The United Nations Human Rights Council 40th session ended last week, tying Sri Lanka to another procedural resolution which offered it two more years to implement the human rights undertakings it made before the International community in September 2015.
Despite predictions by the Opposition for the worst and warnings against co-sponsoring a later resolution moved by five member states led by the UK, Sri Lanka made it through putting on record the ground realities and the need for addressing Sri Lanka’s post conflict challenges with a domestic approach.
The Sri Lanka delegation also brought to the attention of the Council the need for the Office of the High Commissioner to engage closely with local independent institutions and government agencies to seek ‘verified data’ on the domestic situation, pointing out that some of the facts in the final report of the Human Rights High Commissioner tabled at the 40th session last week was incorrect.
The delegation sought to set the record straight re the Mannar mass graves and the Constitutional restrictions to set up a Hybrid Court referred to in the report of the High Commissioner as well as by certain members of the HRC.
Foreign Affairs Minister Tilak Marapana PC, who led the Sri Lankan delegation to Geneva said that the assumption referred to in para 23 of the UN Human Rights High Commissioner’s Report that ‘other mass graves might be expected to be found in the future,’ was highly unacceptable.
Speaking at the interactive dialogue, which succeeded the presenting of the United Nations High Commissioner for Human Rights Michelle Bachelet ’s report to the Council on March 20, the Minister said this assumption has been made despite the test results obtained from a USA laboratory revealing that the skeletal remains date back to 1499-1719 AD - a period when Sri Lanka was largely under European colonial rule.
The Minister underscored that, “a pre-assumption of this nature in a public report, on a matter of this magnitude and seriousness, is not acceptable,” elaborating that it may even cast doubts as regards other assertions in the High Commissioner’s report.
On the subject of the Hybrid court the Foreign Affairs Minister said,’ If non-citizen judges are to be appointed, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a Referendum,’ pointing out that in this case, having only the will of the Government is not adequate.
He also corrected the percentage of occupied land released by the military to the people in the North as - 88 per cent state land and 92 per cent private land - which was in variance with the 75 per cent of the OHCHR report.
Speaking as the country concerned at the interactive dialogue session he said,”we have to set our priorities right.”
He added that the Government was “committed to find innovative and pragmatic solutions to protect the country’s national interest and the well-being of all Sri Lankans alike, but within the parameters of the provisions of the supreme law of the land which is the Constitution.”
The side events leading up to the final segment of the 40th session saw discussions organised by the Tamil diaspora, which had no direct impact on the main session. Tamil National Alliance diaspora members were seen engaged in verbal battles with representatives from the Global Sri Lankan Forum (GSLF) at these meetings where interested groups and representatives of member countries participated.
The TNA members lamented the lack of progress on the reconciliation front and the preparation of a new constitution to give equal rights to the Tamil people while counter arguments were raised by the GSLF to shoot down their claims. MPs M.A.Sumanthiran and S.Sridharan and former Provincial Councillor M.K. Shivajilingam were in Geneva on separate missions. While Shivajilingam wanted to handover a petition to the UN pleading not to grant Sri Lanka an extension of time to fulfill its pledges, MP Sumanthiran said they supported the continued scrutiny proposed under the latest resolution despite its extended time to meet obligations.
Weeks earlier, the President told a meeting of media heads that he was contemplating sending a team of his own officers comprising former Ministers Dr.Sarath Amunugama, Mahinda Samarasinghe and Northern province Governor Dr.Suren Raghavan to Geneva on a mission to garner support to help Sri Lanka withdraw from resolution 30/1.
However, at the end only Dr.Amunugama and Dr.Raghavan was included in the Sri Lanka’s delegation led by Foreign Affairs Minister Tilak Marapana, PC. The other members from Colombo included Foreign Secretary and former Ambassador to Geneva Ravinatha Aryasingha and Deputy Solicitor General Nerin Pulle from the Attorney General’s Department.
In her concluding remarks at the interactive session, UN Human Rights High Commissioner outlined some ways for the international community to support Sri Lanka in adhering to the resolution and meeting its human rights obligations.
She noted that ‘slow progress had been made, particularly in terms of accountability, and the Government needed support in following the road map outlined by the resolution,’ adding that the Office of Missing Persons and transitional justice mechanisms would need support to establish accountability.
She encouraged the Government to establish a strategy on transitional justice that was time bound, so as to build trust between the various stakeholders.
There was a lack of victim and witness safeguards, but she said her Office would continue to support the institutions to support these in collaboration with civil society and non-governmental organisations.
‘The Council needed to maintain close attention to the situation in Sri Lanka and provide technical assistance to ensure progress to accountability,’ the High Commissioner observed. She requested that the Government allow the Office of the High Commissioner for Human Rights to establish a permanent office in Sri Lanka.
The High Commissioner proposed that the member states should consider using international mechanisms to bring about justice, such as the International Criminal Court or sanctions, if the delays continue and also in the absence of progress.
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High Commissioner Bachelet’s speech
Acknowledged open dialogue and sustained cooperation of the Government with her Office.
Welcomed the operationalisation of the Office of Missing Persons (OMP)
Commended establishment of the Office for Reparations, and looked forward to the swift appointment of itsCommissioners
Encouraged the Government to link those two institutions to a broader approach aimed at justice, real accountability and truth-seeking
Need for consistent, comprehensive and accelerated implementation of resolution 30/1 Delays seemed to be due to a lack of common vision among the country’s highest leadership
Declaration of a state of emergency in March 2018, and the Constitutional Crisis in October 2018, had created a political environment not conducive to implementation of reforms
Encouraged the Government to implement a detailed and comprehensive strategy for transitional process with a fixed timeline
Security sector reforms should include a vetting process to remove officers with questionable human rights record.
Minimal progress on accountability, and lack of progress in setting up a special judicial mechanism to deal with the worst crimes committed during the 2009 conflict
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Comments by member states during the Interactive Dialogue
The European Union said that in 2015, by co-sponsoring the Council’s resolution 30/1, the Sri Lankan Government had recognized the need to address the past in order to build a better future.
Pakistan welcomed the establishment of the Office of Missing Persons. The return of 92 per cent of private land was welcomed and efforts in combating cross-border terrorism were acknowledged.
India had always supported efforts to preserve Sri Lanka’s character as a multi-ethnic society, including the Tamil community. India acknowledged the release of private land
United Kingdom continued to urge the Government to take steps required to fully deliver on its commitments in resolutions 30/1 and 34/1 and to establish the full range of transitional justice mechanisms.
Germany encouraged Sri Lanka in its pursuit of transitional justice, by further establishing a Truth and Reconciliation Commission, and implementing long promised Constitutional and justice reforms. Switzerland was alarmed at the considerable lack of progress in investigating abuses of human rights and violations of international law in Sri Lanka.
Norway recognised the role played by democratic institutions in the peaceful resolution of the political situation from October to December 2018. However, Norway noted progress on transitional justice had slowed.
China commended Sri Lanka for the results achieved in the domains of human rights, the elimination of poverty, and the rights of children, women and vulnerable groups. Canada called on Sri Lanka to end impunity and to establish a special court to prosecute violations of international law with the involvement of international investigators, prosecutors and judges. It asked what support the Council and Member States could provide to ensure progress towards accountability in Sri Lanka.
Australia welcomed Sri Lanka’s co-sponsorship of resolution 40/1 as a positive demonstration of its commitment, recognised that more needed to be done to promote truth-seeking, accountability, justice and reconciliation.
Other states whch made statements were Denmark, Belgium, North Macedonia, Switzerland, Iceland, Ireland, Montenegro, Croatia, Austria and Liechtenstein.
The Human Rights Commission of Sri Lanka, International Movement Against All forms of discrimination and Racism (IMADR), Association Bharathi Centre, Culturel Franco-Tamoul, World Evangelical Alliance, Christian Solidarity Worldwide, Amnesty International, Human Rights Watch, Asian Forum for Human Rights and Development, Lawyers’ Rights Watch Canada and International Commission of Jurists also took part in the interactive dialogue.
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Speech by the UK after moving the resolution on SL
In a few months it would be the 10th anniversary of protracted armed conflict in Sri Lanka, a conflict in which many thousands of people died. This is a period in which serious human rights violations and abuses reported to have been committed by both parties and in which people from all communities had to endure terrible suffering. For many of the victims especially the families of the missing and the disappeared, their suffering continues to endure. In the five years following the end of the conflict, Sri Lanka chose not to take many measures, that would have helped advance reconciliation, accountability, and Human rights.
It remains to Sri Lanka’s great credit that in 2015 it committed to take a set of steps towards this end, that are in its national interest. Draft resolution L.1 seeks to continue this process which it began in partnership to set out a range of measures to advance peace, justice and reconciliation.
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The consensus resolution A/HRC/40/L.1 of March 2019
1.Takes note with appreciation of the comprehensive report presented by the United Nations High Commissioner for Human Rights to the Human Rights Council at its fortieth session, pursuant to the request by the Council in its resolution 34/1, and requests the Government of Sri Lanka to implement fully the measures identified by the Council in its resolution 30/1 that are outstanding;
2.Welcomes the positive engagement of the Government of Sri Lanka with the High Commissioner and the Office of the High Commissioner since October 2015, and with relevant special procedure mandate holders, and encourages the continuation of that engagement in the promotion and protection of human rights and truth, justice, reconciliation and accountability in Sri Lanka;
3.Requests the Office of the High Commissioner and relevant special procedure mandate holders, in consultation with and with the concurrence of the Government of Sri Lanka, to continue to strengthen their advice and technical assistance on the promotion and protection of human rights and truth, justice, reconciliation and accountability in Sri Lanka;
4.Requests the Office of the High Commissioner to continue to assess progress on the implementation of its recommendations and other relevant processes relating to reconciliation, accountability and human rights in Sri Lanka, and to present a written update to the Human Rights Council at its forty-third session, and a comprehensive report, to be followed by a discussion on the implementation of Council resolution 30/1,at its forty-sixth session.
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Sumanthiran threatens Government with ICC referral
TNA parliamentarian M.A.Sumanthiran on Friday threatened to refer Sri Lanka’s war crimes allegations to the International Criminal Court, if the Government did not agree to have foreign judges and prosecutors in the judicial mechanism mandated by the UN Human Rights Council resolution 30/1.
Speaking in Parliament at the Budget debate, he said, ‘ We prefer a hybrid judicial mechanism, but if the Government, despite all the written commitments, doesn’t do it, then I think it is important to announce today, that we will take steps to move Sri Lanka to the ICC or some other entirely international judicial mechanism.’
His comments were directed at the Foreign Affairs Minister’s speech in Geneva where he explained to the member states that Sri Lanka’s Constitution did not permit foreign judges to sit in judgement and if the Constitution is to be changed it needed a 2/3 vote in Parliament and a referendum.
Sumanthiran said if the Government does not agree to a Hybrid court, Sri Lanka will have to face an international tribunal.