By Usha S Sri-Skanda Rajah –
Usha S Sri-Skanda-Rajah
Come March 2017 UN Needs To Act On Sri Lanka: An ICC Referral Or An International Special Tribunal Is Now Proven To Be Most Wanting – Part 1
Come March when the 34th session of United Nations Human Rights Council gets underway, all eyes should be on Sri Lanka when it is expected, under paragraph 18, to produce a, “a comprehensive written report, followed by a discussion on the implementation of the resolution,” it co-sponsored. The resolution initiated by America, passed without a vote on 1st October 2015 at the 30th session of the UNHRC, which also got the backing of India and China – both of which otherwise hold the position that they would not support a, “country specific resolution” if it’s not, “accepted by the country concerned.”
As the world was observing International Human Rights Day, the day the ‘Universal Declaration of Human Rights’ was adopted by the UN General Assembly in 1950, for Tamils there was actual frustration and no better time to go back to what the new regime under President Sirisena co-signed in the resolution, “promoting accountability, reconciliation and human rights,” in Sri Lanka.
How far has Sri Lanka gone towards fulfilling its obligations under HRC 30, i.e. towards delivering transitional justice to victims of Mullivaiikal? Sri Lanka seems to be inching its way to nowhere as many still ponder over the question that’s been asked again and again: In the search for justice, will Sri Lanka match up to the task? Transitional justice meaning, criminal Justice, reparations, truth and memory, institutional reform, gender issues, matters pertaining to children and youth etc..
As regards even the new regime the answer still seems to be a resounding no!
An examination of a few of the key provisions would show there has been little or no genuine will on the part of the Sirisena regime to implement the resolution comprehensively as stated. While this is the reality, more evidence is emerging, that violations and abuses such as the dreaded ‘white van abductions’ are still going on.
Take for instance, Paragraph 13, whilst ratifying the ‘ international Convention for the Protection of All Persons from Enforced Disappearances’, and albeit legislating to creating an Office of Missing Persons (OMP), the regime, has still to get it operational and working. The OMP in itself is a disappointment and did not come up to expectations, the Human Rights Watch reported, because of the, “lack of consultations with the families of the disappeared.”
Moreover, Thambu Kanagasabai in his analysis, wrote the OMP was deceptive and futile, stating, although the, “OMP for its intent and purpose is a positive step to trace, search, and collect information as to the circumstances which led to disappearances, it is just an inquisitional mission without any powers on its own to prosecute those involved in the disappearances after identifying them.”
The ‘office of reparations’ called for under the resolution, is not even in the radar, a main component of transitional justice.
As per Paragraph 12, the draft to replace the much feared, ‘Prevention of Terrorism Act’ (PTA), now referred to as the ‘Counter Terrorism Act’ (CTA) has been condemned by civil society organisations as being worse than the existing one, the text of which is said to be, according to the Sri Lanka Campaign, “deeply disturbing” and quoting a commentator’s observation, “a cure far worse than the disease.” Mr. A Sumanthiran TNA MP, called the draft law, “old wine in a new bottle,” and not, “in tune with international best practices,” and, “fears that the new law will retain objectionable features of the PTA like preventive detention for indefinite periods and legal acceptance of “confessions” made to police officers in the first instance.”
As per Paragraph 17, the resolution “encourages” the Government to address all reports of sexual and gender- based violence and torture. In fact, the UN Committee against Torture (UNCAT) after its hearing on Sri Lanka concluded, according to the New York Times report, that “torture was common practice in Sri Lanka,” and routinely committed by the Criminal Investigation Department, “in a large measure of cases.” regardless of the suspected offence:
“What we saw was that the Government has not embarked on institutional reform of the security sector,” Felice D. Gaer, one of two committee experts who led the examination of Sri Lanka, told reporters in Geneva. There’s some question about their commitment to a lot of things that are needed and have been promised in that country in this difficult time.”
The New York Times itself in its last paragraph seemed to think both, “the President and Prime Minister Ranil Wickremasinghe were back pedaling on the promised institutional clean up for fear of antagonizing the country’s powerful security services.”
The New York Time’s own analysis says a lot about the situation in Sri Lanka where speculation is rife of a possible coup happening anytime – the main reason – Sri Lanka’s leading political analyst M M Nilamdeen, thinks – why renegade Karuna was arrested and put in remand.
Paragraph 17 actually expects commitment from the, “the Government to issue instructions clearly to all branches of the security forces that violations of international human rights law and international humanitarian law, including those involved in torture, rape and sexual violence and that those responsible will be investigated and punished.”
But Sri Lanka has so far shown scant regard for prosecuting those alleged of torture. The Minister for International relations of the Transnational Government of Tamil Eelam (TGTE), Manicka Vasagar, was scathing in his statement upon hearing the “former head of a notorious Unit involved in torture was part of the Sri Lankan delegation to UNCAT:
”The attendance of the former head of the notorious Sri Lanka’s Terrorism Investigation Division (TID) Sisira Mendis, as a representative of the Sri Lankan delegation, to the UN Committee Against Torture (UNCAT) meeting in Geneva, shows that Sri Lanka continues to disrespect and smacks on the integrity on the United Nation’s body…Mr. Mendis who was in Charge of the Terrorism Investigation Department, was fully responsible for the numerous torture cases on victims under his watch, as documented by the International Truth and Justice Project (ITJP) in their memo to UNCAT. Many are still left traumatized with injuries and some are still unaccounted for or missing…It is a body blow to the victims and families who are still waiting for justice and accountability, to see perpetrators, allowed to travel freely, when under investigation for human rights, war crimes and crimes against humanity,” the statement said.
In this regard, it’s important also to bear in mind what Paragraph 8 states:
“The Government of Sri Lanka is encouraged to introduce effective security sector reform as part of its transitional justice process, which will help to enhance the reputation and professionalism of the military and include ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses, or violations of international humanitarian law, including members of the security and intelligence units; and also to increase training and incentives focused on the promotion and protection of human rights of all Sri Lankans.”
As for Paragraph 10, the Sri Lanka army still holds thousands of acres of private land belonging to Tamils, impeding rehabilitation of displaced people for example in the Valikamam north area and is very much involved in livelihood, agricultural and commercial activities including tourism and running schools in the North and East.
While progress has been abysmal generally , not a single item in the provisions set out in Paragraph 6 and 7 which point to Sri Lanka’s foremost obligations under the resolution, (which it proposed) has so far been considered by the new regime – i.e. “to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and international humanitarian law, with the participation in that judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorised prosecutors and investigators… as well as reform of its domestic law to ensure it can implement effectively its own commitments.”
In my article Sri Lanka’s ability to Deliver Transitional Justice Grim, I quoted Heather Ryan, a member of the Sri Lanka MAP initiative (Monitoring and Accountability Panel) set up by the TGTE, giving a full overview, “of its goals, the purpose behind independent monitoring, its criteria for any accountability mechanism, its concerns of what it has seen so far happen and some initial recommendations”:
Ryan explained the MAP’s goal in this way: “To take a look and help evaluate the development and implementation of transitional justice broadly and more specifically accountability mechanisms in Sri Lanka, and to bring to bear the experience we developed…to ensure any mechanism, any tribunal established in Sri Lanka is truly perceived to be independent and fair by the people, all of the people, otherwise it will be viewed as another tool of victimisation that cannot be allowed to happen to a country that’s already suffered so badly ..And so our goal is to shine a bright light as we can on the developments in this area.”
Ryan is expecting extensive, substantial and far reaching changes in the, legal and judicial systems and laws, including incorporation of the concept of “command responsibility” into its law, in order to “meet international standards”. She believes it is necessary to put in place educational and capacity building initiatives prior to any public consultations taking place. (In this regard MAP is in the process of considering if the government appointed ‘taskforce’ of exclusively civil society members is “truly representative of the variety of different views around the country.”) This is in addition to her calling for witness protection and the participation of foreign judges, prosecutors, investigators and defence counsels, in an independent and impartial victim centered accountability mechanism,” as part of the full implementation of the UNHRC resolution.
The Crisis group expert on Sri Lanka, Alan Keenan’s assessment of the progress that Sri Lanka had made since HRC 30 is a must read – in his article, Impunity and Justice: Why UN Human Rights Council Must Stay Engaged in Sri Lanka, he weighs in on the, “Government’s political will and ability to see the complex process through”: “…Progress on implementing the Council resolution has been slow and often grudging, and there are growing doubts about the government’s political will and ability to see the complex process through. For Sri Lanka to stay on the path toward recovery, it needs sustained international support and engagement.”
Up to this day, although UN special procedure mandate holders have been visiting Sri Lanka ((Paragraph 19) despite Paragraph 20, it seems Sri Lanka has consistently and out rightly rejected any technical assistance.
But with just about three months to go, everyone who has been watching Sri Lanka would know it has done nothing substantial towards realising the goals set out in the resolution especially under Paragraphs 6 and 7.
Sumanthiran in the interview he gave to the Tamil Guardian put paid to any hopes of the government doing even,” 1/6 of what they promised in the resolution when March comes around.” To quote the Tamil Guardian, according to Sumanthiran “practically speaking” the un-legislated mechanisms of a truth commission, office of reparations and judicial mechanism, “might have to be done once the constitution process is over, ” and that the TNA would be pushing for the rollover of the resolution. “
A rollover of the resolution is unconscionable – for Tamils it’s unthinkable, considering Sri Lanka has been given enough time and space to get on with the job of creating a domestic mechanism with a hybrid element as agreed- and has failed. It’s no longer Sri Lanka’s purview – surely the responsibility to put in place an international judicial mechanism come March lies with the various organs of the UN namely the General Assembly, the UN Security Council, the Office of the High Commissioner for Human Rights, the UN Human Rights Commission and Secretary General .
The TGTE having collected more than 1.6million signatures for an ICC referral, now calls upon the International Community for an action plan, to refer Sri Lanka to the International Criminal Court or appoint a special tribunal for the purpose – as Manicka Vasagar reiterated as something, “similar to the UNHRC referral of North Korea to the General Assembly – if Sri Lanka fails to implement the UN resolution in full by March 2017,” believing in the adage, “consistency is essential in the integrity of the UN mechanism.”
It must not be forgotten that President Sirisena himself as acting Defence Minister oversaw the genocidal war, and has vowed to protect the members of his armed forces including senior military and political officials who were allegedly involved. He has simply rejected the idea of any foreign judges or counsel in any judicial mechanism (if ever there is one) time and time again. Adding insult to injury he now claims American, President-Elect, Donald Trump would take a softer approach and absolve Sri Lanka of blame for what many believe was genocide. “It appears,” says Taylor Dibbert for the South Asian Monitor, “Sirisena, has reached out to America’s president-elect Donald Trump. It’s not clear precisely what language was used, though it looks like Sirisena wants Trump to help him sweep allegations of abuses that occurred during the nation’s civil war under the carpet.” That sums up Sri Lanka’s commitment to the whole resolution per say period – hope the future president would respect the UN process and would give America’s full backing in the search for justice.
It’s incumbent upon the UN to step up its efforts to ensure the Tamil victims of the Mullivaikkal genocide get justice. An ICC referral or an international special tribunal is now proven to be wanting.