It has now become clear that Sri Lanka, by co-sponsoring with the United States the consensus Resolution 30/1 of the United Nations Human Rights Council (UNHRC) in Geneva in 2015 hailed as an example of goodwill and cooperation and adopted unanimously, has compromised the credibility of the international organisation.
Contrary to promises made in Geneva that in the name of peace and reconciliation the Sri Lanka government would dismantle High Security Zones, close army cantonments and return lands seized from the people, the Northern and the Eastern Provinces, considered the Tamil homeland, continue to be occupied zones even eight years after the end of the Eelam war.
The resolution called for international, including Commonwealth, judges and other foreign personnel to bring about justice and accountability for excesses committed, especially during the last phase of the war in which about 40,000 people were killed. War crimes against humanity on discriminatory grounds can constitute genocide, according to international law.
Domestic mechanisms do not work in the context of war crimes. The UN High Commissioner for Human Rights, Zeid Ra’ad al Hussein in his report had said, “The sheer number of allegations, their gravity, recurrence and the similarities in their modus operandi as well as the consistent pattern of conduct points towards ‘system crimes’ and that it was the Sri Lankan state that was the perpetrator of the international crimes.”
It was for this reason that hybrid courts and tribunals, as in Cambodia, East Timor, Kosovo and Sierra Leone, were suggested.
In his report to the 34th session of the UNHRC on March 3, Al Hussein demanded the Sri Lanka government institute legislation which will establish a hybrid court with international judges, defence lawyers, prosecutors and investigators to investigate violations and abuses of international human rights law and war crimes.
The report of the office of the UN High Commissioner for Human Rights urged the Sri Lanka government to give the highest priority to the restitution of all private land that has been occupied by the military and to end the military involvement in commercial and other civilian activities.
It wanted the government to issue unequivocal instructions to all branches of the military, intelligence and police forces that torture, sexual violence and other human rights violations are prohibited and will be investigated and punished. The government must order all security forces to end immediately all forms of surveillance and harassment of and reprisals against human rights defenders, victims and social actors.
The report also wanted the government to enact legislation criminalising genocide, enforced disappearances without statutes of limitation and modes of criminal liability, in particular command or superior responsibility. Al Hussein said Sri Lanka had made “worryingly slow” progress in addressing its wartime past and warned this could threaten lasting peace and stability.
Acknowledging the government has made some advances on constitutional and legal reforms, limited land restitution and symbolic gestures towards reconciliation, he cautioned that the measures taken so far were inadequate, lacked coordination and a sense of urgency.
The High Commissioner’s demand to constitute special war crimes tribunals involving international judges and prosecutors was rejected by the Sri Lankan government in spite of it having co-authored the proposal.
Prime Minister Ranil Wickremesinghe said a call for a hybrid court system was included in the resolution because the international community lacked faith in the judiciary of that time. During the last two years the government had restored independence of the judiciary and thereby made the demand redundant, he said.
Moreover, even if a constitutional amendment was moved to establish a hybrid court it will have to be passed be a two-thirds majority and approved by the people in a referendum which was not politically feasible. As long as the Sinhalese constitute a majority in the electorate and in Parliament, such a move will never be countenanced. Nor will they be a party to put the essentially Sinhalese military in the dock irrespective of the evidence of war crimes.
Maithripala Sirisena was voted President on the promise that he would restore the rule of law and work towards reconciliation with ethnic Tamils. He had the support of the dominant sections of the two largest political parties, the United National Party (UNP) and the Sri Lanka Freedom Party (SLFP), in the country as well as the minority communities. But he failed to tackle the ethnic crisis which threatened to divide the country.
If he was serious about addressing Tamil oppression, he would have ended the military occupation of the Tamil areas and repealed the Prevention of Terrorism Act. Instead, he is seeking to get the 30/1 Resolution amended to wriggle out of inclusion of foreign judges failing which he will seek an extension of two years to do nothing in the hope the problem will disappear.
Under no circumstances will he ever acquiesce to expose the military to impartial independent investigation. What is really needed now is for the UN Security Council to refer Sri Lanka to the International Criminal Court.
Even under the National Unity government of Sirisena and Wickremesinghe, police and military surveillance of public life in the Northern and the Eastern Provinces continues. Activists and civilians fear that if the political situation deteriorates, those who used the seeming appearance of normalcy to engage in activism may be targeted by government functionaries similar to the crackdown on activists following the collapse of the 2001-2003 peace process.
A substantial number of political prisoners still languish in jail. Some who were released have been assigned for rehabilitation by the armed forces which include cruel torture and degrading treatment. The Office of Missing Persons with all its faults remains an institution only on paper. Wickremesinghe has said on more than one occasion that those who have disappeared are dead.
Evidence gathered by the Foundation for Human Rights in South Africa and the International Truth and Justice Project (ITJP) for submission to the truth commission in Sri Lanka, if it is ever established, will expose the violations perpetrated by the security forces, according to Yasmin Sooka, executive director of ITJP. In the former conflict areas, Tamil civilians live under a militarised and securitised system in which surveillance and intimidation constitute everyday life, she said in an interview.
The violations and abuses are ongoing and include abductions, torture and sexual violence which the ITJP continues to document once the victims flee the country. This level of militarisation is unacceptable eight years after the war. It also demonstrated the security forces continued to operate with impunity.
A set of ‘infographics’ prepared by the Sri Lanka Campaign for Peace and Justice exposes alarming facts about the military’s expansion in the North-East. The horrifying reality is that the military has no plans to leave but is there to stay, making the Tamil provinces a virtual army camp.
Meanwhile, former President Mahinda Rajapaksa is making steady progress in his attempt to stage a comeback in the next election. He has the support of the Buddhist clergy and a sizeable section of the Sinhala masses. At least 50 of the SLFP MPs already owe their allegiance to the former President. Sirisena, on the other hand, is slow to act and Prime Minister Wickremesinghe is not always on the same page as the President.
His promise to abolish the presidential form of government is yet to be implemented. Most of the promises the duo made at the time of the 2015 election are yet to be redeemed. Their attempt to re-write the Constitution has met with a roadblock.
The Tamils who played a major role in ousting Rajapaksa are running out of patience as the government has abandoned the UNHRC Resolution 30/1 for all practical purposes. Unless the government delivers, one could expect the re-emergence of the Rajapaksa regime in the not too distant future.
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