Going back to pre-2015 Geneva: Part II

By Austin Fernando
(Continued from yesterday)

22/1 Proposal (2013-3-21)

A great responsibility was placed on the State officers to implement the proposals in the Resolutions. Unfortunately, the international community did not see this happen. Hence, it decided to submit the 22/1 Resolution on 21 March 2013 by way of registering its protest with Sri Lanka. What it, however, did not understand was that the government was planning to advance a presidential election, and, therefore, committing to implementing the UNHRC would be politically disastrous.

The 22/1 proposal acknowledged the constructive efforts such as the decision to hold the Provincial Council election in the North, infrastructural development, demining and facilitating resettlement of IDPs. However, the National Plan of Action proposed by the LLRC was considered inadequate to address all the findings and constructive recommendations of the Commission. It was also noted that States facing post-conflict situations should abide by international human rights and humanitarian laws. Nationalists did not oppose the earlier actions but resisted the latter which had to do with the military.

The 22/1 Resolution focused on the following salient points:

1 Encouraged the GOSL to implement the recommendations made in the UNHRC Report and to conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law, as applicable.

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

3 Encouraged the GOSL to cooperate with special procedures mandate holders and to respond formally to all outstanding requests.

4 Encouraged the Office of the High Commissioner and relevant special procedures mandate holders to provide, in consultation with and with the concurrence of the GOSL, advice and technical assistance on implementing the above-mentioned steps.

5 Requested the Office of the High Commissioner, with input from relevant special procedure mandate holders, as appropriate, to present an oral update to the Human Rights Council at its twenty-fourth session, and a comprehensive report followed by a discussion on the implementation of the present resolution at its twenty-fifth session.

The implementation of Human Rights and International Humanitarian Laws is the responsibility of any government. But those who duped themselves into believing that ‘internationals can be fooled’ did not want to protect Human Rights or uphold Humanitarian Laws. Although some IDPs were resettled, new military bases sprang up. From the perspective of the Tamils, their legal rights to private lands were denied.

The international community collected data from diplomatic and external sources. It was no secret that they were biased towards the needs and demands of the Tamil community. However, it had a clear understanding of the implementation of the proposals and was concerned about the tardy pace at which it was executed. They understood that the implementation of the proposals could not be expedited. Hence, they went before the UNHRC again.

25/1 Proposal (27.03.2014)

By 2014, the international community sadly believed Sri Lanka was an irresponsible, inert state. Hence the UNHCR, on 27 March 2014, passed the 25/1 Resolution titled ‘Promoting reconciliation, accountability and human rights in Sri Lanka’. The main points therein are as follows:

1.   Welcomed the oral update by the UN High Commissioner for Human Rights to the UNHRC 24th Session and the subsequent report by the Office of the UN High Commissioner for Human Rights (OHCR) on promoting reconciliation and accountability in Sri Lanka and the recommendations and conclusions, including on the establishment of a truth-seeking mechanism and national reparations policy as an integral part of a more comprehensive and inclusive approach to transitional justice.

2.  Called upon the GOSL to conduct an independent and credible investigation into allegations of violations of international human rights and humanitarian laws, as applicable; to hold accountable those responsible for such violations; to end continuing incidents of human rights violations and abuses in Sri Lanka, and to implement the recommendations made in the reports of the OHCR.

3.  Reiterated the earlier call upon the GOSL to implement effectively the constructive recommendations made in the LLRC Report, and to take all additional steps to fulfill its relevant legal obligations and commitments to initiate credible and independent actions to ensure justice, equity, accountability, and reconciliation for all Sri Lankans.

4.  Urged the GOSL to investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and other members of civil society, and all places of worship and urged the GOSL to hold perpetrators of such attacks to account and to take steps to prevent such attacks in the future.

5.  Called upon the GOSL to release publicly the results of its investigations into alleged violations by security forces, including the Weliweriya attack, and the report of the Army Court of Inquiry.

6.  Encouraged the GOSL to ensure that all Provincial Councils can operate effectively, in accordance with the 13th Amendment to the Constitution.

7.  Welcomed the visit by the Special Rapporteur on the Human Rights of IDPs in December 2013 and called upon the GOSL to facilitate the effective implementation of durable solutions for all IDPs.

8.  Welcomed the invitation to the Special Rapporteur on the Human Rights of Migrants and the Special Rapporteur on the Right to Education.

9.  Encouraged the GOSL to cooperate with other special procedures mandate holders and to respond formally to all their outstanding requests.

10. Noted the recommendations and conclusions of the High Commissioner regarding ongoing human rights violations and the need for an international inquiry mechanism in the absence of a credible national process with tangible results, and requested the UNHRC:

(a) To monitor the human rights situation in Sri Lanka and to continue to assess progress on relevant national processes.

(b) To undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the LLRC, and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated to avoid impunity and ensure accountability, with assistance from relevant experts and special procedures mandate holders.

(c) To present an oral update to the Human Rights Council at its 27th session, and a comprehensive report followed by a discussion on the implementation of the present resolution at its 28th Session.

11. Encouraged the UNHRC and relevant special procedure mandate holders to provide, in consultation and the concurrence of the GOSL, to provide advice and technical assistance on implementing the above-mentioned steps.

12. Called upon the GOSL to cooperate with the Office of the High Commissioner in the implementation of the present resolution.

The government did not proceed to implement these recommendations. It chose to ignore Section 10 in particular. The international community, therefore, opted for a strong response at the March 2015 UNHCR meeting. Moves were even afoot to impose economic sanctions.

‘Yahapalana ‘Government and the UNHRC

On 9 January 2018, the ‘Yahapalana’ President was sworn in and Foreign Minister Mangala Samaraweera asked for more time to implement the UNHRC recommendations. Most of us avoid discussing this background of the UNHCR proposals of 01 October 2015. Even today they discuss, misinterpret, and misrepresent facts.

These proposals did not fall from the sky. They were the result of the unilateral proposals first made on 27 May 2009 by the Rajapaksa government, its failure to implement them, and its lethargic, cavalier attitude and negligence. This led to the ratification of a new set of proposals recommended jointly by a core group of members of the UNHCR and the ‘Yahapalana government, to address the failures of the Rajapaksa government (2009), which was responsible for the 2009 UNHRC resolution.

The international community complied with the Yahapalana government’s request for more time. Had the Rajapaksa government responsible for Resolution 11/1 implemented the recommendations therein in an acceptable manner and responded to the feedback proposals, the country would not have faced the prospect of economic sanctions.

International pressure mounted from 2011-2014 as regards the 11/1 Resolution, and the Yahapalana government had to cooperate as regards the new proposals with the countries that supported Sri Lanka at the UNHCR. It should also be mentioned that such give-and-take policies don’t come without some disadvantages, the accountability mechanism in the 30/1 Resolution being a case in point.

The conceptual basis of the 2015 UNHCR Proposal

The 2015 proposals were based on the internationally accepted principles of reconciliation. As a first step towards initiating the truth and reconciliation process, it was proposed to establish a “Truth and Reconciliation Commission’ and an “Office on Missing Persons.” Secondly, the importance of demonstrating accountability towards the crimes endured by the affected communities was highlighted. Thirdly, it was required to establish a mechanism for reparation for the victims. Fourthly, it was proposed that constitutional guarantees by Parliament would ensure that such cruelty would not be repeated. Those were the ‘four pillars of reconciliation’.

These proposals were handed over to Prince Al Hussein, UNHCR High Commissioner by GOSL before Resolution 30/1 was tabled.

Withdrawal from UNHRC Resolution 30/1

In a way, it is unfair to blame the Yahapalana government for co-sponsoring Resolution 30/1 at the UNHCR in October 2015 although some people have taken exception to that course of action.

The current SLPP government has withdrawn from the 30/1 proposal and UNHRC’s 34/1 and 40/1 Resolutions—both more of technical nature and adopted without voting. We cannot withdraw from the resolutions or decisions taken between 2011-2014 because they are derived from the 11/1 Resolution. I believe (subject to correction since I am not a lawyer) that GOSL may argue the legality of other proposals if it wishes to withdraw from 11/1. It is the prerogative of the UNHRC to accept such a withdrawal. Even if we presume that such action is possible, the understandings reached in 2009 are still valid.

The question is whether the incumbent GOSL is still committed to implementing the 11/1 and the 27 May 2009 understandings. Since the 11/1 Resolution was unilaterally placed before the UNHRC by the GOSL after the war victory, it cannot argue that it was done under LTTE’s duress. If GOSL feels that 11/1 is now irrelevant, why doesn’t it say so? Did GOSL make the 11/1 proposal to hoodwink the UN Secretary-General? Or, was it another Medamulana ruse?

Two UNHRC resolutions call for the implementation of the LLRC’s constructive recommendations. The lack of commitment on the part of the Rajapaksa government to do so is unjustifiable.

Following the March 2021 Resolution in Geneva, the UNHRC has been empowered to “consolidate, analyze and preserve information and evidence” for “future accountability processes for gross violations of human rights or serious violations of international humanitarian law, to advocate for victims and survivors, and to support relevant judicial proceedings in the Member States with competent jurisdiction.”

However, some commentators opine that the Secretariat thus established will not be permitted to visit Sri Lanka like the Darusman Committee and that could hamper reporting. As stated earlier, information is freely available internationally. As a political columnist has aid recently, “it should not be forgotten that the Human Rights Commissioner’s office claims it already has trophy evidence which would be utilized.”

There are so many unanswered questions. But the demands made on behalf of the victims are still alive. Just a few days ago, didn’t MA Sumanthiran, MP, state so albeit in different words? It is these demands that drive the UNHCR and the European Union and even others to push GOSL against the wall.