UNHRC Resolution on Sri Lanka- An Assessment

After a delay of nearly six months, the 268-page long report of the UNHCR on alleged ‘war crimes’ in Sri Lanka was released during the ongoing thirtieth session of the Commission. Broadly, the report deals with human rights violations during the period 2002 to 2009 when the government forces were engaged in the ethnic war in war in the country. It however, does not delve into the intricacies of alleged crimes which have been left for the next round of investigations.

Sri Lankan commitments welcomed:

The report welcomes the commitments made by the government of Sri Lanka:-

• To establish a Judicial Mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law;
• Government of Sri Lanka’s commitment to undertake a comprehensive approach in dealing with the past through the establishment of mechanism such as the Commission for Truth, Justice and Reconciliation.
• To sign and ratify international convention for the protection of all persons from enforced disappearances and to criminalize enforced disappearances.
• To initiate a process of political settlement through necessary constitutional measures.
• To begin issuing certificates of absence to families of missing persons.
• To release previous Presidential Commission reports to the public.
• To engage with the Office of the High Commissioner for Human Rights. ¹

Key Recommendations:

The key recommendations of the report relate to:-

• Reforming domestic laws to be able to conduct trials and punish those responsible for violations & abuse of human rights and violations of international humanitarian law.
• Accelerating the return of land to its rightful civilian owners.
• Introducing effective security sector reforms.
• Ensuring that all provincial councils are able to operate effectively, in accordance with the 13^th constitutional amendment.
• OHCHR provide an oral update on the progress during 32^nd session and a comprehensive report by 34^th session.
• Review and repeal Prevention of Terrorism Act, and review Public security Ordinance. ²

Contentious recommendations and their implications:

Some of the contentious recommendations of the report relate to:-

Establishment of ‘hybrid special court’ involving foreign judges and investigators with specifically declared mandate of ‘trying war crimes and crimes against humanity’ with an added comment that ‘the international investigation should draw on the lessons learnt and the good practices of other countries that have succeeded with hybrid special court’. These can, in the Sri Lankan view, have grave implications for the country as such courts could be perceived as a compromise from their stated position of need for domestic enquiry into war crimes.

A closer examination would suggest that these hybrid courts would be supplanting domestic machinery of enquiry than to support it, owing to extremely complicated structure where Sri Lankan and foreign authorities would be required to be integrated at every level. In all possibility, this super imposition of international community will be rejected by Sri Lankans. It may be noted that even South Africa had maintained that reconciliation should be encouraged and not imposed.

The evidence on which the findings of the report are based is shrouded in secrecy. To start with, during his term of office President, Mahinda Rajapaksa had denied UN investigators any access to Sri Lanka. So the investigators had to rely on secondary sources and testimonies of people outside Sri Lanka. Secondly, identities of persons who testified are protected, thus, given this assurance of anonymity, the possibility of politically or personally motivated allegations by the witnesses cannot be denied.

While accepting in principle that there were human rights abuses by all the parties in conflict, out of 1,200 plus paragraphs of report, only 5 cover LTTE’s activities and bulk of the report is devoted to atrocities by the Sri Lankan Army. Even there the report exonerates LTTE on several counts including non-use of ‘hospitals and other civilian facilities for military purpose’. Surprisingly, the report completely ignores allegations such as forcible recruitment of minor Lankan Tamils, use of women and children as human shields and holding of lakhs of civilians as hostage by LTT. So in that sense, the report draws adverse comments of being biased.

It also needs to be noted here that, any investigation into war crimes at this stage was likely to turn one sided as most of the LTTE cadres are dead now, and hence the only target of punishment would be the personnel of the Sri Lankan army. This could be one of the plausible reasons for the Tamil Diaspora along with Tamil politicians from Sri Lanka to be calling for international investigation.

It recommends that guilty army men to be punished or removed from service. It is doubtful if the authors of the report had factored urgency & necessity of the govt. forces to break the back of the LTTE under Prabhakaran. This is not to absolve Sri Lankan army of war crimes but response of army needs to be reasoned in the light of the barbarian, unscrupulous and dastardly tactics employed by LTTE, which was as much a terror group as Al Nusra, Al Shabab or Boko Haram.

The Sinhalese peoples and even others will probably rally behind the Army come what may. Also, it is the reality of the Westphalian system where no state can afford to have its army demoralized after such a decisive victory. Having said that, those who have committed heinous atrocities against innocent civilians should never be spared, but let such trials not turn into a ‘show trial’ arranged and managed by external agencies to revive the agonies of Tamils than to ensure justice for them.

Conclusions:

The report was prepared before Sri Lankan Presidential elections in January this year and its release was delayed by six months by High Commissioner of Human Rights as he wanted to provide an opportunity to then newly elected Sri Lankan government to fulfill productive task in the field of Human Rights. Thus, the report is not only dated, but also doesn’t factor in the new political realities of Sri Lanka. For instance, President Sirisena has already proposed a ‘Truth and Reconciliation Commission’, yet the report insists that the government would not be able to deliver justice on its own. This is not only pre-judgmental but may adversely impact Sri Lanka’s own plans of reconciliation.

The draft resolution aiming to foster reconciliation and improve human rights and accountability of the nation has already sparked fresh wave of debate in Sri Lanka. Most of the backers of this investigation, including the U.S, seem satisfied with the efforts of the new administration and will likely support Sirisena’s insistence on domestic enquiry. Here lies a contradiction, that domestic enquiry will never satisfy Tamils given their level of distrust in the Sri Lankan justice system. And understandably, justice takes precedence over political reconciliation for the Tamils to have a closure. If justice is given preference, then political reconciliation will recede away as both cannot walk hand in hand. This might result in return of polarization within Lankan society and the very process of probe can accentuate the existing level of distrust and divide between Tamils and Sinhalese.

History is replete with examples of how seeds of unrest are sown if one party alone is made to accept the ‘blame for war’. Sri Lankan forces were at war with a terrorist organization and had its own compulsions and employed measures which admittedly violated human rights norms. Yet, in the interest of achieving genuine peace and lasting reconciliation, the UNHRC should encourage a Sri Lanka driven political process that seeks ‘genuine reconciliation’ and not retribution perceived as ‘dictated’ by outside forces. This would possibly help the country evolve a consensus within the society through a credible process while ensuring justice for the innocent victims of the protracted war.

Endnotes:

1. News1st, Key features of the US draft resolution on Sri Lanka submitted to UNHRC, September 25, 2015
2. ibid

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Published Date: 16^th October 2015, Image Source: http://colombogazette.com [3]
(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation)