வெளிவந்தது சுமந்திரன் கடிதம்: திருத்தத்திற்குட்பட்டதா?

Members of the Human Rights Council,

High Commissioner, Ms. Michelle Bachelet,

President, Ambassador Ms. Elizabeth Tichy FisslBerger

CC: Secretary General of the United Nations, Mr. Antonio Guterres

We, the elected representatives of the Tamil people in Sri Lanka, and the Tamil organizations representing Tamil communities around the world and in Sri Lanka, wish to make the following submission for your immediate attention, consideration, and action. We are at all times guided by the Charter of the United Nations (UN), the Universal Declaration of Human Rights, and the international instruments dealing with human rights and freedoms.

The Sri Lankan armed conflict, which ended on May 18, 2009, caused the death of 50,000-70,000 persons according to international reports, including by UN agencies. During its final stages, it led to the displacement of over 300,000 Tamils.

Background

On May 23, 2009, a joint statement by the Government of Sri Lanka and the United Nations1 at the conclusion of UN Secretary-General Ban Ki-moon’s visit to Sri Lanka, stated:

President Rajapaksa and the Secretary-General agreed that addressing the aspirations and grievances of all communities and working towards a lasting political solution was fundamental to ensuring long-term socio-economic development. The Secretary-General welcomed the assurance of the President of Sri Lanka contained in his statement in Parliament on 19 May 2009 that a national solution acceptable to all sections of people will be evolved. President Rajapaksa expressed his firm resolve to proceed with the implementation of the 13th Amendment, as well as to begin a broader dialogue with all parties, including the Tamil parties in the new circumstances, to further enhance this process and to bring about lasting peace and development in Sri Lanka.

Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances.

On May 27, 2009 the UN Human Rights Council (UNHRC) passed a deeply flawed resolution2 in a special session, congratulating Sri Lanka for bringing the war to an end, ignoring calls by some countries, refugees, Tamils, and non-governmental organizations for an international investigation into alleged human rights abuses during the war. The resolution contained twelve points, including a reference to the joint communique with the UN Secretary General and the assurances given by the Sri Lankan President. Although the resolution made no reference to accountability for abuses committed by both sides of the armed conflict, it endorsed the Joint Statement between the President of Sri Lanka and UN Secretary-General, which mentioned accountability.

In May 2010, the Sri Lankan government appointed a Lessons Learnt and Reconciliation Commission (LLRC), and promised to implement the Commission’s recommendations.3 Many NGOs and witnesses refused to give testimony before the Commission due to the lack of witness protection. The final report of the Commission was published in November 2011. Moreover, the UN Panel of Experts appointed by the Secretary General, and other credible international human rights groups, criticized the LLRC due to its narrow mandate, lack of independence, and failure to meet international standards. According to a subsequent UN Report (the Petrie Report), despite some positive characteristics, the LLRC was fundamentally constrained by a mandate that did not focus on actual accountability, and by the lack of an enabling environment for judicial follow-up.

On June 22, 2010, a three-member panel was appointed by UN secretary-general Ban Ki-moon to look into human rights accountability issues during the final stages of the civil war in Sri Lanka. The report of this panel of experts4 was handed over to Secretary General in March 2011. According to its executive summary:

The panel found credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crime against humanity. Indeed, the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace.

Furthermore, it stated:

The panel has concluded that the Government’s notion of accountability is not in accordance with international standards. Unless the Government addresses the allegations of violations committed by both sides and places the rights and dignity of the victims of the conflict at the centre of its approach to accountability, its measures will fall dramatically short of international expectations.

Referring to the Sri Lankan government’s LLRC, the UN report stated:

In sum, the LLRC is deeply flawed, does not meet international standards for an effective accountability mechanism and, therefore, does not and cannot satisfy the joint commitment of the President of Sri Lanka and the Secretary-General to an accountability process.” On domestic mechanism the UN report states, Based on a review of the system’s past performance and current structure, the Panel has little confidence that it will serve justice in the existing political environment”

The Panel of Experts report raised several significant issues, including the UN’s response to the terrible situation facing civilians in the north of Sri Lanka. The Panel recommended “a comprehensive review of action by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates.”

The Secretary General subsequently responded:

This finding has profound implications for our work across the world, and I am determined that the United Nations draws the appropriate lessons and does its utmost to earn the confidence of the world’s people, especially those caught in conflict who look to the Organization for help. The Panel’s report recognizes initiatives we have taken in the wake of the events in Sri Lanka to prevent a similar breakdown. However, I am fully committed to ensuring that we do much more.

On April 25, 2011, the UN Secretary General publicly released the Panel of Experts’ report, and a few months later forwarded it to the President of the Human Rights Council. The report raised a number of significant issues, including the UN’s response to the situation faced by civilians in the North of Sri Lanka. The Secretary General accordingly ordered a comprehensive review of action by the UN system during the war in Sri Lanka and the aftermath, particularly with regard to the implementation of its humanitarian and protection mandates.

In November 2012, a new report called the “Secretary-General’s Internal Review Panel on United Nations Action in Sri Lanka”5 (the Petrie Report) concluded that the UN system failed to meet its responsibilities. It highlighted, in particular, the roles played by the Secretariat, the agencies and programmes of the UN Country Team, and the members of the Security Council and Human Rights Council. The Secretary General accordingly responded:

This finding has profound implications for our work across the world, and I am determined that the United Nations draws the appropriate lessons and does its utmost to earn the confidence of the world’s people, especially those caught in conflict who look to the Organization for help.

In a significant evolution of its position, the Human Rights Council adopted a resolution on Sri Lanka that focused on accountability for the first time in 2012. The First UNHRC resolution6 on “Promoting Reconciliation and Accountability in Sri Lanka” was adopted on March 22, 2012. It called upon the Sri Lankan government to implement the constructive recommendations in the LLRC report and “to take all necessary additional steps to fulfil its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans”. The Office of the High Commissioner for Human Rights (OHCHR) and the UN special procedures mandate holders were requested to provide advice and technical assistance to the government, and to report back to the Council in one year on the progress made. As Sri Lanka failed to make meaningful progress, a second resolution7 was adopted on March 21, 2013 giving Sri Lanka time to implement the recommendations.

In his address at the UNHRC during the discussion in 2013, the Indian envoy to the UN – Mr. Dilip Sinha – called for an independent and credible investigation into Sri Lankan war crimes. He stated:

India believes that the report of the LLRC and its findings and recommendation provides a window of opportunity to forge a consensual way forward towards a lasting political settlement through genuine national reconciliation and the full enjoyment of human rights by all its citizens. We note with concern the inadequate progress by Sri Lanka in fulfilling its commitment to this Council in 2009. Further, we call on Sri Lanka to move forward on its public commitments, including on the devolution of political authority through full implementation of the 13th Amendment and building upon it.

India has always been of the view that the end of the conflict in Sri Lanka provided a unique opportunity to pursue a lasting political settlement, acceptable to all communities in Sri Lanka, including the Tamils. We call for effective and timely implementation of all the constructive recommendations contained in the LLRC report, including those pertaining to missing persons, detainees, disappearances and abductions, reduction of ‚high security zones‘, return of private lands by the military and withdrawal of the security forces from the civilian domain in the Northern Province. We reiterate our call for an independent and credible investigation into allegations of human rights violations and loss of civilian lives. We urge Sri Lanka to take forward measures to ensure accountability. We expect these measures to be to the satisfaction of the international community.

As Sri Lanka’s closest neighbour, India remains engaged in a substantial way in the relief, resettlement, rehabilitation and reconstruction process in that country. Our efforts have contributed to the resettlement of Internally Displaced Persons and the rebuilding of infrastructure and development, especially in the Northern and the Eastern Provinces of Sri Lanka.

As Sri Lanka failed to make meaningful progress, a third resolution8 was adopted in 2014, again giving time for Sri Lanka to implement its promises. While incorporating previous positions, the Council on this occasion also authorized the OHCHR to undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka, and present its report to the Council.

The OHCHR Investigation on Sri Lanka (OISL) report9 was released on September 28, 2015. Its conclusions and recommendations included the following:

The findings of the OHCHR investigation contained in the present report were born out of the past failure of the Government of Sri Lanka to address accountability for the most serious human rights violations and crimes.

The commitments made by the new Government in this respect are welcome, but it needs to convince a very sceptical audience – Sri Lankan and international – that it is determined to show results.

The High Commissioner remains convinced that, for accountability to be achieved in Sri Lanka, it will require more than a domestic mechanism. Sri Lanka should draw on the lessons learned and good practices of other States that have succeeded with hybrid special courts, integrating international judges, prosecutors, lawyers and investigators.

The High Commissioner also believes that the Human Rights Council has played – and should continue to play – a critically important role in encouraging progress on accountability and reconciliation in Sri Lanka. As the process now moves into a new stage, he urges Council members to sustain their monitoring of developments in Sri Lanka with a view to further actions that may be required at the international level should concrete results not be achieved.

In particular, the High Commissioner wishes to highlight the following recommendations: Institutional reforms, Justice, Truth/right to know, Reparations & General improvements (please access the report for full details).

The High Commissioner had the following for the United Nations system and Member States:

(a) Provide technical and financial support for the development of transitional justice mechanisms, provided that they meet international standards; and set up a coordination mechanism among donors in Sri Lanka to ensure focused and concerted efforts to support the transitional justice process;

(b) Apply stringent vetting procedures to Sri Lankan police and military personnel identified for peacekeeping, military exchanges and training programmes;

(c) Wherever possible, in particular under universal jurisdiction, investigate and prosecute those responsible for such violations as torture, war crimes and crimes against humanity;

(d) Ensure a policy of non-refoulement of Tamils who have suffered torture and other human rights violations until guarantees of non-recurrence are sufficient to ensure that they will not be subject to further abuse, in particular torture and sexual violence;

(e) Continue to monitor human rights developments and progress towards accountability and reconciliation through the Human Rights Council; if insufficient progress is made, the Council should consider further international action to ensure accountability for international crimes.

Based on the findings and recommendations of the OISL report, the UNHRC, adhering to its founding principles, adopted a unanimous resolution10 in 2015 – this time co-sponsored by Sri Lanka. Sri Lanka agreed to implement 25 wide ranging undertakings, including on human rights, justice, accountability, reparation, reconciliation, non-recurrence, enforced disappearances, and release of lands.

Sri Lanka, as expected by all the UN bodies, the victims, non-governmental organizations and Tamils around the world was back again in 2017 asking more time to implement its own resolution. Accordingly a fifth UNHRC resolution11 on “Promoting Reconciliation and Accountability in Sri Lanka” was adopted on March 23, 2017 without a vote.

Sri Lanka was back again in 2019, asking for further time to implement the co-sponsored resolution. Therefore, a sixth UNHRC resolution12 was adopted on March 21, 2019, without a vote.

Eleven plus years have passed since the war ended. The UN, UNHRC and related agencies have made various commitments, and have adopted various resolutions. But to date, no meaningful progress has been made; war victims, refugees, relatives of the disappeared, and others continue to be affected, with no political will on the government’s part to bring about a political solution, and to advance sustainable economic development in war-affected areas.

In February 2020, Sri Lanka, through its Foreign Minister, gave notice to the UNHRC that it was formally withdrawing from all previously co-sponsored UNHRC resolutions. President Gotabaya Rajapaksa and his brother, Prime Minister Mahinda Rajapaksa have repeatedly made it clear that they are not going to hold members of the security forces accountable for war crimes. They have meanwhile continued to deploy the military in civilian positions, seize lands belonging to the Tamil people, appoint Buddhist religious personnel to oversee land allotment in the East of Sri Lanka in the guise of archaeological management, increase surveillance and intimidation of victim families, human rights activists, journalists, and curtail burial rites of the Muslim community.13 Additionally, China, which has emerged a very influential member with key positions in the UNHRC, publicly assured Sri Lanka on October 9, 2020 that it will support and protect Sri Lanka in international fora including the UNHRC.

Recommendations

In light of the background and context outlined in this letter, we call upon the UNHRC members and other affiliated UN agencies and member states to adopt, as a matter of utmost urgency, the following measures with respect to Sri Lanka:

1. Adopt a further resolution in March 2021, in line with what was agreed by all members of the UNHRC, not once but three times, including by Sri Lanka;

2. Recognize that the promises made in the past 11 plus years are deception and delaying tactics used by Sri Lanka to avoid implementing the UNHRC resolutions, and the promises made to the Secretary General at the end of the war, and avoid falling into the trap of accepting the promise of yet another domestic “commission of inquiry”, or other promises for continued “engagement”;

3. Recognize that Sri Lanka’s institutions are incapable of holding its military personnel accountable for war crimes and crimes against humanity, and that the appointment of military personnel to various positions, despite the existence of credible allegations against them, remains an affront to victims;

4. Recognize that Sri Lanka’s decision to renege on its numerous commitments in March 2020 reflects a need to create a new and independent accountability mechanism in addition to the adoption of a new resolution; and

5. Recognize the victim community’s legitimate concern that the longer the delay, the further the grip of the Sinhala-Buddhist dominance and subjugation of all minorities in Sri Lanka.

We, in particular, welcome the High Commissioner’s statement made in the 45th UNHRC session:

I am troubled that the new Government is swiftly reneging on its commitments to the Human Rights Council since it withdrew its support for resolution 30/1. Among other developments, the proposed 20th amendment to the constitution may negatively impact the independence of key institutions, including the National Human Rights Commission.

We also welcome past commitments made by High Commissioners for Human Rights encouraging member states to exercise universal jurisdiction, in the absence of credible action in Sri Lanka to ensure accountability for alleged violations of human rights law and international humanitarian law. We recall the OISL report, which observes that “if insufficient progress is made, the Council should consider further international action to ensure accountability for international crimes”. In this context, we welcome recent UN and UNHRC investigations such as the International Impartial, and Independent Mechanism (IIIM) with respect to Syrian Arab Republic, and the Independent Investigative Mechanism (IIM) for Myanmar, and such other international initiatives.

We wish to conclude by thanking the UN, UNHRC and other related organizations for its statement on “Covid-19 and its human rights dimensions”. The statement rightly reinforces the principle that respect for human rights across the spectrum, including economic and social rights, and civil and political rights, will be fundamental to the success of the public health response. Meaningful accountability, and a lasting political solution in Sri Lanka, are also deeply connected to the success of the public health response, and will no doubt contribute towards sustaining international peace, security and stability.

Thank you.

Sincerely,