Calls to hold Sri Lankan state to account at UNHRC

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By Savitri Hensman

The Sri Lankan government is likely to face an uncomfortable time at the United Nations Human Rights Council (UNHRC) session in February-March 2021. Strong criticism can be expected, in light of the leaders’ failure to act on grave violations in the last stages of the civil war and ongoing mistreatment of minorities. Having withdrawn from past agreements to work with the international community, the president’s appointment of a three-person panel to revisit allegations of human rights abuses will be widely seen as an attempt to stall critics without holding out hope of real change.

Yet the international power games which surround the UN mean that member states can largely avoid being held to account for harming, even killing, their people. And a call by Tamil parties and diaspora groups for Council members to take action is weakened by a failure to acknowledge the Tigers’ contempt for human rights and joint responsibility for the terrible consequences. Insufficient emphasis on universality and consistency also makes it harder to convince Sri Lankans from majority ethnic and faith communities that they, too, are at risk if the state is not accountable.

Lobbying the UN offers an important opportunity to bring past and ongoing wrongs against minorities to international attention and perhaps encourage the government to rethink some plans and policies. Yet until more people in Sri Lanka (and, to a lesser extent, diaspora members) can be persuaded that the dead, bereaved and those facing ongoing abuses deserve justice, whoever the perpetrators are, it will be difficult to achieve a major shift in practice.

Past and present violations in a worsening human rights climate

Many of the concerns which arose towards the end of the war in 2009 and afterwards remain unresolved. While a previous administration made some efforts to address past hurts and overcome divisions, the current government made clear its unwillingness to act, incusing withdrawing from previous commitments to cooperate with the United Nations.

In the past year, the human rights situation in Sri Lanka has deteriorated further, with increasing militarization, withdrawal from past commitments to ensure accountability for abuses during and after the war and harassment and humiliation of ethnic, religious, sexual and gender minorities. Alongside ordinary Sinhalese people, Tamils and Muslims have suffered the effects of the pandemic and economic problems but have been further victimized.

In March 2020, President Gotabaya Rajapaksa publicly pardoned and released one of the very few members of the armed forces sentenced for war crimes. Staff Sergeant Sunil Ratnayake had been convicted of murdering eight Tamil civilians in 2000, including slitting the throats of a five-year-old and three teenagers. This sent out a chilling signal about the value of some human lives and power of those in uniform to disregard the law and moral norms.

Other problems range from routine unfairness to State refusal to explain what happened to the disappeared, hate crime by thugs, abuse by police or soldiers, not letting Tamils return to the homes from which they were forced during conflict and refusal to let Muslims bury family members who died during the pandemic. This would comply with their religious requirements, allowing them to mourn properly, and pose no real threat to public health.

The cruelty of forced cremation was apparent in December in the case of a baby who died, uniting people from different communities in protest. The demolition of a war memorial in Jaffna University in early January 2021, which had depicted the heartrending plight of the civilians who died was probably later recognized as having gone too far, causing dismay not only among grieving relatives but also overseas.

Yet President Gotabaya Rajapaksa and his government colleagues perhaps expect the political advantages to them from injustice of this kind to outweigh the disadvantages. Such evident bias may give Sinhalese Buddhists let down by the authorities a sense that there are others with even lower status and fuel the notion of minorities as a threat to national unity and public health, making erosion of democracy and rights less unacceptable. Open defiance of international human rights norms and structures has also allowed ministers to pose as bold champions of the nation despite controversial deals with China and India and other international business relationships in which Sri Lanka might appear a junior partner.

In the lead up to the UNHRC session, the Core Group on Sri Lanka (Canada, Germany, North Macedonia, Montenegro and UK) invited the government to co-sponsor a resolution but this offer was rejected, despite apparently “conciliatory” wording. Admiral Jayanath Colombage, Secretary to the Ministry of Foreign Affairs, said it would be “politically challenging” for the government to agree even a consensus resolution.

A letter and a commission

Against this background, various parties which were previously bitterly at odds combined to sign a letter dated January 15, to the 47 member states of the UNHRC. R. Sampanthan, leader of the Tamil National Alliance (TNA), Tamil National People’s Front  (TNPF) leader G. G. Ponnambalam, and Tamil Makkal Tesiya Kootani (TMTK) leader and former chief minister of the Northern Province C. V. Wigneswaran were among those who signed. There were also signatories from civil society.

An earlier draft by M. A. Sumanthiran of the TNA, which referred to human rights violations by both sides and with more modest aims, was reportedly rejected by Wigneswaran. The final wording became tougher in the quest for consensus and against a backdrop of frustration at the government’s rejection of even minimal accountability.

“Leaders across the political spectrum in Sri Lanka including from both the major political parties have categorically and without exception stated that they will protect the Sri Lankan armed forces from prosecutions,” the letter stated. “It is now time for Member States to acknowledge that there is no scope for a domestic process that can genuinely deal with accountability in Sri Lanka.

“The continuing and intensifying oppression against the Tamils including militarization, indefinite detention of political prisoners, land grab in the name of archaeological explorations, the denial of traditional, collective land rights like cattle grazing rights, intensifying surveillance of political and civil society activists, the denial of burial rights during COVID19 to our Muslim brethren and the denial of the right to memory underscore the urgency of addressing the deteriorating situation.”

It called for a resolution urging that the “UN Security Council and the UN General Assembly take up the matter and take suitable action by reference to the International Criminal Court and any other appropriate and effective international accountability mechanisms to inquire into the crime of genocide, war crimes and crimes against humanity.”

In addition, the letter called for the “Office of the High Commissioner for Human Rights (OHCHR) to continue to monitor Sri Lanka for ongoing violations and have an OHCHR field presence in country” and for “an evidence gathering mechanism similar to the International Independent Investigatory Mechanism (IIIM) in relation to Syria established as a subsidiary body of the UN General Assembly with a strict time frame of twelve months duration.”

A plea was made to UNHRC member states “to take decisive and timely action to grant redress to the people who have been denied justice thus far.” Tamil Diaspora organizations also urged overseas governments to take strong measures.

On January 21, the President announced a three-member Commission of Inquiry to look into the findings of past commissions. This would be given six months to produce its final report.

He claimed that “The policy of the Government of Sri Lanka is to continue to work with the United Nations and its Agencies to achieve accountability and human resource development for achieving sustainable peace and reconciliation, even though Sri Lanka withdrew from the co-sponsorship” of earlier resolutions. The government “is committed to ensure that, other issues remain to be resolved through democratic and legal processes and to make institutional reforms where necessary to ensure justice and reconciliation”.

Supreme Court Judge A. H. M. D. Nawaz was appointed as chair, while retired Inspector-General of Police Chandra Fernando and retired District Secretary Nimal Abeysiri were the other members. It is a long established principle that justice should not only be done but also be seen to be done, avoiding even suspicion of conflict of interest or partiality and demonstrating relevant professional competence. The choice of Commission members closely tied to Gotabaya Rajapaksa was a clear rejection of that principle, sending out the signal that the process was highly unlikely to be robust and independent, fitting in with a generally defiant stance towards the rule of law.

Judge Nawaz, a controversial figure, was made acting president of the Court of Appeal in early 2020. In June, he and another judge forced the Colombo High Court to postpone a case against a former navy commander accused of being involved in the abduction of 11 youth. In November, these judges issued an order quashing a Jaffna Magistrate’s summons for Gotabaya Rajapaksa to appear as a witness in a case involving the disappearances of two people in 2011. By the end of the year, he had been appointed to the Supreme Court, reportedly ahead of others recommended by the attorney general as better candidates. Whatever the actual reasons for his choice to chair the Commission, it was hardly likely to instil public confidence.

Chandra Fernando memorably replied in 2005, when he still in charge of the police and was asked about abuses (such as torture), “What about the victims of the criminals? Don’t they have human rights?” This missed the point that a robust rights framework protects both victims and suspects. His service in a presidential commission in 2020 looking into alleged political victimization did little to assure the public of his independence and human rights commitment.

In 2017, when Nimal Abeysiri was District Secretary of Badulla, he was criticized by the executive director of the Human Rights and Research Centre (Sri Lanka) for failing Uma Oya victims. He was part of a presidential task force appointed in 2020, amidst a tussle for power among Sri Lanka’s leaders at the time.

Whatever the personal merits of the members of the Commission of Inquiry, their choice would seem to send an unfortunate message to the people of Sri Lanka and the wider world. If the President and those he favours are seen as unaccountable to anyone at home and abroad for their conduct, the implications are serious indeed.

Reactions and future possibilities

On January 22, UK Minister for the Commonwealth, the UN and South Asia, Lord Tariq Ahmad, flagged up concerns in a telephone conversation with Foreign Affairs Minister Dinesh Gunawardena. “The UK & Sri Lanka are collaborating on climate change & trade. In my call with @DCRGunawardena today, I also raised concerns ahead of the upcoming @UN Human Rights Council, including the impact of forced cremations of #COVID19 victims on faith groups + justice & accountability,” he tweeted afterwards. In days and weeks to come, it is likely that others in the international community, too, will raise such issues with the Sri Lankan government.

There is little doubt that its grave failings on human rights will be in the spotlight at the UNHRC gathering. Gotabaya Rajapaksa may be counting on his international alliances to protect his regime from more than a reprimand, amidst rivalry among India, China and various other regional and global players, who may wish to cultivate him for their own ends. Also he may be banking on other countries wishing to maintain a good relationship to further their own business interests, especially in view of an economic downturn linked with coronavirus.

Yet the effects of the pandemic in Sri Lanka itself, including on the economy, mean that this may be a risky approach if and when other kinds of outside help are required. Weaknesses in good governance can prove costly at an international as well as local level. For instance, if accountability for use of aid appears to be lacking or there are fears that it might be denied to those in need if they do not have the “right” background or connections, this may cause some donors to think twice. In general, the increasing shift towards one-man rule and defiance of moral norms may isolate the country internationally, at a bad time.

However, if the President and his allies can convince the majority of Sri Lankans that he is on their side or, at least, offers some protection from various real or supposed enemies, he may feel confident that he can continue to disregard concerns. Yet if the different sections of the population most affected by abuses of political, social, cultural and economic rights and loss of democracy increasingly see their concerns as linked, the situation may shift. Alliances might then be built which might make it harder to deny justice to minorities, the poor and dissidents.

At present, some Sinhalese people – especially if they feel defensive or are in denial about the horror of what happened in 2009 – seem to see the calls for a proper investigation as unfair to their community, since Tiger leaders are largely dead or imprisoned so cannot be held to account. Yet a proper reckoning with the past will bring reputational accountability, so that violations by those in charge on both sides cannot be airbrushed away. This would assist in dispelling the kinds of myths which may fuel future militarism and violent extremism. And creating space for grieving and healing is vitally important.

Past experience has shown that, when accountability is weakened so that there are fewer checks and balances on use of power, people already facing disadvantage and discrimination are most vulnerable. Yet ultimately all are affected when human rights are not respected.

The forthcoming session of the UNHRC offers opportunities to raise awareness of why those with power should be held to account, in Sri Lanka and beyond.

– Savitri Hensman is an activist and writer based in the United Kingdom and this article was originally featured on groundviews.org

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