The new element that has come into this UNHRC led process of reform is the UN High Commissioner’s report which has made three particularly strong recommendations to the government. These are in addition to Sri Lanka’s obligations contained in the co-sponsored resolution. This report calls for the establishing of a fully-fledged office of the UN Human Rights High Commissioner to be set up in Sri Lanka to monitor and support the implementation of the government’s commitments to the UNHRC in terms of Resolution No 40/1. It also calls for the setting up of a hybrid court to look into war crimes allegations and for the international community to apply the principle of universal jurisdiction to Sri Lankans accused of crimes such as torture, enforced disappearance and war crimes.
Most of the other recommendations also focus on issues of accountability and justice. These include publicly issuing instructions to the security forces that torture, sexual violence and other human rights violations are prohibited, and will be investigated and punished; and order all security forces to immediately end all forms of surveillance and harassment of human rights defenders, social actors and victims of human rights violations; and to develop a full-fledged vetting process, respecting due process, in order to remove from office security personnel and other public officials involved in human rights violations; apply stringent screening procedures for units and individuals applying to serve in United Nations peace operations; and support the Human Rights Commission, including by ensuring that it receives adequate resources to fulfil its mandate effectively and support the independent commissions, fully respect their independence, and take into account their recommendations.
In his strong response to the UN Human Rights Commissioner’s report, Foreign Minister Tilak Marapana, has used his legal expertise to challenge the UN claim that 40,000 civilians were killed on the Vanni east front in the final phase of the war between January and May 2009. He used the disclosure made by Lord Naseby in the House of Lords, on Oct 12, 2017 to dispute the UN claim. He said the considerable unevenness in the standards of proof applied to the Government of Sri Lanka, compared to those applied to the unsubstantiated allegations made by Sri Lanka’s detractors is problematic and confounding. In this context, the Mannar graves referred to in para 23 of the High Commissioner’s Report and elaborated earlier is a case in point. While this report may have been compiled over several months ago, at the time of its release, a determination on the dating of the remains had already been made based on forensic evidence. We do not see this important detail included in the report. Moreover, the report presupposes other mass graves might be expected to be found in the future.
The Foreign Minister added that an assumption of this nature in a public report, on a matter of this magnitude and seriousness, is not acceptable, and may even cast a doubt as regards other assertions in the report. In addition, in explaining the relatively slow progress of the Sri Lankan judicial system and in a bid to counter the demand for new laws and foreign judges in a hybrid court he said, “On the contrary, the judicial system in Sri Lanka is adequately equipped to deal with complex crimes. Criminal investigations pertaining to cases referred have been taken congnizance by the investigating agencies to be conducted under established legal procedures and are periodically being monitored in terms of the judicial process. Any complex criminal investigation is time consuming. The acknowledgement in paragraph 20 of the report that ‘victim tracing procedures’ require thorough assessments in multiple areas and takes time, is an indicator that establishes the said assertion. It also negates the alleged inability of the Sri Lankan criminal justice system to deal with the nature of allegations and complexity of crimes.”
However, this response appears to have set off a similar legally proper response on the other side of the divide. TNA parliamentarian M A Sumanthiran said in parliament that “it is only through the participation of foreign judges can independence be assured. In a matter where the contesting parties or the warring parties include on one side the state of Sri Lanka and on the other side a militant group that had the objective of dividing the country, the state of Sri Lanka cannot be an independent arbiter and it is because of an independent judicial mechanism that nobody can complain about, that we have asked for participation of foreign judges.” He said that the TNA prefers a hybrid judicial mechanism, “but if the government, despite all of these written commitments, and the fact that it is possible under the constitution to do so, does not do it, then I think it is important that I today announce to the government and to the country, that we will take steps to move Sri Lanka to the ICC or some other entirely international judicial mechanism.”
The importance institutions such as the UN Human Rights Council is that they are international and multi-state institutions to which appeals can be made by those who are being victimized by their own governments and state institutions and have only limited recourse domestically to justice because the problem is with their own state. When a government is involved in conflict with groups within the country it becomes a part of the problem. It is difficult for anyone or any institution that is part of the problem to find a just solution to that problem. It is particularly difficult for a state to take action to ensure accountability for human rights violations that may have taken place by its own agents, especially where the legal principle of command responsibility may apply and reach the higher levels of the state. In those circumstances those who are being victimized will need to seek recourse from those who are outside of the state and governmental structures.
It is not only with regard to the Tamil conflict that those who are fighting for the rights of victims have felt it necessary to take the fight to Geneva and to the UN Human Rights Council which has been specially set up by the international community, including Sri Lanka, to deal with these issues. When the judicial and legal system within a country are not working as they should due to resistance from within the country by state and governmental authorities, the only alternative left is to look to the international community and to its human rights protectors. During the JVP insurrection in the latter part of the 1980s the present Leader of the Opposition and former President Mahinda Rajapaksa, who at that time was a spirited young MP, went on more than one occasion to the human rights forums of the UNHRC in Geneva to make an appeal before them for redress to ease the sufferings of the victims of the terror of that period.
Instead of an engagement based on legal polemics it would be better for the outstanding issues to be settled by all national parties and national institutions who become part of the solution. We have to find a mechanism in which those who take the decisions are widely and generally acknowledged by all parties to be ethnically and politically unbiased. The applicable principle would be that those who have to live with the consequences of the decision should be the ones who make the decisions, which is the strongest case for the national ownership of the transitional justice process. International members could point to the best answers drawing from international experience. The government needs to act with integrity and performs its duty through strengthened national institutions which are supported by the participation in them of international experts who may be judges, prosecutors and investigators who act as advisers rather than as decisionmakers which seems to be the sticking point.