Twenty fifteen was a miraculous year for Sri Lanka. It saw a change in government in January 2015. Maithiripala Sirisena was elected President defeating firmly entrenched Mahinda Rajapaksa in spite of the latter getting a majority vote in 16 predominantly Sinhalese districts.
The five districts in the predominantly Tamil Northern and Eastern Provinces and the Central district of Nuwera Eliya tilted the balance in favour of Sirisena who had defected from the Rajapaksa Cabinet to challenge his leader. It was nothing short of a miracle. The second miracle occurred in August when a national government was formed by the two rival political parties in Sri Lanka, the SLFP and the UNP coming together, the President from the SLFP and the Prime Minister Ranil Wickremesinghe from the UNP. It was the first major step towards reconciliation in the war-torn country.
The third miracle happened in distant Geneva in September 2015 at the 31 st session of the UN Human Rights Council meeting where a resolution co-sponsored by the newly formed national government was adopted unanimously.
The resolution solemnly committed Sri Lanka to several binding agreements at the Human Rights Council. Addressing the Council meeting, Mangala Samaraweera, Foreign Minister of Sri Lanka, said, “Do not judge us by the broken promises, experiences and U-turns of the past. My plea to you is trust us and join us to work together and create a new Sri Lanka.” And trust they did.
The resolution said the government took note “with appreciation” of the report of the High Commissioner of Human Rights, Zeid Ra’ad Al Hussein, on Sri Lanka which said “there are reasonable grounds to believe that the security forces were implicated in unlawful killings carried out in widespread manner against civilians,” and that there were “longstanding practices of arbitrary arrests and detention by the government security forces.”
The report further states: “There are reasonable grounds to believe that the Sri Lankan authorities have, in a widespread and systematic manner deprived a considerable number of victims of their liberty and then refuse to acknowledge the deprivation of liberty or concealed the fate and whereabouts of the disappeared persons.” It also said there was brutal use of torture by the security forces. This was the report the government of Sirisena and Wickremesinghe noted with “appreciation” and called upon the 47-nation Human Rights Council to support.
The Resolution 30/1 cosponsored by Sri Lanka with the USA was adopted unanimously on 1 October 2015. The resolution advocates trial of war crimes by a judicial mechanism with the participation of Commonwealth and other foreign judges, defence lawyers, investigators and prosecutors. Through this resolution Sri Lanka also committed to repeal the Prevention of Terrorism Act immediately and replace it with “anti-terrorism legislation in line with contemporary best practices.” None of these has been adhered to. Hardly four months after Samaraweera&’s memorable UNHRC address calling not to judge Sri Lanka by broken promises of the past, Colombo made a spectacular U-turn.
Both Sirisena and Wickremesinghe have said openly that no foreign judges will be involved in the investigation into human rights violation, war crimes and crimes against humanity in utter disregard to Section 6 of the UNHRC Resolution 30/1 co-sponsored by their own government. Sirisena had described the armed forces as “war heroes.” Addressing a large group of military officers in the last week of May, Wickremesinghe assured them that no international participation in a domestic Sri Lankan justice mechanism would be allowed. Before the resolution was adopted UNHR High Commissioner Zeid said, “The levels of mistrust in state authorities and institutions by broad segments of Sri Lankan society should not be underestimated. It is for this reason that the establishment of a hybrid special court integrating international judges, prosecutors, lawyers and investigators is so essential. A purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises.”
Both the President and the Prime Minister have shown a lack of political will and courage to engage in discourse among the Sinhala people about the need to establish the truth of what happened and the importance of accountability for the wrongs that were done against another community of their fellow citizens. It is inconceivable the member nations of the UNHRC will accept the Sri Lankan perfidy without challenge at the ongoing 32 nd session of the council in Geneva. Zeid told the council that from the human rights perspective, the constitutional reform process in Sri Lanka presents an important opportunity to rectify structural deficiencies that contributed to human right violations and abuses in the past and reinforce guarantees of non-recurrence. He said that a key question that remains with regard to Sri Lanka&’s justice seeking process is the participation of international judges, prosecutors, investigators and lawyers in a judicial mechanism. On 27 June, a bipartisan group of 24 US Congressmen called on Secretary of State John Kerry in Washington, DC, to continue efforts to strengthen human rights in Sri Lanka.
“We urge you to remain engaged on the implementation of Resolution 30/1 and to increase US public and private messages to Sri Lanka that encourage and press the government of Sirisena to take the difficult steps required to honour its commitment to ensure peace and security for all the communities in the island. The US should continue to provide Sri Lanka with the technical and capacity-building support it needs to successfully implement the provisions of Resolution 30/1. At the same time, we urge that the USA make clear that additional funding, trade and military-to-military incentives are dependent on substantial and sustained implementation of the resolution&’s requirements and credible advances in the areas of transitional justice, ending impunity, military and security sector reform, rule of law, and addressing the concerns of the Tamil people set forth in the resolution,” the group wrote in a letter to Kerry. Prime Minister Narendra Modi, who has good equation with the present rulers in Sri Lanka, has kept mum. He should make India&’s position clear at this critical juncture. If Sri Lanka firmly believes in what it said in its own resolution, India could extend all help in overcoming any difficulty Colombo might be facing in implementing them.
The Monitoring and Accountability Panel established by the UNHRC to provide independent monitoring, advice and recommendations on the transitional justice mechanism has found the progress has been slow and fallen short of expectations. It expressed deep concern about the Sri Lankan government&’s lack of political will to meet the challenges relating to impunity and transitional justice. Its greatest concern is the breach of the word and spirit of the resolution by Sirisena and Wickramasinghe who had stated that they would not allow international judges and prosecutors.
The panel requested Zeid to urge the Sri Lankan government to abide by its promises and facilitate the full participation of international judges and prosecutors in war crimes trials. The Eelam war ended seven years ago and the LTTE has been wiped out. Still around 150,000 troops are stationed in the Northern Province. The presence of armed forces in such numbers possess a threat to the freedom of movement of civilians. Out of 7,080 acres of private lands taken over by the armed forces, more than 5,340 acres are yet to be released to the owners of the land.
The armed forces are occupying 172 private houses, 16 schools, 19 temples and 12 public institutions in the North. About 150 political prisoners and still languishing in prisons without being charged in a court of law. The Tamil people gave a mandate to the National Government for autonomy to the Northern and the Eastern Provinces under a federal structure in a united Sri Lanka. That is the only way to bring about genuine reconciliation. But Sirisena and Wickrmmesinghe have ruled out federalism. Unless the international community pressure the Sri Lanka government to see reason and honour the solemn commitments it made on its own accord, the ethnic crisis will continue to fester.