Monday, 18 March 2019 16:47

The High Commissioner’s Report and The UNHRC Resolution: The Two Are Not One - Jehan Perera

The presentation of the Report of the UN High Commissioner for Human Rights on ‘Promoting reconciliation, accountability and human rights in Sri Lanka’ will take place at the UN Human Rights Council (UNHRC) on 20 March 2019. Some of the recommendations contained in this report are contentious ones. They will not be viewed favourably by the majority of people in Sri Lanka. One of these calls for the setting up of a hybrid court to look into war crimes allegations. Such hybrid courts, which include international judges, are set up where the justice system (and the country itself) has largely collapsed, which is not the case in Sri Lanka. Another recommendation calls on the international community to apply the principle of universal jurisdiction on Sri Lankans accused of crimes such as torture, enforced disappearance and war crimes.

The High Commissioner’s recommendations are not decisions of the international community but are recommendations that could become unnecessary if Sri Lanka takes sufficient corrective action. The more important matter to be taken up by the UN Human Rights Council will be the draft resolution on Sri Lanka on the same theme of ‘Promoting reconciliation, accountability and human rights in Sri Lanka’. This is the one that Sri Lanka has agreed to sign as co-sponsor, and is scheduled to be taken up on the following day of 21 March 2019. Unlike the report of the UN High Commissioner for Human Rights which contains observations and recommendations, the resolution on Sri Lanka will contain the decisions and pledges made by the Sri Lankan government at the prodding of the international community for implementation. But these are the same commitments that Sri Lanka made three and half years ago when it co-signed UNHRC resolution 30/1 of October 2015.

Both extremes of Sri Lanka’s ethnically divided society have sought to prevent the government getting a further two year extension to implement UNHRC Resolution 30/1 of October 2015. Opposition Leader Mahinda Rajapaksa announced his stance in parliament that Sri Lanka should withdraw as a co-sponsor of the resolution. He said “It is reported through the media that a hybrid court will be formed for violations related to human rights in Sri Lanka and a UN human rights office should be established here as well. The stance of the president and the prime minister is contradictory and I believe that we should withdraw from this motion”. Until the last moment it appeared that President Maithripala Sirisena himself was in opposition to what the government was doing. He planned to send a special three member delegation to the UNHRC to represent. While no separate presidential delegation will be going now, there is still a question mark as to what the position of the president’s representatives will be in Geneva on March 20 and 21.

Those who oppose the co-sponsoring of the UNHRC resolution by the Sri Lankan government need to also consider what might have happened if the government had not agreed to it. The pre-2015 government led by opposition leader and former president Rajapaksa took the position that Sri Lanka did not need to heed the international community on matters of its own internal affairs. But the resulting outcomes were fraught with difficulty and loss to the country. Due to the Rajapaksa government’s refusal to cooperate with the international community Sri Lanka lost the GSP Plus tariff concession of the European Union and thereby lost markets in garment and fisheries exports at the cost of income and livelihoods within the country. In addition, there was a looming prospect of tougher sanctions including travel bans being imposed on Sri Lankan government and military personnel and barriers in their path to participate in UN peacekeeping forces.

At the other extreme, Tamil nationalist parties and the Tamil Diaspora have also called upon the international community not to provide Sri Lanka with an extension of the time frame to implement its commitments under Resolution 30/1 of October 2015. University students and even mainstream Tamil politicians in Jaffna have protested against the extension of the UNHRC resolution. The Transnational Government of Tamil Eelam (TGTE), reiterated its call for a referral to the International Criminal Court. Sri Lanka’s complete and utter failure to make even the most minimal efforts to deliver justice to victims and their families cannot be tolerated. The international community must end its complacency with the impunity Sri Lanka extends to the perpetrators of some of the gravest crimes committed this century…The Human Rights Council must pass a resolution establishing an international investigative mechanism including a referral of the situation of Sri Lanka to the International Criminal Court.

The important thing to note is that the latest resolution that Sri Lanka has agreed to co-sign will contain no more than what Sri Lanka agreed to implement in October 2015. Therefore, it is inaccurate to claim, as some members of the opposition claim, that the government has got the country deeper into an international trap. The latest resolution gives Sri Lanka more time to implement the pledges and commitments it made in October 2015. The resolution of March 2019 will be on the same lines of Resolution 34/1 of March 2017 that gave Sri Lanka two more years to implement its pledges and commitments. As the government has been slow in implementing the pledges and commitments it made in October 2015, the UNHRC will be giving the government yet another two more years to fulfill them. It is also important to note that there is a difference between the report of the UN High Commissioner for Human Rights, which is an administrative document of that office, and the UNHRC resolution which is a political document obtained through the concurrence of the member countries of the UN Human Rights Council.

In view of the controversy surrounding the Geneva process, Sri Lankans need to be informed about the main issues that continue to be matters of concern for the international community and human rights organisations. The latest update of these concerns are to be found in the report of the UN High Commissioner for Human Rights. It has stated that slow progress in establishing meaningful transitional justice measures has engendered mistrust among victims and other stakeholders. The slow progress covers nearly all the main areas that Sri Lanka had committed itself to delivering on, including finding missing persons, returning land, release of detainees held without trial, replacing the Prevention of Terrorism Act, and bringing those accused of war-related crimes and other serious crimes to justice. It is the last of these issues that is the most politically contentious and given rise to most misgivings among the population.

At the same time, the report of the UN High Commissioner for Human Rights also stated that there had been progress in some significant areas. It noted that “Since 2015, the general situation has improved with regard to civil and political rights: there have been advances with respect to freedom of expression and assembly, incipient efforts made to consult representatives of civil society, a robust right to information framework has been established, and independent commissions, such as the Human Rights Commission, have been strengthened, and relations between security forces and civilians have improved. As noted above, commendable progress has also been witnessed in the State’s cooperation with United Nations human rights mechanisms.” It also commended Sri Lankan state institutions for holding to their mandates during the two month long political crisis at the end of last year. The report stated that “The High Commissioner joins the Secretary-General in welcoming the resolution of the political crisis in Sri Lanka through peaceful, constitutional means, and applauds the resilience of the country’s democratic institutions.”

Sri Lanka will soon be facing the international community in Geneva. We can draw inspiration from a poem that Nelson Mandela recited to his fellow prisoners to encourage them to overcome their present and look to a better future. “I am the master of my fate: I am the captain of my soul.” (English poet William Ernest Henley 1849–1903). The UN High Commissioner for Human Rights’ call to Investigate and prosecute in accordance with universal jurisdiction principles is in the absence of credible domestic processes. During the political crisis at the end of last year, the UN High Commissioner’s report itself pointed out that Sri Lankan institutions were able to conduct themselves in a peaceful and constitutional manner. If Sri Lankan institutions act with integrity and do their duty in a sustained manner there will be no need for either universal jurisdiction or hybrid courts to become operational or for further international interventions to facilitate national reconciliation.