopted by the Human Rights Council in Geneva in 2014, disappointed rights activists said as calls mounted internationally for the Council to take decisive action against the Sri Lankan Government. The resolution calls for the Office of the High Commissioner of Human Rights to consolidate and preserve evidence pertaining to war crimes and emblematic cases in Sri Lanka. The recommendation falls far short of the International Impartial Independent Evidence Mechanism for the investigation and prosecution of most serious crimes. This mechanism was established for Syria.
Michelle Bachelet in her report to the 46th Session of the Human Rights Council warned of an impending human rights calamity in Sri Lanka, with the Nandasena Gotabaya Rajapaksa Government actively obstructing justice for war crimes and other human rights violations with his endless commissions of inquiry. Bachelet even urged member states of the UNHRC to pursue the option of referring Sri Lanka’s war crimes and atrocities to the International Criminal Court in the Hague. In her 17 page Report, Bachelet told the Council that Sri Lanka was at a critical turning point in its engagement with the Council, as it issued an ‘early warning’ about trajectory for democracy and human rights in the island nation that is struggling to come to terms with crimes committed in war time. Bachelet’s warning is in line with the UN’s own commitments about intervening early with preventative action to prevent mass human tragedy. The policy that set out the UN’s responsibility to intervene early, came about after a review of the world body’s failures Sri Lanka in 2009, where it estimates 40,000 people perished in the final days of battle in the northern province.
The “zero draft” of the UNHRC’s 2021 resolution on Sri Lanka reflects none of the High Commissioner’s heightened concerns. Although the draft is subject to major revisions, activists are already warning that the resolution is likely to be diluted rather than strengthened before it is adopted by the Council in March.
Despite the weakness of the resolution relative to the concerns expression by human rights organisations and Tamil activists, the government of Sri Lanka will not only reject most of the draft it will also force a vote at 47-member state Council.
Sri Lanka has failed to win a vote on a resolution to promote reconciliation and accountability in the country since 2012 when the US first sponsored one at the Human Rights Council in Geneva. Colombo Telegraph has seen a GoSL document that outlines its opposition to the text of the draft resolution. The Nandasena Rajapaksa government is firmly opposing not only the recommendation that Bachelet’s Office run a mechanism to preserve and analyse and consolidate evidence regarding war crimes and human rights abuses in Sri Lanka for war crimes trials at a later date, demanding that the core group removes a brief reference in the draft text about the 13th Amendment to the Constitution that sets up the provincial councils.
Rajapaksa is planning to repeal the 13th Amendment in line with demands from hardliners in his ranks like Rear Admiral and Public Order Minister Sarath Weerasekera who wish to have the provincial council system scrapped. A new constitution the government is hoping to enact within a few months will likely remove the 13th Amendment unless the Government of India stages a major intervention to prevent it. (By Chinthika De Silva)
See full text of the current version of the UNHRC draft resolution on Sri Lanka:
19 February 2021
46th Session of the Human Rights Council
Promoting reconciliation, accountability and human rights in Sri Lanka
The Human Rights Council,
PP1: Guided by purposes and principles of the Charter of the United Nations, reaffirming the Universal Declaration of Human Rights and recalling the International Covenants on Human Rights and other relevant instruments,
PP2: Recalling Human Rights Council resolutions 19/2, 22/1 25/1, 30/1, 34/1 and 40/1 on promoting reconciliation, accountability and human rights in Sri Lanka,
PP3: Reaffirming its commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka,
PP4: Reaffirming also that it is the primary responsibility of each State respect, to promote and fulfill human rights as well as to ensure the full enjoyment of all human rights and fundamental freedoms of its entire population,
PP5: Deploring the acts of terrorism which occurred in Sri Lanka in April 2019 leading to high numbers of injuries and deaths,
PP6: Acknowledging the holding of free and transparent democratic elections in November 2019 and August 2020,
PP7: Taking note of the passage and operationalization of the twentieth amendment to the Constitution of Sri Lanka while stressing the importance of democratic governance and independent oversight of key institutions, and also encouraging the Government to respect local governance including holding of elections for provincial councils, and ensure that all provincial councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka,
PP8: Reaffirming that all Sri Lankans are entitled to the full enjoyment of their human rights without distinction of any kind such as religion, belief or ethnic origin, in a peaceful and unified land,
PP9: Acknowledging the progress made by the Government of Sri Lanka in rebuilding infrastructure, demining, land return, resettling internally displaced persons and improving livelihoods,
and encouraging further efforts in these areas,
PP10 Welcoming the continued commitment by the Government of Sri Lanka to remain engaged with and seek the assistance of the United Nations and its agencies, including human rights mandates and mechanisms, in capacity building and technical assistance,
PP11: Reaffirming also that measures taken to combat terrorism must comply with States’ obligations under international law, in particular international human rights law, international refugee law and international humanitarian law,
PP12: Emphasizing the importance of a comprehensive approach to dealing with the past incorporating the full range of judicial and non-judicial measures, in order to ensure accountability, serve justice, provide remedies to victims, avoid recurrence of violations of human rights and promote healing and reconciliation,
PP13: Recognizing that mechanisms to redress past abuses and violations work best when they are independent, impartial and transparent; and use consultative and participatory methods, that include the views from all relevant stakeholders including, but not limited to, victims, women, youth, representatives from various religions, ethnicities, and geographic locations as well as people from marginalized groups,
PP14: Recalling the responsibility of States to comply with their relevant obligations to prosecute those responsible for gross violations of human rights and serious violations of international humanitarian law,
PP15: Noting with appreciation the work of the Office of the High Commissioner for Human Rights towards the promotion and protection of human rights and truth, justice, reconciliation and accountability in Sri Lanka,
OP1: Welcomes the oral update presented by the United Nations High Commissioner for Human Rights to the Human Rights Council at its forty-third session and the report of Office of the High Commission for Human Rights at its forty-sixth session;
OP2: Also welcomes the positive engagement between the Government of Sri Lanka and the Office of the High Commissioner for Human Rights between 2015 and 2019, urges the continuation of such engagement and calls on Sri Lanka to implement the recommendations of the Office of the High Commissioner for Human Rights;
OP3: Acknowledges the progress achieved by the Office on Missing Persons and the Office for Reparations and stresses the importance of maintaining support to these institutions, safeguarding their independent and effective functioning, providing both offices with sufficient resources and technical means to effectively fulfill their mandates, allowing them to proceed with interim relief measures for affected vulnerable families, with a gender focus, and resolving the many cases of enforced disappearances so that families of the disappeared can know their fate and whereabouts;
OP4: Stresses the importance of 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;
OP5: Notes the persistent lack of accountability through domestic mechanisms and regrets that the domestic Commission of Inquiry announced on 22 January 2021 lacks independence and does not include a mandate to pursue accountability for past gross violations of human rights, or for serious violations of international humanitarian law,
OP6: Recognises the importance of preserving and analysing evidence relating to violations and abuses of human rights in Sri Lanka with a view to advancing accountability and decides to strengthen the capacity of the Office of the High Commissioner for Human Rights to consolidate, analyse and preserve information and evidence and develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law, to advocate for victims and survivors, and to support relevant judicial proceedings in Member States with competent jurisdiction;
OP7: Expresses serious concern 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 i, surveillance and intimidation of civil society and shrinking democratic space, arbitrary detentions, allegations of torture and other cruel, inhuman degrading treatment or punishment and sexual and gender based violence, and that these trends threaten to reverse the limited but important gains made in recent years and risk the recurrence of policies and practices that gave rise to the grave violations of the past;
OP8 Expresses further concern that the COVID-19 pandemic has impacted on freedom of religion or belief and exacerbated 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, and has disproportionately affected religious minorities and exacerbated distress and tensions,
OP9: Calls upon the Government of Sri Lanka to 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,
OP10: Also calls upon the Government of Sri Lanka to ensure the effective and independent functioning of the National Human Rights Commission, the Office on Missing Persons and the Office for Reparations;
OP11: Further calls upon the Government of Sri Lanka to protect civil society actors, to investigate any attacks and ensure a safe and enabling environment in which civil society can operate free from hindrance, insecurity and reprisals;
OP12: Requests the Government of Sri Lanka review the Prevention of Terrorism Act, and ensure that any legislation to combat terrorism complies with its international human rights and humanitarian law obligations;
OP13: Urges the Government of Sri Lanka to 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;
OP14: Encourages the Government of Sri Lanka to continue to cooperate with special procedures mandate holders, including responding formally to outstanding requests;
OP15: Also encourages the Office of the High Commissioner and relevant Special Procedures mandate holders to provide, in consultation with and with the concurrence of the Government of Sri Lanka, advice and technical assistance on implementing the abovementioned steps,
OP16: Requests the Office of the High Commissioner to enhance its monitoring and reporting on the human rights situation in Sri Lanka, including progress on reconciliation and accountability, and to present a written update to the Human Rights Council at its forty-ninth session, and a comprehensive report including further options for advancing accountability at its fifty-first session, both to be discussed in interactive dialogues.