{"id":199712,"date":"2019-03-15T00:00:24","date_gmt":"2019-03-14T18:30:24","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=199712"},"modified":"2019-03-26T19:01:40","modified_gmt":"2019-03-26T13:31:40","slug":"unhrc-cannot-rely-on-sri-lanka-to-prosecute-its-armed-forces-part-iv-canada-the-core-group-must-stand-with-victims","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/unhrc-cannot-rely-on-sri-lanka-to-prosecute-its-armed-forces-part-iv-canada-the-core-group-must-stand-with-victims\/","title":{"rendered":"Canada & The \u2018Core Group\u2019 Must Stand With Victims: Part IV"},"content":{"rendered":"

By\u00a0Usha S Sri-Skanda Rajah<\/a>\u00a0\u2013<\/strong><\/p>\n

\"\"<\/a>

Usha S Sri-Skanda-Rajah<\/p><\/div>\n

What member states must not do is help Sri Lanka perpetuate a lie. Canada and the \u2018Core Group on Sri Lanka\u2019 must stand with victims and lead the call for an international judicial accountability mechanism.<\/b>\u00a0 \u00a0<\/span><\/b><\/p>\n

To be read in conjunction with \u2018UNHRC Cannot Rely On Sri Lanka To Prosecute Its Armed Forces\u2019 Part I (here<\/a>)<\/b>, Part II<\/b>\u00a0(here<\/a>)<\/strong><\/span>\u00a0and Part III<\/b>\u00a0(here<\/a>)<\/strong><\/p>\n

It\u2019s ten years since the Mullivaikkaal genocide. For Tamils this is particularly a poignant and painful moment in time. The 40th<\/sup> session of the UN Human Rights Council (UNHRC) is in progress and another resolution on, \u201cPromoting Reconciliation, Accountability and Human Rights in Sri Lanka,\u201d is being drafted by the Core Group on Sri Lanka.\u00a0<\/span><\/p>\n

At the other front, as of writing, speculation is rife that President Sirisena\u2019s five man delegation<\/a> that includes the new Governor of the Northern Province, is going to the UNHRC to seek a withdrawal from its commitments under the two resolutions Sri Lanka co-sponsored. Sirisena is dead against, \u201cforeign participation\u201d and won\u2019t have that.\u00a0<\/span><\/p>\n

Seems as though there may be more drama coming and there\u2019s no telling how the Core Group and the UNHRC would respond; although there can\u2019t be any doubt this unending saga that relies on a domestic mechanism has got to end. And end it must. \u00a0 \u00a0 \u00a0 \u00a0<\/span><\/p>\n

In spite of the confusion, there are still some days left to finalise the draft and the likelihood that Sri Lanka could be given another extension is still true. With this in mind, Tamil Canadians, writing to Prime Minister, Justin Trudeau and Foreign Affairs Minister, Chrystia Freeland, urging against any extensions, want Canada to, \u201cstand firm on the side of victims massacred in the Mullivaikkaal Genocide and lead the call for international action, for the UNHRC to ask the UN General Assembly to request the Security Council to refer Sri Lanka to the \u2018International Criminal Court\u2019 or take the steps necessary for the creation of a \u2018Special International Criminal Tribunal for Sri Lanka – to try senior military and political leaders for mass atrocity crimes including war crimes, crimes against humanity, rape and genocide.\u201d<\/p>\n

The genocide in Sri Lanka is a question<\/strong><\/a> that needs to be litigated and any right thinking person would agree, allowing Sri Lanka to adjudicate the genocide it committed is not a rational proposition. Realistically speaking allowing Sri Lanka to investigate genocide is to allow the country under scrutiny to prosecute its own crimes and should be surely ruled out.<\/p>\n

Tamils missing, disappeared, raped, tortured and killed in Sri Lanka have not only got to be counted and accounted<\/a> for, but it\u2019s also imperative the perpetrators of these heinous crimes are called to account in an independent international tribunal that will look after the interests of victims and has the trust of the Tamil community. Like I wrote, the Report by Charles Petrie on, \u201cUN failures in Sri Lanka must also be seen as a scathing indictment on the perpetrators – the Rajapaksa government.\u201d I said it<\/a> when the Report was released and say it now: \u201cthe time has come to arraign the accused.\u201d<\/p>\n

While anticipating the usual shenanigans from Sri Lanka, Tamils are placing their faith wholly on the rule of law according to international standards and norms, and are looking to the UNHRC and Canada and the Core Group to deliver justice for the victims through an international judicial accountability mechanism and not through a domestic mechanism, hybrid or not.\u00a0<\/span><\/p>\n

Most Tamils and Tamil organisations in the diaspora and in the homeland are solidly against giving Sri Lanka any further extensions. While a massive protest<\/a> and shut down by Tamils was taking place in the homeland as the UNHRC opened its sessions, numerous Tamil diaspora organisations were writing<\/a> to the High Commissioner for Human Rights (High Commissioner) and to the 47 member states of the UNHRC; they are in unison, urging against giving Sri Lanka anymore additional time. Furthermore the students of the University of Jaffna are planning a Mass Protest Rally<\/a> on March 16 in Jaffna and March 19th<\/sup> in Batticaloa, calling for an international investigation and having the blessings of Justice Wigneswaran who has called on the people to give their full support to the initiative.\u00a0<\/span><\/p>\n

The news thus far coming from the 40th<\/sup> session of the UNHRC doesn\u2019t look good. All signs seem to indicate Sri Lanka will be aided in its sinister moves to obstruct justice yet again, by no less than the UNHRC an august body, one that everyone relies on to side with victims – the UNHRC which is supposed to expose and facilitate the prosecution of incalcitrant states that abuse human rights \u2013 in this case genocide. It would be unconscionable for Sri Lanka to be given a further reprieve but that is what will happen \u2013 Handing out extension after extension in which to fulfill its transitional justice obligations set out in resolutions 30\/1 and 34\/1, would amount to helping Sri Lanka perpetuate a lie – when everyone knows and should know by now the chances it would conform are nil. \u00a0 \u00a0<\/span><\/p>\n

As the Core Group on Sri Lanka \u2013 UK, Canada, Germany, North Macedonia, Montenegro and Northern Ireland\u00a0finalizes the draft of another new resolution<\/strong><\/a>, it\u2019s abundantly clear, wheels are being set in motion to sugar coat it beyond all reason and logic, with no consequences for non-compliance \u2013 all this only to seek Sri Lanka\u2019s cooperation and co-sponsorship to facilitate its passage without a vote. This is wrong, any which way you look at it, when now more than ever before, there are many more compelling reasons why it is insane to take this path when Canada and the members of the Core Group must know that the, \u201cUNHRC cannot rely on Sri Lanka to prosecute its armed forces.\u201d\u00a0<\/span><\/p>\n

The granting of another extension would be devastating news for Tamils. The Minister of Foreign Affairs of the Transnational Government of Tamil Eelam (TGTE), Manicka Vasagar, currently in Geneva asks whether the delegates are, \u201clistening to victims.\u201d In addressing<\/a> the UNHRC and members of the Core Group,\u00a0the Minister makes the case why an ICC referral or an international mechanism, together with a country based Special Rappoteur in the Tamil Homeland in the North and East including immediate de-militarisation is critically important.\u00a0<\/span><\/p>\n

In anticipation of her much awaited report on Sri Lanka, writing to the UN High Commissioner for Human Rights, Michelle Bachelet, the TGTE appealed to her, \u201cas the paramount defender of Human Rights,\u201d to \u201chalt Sri Lanka\u2019s UNHRC Charade<\/a>.\u201d\u00a0<\/span><\/p>\n

When the report finally came, the UN High Commissioner for Human Rights in her report<\/a> did not mince words (see Paragraph 51) about Sri Lanka\u2019s failure to establish a trustworthy domestic mechanism. It was honest. Alluding to \u201csome segments of the civil society\u201d, who have, she said, \u201ccontinued to call for international investigations and for the Security Council to refer the situation in Sri Lanka to the International Criminal Court for international prosecutions and adjudication of those most responsible for these crimes,\u201d and expressing trepidation that, \u201conly a handful of cases are likely to be addressed by the principles of universal jurisdiction,\u201d the High Commissioner stressed the \u201cneed\u201d for, \u201cAlternatives, including some forms of international investigation and prosecution..to ensure that those most responsible for the most serious crimes are prosecuted.\u201d<\/p>\n

I quote:<\/b><\/p>\n

\u201cThe High Commissioner stresses that the risk of new violations increases when impunity for serious crimes continues unchecked. To date, Sri Lanka has failed to seize the opportunity provided by the Human Rights Council to establish a trustworthy domestic mechanism to address impunity or to show, by consistent progress in emblematic cases, that such a mechanism is not necessary. Some segments of civil society have continued to call for international investigations and for the Security Council to refer the situation in Sri Lanka to the International Criminal Court for international prosecutions and adjudication of those most responsible for these crimes. The High Commissioner once again encourages Member States to prosecute Sri Lankans suspected of crimes against humanity, war crimes or other gross violations of human rights, in accordance with universal jurisdiction principles. This is likely to address only a handful of cases, however, where alleged suspects happen to be in the territory of countries receptive to the application of universal jurisdiction. Alternatives, including some forms of international investigation and prosecution, are therefore needed to ensure that those most responsible for the most serious crimes are prosecuted.\u201d<\/i><\/b><\/p>\n

End quote.<\/b><\/p>\n

The atmosphere in the coming days at the UNHRC is going to be quite tense and very painful for Tamils to bear. Yet Tamils would hang on to the last vestiges of hope that the draft would undergo necessary changes requested on behalf of victims – it\u2019s still not too late for the Core Group to heed the afore mentioned advice of the High Commissioner for Human Rights; heed too the numerous voices<\/a> crying out for justice. It\u2019s still possible for the Core group to call, \u201cSri Lanka\u2019s bluff<\/a>,\u201d\u00a0and muster enough support among member countries and do the right thing by, \u201ccalling\u00a0 <\/span>for Sri Lanka\u2019s situation to be referred to the International Criminal Court.\u201d\u00a0<\/span><\/p>\n

For Tamils the first jaw dropping bombshell came when the UK representative in the UN Julian Braithwaite, ahead of the 40th<\/sup> session, made the announcement on behalf of the Core Group that the new draft would basically call for, \u201ccontinuation of the cooperation begun in 2015 in partnership with Sri Lanka.\u201d In other words the same old stuff in resolution 30\/1 and 34\/1 will be regurgitated and produced in the new one.\u00a0<\/span><\/p>\n

And as announced the draft<\/strong><\/a> in its present form\u00a0is indeed a travesty of justice – an absolute cop out, when facts stare in the face that Sri Lanka has neither the political will, nor wherewithal nor the Southern consensus required for a domestic judicial accountability mechanism “with foreign participation” that’s called for in 30\/1.Sri Lanka despite being given ample time, has failed to act and will not act. Considering Sri Lanka’s President and Prime Minister have rejected outright any “foreign participation” set out in the 2015 resolution & vowed they wouldn’t allow a single soldier to be prosecuted, it is insane to expect “cooperation”. Insanity is described as doing the same thing over and over again and expecting a different result.<\/p>\n

It seems, President Sirisena, is sending a five member delegation to seek a withdrawal from its commitments Sri Lanka co-sponsored in 2015 and 2017. The Tamil Guardian reporting, \u201cthe announcement comes amid much contradiction as the foreign ministry said it would co-sponsor the new roll over resolution next week, only for the President to say he would be seeking a withdrawal.\u201d Earlier Mahinda Samarasinghe \u2013 the man who led the Sri Lanka delegation in March of 2013 at the 22nd<\/sup> session during Mahinda Rajapaksa\u2019s time was to lead the delegation but has backed out. Listening to Mahinda Samarasinghe making his presentation was painful the last time round. The International Truth and Justice ProjectSL (ITJP) questioning his credibility<\/strong><\/a> expresses doubt, \u201che can be taken seriously in this role when he continues to deny there\u2019s even a problem to fix.<\/p>\n

It\u2019s also rumoured that Prime Minister Ranil Wickremesinghe is sending his own delegation \u2013 one that would be willing to co-sponsor the resolution. As of writing no one knows how this is going to turn out.\u00a0<\/span><\/p>\n

Those who have seen the rollover draft would know, there\u2019s nothing new that catches the eye except Sri Lanka is said to be introducing a \u2018truth and reconciliation commission\u2019 Bill (TRC). This is in keeping with Sri Lanka\u2019s typical \u201cdrip feeding\u201d style, a modus operandi of theirs to make up for non-compliance and then play smart, by either shelving or slowing down the process of the said provision. This time too Sri Lankan delegation would come with a grand plan, hedging its obligations and back to prevaricating upon its return home.\u00a0<\/span><\/p>\n

It\u2019s a crying shame the new draft has failed like before to provide strict bench marks and time frames for Sri Lanka to adhere to. Even if it does it won\u2019t offer any comfort to victim\u2019s families who don\u2019t have any faith in a domestic judicial accountability mechanism anyway.\u00a0<\/span><\/p>\n

Leela Devi Anandarajah, the Secretary of the Association of Mothers of the \u2018Enforced Disappeared\u2019 representing all 8 Tamil districts in the island, is distraught at developments in Geneva. In an interview given to Suthan Raj of IBC Tamil, she shares her frustration at UK\u2019s attitude: She spoke of how mothers in search of justice for their children disappeared by Sri Lanka (who they hope may be still be alive), who want an international judicial accountability mechanism, are feeling betrayed by what\u2019s going on at the 40th session. Expressing dissatisfaction that Sri Lanka could be given another two year extension she said she was exasperated that UK is taking the lead in it – UK, that\u2019s was once the British colonial power that left the island in the hands of the Sinhalese, is letting us down once again, she said. Disappointed that UK mistakenly thinks the office of Missing Persons is functioning well, which is not true, stating the office only exists, its rent must be being paid that\u2019s all, telling Suthan Raj the families were not going to give up the fight and will carry on their search for justice, despite this absolutely devastating news coming from UK and the \u2018Core Group\u2019.\u00a0<\/span><\/p>\n

In that vein, Prime Minister Ranil Wickremesinghe\u2019s proposal to establish a \u2018Truth and Reconciliation Commission\u2019 is far too premature. And his call to \u201cforgive and forget\u201d is without merit when there has been no admission of guilt or expression of remorse. It is important to note in South Africa the TRC was established not by the persecutors but by the victims at the end of the apartheid era when Blacks won the right to govern themselves and not before. While Sinhala Buddhist supremacist policies prevail in Sri Lanka, a TRC is neither feasible nor viable.\u00a0<\/span><\/p>\n

In their letter to the Prime Minister and to the Foreign Affairs Minister, Chrystia Freeland, delivered through Member of Parliament for Scarborough Rouge-Park and Parliamentary Secretary to the Minister of Canadian Heritage and Multiculturalism, Gary Andandasangaree, Tamil Canadians, underscored, among other, the need for Canada to play a lead role at the UNHRC, as the body prepares to vote on a new resolution.<\/p>\n

The letter touched on many issues deserving high priority, that the High Commissioner mentioned in her Report on Sri Lanka<\/p>\n

The letter made clear \u201cSri Lanka has neither the will, nor wherewithal, nor the southern consensus needed to create a domestic mechanism with foreign participation as called for in resolution 30\/1 and 34\/1.\u201d\u00a0<\/span><\/i><\/b><\/p>\n

And I quote:\u00a0<\/span><\/p>\n

\u201cDespite being granted a two year extension in March 2017, Sri Lanka has failed to implement nearly all of the substantial provisions contained in resolutions 30\/1 of 2015 and 34\/1 of 2017, both of which it co-sponsored – including the failure to establish a judicial accountability mechanism, in a domestic setting with foreign participation, as promised. That\u2019s why a statement from the United Kingdom ahead of the March 2019 session, \u201cto continue the cooperation begun in 2015,\u201d and to work, \u201cin partnership with Sri Lanka,\u201d comes as a shock to Tamil Canadians. This move is devastating to say the least, when Sri Lanka continues to show it has neither the will, nor wherewithal, nor the southern consensus needed to create a domestic mechanism with foreign participation as called for in the resolution. This considering President Sirisena has categorically rejected any \u201cforeign participation\u201d, insisting he will not allow even one soldier to be prosecuted, going as far as removing Mr. Mangala Samaraweera, from the \u2018Foreign Affairs\u2019 portfolio, for agreeing to co-sponsor resolutions 30\/1 and 34\/1.\u201d<\/i><\/b><\/p>\n

End quote;<\/p>\n

Further <\/b>the letter reiterated the misgivings of Tamils with respect to establishing a TRC before a judicial accountability mechanism has handed its verdict, calling its launch far too premature \u2013 referring to South Africa and the importance of bearing in mind that the TRC there was\u2019 \u201cestablished not by the persecutors but by the victims at the end of the apartheid era when Blacks won the right to govern themselves and not before.\u201d<\/p>\n

As things are, no action can be expected from Sri Lanka, a government in turmoil & fractured within; with its politicians engaged in violence in parliament; whose President tried to dissolve parliament when his attempt to sack the Prime Minister and bring back Mahinda Rajapaksa failed. It\u2019s significant that Sri Lanka\u2019s President himself has allegations of mass atrocities held against him.\u00a0<\/span><\/p>\n

Canada must raise its voice against letting Sri Lanka off the hook for its continuing impunity. All political parties in Canada must work together in solidarity at this point and ideally speak with one voice, Canadian Tamils must persuade Canada to not settle merely for the full implementation of the resolution within a precise and firm time frame, futile as it may, but engage and lobby as many member countries as possible to get an international mechanism going. This before alleged war criminals, Gotabaya and Mahinda Rajapaksa come to power – which is very much in the cards with the Presidential and Parliamentary elections not far away.\u00a0<\/span><\/p>\n

All of these point to only one thing. While the application of \u2018universal jurisdiction\u2019 by individual states to prosecute war criminals must be pursued rigorously, the way forward for member states of the UNHRC is to ask the UN General Assembly to request the UN Security Council to refer Sri Lanka to the International Criminal Court or to an international special criminal tribunal for Sri Lanka set up for that purpose.\u00a0<\/span><\/p>\n

N<\/b>o doubt, the need of the hour<\/b> is for the Core Group on Sri Lanka and the UNHRC to act and act decisively, as per the High Commissioner\u2019s words, \u201cto refer the situation in Sri Lanka to the International Criminal Court for international prosecutions and adjudication of those most responsible for these crimes.\u201d<\/p>\n