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‘Come September’- Revisiting Geneva

AUGUST 10, 2021

Worth Sharing

By Austin Fernando 

Austin Fernando

I faintly remember seeing the film ‘Come September’ somewhere, cast by Rock Hudson, then a heartthrob of Hollywood and Gina Lollobrigida, then a sex symbol in the film industry. Instantly we enjoyed ‘Come September’ then. Now being a Senior and more responsible, when I think ahead by a month I wonder whether we as a country could so happily look forward to coming September with ears, and eyes open to United Nations Human Rights Commission (UNHRC) Resolutions in Geneva, or GSP+ in Brussels. This exercise is to open eyes and ears to the issues with the UNHRC. Let GSP+ be the kettle of fish of another.

     ““The European Union’s (EU) statement announcing its decision to consider withdrawing the GSP+ concession for Sri Lanka reiterates the crucial contents, e.g., alleged human rights violations, the repeal of the Prevention of Terrorism Act (PTA), etc. in the UNHRC Resolution of October 2015, and the follow-up. All our governments have denied violations, but some lobbies vehemently disagree. They have to. However, the ‘Yahapalana’ government has been criticized for co-sponsoring the 2015 resolution, but its critics seem to think that Sri Lanka had been free from UNHRC pressures before 2015. They do not look at the issues logically and chronologically.https://a918c3e3788b0da678852ad2bddaa03e.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html

Much water has run under the bridge since 2009, with the UNHRC, and the EU, stressing the need for bringing about reconciliation in Sri Lanka. Concurrently, there have been interventions from other nations, too, e. g., the USA, Canada. This article attempts to explain why the 2015 UNHRC Resolution should be put in evolved perspective so that we could address the consequential challenges and threats.

Even some intellectuals argue that UNHRC resolutions are baseless. Another school of thought maintains that we should get over the criticisms against Sri Lanka by adhering to acceptable standards/norms and reap the socio-economic benefits. Even if the resolutions are baseless, as claimed, we cannot afford to ignore the fact that they have been taken very seriously by the international community, whose opinion and decisions affect us politically, diplomatically, and economically.

Let’s revisit the pre-2015 Geneva situation.

Joint Statement by President Mahinda Rajapaksa and UNSG Ban-Ki-Moon

In the aftermath of the victory against LTTE in May 2009, UN Secretary-General (UNSG) Ban-Ki-Moon and President Mahinda Rajapaksa issued a Joint Statement on 23 May 2009, which was the initial step toward post-war reconciliation. The content of this statement is worth revisiting:

1. The visit reflected the close cooperation between Sri Lanka and the UN, and its commitment to work with the UN in the future.https://a918c3e3788b0da678852ad2bddaa03e.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html

2. The conflict over, Sri Lanka has entered a new post-conflict beginning and the Government of Sri Lanka (GOSL) faces many immediate and long-term challenges. The critical status offers opportunities for the long-term development of the north and for re-establishing democratic institutions and electoral politics after decades. The GOSL expressed its commitment to ensuring the economic and political empowerment of the northern people.

3. President and the SG 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.

4. The SG welcomed the assurance of President Rajapaksa stated 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, and to begin a broader dialogue with all parties, including the Tamil parties.

5. President and SG discussed a series of areas in which the UN will assist the ongoing efforts of the GOSL in addressing future challenges and opportunities.

6. Concerning IDPs, the UN will continue to provide humanitarian assistance to IDPs in Vavuniya and Jaffna. The Government will continue to provide access to humanitarian agencies. The Government will expedite the necessary basic and civil infrastructure, means of livelihood necessary for the IDPs for the earliest resumption of their normal lives. The SG welcomed the announcement by the Government expressing its intention to the planned dismantling of welfare villages.

7. The GOSL seeks the cooperation of the international community for mine-clearing.

8. The SG called for donor assistance towards the Common Humanitarian Action Plan jointly launched by the GOSL and the UN.

9. President Rajapaksa and the SG recognized many former child soldiers as an important issue. President Rajapaksa reiterated his firm policy of zero tolerance about child recruitment. In cooperation with the UNICEF, child-friendly procedures have been established for their “release and surrender”, and rehabilitation to reintegrate former child soldiers into society as productive citizens. The SG while appreciating the progress encouraged GOSL to adopt similar policies and procedures relating to former child soldiers in the north.

10. President Rajapaksa informed the SG regarding ongoing initiatives for rehabilitation and reintegration of ex-combatants, in addition to the ongoing work by the Office of the Commissioner-General for Rehabilitation, and the National Framework for the Integration of Ex-combatants into Civilian Life under preparation, with the assistance of the UN and other international organizations.

11. 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 laws. The Government will take measures to address those grievances.

The final consensual understanding (No; 11) was a carte blanche for the UN. Sections 1 to 10 are on the need to satisfy the needs of the affected with the help of the international community. Perhaps, in response to the alleged atrocities during the final phase of the conflict and/or out of its humanitarian concerns, the GOSL unilaterally made its proposals to the UNHCR on 27th May 2009.

11/1 Resolution 27 May 2009

This proposal, titled “Assistance to Sri Lanka in the promotion and protection of human rights” contained the following:

1 Welcomed the GOSL’s commitment to promote and protect human rights and encourage upholding human rights legal obligations.

2 Encouraged the GOSL to continue pursuing existing cooperation with UN agencies to provide basic humanitarian assistance

3 Encouraged the GOSL to continuously pursue cooperation with relevant UN organizations, to provide, to the best capabilities, with GOSL cooperation, basic humanitarian assistance to internally displaced persons (IDPs).

4 Welcomed the announcement of the proposal to safely resettle the bulk of IDPs within six months and encouraged the GOSL to proceed with due respect for persons belonging to differing minorities.

5 Acknowledged the GOSL’s commitment to providing access, as appropriate, to international humanitarian agencies to ensure humanitarian assistance to the IDPs to meet their urgent needs and encouraged the Sri Lankan authorities to further facilitate appropriate work.

6 Encouraged the GOSL to its efforts towards the disarmament, demobilization, and rehabilitation of former child soldiers, their physical and psychological recovery, and reintegration into society, through educational measures, considering the rights and specific needs and capacities of girls, in cooperation with relevant UN agencies.

7 Urged the GOSL to strengthen activities to ensure that there is no discrimination against ethnic minorities in the enjoyment of all human rights.

8 Welcomed the continued cooperation between the GOSL, relevant UN agencies, and other humanitarian organizations to provide humanitarian assistance to the affected people and encouraged continued cooperation with the GOSL.

9 Welcomed the recent visits of the Under-Secretary-General for Humanitarian Affairs and the Representative of the Secretary-General on the human rights of IDPs and encouraged continuous cooperation in the mobilization and provision of humanitarian assistance.

10 Welcomed the visit of the SG and endorsed the joint communiqué issued after the visit and the understandings contained therein.

11 Welcomed the resolve of the Sri Lankan authorities to begin a broader dialogue with all parties to enhance the process of political settlement and to bring about lasting peace and development based on consensus among and respect for the rights of all stakeholders and invited them to actively participate in it.

12 Urged the international community to cooperate with the GOSL in the reconstruction efforts, by increasing the provision of financial and development assistance, for poverty alleviation and underdevelopment and promotion and protection of all human rights.

The 11/1 Resolution contained constructive proposals originating from the quoted joint statement. Its contents concerning the aspirations of the Tamils and the position of the international community were ratified. The GOSL, which co-sponsored the proposals had to implement them. But it did not make good on its commitments, and even tried to justify its failure to do so.

Later, since some of the pledges were politically disadvantageous, some conveniently claimed that the joint statement was non-binding as regards the international human rights and humanitarian laws. They chose to ignore the internationally binding commitments stated as ‘understandings’ in the joint statement and the endorsement of it by Section 10 in the 11/1 Resolution.

Darusman Committee

The UNSG witnessing the delays in the implementation of the proposals appointed the Darusman Committee on Accountability in Sri Lanka, in June 2010. The Darusman Report was unfavorable for Sri Lanka. At the very outset, the purpose of the committee and the appointment of the members thereof were questioned by the GOSL. The inclusion of Yasmin Sooka as a member was questioned because she was considered sympathetic to the LTTE. GOSL resisted the Darusman Committee investigating Sri Lanka. Further, UNHCR High Commissioner Navaneethan Pillai was also ridiculed.

19/2 Proposal (2012-3-22)

However, the Darusman Committee gathered information from diplomatic and other sources. When the proposals were not implemented, the matter was brought to the attention of the UNHCR through Resolution 19/2 on 22nd March 2012, which was ratified on 3rd April 2012.

By this time the report of the Lessons Learnt and Reconciliation Committee (LLRC) had been released. It had many constructive recommendations. Therefore, the new UNHRC resolution made three recommendations, of which two specifically referred to the LLRC recommendations:

1. Called upon the GOSL to implement the constructive recommendations of the LLRC Report and to take steps to fulfill its relevant legal obligations and commitments to initiate credible and independent actions to ensure justice, equity, accountability, and reconciliation to all Sri Lankans.

2. Requested GOSL to expeditiously present a comprehensive action plan detailing the steps government has taken and will take to implement LLRC recommendations and to address alleged violations of international laws.

3 Encouraged the UNHRC and special procedure mandate holders to provide in consultation and concurrence with the GOSL, advice, and technical assistance and requested the High Commissioner to present a report on such assistance at the 22nd Session.

The GOSL considered the LLRC Report a success, “Yes,” it was a grand success,  but did not implement its recommendations fully. This above-mentioned Resolution reminded GOSL of the need to carry out the LLRC recommendations and pointed out the Rajapaksa government’s lack of commitment to doing so.

I recall a personal experience concerning the LLRC Report to show how Commission recommendations are treated by governments. It is about the Aranthhalawa Bhikku massacre. In an article I wrote in 2012 in the Colombo Telegraph, I said:

“The Lessons Learnt and Reconciliation Commission (LLRC) in its report at Section 8.72 said “Representations were also made before the Commission that the Government should order a full-scale probe into the Arantalawa massacre of 33 Buddhist monks, most of whom were Samaneras, on 2nd June 1987….” It appears that along with the other investigations recommended in the LLRC Report, this is also forgotten. As recommended in Section 5.107 of the LLRC Report for other affected, as “a matter of justice,” the plight of these priests “needs to be recognized by the State…” I pray it to be fulfilled after 25 years.”

My prayer was answered nine years later under another Rajapaksa government. The incumbent administration is to probe into the Aranthalawa Bhikku massacre. The Yahapalana also did not pay attention to it. The present response is surely not due to UNHRC pressure; it may be to remind the public of the LTTE atrocities against Buddhists in time for the next Provincial Council elections so that the government could gain some political mileage therefrom. Curiously, no such interest has been envied in other human rights issues raised in the LLRC Report.

22/1 Proposal (2013-3-21)

A great responsibility was placed on the State officers to implement the proposals in the Resolutions. Unfortunately, the international community did not see this happen. Hence, it decided to submit the 22/1 Resolution on 21 March 2013 by way of registering its protest with Sri Lanka. What it, however, did not understand was that the government was planning to advance a presidential election, and, therefore, committing to implementing the UNHRC Resolutions would be politically disastrous.

The 22/1 proposal acknowledged the constructive efforts such as the decision to hold the Provincial Council election in the North, infrastructural development, demining and facilitating resettlement of IDPs. However, the National Plan of Action proposed by the LLRC was considered inadequate to address all the findings and constructive recommendations of the Commission. It was also noted that States facing post-conflict situations should abide by international human rights and humanitarian laws. Nationalists did not oppose the earlier actions but resisted the latter which had to do with the military.

The 22/1 Resolution focused on the following salient points:

1 Encouraged the GOSL to implement the recommendations made in the UNHRC Report and to conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law, as applicable.

2 Called upon the GOSL to implement the constructive recommendations of the LLRC Report and to take all additional steps to fulfill relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability, and reconciliation for all Sri Lankans.

3 Encouraged the GOSL to cooperate with special procedures mandate holders and to respond formally to all outstanding requests.

4 Encouraged the Office of the High Commissioner and relevant special procedures mandate holders to provide, in consultation with and with the concurrence of the GOSL, advice and technical assistance on implementing the above-mentioned steps.

5 Requested the Office of the High Commissioner, with input from relevant special procedure mandate holders, as appropriate, to present an oral update to the Human Rights Council at its twenty-fourth session, and a comprehensive report followed by a discussion on the implementation of the present resolution at its twenty-fifth session.

The implementation of Human Rights and International Humanitarian Laws is the responsibility of any government. But those who duped themselves into believing that ‘internationals can be fooled’ did not want to protect Human Rights or uphold Humanitarian Laws. Although some IDPs were resettled, new military bases sprang up. From the perspective of the Tamils, their legal rights to private lands were denied.

The international community collected data from diplomatic and external sources. It was no secret that they were biased towards the needs and demands of the Tamil community. However, it had a clear understanding of the implementation of the proposals and was concerned about the tardy pace at which it was executed. They understood that the implementation of the proposals could not be expedited. Hence, they went before the UNHRC again.

25/1 Proposal (27.03.2014)

By 2014, the international community sadly believed Sri Lanka was an irresponsible, inert state. Hence the UNHCR, on 27 March 2014, passed the 25/1 Resolution titled ‘Promoting reconciliation, accountability and human rights in Sri Lanka’. The main points therein are as follows:

1.   Welcomed the oral update by the UN High Commissioner for Human Rights to the UNHRC 24th Session and the subsequent report by the Office of the UN High Commissioner for Human Rights (OHCR) on promoting reconciliation and accountability in Sri Lanka and the recommendations and conclusions, including on the establishment of a truth-seeking mechanism and national reparations policy as an integral part of a more comprehensive and inclusive approach to transitional justice.

2.  Called upon the GOSL to conduct an independent and credible investigation into allegations of violations of international human rights and humanitarian laws, as applicable; to hold accountable those responsible for such violations; to end continuing incidents of human rights violations and abuses in Sri Lanka, and to implement the recommendations made in the reports of the OHCR.

3.  Reiterated the earlier call upon the GOSL to implement effectively the constructive recommendations made in the LLRC Report, and to take all additional steps to fulfill its relevant legal obligations and commitments to initiate credible and independent actions to ensure justice, equity, accountability, and reconciliation for all Sri Lankans.

4.  Urged the GOSL to investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and other members of civil society, and all places of worship and urged the GOSL to hold perpetrators of such attacks to account and to take steps to prevent such attacks in the future.

5.  Called upon the GOSL to release publicly the results of its investigations into alleged violations by security forces, including the Weliweriya attack, and the report of the Army Court of Inquiry.

6.  Encouraged the GOSL to ensure that all Provincial Councils can operate effectively, in accordance with the 13th Amendment to the Constitution.

7.  Welcomed the visit by the Special Rapporteur on the Human Rights of IDPs in December 2013 and called upon the GOSL to facilitate the effective implementation of durable solutions for all IDPs.

8.  Welcomed the invitation to the Special Rapporteur on the Human Rights of Migrants and the Special Rapporteur on the Right to Education.

9.  Encouraged the GOSL to cooperate with other special procedures mandate holders and to respond formally to all their outstanding requests.

10. Noted the recommendations and conclusions of the High Commissioner regarding ongoing human rights violations and the need for an international inquiry mechanism in the absence of a credible national process with tangible results, and requested the UNHRC:

(a) To monitor the human rights situation in Sri Lanka and to continue to assess progress on relevant national processes.

(b) To undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the LLRC, and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated to avoid impunity and ensure accountability, with assistance from relevant experts and special procedures mandate holders.

(c) To present an oral update to the Human Rights Council at its 27th session, and a comprehensive report followed by a discussion on the implementation of the present resolution at its 28th Session.

11. Encouraged the UNHRC and relevant special procedure mandate holders to provide, in consultation and the concurrence of the GOSL, to provide advice and technical assistance on implementing the above-mentioned steps.

12. Called upon the GOSL to cooperate with the Office of the High Commissioner in the implementation of the present resolution.

The government did not proceed to implement these recommendations. It chose to ignore Section 10 in particular. The international community, therefore, opted for a strong response at the March 2015 UNHCR meeting. Moves were even afoot to impose economic sanctions.

‘Yahapalana ‘Government and the UNHRC

On 9 January 2018, the ‘Yahapalana’ President was sworn in and Foreign Minister Mangala Samaraweera asked for more time to implement the UNHRC recommendations. Most of us avoid discussing this background of the UNHCR proposals of 01 October 2015. Even today they discuss, misinterpret, and misrepresent facts.

These proposals did not fall from the sky. They were the result of the unilateral proposals first made on 27 May 2009 by the Rajapaksa government, its failure to implement them, and its lethargic, cavalier attitude and negligence. This led to the ratification of a new set of proposals recommended jointly by a core group of members of the UNHCR and the ‘Yahapalana government, to address the failures of the Rajapaksa government (2009), which was responsible for the 2009 UNHRC resolution.

The international community complied with the Yahapalana government’s request for more time. Had the Rajapaksa government responsible for Resolution 11/1 implemented the recommendations therein in an acceptable manner and responded to the feedback proposals, the country would not have faced the prospect of economic sanctions.

International pressure mounted from 2011-2014 as regards the 11/1 Resolution, and the Yahapalana government had to cooperate as regards the new proposals with the countries that supported Sri Lanka at the UNHCR. It should also be mentioned that such give-and-take policies don’t come without some disadvantages, the accountability mechanism in the 30/1 Resolution being a case in point.

The conceptual basis of the 2015 UNHCR Proposal

The 2015 proposals were based on the internationally accepted principles of reconciliation. As a first step towards initiating the truth and reconciliation process, it was proposed to establish a “Truth and Reconciliation Commission’ and an “Office on Missing Persons.” Secondly, the importance of demonstrating accountability towards the crimes endured by the affected communities was highlighted. Thirdly, it was required to establish a mechanism for reparation for the victims. Fourthly, it was proposed that constitutional guarantees by Parliament would ensure that such cruelty would not be repeated. Those were the ‘four pillars of reconciliation’.

These proposals were handed over to Prince Al Hussein, UNHCR High Commissioner by GOSL before Resolution 30/1 was tabled.

Withdrawal from UNHRC Resolution 30/1

In a way, it is unfair to blame the Yahapalana government for co-sponsoring Resolution 30/1 at the UNHCR in October 2015 although some people have taken exception to that course of action.

The current SLPP government has withdrawn from the 30/1 proposal and UNHRC’s 34/1 and 40/1 Resolutions—both more of technical nature and adopted without voting. We cannot withdraw from the resolutions or decisions taken between 2011-2014 because they are derived from the 11/1 Resolution. I believe (subject to correction since I am not a lawyer) that GOSL may argue the legality of other proposals if it wishes to withdraw from 11/1. It is the prerogative of the UNHRC to accept such a withdrawal. Even if we presume that such action is possible, the understandings reached in 2009 are still valid. It is unerasable history.

The question is whether the incumbent GOSL is still committed to implementing the 11/1 and the 27 May 2009 understandings. Since the 11/1 Resolution was unilaterally placed before the UNHRC by the GOSL after the war victory, it cannot argue that it was done under LTTE’s duress. If GOSL feels that 11/1 is now irrelevant, why doesn’t it say so? Did GOSL make the 11/1 proposal to hoodwink the UN Secretary-General? Or, was it another Medamulana ruse?

Irritation of ‘Come September’

The irritation of ‘Come September’ is a consequence of the March 2021 outcomes in Geneva. Following the March 2021 Resolution in Geneva, the UNHRC has been empowered to “consolidate, analyze and preserve information and evidence” for “future accountability processes for gross violations of human rights or serious violations of international humanitarian law, to advocate for victims and survivors, and to support relevant judicial proceedings in the Member States with competent jurisdiction.” Accountability processes will matter personally and officially to those who are at the receiving end of allegations on human rights or humanitarian violations. Relevant judicial proceedings in the Member States will cease mobility, and cause other sanctions, effects on assets as preferred by them, which is disturbing, to say the least. 

However, some commentators opine that the Secretariat thus established will not be permitted to visit Sri Lanka like the Darusman Committee and that could hamper reporting. As stated earlier, information is freely available internationally. As a political columnist has said recently, “it should not be forgotten that the Human Rights Commissioner’s office claims it already has trophy evidence which would be utilized.” The government and suspects or even perpetrators may say that the photographic and digital evidence so available are doctored, but it should be proved by a Court of Law. Ad hoc statements are inadmissible. These are complex issues. 

In the final count, everything matters to the country, and its image. Therefore, consultation, negotiation, flexibility, bi-partisanship with the Opposition, victims, and internationals of the divide may be extremely important and valid. If I am to go by President Gotabaya Rajapaksa telling the Sri Lankan Collective for Consensus “We are committed to work with the UN to ensure accountability & human development to achieve lasting peace & reconciliation,” (The Island- August 9th, 2021), and, if he is also genuine, which I believe is so, I see a light at the end of the tunnel.

The real need is more action than words. I have earlier dealt with one issue where the words have been seen without question as patently and blatantly hollow. See “Crisscrossing 13A Abolition- Austin Fernando” in The Island newspaper of November 13th, 2020. Hence, the most important is to consistently keep to one’s word, honor, though it is not easy for politicians!

There are so many unanswered questions. But the demands made on behalf of the victims are still alive. Just a few days ago, didn’t MA Sumanthiran, MP, state so albeit in different words? It is these demands that drive the UNHCR and the European Union and even others to push GOSL against the wall. Positive handling of issues may pave the way to enjoy “Come September” as we did. The ball is in the court of the Pohottuwa Government.