Thambu Kanagasabai.
Universal Periodic Review (UPR) is a unique process with involves a review of human rights record of all UN member states. It is a process conducted under the articles of Human Rights Council which provides the opportunity to each state to declare what actions they have taken to improve the human rights situation in their countries and to fulfill their human rights obligations.
Weeks before the 52nd session of UNHRC from 27th February to 04th April 2023 the UPR’s working group was conducting an internal review of human rights record of six countries which include Sri Lanka. The working group of the UPR reviewed the National Report information provided by the Sri Lanka’s Foreign Minister. The three countries reviewing the Reports were Algeria, UK and Qatar.
In its reply to UPR among other various matters, Sri Lanka dealt with issues affecting human rights, accountability, justice and reconciliation.
Please see their National Report to the (last) fourth cycle of UPR held on February 01, 2023 at Geneva.
This article briefly deals with the truthfulness of denials made by the Foreign Minister in his statement to the UPR particularly on human rights, accountability and reconciliation issues affecting Sri Lankan communities particularly Tamils.
It is to be noted that Sri Lanka agreed to implement 177 recommendations including 12 voluntary pledges made in November 2017 to UNHRC. The fourth National Report was submitted by Sri Lanka to UPR in pursuant to the UNHRC Resolutions 5/1 and 16/21.
In 2018 Sri Lanka incorporated the international convention dealing with Protection of all Persons from Enforced Disappearances and with provisions enabling the families of victims to seek effective remedies, obtains compensation and information on the whereabouts of the victims but these have not been fully implemented though more than 65,000 complaints of disappearances were received by the Presidential Commissions. The compensations offered by the Commissions were rejected by the victims who are continuing to protest calling for precise and full information as to the whereabouts of the relatives who disappeared while in the custody of security forces. So far not even one person alleged to have been disappeared has been produced by the OMP nor any information has been provided so far as to when, where and by whom they were disappeared after they surrendered voluntarily and or involuntarily.
Though Sri Lanka criminalized enforced disappearances prosecutions against the perpetrators of disappearances are not being actively initiated and pursued allowing the perpetrators to enjoy the state’s policy of entrenched impunity.
The Minister’s statement in number 39 to UPR appears to be extolling Sri Lanka’s rejection of all UNHRC Resolutions 30/1, 34/1, 40/1, 46/1 and 51/1. Even though Sri Lanka was a co-sponsor of the first Resolution passed on 30/1 of 2015, the reason given for its rejection was that it was not endorsed by the parliament of Sri Lanka as it was in contravention of the constitution impinging the nations’ sovereignty. If it contravenes the constitutional provisions, the question arises as to why Sri Lanka accepted the memberships of the UN and UNHRC with undertakings to observe their charters, conventions and resolutions. If sovereignty is impinged, it is high time Sri Lanka considers the withdrawal of its’ memberships from UN and all it’s subsidiaries like UNHRC and UNESCO etc. One cannot have the cake without eating it.
In his statement at No: 40 to UPR, the Minister asserted that “Domestic reconciliation must be compatible with the aspirations of its people and consonant with the domestic legal framework”. It is not clear what is meant by the aspirations of the people. Does it mean only the aspirations of the majority Sinhala people when the aspirations of the victimized Tamil people have been clearly exposed and made public for the last 40 Years or more? It is to be noted that Sri Lanka’s constitution has no Laws dealing with war crimes, crimes against humanity and etc. As such no domestic legal framework currently exists in Sri Lanka to prosecute war criminals leaving the victims of war crimes to remain in a state of limbo and desperation.
The Minister’s assertion that “Sri Lanka has continued to implement – Post Conflict Reconciliation processes through domestic mechanism” is hollow and flies in the face when one notes the recent by force erection of a Buddhist statute and construction of a Buddhist temple in Kurunthur hill within the Hindu Temple premises in Vavunia district defying the Court’s order which prohibited construction of a Buddhist temple and a statute while an attempt by security personnel to erect a statute of Buddha at Nilavarai, Jaffna district was foiled by the timely intervention of Tamil public and local Tamil politicians.
It is crystal clear that these illegal acts aim at Buddhisisation targeting to foster and feed communal disharmony, ill-will and hostility and not for the promotion of reconciliation process as boasted by the Minister.
The statement that “Office of Missing Persons (OMP), Office of Reparations (OR), Office of National Reconciliation Commission (ONRC) and the Presidential Commission of Inquiry have carried out many productive and constrictive activities” does not reflect or expose the real sorry state of affairs as so far only the Commissioners have been appointed with the necessary provision of finances. The said victims’ center approach to be followed has not been fulfilled in its true sense except the recording of about 15,000 complaints of disappearances. The said Offices have not moved even an inch forward to initiate follow-ups of the complaints and it appears they are just functioning as recording Offices aiming to shield the perpetrators of disappearances allegedly committed by the security personnel with impunity. So far not even one person reported to have been disappeared has been produced alive not to mention even the production of any information as to the whereabouts or fate of a disappeared person. It appears that the OMP is more keen and enthusiastic to dish out certificates of absences and or death certificates without any detailed information as to when, how, where and by whom the disappearances and or deaths were caused.
Here it is a very important point to be noted that these officers who are appointed to these commissions are from majority Sinhalese (ruling race) and they are historically hostile to Tamils. May be sometimes as a formality a single officer from the minority community may be included but he can’t voice or protest against any wrong doings, by these officers from the majority Sinhala community. Due to the history of violence perpetrated by the Sinhala majority to Tamil minorities this fear psych persists among minorities.
The government’s intended proposal to establish a credible Truth and Reconciliation Commission within the provisions of the constitution does neither appear to be feasible nor credible as constitutional provisions do not currently exist and do not allow any investigations into war crimes, crimes against humanity, etc.
President Ranil Wickramasinghe’s recent All Party Conference on 13 December 2022 is just another white washing to paint a picture of deceptive commitment and sincerity to solve the 65 years old entrenched simmering ethnic problem. In this respect appointment of a four-member cabinet sub-committee is just another ploy as reports and recommendations made if any will finally rest in peace in the shelves of the government’s archives as in the past.
The appointment of a sub-committee consisting of Prime Minister, Ministers of Justice, Minister of Foreign Affairs and Minister of Fisheries “to promote reconciliation among different communities” and to resolve matters relating to affected persons is nothing new as several past state commissions appointed to deal with these always “kept alive” matters completed their missions without any constructive outputs. So also the land issues which are the products of militarization in the North would remain unsolved as long as the military continues its residence in the North. It is to be noted that more than 2,500 acres of private lands belongs to Tamil people are still retained by the military, even though the war is over in May 2009.
“Measures said to be taken to promote religious harmony and prevent hate speech” are in shambles as the recent incidents and speeches involving Buddhist monks belie these assertions.
The army’s open activities in the North involving cultivation of crops, agriculture, marketing and conducting sales in the North can only happen in Sri Lanka as army is supposed to remain vigilant and alert to preserve state’s security and protect its borders but not playing the dual role of business and marketing for profits. This is affecting the Tamil farmer’s livelihood in the North of Sri Lanka.
However it is still an incomprehensible factor and a lapse that UN, UNHRC etc remain grounded and action less to stop an aggressive state’s continuing violations of UN and UNHRC charters as is currently going on in Ukraine which has been invaded and being rampaged by Russia a UN Security Council member who is supposed to maintain peace and security among the member countries of United Nations.
In conclusion, it has to be stated that the UNHRC Resolutions which were aimed to deal with issues of accountability, justice and reconciliation are always remain as anathema to Sri Lanka since 1956 and it is not surprising that Sri Lanka rejects them in toto.
Thambu Kanagasabai LLM (London)Former Lecturer in Law, University of Colombo Sri Lanka