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Sincerity essential in SL response to new UN Human Rights report

09 Sep 2022

BY S.V. Kirubaharan   The anxiously awaited comprehensive report of the United Nations High Commissioner for Human Rights (UNHCHR) on the “Situation of human rights in Sri Lanka (A/HRC/51/5)” is now before the eyes of the world.  In other words, neither the Executive President nor any other artful dodger can hide this report any more. Even though it is known as the “Advance unedited version”, any dream that the team from Colombo in Geneva, Switzerland, may have of bringing huge change will not work. The public opinion is that rather than presuming to make changes to the report, Colombo officials should go through all the pledges and commitments that they have already given to the international community and implement them without further delay. How long can the pretexts of so-called terrorism, the Covid-19 pandemic, and non-violent demonstrations be used for the non-implementation of pledges and commitments?  The UNHCHR’s report consists of 16 pages and is divided into seven main sections, with sub-sections. The sections are titled Introduction, Context, the Human Rights Impact of the Economic Crisis, the Human Rights Trends and Developments, Reconciliation and Accountability, Conclusions, and finally, Recommendations. There are 71 paragraphs in total. Below I highlight some excerpts from the report:  Under the sub-title “Prevention of Terrorism (Temporary Provisions) Act (PTA)”, paragraph 18 says: In a long awaited legal reform, the Parliament passed the PTA Amendment Bill on 22 March, 2022. While the amendments improve some safeguards, they leave intact some of the most problematic provisions of the Act. In June, 2022, the Government announced that it had been applying a de facto moratorium on the use of the PTA since March, however, in an alarming development, three student leaders were detained under the PTA on 18 August 2022. Under the sub-title “Militarisation”, paragraphs 21 to 26 read as follows: In previous reports, the UNHCHR has warned that the accelerating militarization of civilian Government functions was undermining democratic institutions. Special procedures mandate holders have also expressed their concerns about the lack of security sector reforms and demilitarisation, and urged the Government to take steps to terminate military involvement in commercial activities and reduce the military presence in the North and the East. This will be particularly important at a time when Sri Lanka is negotiating international support and relief from the current economic crisis. In 2022, for instance, the Defence Ministry was allocated Rs. 373.1 billion (then $ 1.86 billion), which accounted for 15% of total Government expenditure, making it the highest allocated sector in 2022. In comparison, the Health Ministry was allocated Rs. 158 billion (then $ 790 million), a decrease of Rs. 6 billion from the previous year, despite the Covid-19 pandemic. Between 2020 and 2022, former President Gotabaya Rajapaksa appointed more than 28 serving or former military officers in Government ministries.  However, President Ranil Wickremesinghe has since continued to rely on military appointees and involve the military in law enforcement. On 13 July 2022, the President appointed a special committee comprising the Chief of Defence Staff (CDS), the Inspector General of Police, and the tri-forces commanders, and “gave them full authority” to “use the emergency law and the curfew” to protect law and order.  The President re-appointed Gen. (Retd.) Kamal Gunaratne as Secretary to the Ministry of Defence, while General Shavendra Silva was appointed as the CDS from June 2022. Both have been implicated in alleged human rights violations as highlighted in previous reports. The role of the military in law enforcement, governance, and development has been even more prominent in the North and the East. Although the war ended in 2009, the military presence continues to be significant, in terms of personnel, checkpoints, and the involvement of the military in drug-related law enforcement, agriculture, and development activities. In the context of mass protests and severe shortages of fuel, the Government deployed the military for policing assemblies and to guard public buildings, fuel stations and private residences.  Under the sub-title “Inclusion and reconciliation”, paragraph 27 insists on the following: In previous reports, the UNHCHR expressed concern about the trend towards ethno-religious majoritarianism, which was undermining human rights and reconciliation. Rajapaksa had actively promoted a Sinhala Buddhist majoritarian ideology with the support of the military and Buddhist monks.   The Task Force he established on “One Country, One Law” in October 2021, chaired by Bodu Bala Sena Leader Galagoda Aththe Gnanasara Thera, an extremist Buddhist monk, submitted its report in June 2022. President Wickremesinghe has indicated publicly that his administration will not continue this initiative.  Under the sub-title “Intimidation and threats to former combatants, the civil society and victims”, paragraphs 30 to 32 say the following: The Office of the UNHCHR (UN OHCHR) continues to receive reports of surveillance, intimidation, and harassment of journalists, human rights defenders, the families of the disappeared, and persons involved in memorialisation initiatives, by intelligence services, the military, and the Police, particularly in the North and the East. Families of the disappeared face surveillance, questioning, intimidation, and unannounced visits by intelligence officers and the Police, especially when they are actively involved in protests or memorialisation. As highlighted in previous reports, females are particularly affected, given their prominent role in advocating for justice. Civil society organisations throughout the country continue to be questioned about their work and funding sources. Former Liberation Tigers of Tamil Eelam (LTTE) cadres, including females, are subjected to intensive surveillance, regardless of whether they have undergone the Government’s “rehabilitation” scheme or not. Female ex-combatants still face serious security risks, including sexual abuse and extortion, including by the Security Forces and others. The UNHCHR fears that without fundamental security sector reforms and the demilitarisation of the North and the East, this pervasive culture of surveillance and oppressive environment for the people in these areas will continue. Under the sub-title “Freedom of expression, peaceful assembly and law enforcement”, paragraphs 33 to 39 say: While overall, the Security Forces have responded to the protest movement with considerable restraint over a sustained period, on some significant occasions, they reportedly employed the unnecessary use of force against protestors and used measures to prevent or obstruct protests. Journalists have also been targeted for their reporting on the crisis and protests.  On 31 March 2022, the Police dispersed protestors who marched towards the President’s private residence in Colombo, injuring 50 people and arresting over 20, while some were allegedly ill-treated, including by men in civilian clothing reportedly belonging to the Presidential Security. On 19 April 2022, the Police opened fire at a spontaneous protest in Rambukkana, at a fuel distribution point. One person was killed by live ammunition and 24 others were injured. An investigation by the Human Rights Commission of Sri Lanka (HRCSL) found that the Police had used excessive force. On 9 May 2022, widespread violence erupted after supporters of then-Prime Minister Mahinda Rajapaksa attacked peaceful protestors in Colombo. Despite a large Police presence, a pro-Government group entered the “Gota Go Gama” protest site, attacked the protestors, and destroyed their makeshift tents. Subsequently, there was a wave of violence throughout the country against politicians affiliated with the ruling party. Eight people died during the incidents, including a Member of Parliament and two local officials, and according to the Government, there were 244 incidents of the destruction of property.  On 22 July 2022, security personnel, including the Police and the military, stormed a protest camp near the Presidential offices in Colombo, injuring at least 48 people, while nine others were arrested. The evacuation and medical treatment of injured protestors was obstructed.  Since then, a number of leaders and members of the protest movement and trade unions have been arrested, some in an irregular manner by plainclothes personnel using unmarked vehicles. Excessive force was most recently used in breaking up a peaceful student protest in Colombo on 18 August 2022. In the North and the East, the families of the disappeared, who had been staging their continuous roadside protests since 2017, have also continued to face harassment, intimidation, and violence. On 20 March 2022, the Police used force against members of the Mullaitivu Disappeared Relatives' Association and other families of the disappeared who had tried to carry out a protest during a visit of former Prime Minister Mahinda Rajapaksa to the area. Under the sub-title “Transitional justice mechanisms and confidence building measures”, paragraphs 42, and 45-47 state: 13 years on from the end of the war, the families of the disappeared are still searching for truth and justice for enforced disappearances. In May 2022, one of the Commissioners, Shiraz Noordeen, resigned from the Office on Missing Persons (OMP), publicly stating that the OMP was unable to act independently to bring justice to victims. Although the purpose of the OMP is to trace and search for the missing, it has not been able to trace a single disappeared person or clarify the fate of the disappeared in meaningful ways, and its current orientation is to expedite the closure of files. The Government informed the UN OHCHR that the OMP has so far interviewed 1,207 applicants, out of the original list of more than 14,000, for the purposes of verification after which it makes recommendations for relief, further tracing, or investigation.  Resolution 30/1 and its successors provided a practical roadmap to achieve these ends, and the UN HCHR hopes that the new administration will revitalise the transitional justice process. The results of the 2016 national consultation process, which engaged Sri Lankans from all communities and stakeholders such as victims, religious leaders, civil society organisations, and the military, remains a strong foundation for renewed transitional justice efforts.  Regarding the return of land, in his 8 August 2022 speech, President Wickremesinghe acknowledged that there are many land-related issues that need to be resolved. The Government reports that the total number of private lands released by the Armed Forces from 2009 to June 2022, is 2,601,796 acres or 92.42%, with a further 53 (0.19%) acres proposed for release (no change since the last report). However, there have been attempts to acquire new land to expand the existing military bases in the Northern Province. For example, the land acquisition process under the Land Acquisition Act for the Gotabaya Navy Camp in Vattuvakal in the Mullaitivu District, is underway, which some locals have opposed. As highlighted in the UNHCHR’s last update, there has also been a more recent trend of land disputes in relation to the construction of Buddhist heritage conservation or for forestry protection, mainly in the Northern and Eastern Provinces, which has further jeopardised reconciliation and created new conflicts. In June 2022, the Army facilitated the dedication of a new Buddhist shrine in Kurunthur Malai, Mullaitivu, in violation of a court order that prohibited any new edification in an area that is claimed by Hindu and Buddhist worshippers. On 14 July, a Mullaitivu Court ordered the removal of all new constructions, including a new Buddhist shrine. Under the sub-title “Emblematic cases”, paragraphs 48 to 50 state: For more than a decade, there has been almost no progress in most emblematic human rights cases highlighted in previous reports, which are only a handful of innumerable cases. In several instances, hearings continue to be postponed repeatedly and cases have lingered before the courts for over a decade. In others, there has been an active reversal in the form of acquittals on appeal and Presidential pardons granted to those accused or convicted of grave violations. Likewise, while 25 suspects were charged in October 2021, there has been no further progress to establish the truth and investigate the terrible Easter Sunday bombings in 2019 despite the fact that church leaders and victims continue to demand a complete and transparent account of the circumstances that allowed those attacks and the role of the security establishment. The full volumes of the Presidential Commission of Inquiry (CoI) appointed to investigate the attacks have still not been released.  Since 2020, impunity was further entrenched through the political obstruction of accountability for gross human rights violations. For instance, the CoI to Investigate Allegations of Political Victimisation actively intervened in Police investigations and court proceedings in several high-profile human rights cases. It also “investigated” a number of high-profile corruption cases relating to incidents between 2005 and 2015. Under the sub-title “Further options for advancing accountability”, paragraphs 60-61, and 64 state: The UN HCHR hopes that the new administration will respond to the popular demand for accountability for economic crimes, including corruption, and the abuse of power, with a renewed commitment to end impunity. In the absence of credible or effective domestic remedies, there have been some developments at the international level and in Member States (outside of Sri Lanka) to advance accountability. For instance, communications were submitted in October and November 2021, to the Prosecutor of the International Criminal Court under Article 15 of the Rome Statute, requesting that the Prosecutor exercise jurisdiction over crimes under international law in Sri Lanka. While Sri Lanka is not a State Party to the Rome Statute, the communications submit that the alleged crimes occurred partially in the territory of the States’ Parties. From this mapping of existing initiatives, there are several opportunities for States to act, individually and collectively, in particular by:   (i) Using all potential forms of jurisdiction, including extraterritorial and universal jurisdiction, to investigate and prosecute crimes under international law committed in Sri Lanka; and increasing the attention and cooperation regarding relevant cases through existing international networks; and (ii) Imposing and expanding targeted sanctions, as part of a wider range of accountability measures, and other restrictive measures in relation to those who are credibly alleged to have been responsible for gross violations and abuses of international human rights law or serious violations of international humanitarian law. Conclusions from paragraphs 67-69 are as follows: Impunity remains a central obstacle to the rule of law, reconciliation and Sri Lanka’s sustainable peace and development, and remains the core risk factor for the recurrence of further violations. Thirteen years since the end of the war, victims of past human rights violations continue to await truth and justice. The Sri Lankan State, including through successive Governments, has consistently failed to pursue an effective transitional justice process to hold perpetrators of gross human rights violations and abuses accountable and to uphold the victims’ rights to truth, justice, and reparations. Fundamental changes will therefore be required to address the current challenges and to avoid the repetition of the human rights violations of the past. In this context, the new Government should immediately reverse the drift towards militarisation, end the reliance on draconian security laws and crackdowns on peaceful protest, and show renewed commitment to security sector reform and ending impunity.  It should recommit to a genuine, comprehensive, and transformative transitional justice process, with benchmarks and timelines for implementation, and in consultation with the victims and civil society and with support from international partners. Further, it should pursue a more fundamental Constitutional reform through broad-based and consultative processes representative of all Sri Lankans to strengthen democratic check and balances and the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population.  The UN Human Rights Council (HRC) should continue to monitor developments closely, and in the absence of tangible results at the national level that ensure justice for Sri Lankan people, Member States should continue to pursue complementary international strategies for justice and accountability for human rights violations, corruption, and the abuse of power.  Recommendations from paragraphs 71-72 are as follows: The UN OHCHR recommends that the Sri Lankan authorities take all necessary measures to guarantee the people’s economic and social rights during the economic crisis; ensure immediate relief for the most marginalised and vulnerable individuals and groups based on non-discrimination and the protection of human rights, and strengthen social protection by increasing financing and extending it to cover emerging needs; considerably reduce military spending, decisively tackle corruption and increase investments in health, social security and education through international cooperation; assess any potential human rights impact of international financial assistance programmes and take preventive measures to reduce it to the bare minimum; undertake a broad based consultative process representative of all Sri Lankans to advance Constitutional reforms that guarantee the independence of key institutions, including the Judiciary and the HRCSL, and advance the devolution of political authority, which is integral to reconciliation; establish an ad hoc special court, as well as security sector reform and vetting; re-energise the OMP and Office for Reparations to ensure that they can discharge their full mandate independently and effectively; pursue investigations and prosecutions in emblematic cases of human rights violations; release the complete findings of previous inquiries into the Easter Sunday bombings and establish a follow-up independent and transparent investigation with international assistance and the full participation of victims and their representatives; take steps to end the influence of the military in civilian spheres and reduce the military presence in the Northern and Eastern Provinces; return all private land held by the military and impartially adjudicate land disputes, including through interfaith dialogue about the erection of religious sites; invite the UN OHCHR to strengthen its country presence and provide technical assistance to the authorities and the civil society; and for the UN HCHR to reiterate the recommendations Commissioner Michelle Bachelet made in paragraph 61 of her report to the UNHRC and Member States in 2021 and further recommend that they request the UN OHCHR to continue its enhanced monitoring and report regularly to the UNHRC on the human rights situation in Sri Lanka, including progress towards accountability and reconciliation and steps to address economic crimes that have impacted on human rights, and co-operate in investigating and prosecuting perpetrators of international crimes committed by all parties in Sri Lanka through judicial proceedings in national jurisdictions, including under accepted principles of extraterritorial or universal jurisdiction, through relevant international networks and in co-operation with the victims and their representatives.   General opinion   This is not the first time that the UNHCHR has published a comprehensive report on Sri Lanka. Former UNHCHRs Louise Bernice Arbour, Navanethem Pillay, and Zeid bin Ra’ad bin Zeid al-Hussein, and now Bachelet, have released many damning reports on Sri Lanka, highlighting the realities.  The question here is: Why is Sri Lanka not coming forward to implement any of its own pledges and commitments, or the recommendations of international institutions and others? Why does every Government in power use lame pretexts rather than respect the words they themselves gave on behalf of their citizens, or in other words – on behalf of the desperate victims in their country? Is Sri Lanka not ashamed when outside institutions say what is lacking or what is needed for their citizens? Using the Constitution as a pretext does not work in the UN. If the present Government and their pied pipers are really worried about the Constitution, can they demonstrate that they have adhered to everything it says? If so, can they explain why the 13th Amendment to the Constitution, which has been a part of the Constitution for the last three decades, has never been implemented by the Sri Lankan Government, even over the last long 13 years? During the war, just to get the support of the international community, then President Mahinda Rajapaksa said that soon after bringing the war to an end, not only the 13th Amendment to the Constitution would be implemented, but that the Government would deliver an enhanced 13th Amendment to the Constitution they called the “13-plus”. Where is it? He may be right in what he said. What he meant by “13-plus” is: “Even after 13 years, we will do nothing about the ethnic conflict” – I presume that this is the right interpretation.  Very briefly, Sri Lanka should look at the history of the UN and the birth of new countries via UN mechanisms. What I have written and predicted in the past has never been wrong.  If Sri Lanka sends a jumbo team to Geneva to counter whatever is going to happen there, even during this economic crisis, it is a senseless move. It is a pure waste of the taxpayers’ money, especially in a situation where bread has gone up in price to Rs. 350 and the people living hand to mouth cannot afford to buy it. If the money spent on this jumbo team to Geneva can be saved, the price of food items can be reduced to a normal price that a poor family can afford. Now this jumbo team is not going to achieve anything in the UNHRC, except taking some photographs with the UN Deputy HCHR Nada Al-Nashif and also to put on a show with the UN Geneva Director General, who has nothing to do with human rights or country situations. This is how former External/Foreign Affairs Minister Prof. G.L. Peiris cheated the former President and managed human rights.  However, Sri Lanka must remember that it is better late than never. Look at the grievances of the victims and the people, and serve them genuinely. Now the arrival of the Chinese “spy ship” Yuan Wang 5 has created a huge international outcry concerning Sri Lanka. Also, the return of former President Gotabaya Rajapaksa has alerted the international community. It proves that political turmoil will be prolonged in Sri Lanka. All of this is going to add more to the vote regarding the resolution on Sri Lanka. International observers are sure that this time India will vote “yes”. Geneva is a beautiful city. There is a nice lake and the international community is present. It is good for politicians and vibrant administrators to have a few days of holiday there. But the Colombo team is not going to achieve anything on behalf of Sri Lanka that meets their expectations.  


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