• More commissions a joke, not taken seriously
• Truth is found not for the purpose of punishing
• Guarantee of non-recurrence important
• National question must be settled
• India must support a resolution on Sri Lanka in Geneva
• Majority of diaspora support solution within one country

The human rights issue in Sri Lanka will take center-stage when the United Nations Human Rights Council (UNHRC) meets in Geneva for its 46th Session from February 22 to March 23.
Tamil National Alliance (TNA) parliamentarian M.A. Sumanthiran is among those advocating for stronger action on Sri Lanka over its failure to meet its commitments to the Council.
However, the Council and the TNA have been criticized for being one-sided and not drawing attention to the atrocities committed by the LTTE.
In an interview with Daily Mirror online, Mr. Sumanthiran responded to allegations made against the TNA, India’s role in Geneva and the return of the US to the UNHRC.
Following are excerpts from the interview:

   Q      With the Human Rights Council meeting in Geneva, you have been meeting a few diplomats here in Colombo and a few others as well. What is the message that you have been conveying to them?

Well, the UN Human Rights Council has been possessed of this matter since 2012 and has been urging the government of Sri Lanka to move on in the areas of accountability and reconciliation and from 2015 onwards, on three occasions the government sponsored resolutions and agreed to implement certain measures to achieve both of these matters. However, progress was very slow, I would say didn’t move much at all. And in certain areas, particularly with regard to accountability, there was nothing at all that happened. And so therefore, we have come to a crucial juncture now with the new government officially informing the UN Human Rights Council that they will not cooperate. Last February, they wrote a letter to that effect. And so now the Human Rights Council will have to take a decision as to what to do with the accountability measures and on reconciliation and long-term measures, whether they are going to continue to monitor Sri Lanka. 

" However, progress was very slow, I would say didn't move much at all. And in certain areas, particularly with regard to accountability, there was nothing at all that happened. And so therefore, we have come to a crucial juncture now with the new government officially informing the UNHRC that they will not cooperate"

Our message has been that without the consent of the country concerned, accountability measures cannot be taken. No-binding resolutions can be passed. The country concerned has clearly intimated that they are not going to cooperate and therefore the accountability matter must now be escalated to other UN bodies while on the reconciliation issues, the council must continue to monitor the situation and help the country along. And to that end, they must pass a very strong resolution.

   Q      But at successful Human Rights Council sessions since 2009 there has been a lot said on Sri Lanka, Some say the council has just limited itself to words and not really concrete action. Do you expect anything different taking place this time around?

Well, I won’t say the council proceedings since 2009 have been useless entirely because, as you know, in 2009, the council passed a resolution congratulating Sri Lanka. But thereafter, since Sri Lanka did not adhere to the promise made to the UN Secretary-General who visited Sri Lanka and in Kandy made a joint statement with the then President in May 2009, the Secretary-General appointed a panel of experts headed by Marzuki Darusman and they gave their report. Everything was thereafter based on that. In September 2011, the Secretary General sent that report to the president of the UN Human Rights Council. And that’s how the UN Human Rights Council came to possess that document and took cognizance of the matter. And the following year, in March 2012, the first resolution was adopted. Two years successively they adopted that kind of resolution urging Sri Lanka to actually implement the LLRC recommendations. And when that was not happening in 2014, they mandated the High Commissioner for Human Rights to lead an international investigation, which was later called OISL. And that report came out on the September 16, 2015. 

So, we’ve had some movement and it was thereafter on October 1, 2015, that the first consensus resolution was adopted. Under those resolutions some measures were taken. For instance, the Office of Missing Persons was established, Office of Reparations was established, enforced disappearances was made an offence in Sri Lanka. The RTI law, though not directly relevant to this, was passed, which has become very useful. There was a draft resolution on a Truth Commission and another one to repeal the PTA and enact what was called the CTA. Both of those did not happen before that the Sirisena-Wickremesinghe government collapsed. So very slow progress, but progress nonetheless. But now we are at a point where there is no prospect of any progress under this government.

   Q      This government, however, as of late has been making certain moves. Just before Geneva we saw them appointing a commission as well. Do you think that these are steps that would really be recognized in Geneva?

No, those steps are looked upon as not worthy of consideration. You don’t appoint commission after commission and then appoint another commission to oversee those commissions. That just doesn’t work. So it’s a joke, actually. And I don’t think the Sri Lankan government itself thinks that they are taken seriously.

   Q      A lot has been said by certain groups on what they say is the failure by the Human Rights Council to maybe address crimes committed by the LTTE. In your opinion, do you believe the LTTE committed war crimes in the first place?

Well, the panel of experts report, if you read it, they have concluded that there is evidence that both sides committed war crimes and crimes against humanity. They have listed what the government is supposed to have done and what the LTTE is supposed to have done. The government of Sri Lanka had an additional charge of persecution as well in that report.
Now in the OISL report, also, they have concluded that both sides committed violations of international law, that violations of international crimes violated the human rights law and international humanitarian law. So the international look into this matter has always concluded that both sides committed war crimes and crimes against humanity.

   Q      During the war the TNA operated as a political arm of the LTTE. Would the TNA express regret for having backed a group which killed so many innocent civilians?

We have already done that. We published a response to the LLRC report. I think, if I’m not mistaken it’s dated January 15 or 16, 2012, in which we have very clearly expressed regret for the crimes committed in the name of the Tamil people by various armed groups.

"No it’s not digging up the past. It's actually finding the truth. I think that is fundamental, that is why in transitional justice, the first pillar is truth. Without the truth, you cannot move on to the other faces of reconciliation. Truth is found not for the purpose of punishing or any negative consequence. And I'm of the firm belief that the truth shall set you free"

   Q      Is digging up the past only going to further hamper the attempts to unite the communities in Sri Lanka?

No it’s not digging up the past. It’s actually finding the truth. I think that is fundamental, that is why in transitional justice, the first pillar is truth. Without the truth, you cannot move on to the other faces of reconciliation. Truth is found not for the purpose of punishing or any negative consequence. And I’m of the firm belief that the truth shall set you free.

   Q      But how long do you think this process will actually take place?  You see attempts being made over and over again to find the truth. 

Well, that depends on the government of Sri Lanka to come to the realisation that it is in the interest of the country as a whole, that you face the truth. My belief also is that once the truth is established, the Tamil community will also be in a position to move on.

Once you realize that, well, in the war, both sides committed crimes; the scale may be very different. The responsibility on the government may be severe, given that there they were a lawful government. Nevertheless, once you come to terms with the fact that both violated international laws, it’ll be that much easier to move on.
The South Africans often tell us to secure the future. If we were to translate that to our situation, frame a new constitution, change the rules of engagement, a new social contract by which you will live. So they say secure your future and then look at the past. Because until you secure your future, you are going to find it difficult to handle what happened in the past. So it is with that view that we actually put our entire heart and soul into framing a new constitution during the past five years. And we came to the point of actually even presenting a draft constitution to parliament.

"No, those steps are looked upon as not worthy of consideration. You don’t appoint commission after commission and then appoint another commission to oversee those commissions. That just doesn't work. So it's a joke, actually. And I don't think the Sri Lankan government itself thinks that they are taken seriously"

Unfortunately, that didn’t see the light of day. So that is, as important. The guarantee of non-recurrence, which is a final pillar of transitional justice, is as important as everything else. And it doesn’t have to be sequentially addressed. Once the people have the confidence that now we have settled as to how we are going to live in the future together, that will give them the confidence to deal with the past.

   Q      You spoke about the constitutional drafting process. This government has also commenced a process to draft a new constitution. Do you see the Tamil aspirations being considered in this process?

The committee they have appointed doesn’t give us any confidence at all. Nevertheless, we have forwarded them a document in which we have categorically stated that the Tamil National Question or the National Question, as we call it, must be settled if we are to frame a new constitution for the country. The issue that plagued the country the most, that made the country bleed the most must be settled. Without settling that, there is no point in enacting a third Republican Constitution. And as to how that should be settled is also well known to everybody. 
And if that were to be abandoned and this committee or this government now seeks to travel in the opposite direction, that will spell disaster for this country.

   Q      India’s relationship with Sri Lanka seems to have been strained in recent times. How do you think this will affect the whole Geneva process?

You see in the previous three resolutions, which the government of Sri Lanka did not conquer, India abstained from voting in 2012 and 2014 while in 2013 they actually voted for the resolution. So, the Geneva process is something that they have either abstained from or voted for. They’ve never resisted those resolutions concerning Sri Lanka. So we believe that kind of consistent position will be maintained by India and in the given circumstances when after 11 years there is there is no movement at all we would urge India to actually support a resolution. 
We have a sizable population in Tamil Nadu who are also looking to the central government to act correctly in this kind of instance.

"So, we’ve had some movement and it was thereafter on October 1, 2015, that the first consensus resolution was adopted. Under those resolutions some measures were taken. For instance, the Office of Missing Persons was established, Office of Reparations was established and enforced disappearances was made an offence in Sri Lanka"

   Q      And how important is the return of the US to the Human Rights Council in Geneva?

That’s crucial. If you remember in September 2011, when the panel of experts report was sent to the council, Canada brought a resolution in September 2011, but they couldn’t pass it, so they deferred it because they didn’t have enough votes. But in 2012 when the US led the process, they were able to gather the votes. The US returning to the UN Human Rights Council and keeping that same interest in this multilateral forum is a huge boon to us because eventually, that is a body consisting of members which are countries and countries have their affiliations and various political processes globally. They are aligned with one or the other and so on. So the US coming back into the UN Human Rights Council has given us fresh hope.

   Q      And let’s just focus a bit on the Tamil diaspora. The diaspora seems to be split on how this issue needs to be addressed. You see one group calling for a separate state, whereas others are looking at a more negotiated process, a process where there is just devolution of power. 

One has to understand the position of the diaspora. Most of them fled the country because of violence unleashed on them over a period of time, and particularly in 1983. And so they are very bitter about their own experience in this country. The fact that they were not regarded as equal citizens, etc. Some have lost hope, and I won’t blame them because successive governments have not delivered. Even the ones that said we will settle the issue have not been able to deliver. So they have lost hope. And so they think there is no possibility of settling this matter within one country. 

We don’t think so. We think it can be settled. And if Sinhala leaders genuinely and honestly address this issue and lead their people to, this matter can be settled. It is not that we are asking for anything that belongs to the Sinhalese or the Buddhists. They are the majority of this country and that position will not change. They are preponderantly the majority. But we must have equal status and I don’t think anybody can argue with that. So if those positions are explained to the Sinhala people they will agree that there must be a system of governance put in place that recognizes those who are numerically in the minority as well. So that is our belief. And several diaspora organizations back us on that, on the basis that our people on the ground keep electing us on that kind of mandate. Not on a mandate to create a separate state. 
If you ask me about the diaspora itself, I can confidently tell you that 85 to 90 per cent or more of the people will support a decent solution within one country. 

The full interview appears on 
Daily Mirror Audio