By Gibson Bateman and Rathika Innasimuttu
Introduction
United National High Commissioner for Human Rights Navi Pillay recently concluded her visit to Sri Lanka. It’s hard to imagine a High Commissioner delivering a tougher statement than the one she gave on August 31 in Colombo. A hard-hitting update later this month will be followed by a much awaited report at the 25th session of the United Nations Human Rights Council (HRC) in March 2014.
The unfortunate reality is that a pair of HRC resolutions and significant international pressure has not produced positive change on the island. This includes matters related to land, human rights, the rule of law and the relentless repression of dissent.
It’s not entirely clear what the word “compliance” means, but the Government of Sri Lanka (GoSL) has largely disregarded yet another HRC resolution. (Moving checkpoints and hiding the military’s presence during high profile visits isn’t enough).
It’s true that the reconstruction and development efforts in the North are significant and that they should be applauded. Additionally, it is important that Northern Provincial Council (NPC) elections are taking place on September 21 and it would be even more encouraging to see a clean election.
Nevertheless, those positive developments shouldn’t mean that GoSL doesn’t have to do much else – on the human rights and reconciliation front – in a twelve-month period. Besides, not holding those elections would generate an unnecessary amount of negative publicity –exactly what the GoSL doesn’t want – in the run up to the Commonwealth Heads of Government Meeting (CHOGM) this November.
In July the GoSL announced the arrest of twelve members of the Special Task Force (STF) for the murder of five Tamil students in early 2006. That same month, the GoSL announced that it would create a Commission of Inquiry (CoI) to look into disappearances which occurred during the war. In August, the GoSL mentioned that it would finally delink the Police Department from the Ministry of Defence (MoD).
All of the previously mentioned issues have received significant international attention, so these moves are probably just cosmetic changes designed to show compliance with the rule of law prior to CHOGM.
While the GoSL still has some time to engage with the most recent HRC resolution, the LLRC recommendations or the February 2013 report by the Office of the High Commissioner for Human Rights (OHCHR), it seems very unlikely that the GoSL will do any of those things.
Most importantly, the GoSL could implement some of the most important LLRC recommendations related to land, human rights, governance, reconciliation and accountability.
LLRC recommendation 9.37 called on the GoSL to look into “deliberate attacks on civilians” and, if necessary, to hold perpetrators accountable. But that hasn’t happened; instead the regime is stonewalling on accountability and pretending that the army investigating itself is sufficient.
Recommendation 9.185 calls for a political solution to the country’ s longstanding ethnic conflict, but the GoSL has yet to meaningfully engage with the Tamil National Alliance (TNA) to discuss this issue. Recently, government supporters have been speaking more about diluting the 13 amendments than crafting a reasonable power-sharing arrangement.
The LLRC’s final report includes a host of good recommendations about land, such as recommendation 9.142. In addition to calling for the review of some High Security Zones (HSZs) and other lands occupied by the military, it also calls for people who have lost lands to be properly compensated. But that doesn’t appear to be happening. Instead, the GoSL is content to expropriate vast amounts of private property in the North using questionable legal reasoning.
These are just a few examples, but they’re representative of broader trends.
March 2014
Ms. Pillay’s recent statement indicates that political pressure will remain on the GoSL for the foreseeable future. Nonetheless, it’s important to remember that HRC resolutions are passed by member states, not OHCHR itself.Looking to this spring in Geneva, there are a range of plausible scenarios one could consider.
The most likely possibility would be the passage of a yet another weak resolution on Sri Lanka.The United States (US) will almost certainly table another resolution at the HRC’s 25th session. European countries, along with much of Latin America would probably back such an initiative, especially if the resolution is as weak as the past two have been.
Assistant Secretary of State for South and Central Asia Nisha Biswal recently reiterated Washington’s concerns about reconciliation and accountability. She went on to note that if Sri Lanka’s domestic institutions were not up to this challenge, “international processes” would be needed.
Of lesser likelihood, the US may table a strong resolution which receives the support from a broad range of HRC member states, including some from the Global South. The language and content of a tough resolution would need to go well beyond what’s been passed in 2012 and 2013. An international commission of inquiry would be a sine qua non. Relatedly, reporting and monitoring requirements would need to exceed a one year interval. A three-year time span, for example, might be more effective. Importantly, time-bound indicators would need to be clear, far clearer than they have been up to now.
There’s also the possibility that no resolution being brought before the Council. Given the overwhelming evidence that Sri Lanka is in dire need of further international assistance, this is extremely unlikely. However, this sort of endgame cannot be discounted. Syria still burns and there are countless other human rights problems which the HRC could take up. Many countries –including some of those in Europe – may feel that, when it comes to human rights in Sri Lanka, now is the time to move on.
In this context, it is time for those who are concerned about accountability to take a closer look at the referral – to the International Criminal Court (ICC) – by the Union of the Comoroswith respect to the May 31, 2010 Israeli raid on the Humanitarian Aid Flotilla bound for the Gaza Strip.The referral was made on May 14, 2013.
Since Sri Lanka’s domestic accountability mechanism has been ineffectual, hasn’t the time come to look at creative ways –especially the Rome Statute – of pursing justice?
Conclusion
At this point, considering whether Washington will table another resolution is less interesting than, almost peripheral, to the more urgent matter at hand. What might a third resolution on Sri Lanka at the HRC look like? Would it include a provision for an independent international mechanism?And, if it didn’t, what would be the point? Sri Lanka’s domestic institutions are in a state of utter decay. For that very reason, outside assistance is of paramount importance.
Irrespective of how things play out at the HRC, now is the time to examine other options to bring to justice those who are responsible for the killing of 118,036 people during the war’s final phase.
(Gibson Bateman and Rathika Innasimuttu are founding members of The Social Architects (TSA). Follow TSA on Twitter @soc_arch.This article appeared in Asian Correspondent)