Going back to Pre-2015 Geneva! – part I

By Austin Fernando

The European Union’s (EU) statement announcing its decision to consider withdrawing the GSP+ concession for Sri Lanka reiterates the crucial contents, i. e. alleged human rights violations and the repeal of the Prevention of Terrorism Act- PTA), in the United Nations Human Rights Commission (UNHRC) Resolution of October 2015, and the follow-up. The ‘Yahapalana’ government has been criticised for co-sponsoring the second resolution, but its critics seem to think that Sri Lanka had been free from UNHRC pressure before 2015.

Much water has flowed under the bridge since 2009, with the UNHRC, and the EU stressing the need for bringing about reconciliation in Sri Lanka. Concurrently, there have been interventions from other nations, too, e. g., the USA, Canada. This article attempts to explain why the 2015 UNHRC Resolution should be put in perspective so that we could address the consequential challenges and threats.

Even some intellectuals argue that UNHRC resolutions are baseless. Another school of thought maintains that we should get over the criticisms against Sri Lanka by adhering to acceptable standards/norms and reap the socio-economic benefits. Even if the resolutions are baseless, as claimed, we cannot afford to ignore the fact that they have been taken very seriously by the international community, whose opinion and decisions affect us politically, diplomatically, and economically.

Let’s revisit the pre-2015 Geneva situation.

Joint Statement by President Mahinda Rajapaksa and UNSG Ban-Ki-Moon

In the aftermath of the victory against LTTE in May 2009, UN Secretary-General (UNSG) Ban-Ki-Moon and President Mahinda Rajapaksa issued a Joint Statement on 23 May 2009, which was the initial step toward post-war reconciliation. The content of this statement is worth revisiting:

1. The visit reflected the close cooperation between Sri Lanka and the UN, and its commitment to work with the UN in the future.

2. The conflict over, Sri Lanka has entered a new post-conflict beginning and the Government of Sri Lanka (GOSL) faces many immediate and long-term challenges. The critical status offers opportunities for the long-term development of the north and for re-establishing democratic institutions and electoral politics after decades. The GOSL expressed its commitment to ensuring the economic and political empowerment of the northern people.

3. President and the SG agreed that addressing the aspirations and grievances of all communities and working towards a lasting political solution was fundamental to ensuring long-term socio-economic development.

4. The SG welcomed the assurance of President Rajapaksa stated in his statement in Parliament on 19 May 2009 that a national solution acceptable to all sections of people will be evolved. President Rajapaksa expressed his firm resolve to proceed with the implementation of the 13th Amendment, and to begin a broader dialogue with all parties, including the Tamil parties.

5. President and SG discussed a series of areas in which the UN will assist the ongoing efforts of the GOSL in addressing future challenges and opportunities.

6. Concerning IDPs, the UN will continue to provide humanitarian assistance to IDPs in Vavuniya and Jaffna. The Government will continue to provide access to humanitarian agencies. The Government will expedite the necessary basic and civil infrastructure, means of livelihood necessary for the IDPs for the earliest resumption of their normal lives. The SG welcomed the announcement by the Government expressing its intention to the planned dismantling of welfare villages.

7. The GOSL seeks the cooperation of the international community for mine-clearing.

8. The SG called for donor assistance towards the Common Humanitarian Action Plan jointly launched by the GOSL and the UN.

9. President Rajapaksa and the SG recognized many former child soldiers as an important issue. President Rajapaksa reiterated his firm policy of zero tolerance about child recruitment. In cooperation with the UNICEF, child-friendly procedures have been established for their “release and surrender”, and rehabilitation to reintegrate former child soldiers into society as productive citizens. The SG while appreciating the progress encouraged GOSL to adopt similar policies and procedures relating to former child soldiers in the north.

10. President Rajapaksa informed the SG regarding ongoing initiatives for rehabilitation and reintegration of ex-combatants, in addition to the ongoing work by the Office of the Commissioner-General for Rehabilitation, and the National Framework for the Integration of Ex-combatants into Civilian Life under preparation, with the assistance of the UN and other international organizations.

11. Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights laws. The Government will take measures to address those grievances.

The final consensual understanding (No; 11) was a carte blanche for the UN. Sections 1 to 10 are on the need to satisfy the needs of the affected with the help of the international community. Perhaps, in response to the alleged atrocities during the final phase of the conflict and/or out of its humanitarian concerns, the GOSL unilaterally made its proposals to the UNHCR on 27th May 2009.

11/1 Resolution 27 May 2009

This proposal, titled “Assistance to Sri Lanka in the promotion and protection of human rights” contained the following:

1 Welcomed the GOSL’s commitment to promote and protect human rights and encourage upholding human rights legal obligations.

2 Encouraged the GOSL to continue pursuing existing cooperation with UN agencies to provide basic humanitarian assistance

3 Encouraged the GOSL to continuously pursue cooperation with relevant UN organizations, to provide, to the best capabilities, with GOSL cooperation, basic humanitarian assistance to internally displaced persons (IDPs).

4 Welcomed the announcement of the proposal to safely resettle the bulk of IDPs within six months and encouraged the GOSL to proceed with due respect for persons belonging to differing minorities.

5 Acknowledged the GOSL’s commitment to providing access, as appropriate, to international humanitarian agencies to ensure humanitarian assistance to the IDPs to meet their urgent needs and encouraged the Sri Lankan authorities to further facilitate appropriate work.

6 Encouraged the GOSL to its efforts towards the disarmament, demobilization, and rehabilitation of former child soldiers, their physical and psychological recovery, and reintegration into society, through educational measures, considering the rights and specific needs and capacities of girls, in cooperation with relevant UN agencies.

7 Urged the GOSL to strengthen activities to ensure that there is no discrimination against ethnic minorities in the enjoyment of all human rights.

8 Welcomed the continued cooperation between the GOSL, relevant UN agencies, and other humanitarian organizations to provide humanitarian assistance to the affected people and encouraged continued cooperation with the GOSL.

9 Welcomed the recent visits of the Under-Secretary-General for Humanitarian Affairs and the Representative of the Secretary-General on the human rights of IDPs and encouraged continuous cooperation in the mobilization and provision of humanitarian assistance.

10 Welcomed the visit of the SG, and endorsed the joint communiqué issued after the visit and the understandings contained therein.

11 Welcomed the resolve of the Sri Lankan authorities to begin a broader dialogue with all parties to enhance the process of political settlement, and to bring about lasting peace and development based on consensus among and respect for the rights of all stakeholders and invited them to actively participate in it.

12 Urged the international community to cooperate with the GOSL in the reconstruction efforts, by increasing the provision of financial and development assistance, for poverty alleviation and underdevelopment and promotion and protection of all human rights.

The 11/1 Resolution contained constructive proposals originating from the quoted joint statement. Its contents concerning the aspirations of the Tamils and the position of the international community were ratified. The GOSL, which co-sponsored the proposals had to implement them. But it did not make good on its commitments, and even tried to justify its failure to do so.

Later, since some of the pledges were politically disadvantageous, some conveniently claimed that the joint statement was non-binding as regards the international human rights and humanitarian laws. They chose to ignore the internationally binding commitments in the joint statement and the endorsement of it by Section 10 in the above resolution.

Darusman Committee

The UNSG witnessing the delays in the implementation of the proposals appointed the Darusman Committee on Accountability in Sri Lanka, in June 2010. The Darusman Report was unfavorable for Sri Lanka. At the very outset, the purpose of the committee and the appointment of the members thereof were questioned by the GOSL. The inclusion of Yasmin Sooka as a member was questioned because she was considered sympathetic to the LTTE. GOSL resisted the Darusman Committee investigating Sri Lanka. Further, UNHCR High Commissioner Navaneethan Pillai was also ridiculed.

19/2 Proposal (2012-3-22)

However, the Darusman committee gathered information from diplomatic and other sources. When the proposals were not implemented, the matter was brought to the attention of the UNHCR through the resolution 19/2 on 22 March 2012, which was ratified on 3 April 2012.

By this time the report of the Lessons Learnt and Reconciliation Committee (LLRC) had been released. It had many constructive recommendations. Therefore, the new UNHRC resolution made three recommendations, of which two specifically referred to the LLRC recommendations:

1 Called upon the GOSL to implement the constructive recommendations of the LLRC Report and to take steps to fulfill its relevant legal obligations and commitments to initiate credible and independent actions to ensure justice, equity, accountability, and reconciliation to all Sri Lankans.

2. Requested GOSL to expeditiously present a comprehensive action plan detailing the steps government has taken and will take to implement LLRC recommendations and to address alleged violations of international laws.

3 Encouraged the UNHRC and special procedure mandate holders to provide in consultation and concurrence with the GOSL, advice, and technical assistance and requested the High Commissioner to present a report on such assistance at the 22nd Session.

The GOSL considered the LLRC Report a success, but did not implement its recommendations fully. This above-mentioned resolution reminded GOSL of the need to carry out the LLRC recommendations and pointed out the Rajapaksa government’s lack of commitment to doing so.

I recall a personal experience concerning the LLRC Report to show how Commission recommendations are treated by governments. It is about the Aranthhalawa Bhikku massacre. In an article I wrote in 2012 in the Colombo Telegraph, I said:

“The Lessons Learnt and Reconciliation Commission (LLRC) in its report at Section 8.72 said “Representations were also made before the Commission that the Government should order a full-scale probe into the Arantalawa massacre of 33 Buddhist monks, most of whom were Samaneras, on 2nd June 1987….” It appears that along with the other investigations recommended in the LLRC Report, this is also forgotten. As recommended in Section 5.107 of the LLRC Report for other affected, as “a matter of justice,” the plight of these priests “needs to be recognized by the State…” I pray it to be fulfilled after 25 years.”

My prayer was answered nine years later under another Rajapaksa government. The incumbent administration is to probe into the Aranthalawa Bhikku massacre. The Yahapalana did not pay attention to it. The present response is surely not due to UNHRC pressure; it may be to remind the public of the LTTE atrocities against Buddhists in time for the next Provincial Council elections so that the government could gain some political mileage therefrom. Curiously, no such interest has been envied in other human rights issues. (To be continued.)