By G K Nathan –

Dr. G K Nathan

The resolution (A/HRC/25/23), on Sri Lanka was passed at the 25^th session of United Nation Human Rights Council (UNHRC) on 27 March 2014, after taking note that Government of Sri Lanka (GSL) under the leadership of President Mahinda Rajapaksa has failed to implement previous two resolutions at: 19^th session (A/HRC/19/L.2) and 22^nd session (A/HRC/22/L.1/Rev.1) which were passed with absolute majority.  Sri Lanka’s failure to positively respond to  UNHRC resolutions which called Sri Lanka to implement their own Lesson Learnt and Reconciliation Commission (LLRC) recommendations,  has left the International community with no other choices, but to accept the call from the Office of High Commissioner for Human Rights (OHCHR) to appoint an International Commission of Inquiry (ICoI) on Sri Lanka. The resolution passed at the 25^th session of UNHRC,  gives a mandate to OHCHR   “To undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission, and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedures mandate holders.”  The period that will be covered in the ICoI is same as that was covered by the LLRC investigation. The voting by the UNHRC members for the resolution was 23 for, 12 against and 12 abstention;  the surprising element is India’s abstention. The current government of India’s act, just before the forth coming general election with uncertain results, will have short and long term repercussion within and outside the Indian subcontinent. Surprisingly, India’s abstention will indirectly associate the country with a small group of undemocratic countries which Sri Lanka calls, its friends: Russia, China, Pakistan and Cuba; rather than joining, mostly democratic countries which supported the resolution.  In all 41 countries co-sponsored this resolution that shows the wide support from the International community for the ICoI.  It is laughable for the External Affairs Minister of Sri Lanka to Slam US for the UNHRC vote  and he went on to say that “Some countries had no choice but to back the resolution. They could not reject US threats as some countries have strong economic ties with the US.” It is pointed out by a journalist “Blustering Colombo Winds Up The United Nations One Too Many Times”, he was one of many from Sri Lanka who were taken aback by the fast development in appointing an ICoI.  This development has left Sri Lanka to put all hopes in China and Russia.  If past is any lesson, both countries quickly abandoned their “friends” and failed to defend them during the “Middle East Spring”, which led to overthrow of authoritarian rulers by mass uprising, but to some extend assisted by the military might of the West. The choice for President Rajapaksa and his administration controlled by his siblings is limited; will he take Sri Lanka, on a confrontational path or extend the hand of cooperation to OHCHR, so that all peoples can live in peace and harmony with guaranteed rights to all?

The ICoI will be appointed very soon by the OHCHR and the period covered will be from the time of signing of the Cease Fire Agreement (CFA) in February 2002 to the end of military conflict in May 2009. Understanding of these two important historical events and others that occurred in Sri Lanka within this seven year period which affected rights of Tamils will lead to a resolution to the long standing Sinhala – Tamil conflict in Sri Lanka. Taking note of these events and others that occurred during this period will help to understand the aspiration and struggle of Tamils’ for their democratic and human rights, which were buried in Mullivaikkal. Overwhelming evidence and awakening of International community to what really happened in North East Sri Lanka, contrary to claims made by GSL, resulted in passing of UNHRC resolution led by the USA, the UK and many others. Hopefully, this is the beginning for a solution to the conflict. The CFA was signed between the GSL represented by then Prime Minister of Sri Lanka and the leader of the Liberation Tigers of Tamil Eelam (LTTE), the CFA was officially endorsed by the USA, EU, Japan and Norway assumed the role of a facilitator. At the beginning of the period of inquiry endorsed by the UNHRC, the current President Mahinda Rajapaksa of Sri Lanka was the leader of the opposition in the Parliament of Sri Lanka.  The government was prematurely dismissed and the Parliament was dissolved by Mrs Chandrika Kumaratunga, which led to Mr Mahinda Rajapaksa becoming the Prime Minister of Sri Lanka in January 2004 with the support of Sinhala Buddhist chauvinists, the same elements helped him in the presidential election held in November 2005.  Beside the above two key events there are others events that occurred during this period of review, which contributed to lost opportunities and current situation in Sri Lanka:

1)    Boxing Day Tsunami of 2004 caused death of about 35,000 peoples, which brought all peoples (Sinhala, Tamils and Muslims) to come together under one umbrella with LTTE and GSL to form a Post Tsunami Operational Management Structure (P-TOMS) to manage promised US$4.5 million aid from the International community to rebuild the devastated areas.  Members of Parliament including two Cabinet ministers, belonging to a extremist Sinhala – Buddhist parties, with Prime Minister Mahinda Rajapaksa, filed a case opposing P-TOMS and the High Court of Sri Lanka upheld the challenge on 5 July 2005.  The first opportunity was lost, perhaps willingly?  No Remedial Action Taken by then Prime Minister Mahinda Rajapaksa to make the structure workable.

2)    Under Indo-Lanka accord of 1987, merger of Northern and Eastern Provinces of Sri Lanka was permitted, but subject to holding a referendum for the final approval. The merger was challenged in the Supreme Court which declared the merger as invalid on 16 October 2006; President Mahinda Rajapaksa had a golden opportunity to take procedural action to honour the accord by holding a referendum to merge the provinces. Even though the possibility to make changes existed with cooperation of majority of politicians in the Parliament, no remedial action was taken.

3)    President Mahinda Rajapaksa, unilaterally abrogated CFA between GSL and LTTE on 19 January 2008 by, disregarding the endorsement by the International community; thereafter, as the Commander in Chief of Armed forces led a war without witnesses in the North East Sri Lanka. At that time Asian Human Rights Commission warned “SRI LANKA: Abrogation of Ceasefire Agreement will Escalate Spiral of Violence”. True to their premonition, there are allegations and evidence against both combatants that “war crimes and crimes against humanity” occurred during the conflict in breach of the International Human Rights Law (IHRL) and the International Humanitarian Law (IHL).  Now what happened is history, but the world owes justice to the victims.

4)    Intervention in Judiciary by removal of Chief Justice Shirani Bandaranayake, initiated by the governing party of President Rajapaksa for spurious reason, was condemned by International Commission of Jurists and called upon the Members of Sri Lanka’s Parliament to reject the impeachment motion that was put before Parliament on 10-11 January 2013. There are many who condemned this action, but what is happening does not give reassurance in the independence of the judiciary in Sri Lanka. This casts doubts on receiving justice under this regime.

The world became aware of alleged breaches by combatants of both sides who were engaged in military conflict, after the Panel of Experts appointed by the United Nation Secretary General Mr Ban Ki-Moon, released its findings on 31 March 2011 and called for an Independent International Inquiry, it has taken three years to come to fruition at UNHRC 25^th session.  Also, the international media gathered evidence on war crimes and crimes against humanity based on collated photographic evidence, recorded by GSL soldiers, as souvenirs and evidence from victims who have moved to democratic countries where they can freely speak. The Channel 4 gave wider publicity and produced irrefutable evidence: Sri Lanka ‘war crimes’: the evidence. The International Crimes Evidence Project (ICEP) on Sri Lanka was conducted by Public Interest Advocacy Centre (PIAC) in Australia by eminent lawyers, which was established to conduct objective, independent investigations into serious alleged violations of international law in the Asia-Pacific region. The ICEP report was based on evidence collated from the victims of military conflict who are current residents of Australia; the final report was tabled in the Australian Parliament on 12 February 2014 (see Hansard) or visit PIAC website.  The period of proposed International Commission of Inquiry by UNHRC, virtually coincides with the period of President Mahinda Rajapaksa’s regime, except for the first two years he was the leader of opposition, but Mrs Chandrika Kumaratunga of the same political party was the Executive President of Sri Lanka at that time. There is no evidence that both were ever enthusiastic about finding a political resolution to the conflict through the CFA, in the three years they were together holding high office. President Rajapaksa was elected to the office, as Commander in Chief of Sri Lanka Armed Forces; he exercised his prerogative and continued with a militaristic approach to the political conflict with the help of his brother Gotabhaya Rajapaksa, as the defence secretary by his side.   Both have command responsibility for what happened during this conflict covered in the investigation, it is not expected any assistance will be forth coming from President Mahinda Rajapaksa, but will be opposed by them, vehemently.  There are different views held by proponents and opponents of UNHRC resolution to hold and an Independent commission of Inquiry to determine accountability, meet justice to victims and promote reconciliation of peoples in Sri Lanka; in accordance with human rights, as determined by the ICCPR to which Sri Lanka is a signatory.

Reactions to UNHRC Resolutions on Sri Lanka

The resolution was based on the report submitted at the 25^th session by UN High Commissioner for Human Rights Ms Navi Pillay who will be relinquishing her position prior to September 2014 UNHRC session. The report was prepared based on her visit to Sri Lanka in the last week of August 2013, where she had extensive discussions with victims of the conflict, civil society representatives, the GSL officials, politicians and also visited the theatre of conflict zone; a comprehensive report on situation in Sri Lanka was released, prior to the 25^th session, in pursuant to Human Rights Council resolution at the 22^nd session of the UNHRC.  The OHCHR and Ms Navi Pillay offered, technical assistance following visits to Sri Lanka in November 2012 and October 2013 respectively; from the Working Group on Enforced or Involuntary Disappearances and Independent Expert on minority issues. The GSL declined the offer of help and went on the offensive and presented, point by point “comments” on the report and said that GSL regretted that “the High Commissioner had raised concerns regarding a range of issues based on information of questionable veracity and arrived at conclusions in a selective and arbitrary manner”.  There are currently, nine outstanding requests from OHCHR to visit Sri Lanka by special procedures: on minority issues; freedom of peaceful assembly and of association; freedom of opinion and expression; extrajudicial, summary or arbitrary executions; enforced or involuntary disappearances; human rights defenders; independence of judges and lawyers; discrimination against women in law and practice; and truth, justice, reparation and guarantees of non-recurrence. After failure of High Commissioner to convince the GSL to pursue a universally acceptable procedure has called upon the UNHRC for establishment of an international commission of inquiry mechanism, which will further investigate the alleged violations of IHRL and IHL and monitor any domestic accountability process in Sri Lanka.  The GSL says about the report prepared by OHCHR that ‘it gives scant or no regard to the domestic processes ongoing in Sri Lanka within the framework of the LLRC National Plan of Action (NPoA), and is politicized in premise’. In its detailed point by point “comments” on the OHCHR report, GSL has regretted that “the High Commissioner had raised concerns regarding a range of issues based on information of questionable veracity and arrived at conclusions in a selective and arbitrary manner.” GSL has rejected the report by Ms Pillay, will GSL implement the resolution based on that report?

Looking back at the past records of President Rajapaksa’s response to agreement he signed is neither encouraging nor reassuring to expect any positive outcome based on resolution passed at UNHRC 25^th session. Further evidence is based on the joint statement issued at the height of military conflict, on 23^rd March 2009 between the President of Sri Lanka and the United Nation Secretary General which “underlined the importance of an accountability process” and the Government of Sri Lanka agreed that it “will take measures to address those grievances”. Sri Lanka has failed to make any progress after issuing of a joint statement and in addition passing of two UNHRC resolutions at the 19^th and 22^nd sessions, did not see any progress.  Leading to three UNHRC resolution on Sri Lanka at 19^th, 22^nd and 25^th sessions, the joint statement and two earlier resolutions remain not fully implemented. On the contrary,  Ms Yasmin Sooka, The Bar Human Rights Committee of England and Wales (BHRC) and The International Truth & Justice Project, Sri Lanka has presented a report Torture and Sexual Violence in Sri Lanka  2009 – 2014 which shows  what happened during the conflict is still continuing even now.  Mounting, evidence shows that period of investigation may have to be extended at the appropriate time and also, there is substantial number of victims living outside Sri Lanka. It is important ICoI starts immediately, without any further delay.

The differences are evident from the opposing positions presented by sections of Sinhala and Tamil Nations at Geneva and in few other capitals of the world calling for International Inquiry. Considering the fact that there is Tamil Diaspora of about a million living in many Western democracies and their participation in public demonstrations in many events in Geneva are considerably  larger in number than that undertaken by the members of Sinhala Nation, which confirms that Sri Lanka is a divided country. The position taken by the Tamil Diaspora and the Human Rights Organization in Western countries, to create awareness of “oppression of Tamil Nation” in Sri Lanka; persuaded the Permanent Peoples’ Tribunal (PPT), the first Independent international Organization, to hold Dublin session in January 2010 and “established that war crimes and crimes against humanity were committed by the Sri Lankan state against the Tamil populations”.  The evidence presented at the first session and additional evidence made available subsequently resulted in the second  PPT Bremen Session being held from 7^th  to 10^th  December 2013.  Following conclusions were made “On the strength of the evidence presented, the Tribunal reached the consensus ruling that the state of Sri Lanka is guilty of the crime of genocide against Eelam Tamils and that the consequences of the genocide continue to the present day with ongoing acts of genocide against Eelam Tamils.” The recognition by a credible global body such as PPT made up of global judicial luminaries that “Eelam Tamils as a national group” is a reminder to the International community that future reconciliation between the two Nations  need to consider this observation. The observation is a historical fact from time immemorial and at the beginning of colonial era in 1505 in Sri Lanka, there were three Kingdoms, one of them was in the North. The hopeful sign is that such a recognition coming from an independent organization like PPT put the pressure on the International community to look at reconciliation, differently to what is perceived by the International community to date.  This part of the PPT judgement “Eelam Tamils as a national group” is of equal importance like the verdict on genocide, complicity etc. The International community should take into consideration in finding a solution to the long standing struggle for freedom and recognition.

The negative outcome at the UNHRC for the GSL has made President Rajapaksa regime to go on the offensive on Tamils in Sri Lanka and Tamil Diaspora, on two fronts:

1)    At the same time GSL has launched the “spectre of terrorism in Sri Lanka” used that to bring military into public life and “vested police powers in the armed forces”, which are prevalent in a totalitarian state only. The opponents the GSL have come under attack, mainly Tamils and also Sinhala activists.  Lawyers, academics and activists hit out at the growing militarisation of every aspect of society at a forum organised by the Bar Association of Sri Lanka (BASL) to analyse the implications of this act, very well represented by all communities.

2)    As an extension of above oppressive act in Sri Lanka, attention is being directed at 15 Tamil Diaspora organizations, around the world. They have been banned as “foreign terrorist” utilising the UN Security Council Resolution 1373 which was brought about by the USA on 28^th September 2001, after the attack on New York twin towers on September 11th 2001. The GSL hopes branding the Tamils who exercise their democratic rights as “Terrorists” can fool the world once more?

What are the Choices?

Almost nine years current President has been in power, as the Commander in Chief of Sri Lanka armed forces, there is evidence to suggest that he has command responsibility to all what happened in Sri Lanka, there is no sign that he is willing neither take responsibility nor to act against perpetrators. There is hardly any historical evidence to say that such leaders have ever voluntarily given up power, in most cases such leaders were overthrown by peoples’ power, recent one is Ukraine. President Rajapaksa has endorsed the action by Russian President to annexe Crimea; little realizing his predicament is no different. The constitutional amendment introduced by him and the absolute power granted to the President will keep him in power for life. The options to bring about change peacefully are limited, but there are two peaceful options:

1)    The work initiated by Permanent Peoples’ Tribunal can be continued in the International Criminal Courts (ICC) or at International Court of Justice (ICJ), both at the Hague, there are already evidence presented at PPT as well as collated evidence as part of the International Crime Evidence Project (ICEP). The option to take action at either ICC or ICJ can be initiated by any country. The judgement yesterday against Japan, on whaling at Antarctica and Japan’s willingness abide by ICJ judgement sets precedence and this action should be pursued without any delay.

2)    Recently held Provincial Council elections for a third of the Sri Lankan population, voters showed their disapproval with very low voter turn-out and those who voted for the opposition are far greater than votes received by the government, which demonstrates the government’s unpopularity. If GSL fails to cooperate with ICoI, then the move to persuade is to move towards economic sanction; that will send shivers down the spine of the current regime and hopefully change its position.