UNHRC: Govt. between the devil and deep blue sea

The President has appointed a three-member Commission of Inquiry to review the reports of the preceding commissions and committees that investigated human rights issues in Sri Lanka and make recommendations

The Government on January 22 announced one of its countermeasures against the possible resolution that would be adopted in the UNHRC sessions in Geneva. A gazette notification issued by President Gotabaya Rajapaksa said a three-member Commission of Inquiry has been appointed to review the reports of the preceding commissions and committees that investigated human rights issues in Sri Lanka and make recommendations. This seems to be in accordance with an announcement made by Foreign Affairs Minister Dinesh Gunawardena in February last year at the UNHRC sessions. 

The new commission has been tasked to (a) Find out whether past Commissions of Inquiry and Committees have revealed any human rights violations, serious violations of the international humanitarian law and other such serious offences, (b) Identify the findings of those Commissions and Committees and the recommendations made on dealing with the said facts and (c) Find out the manner in which those recommendations have been implemented so far in terms of the existing law and what steps need to be taken to implement those recommendations further, in line with current Government policy.

The Commission is headed by Supreme Court Judge A.H.M.D. Nawaz. He has served previously in Sri Lanka delegations to the UNHRC sessions in Geneva. Its other members are Chandra Fernando, a retired Inspector-General of Police and Nimal Abeysiri, a retired District Secretary. They have been asked to submit their final report in six months.

Commissions and committees have been appointed by successive governments in Sri Lanka to investigate the allegations of human rights violations since the regime of President Ranasinghe Premadasa.  He had appointed a commission to investigate the allegations of disappearances of persons during the JVP’s second insurrection in 1988/89. Later President Chandrika Kumaratunga appointed three zonal commissions and one all-island commission for the same purpose. Subsequently President Mahinda Rajapaksa appointed another one to investigate and inquire into serious violation of human rights (Udalagama Commission) in 2006, the Lessons Learnt and Reconciliation Commission (LLRC) in 2010 and the commission to investigate the allegations relating to missing persons (Paranagama Commission) in 2013. 

However, it is unlikely that the latest commission would delve into the reports of the commissions appointed by Presidents Premadasa and Kumaratunga. Given the government’s stand on the alleged human rights violations, it could be surmised that the latest commission has been appointed at this point, in the light of the report prepared by the United Nations High Commissioner of Human Rights to be presented at the forthcoming United Nations Human Rights Council (UNHRC) sessions next month and the resolution that would be adopted at the same session on Sri Lanka. Hence, it could also be inferred that the new commission would peruse only the reports of the commissions appointed by then President Mahinda Rajapaksa. 

A similar scenario emerged in 2010 when the former United Nations Secretary General Ban ki-moon appointed the Darusman Panel to advise him on Sri Lanka’s human rights situation, after observing that Sri Lanka was not acting according to its commitment under the joint communiqué signed by him and President Rajapaksa on May 26, 2009. In response to the panel, President Rajapaksa hurriedly appointed the LLRC headed by the former Attorney General C.R. de Silva.

The terms of reference of the LLRC and the Nawaz commission appointed by President Gotabaya Rajapaksa last week are noteworthy. The former was tasked to find out the “facts and the circumstances which led to the failure of the ceasefire agreement” signed between the Ranil Wickremesinghe government and the LTTE in 2002. The task perplexed many as President Mahinda Rajapaksa who was dead against the ceasefire agreement was finding reasons for its failure. However, it was the LLRC which submitted a report with recommendations that satisfied so far – at least to some extent – the international community and the local as well as international human rights organisations. The UNHRC is basically carrying forward those recommendations since then, in pressing the Sri Lankan government to rectify its human rights issues. 

The Nawaz commission is tasked mainly to “find out whether past Commissions of Inquiry and Committees have revealed any human rights violations, serious violations of the international humanitarian law and other such serious offences.” It is not clear how the commission is going to do this other than by going through the reports of the relevant commissions and committees. It also implies that the government is going to address the human rights issues. 

However, the recognition and the acceptance that might be awarded to the new commission by the UNHRC are not clear yet. Nevertheless, the LLRC and the Nawaz Commission drew the same response from the New York based Human Rights Watch (HRW), a prime mover in shaping world opinion in respect of human rights issues. While rejecting the LLRC, the HRW said, “Sri Lanka has a long history of establishing ad hoc commissions to deflect international criticism over its poor human rights record and widespread impunity.” It added, “Since independence in 1948, Sri Lanka has established at least 10 such commissions, none of which have produced any significant results.” 

On the Nawaz Commission it said, “Sri Lanka’s grim record is under scrutiny at the United Nations Human Rights Council in Geneva, so the government of President Gotabaya Rajapaksa has announced yet another internal inquiry. Foreign governments should not be swayed by this disingenuous attempt to avert urgently needed international action. There have been at least dozen domestic commissions of inquiry during the decades of Sri Lanka’s civil war, often created to forestall international pressure on human rights.”

Although the government led by President Gotabaya Rajapaksa withdrew the country’s co-sponsorship of the resolutions passed at the UNHRC sessions in 2015, 2017 and 2019, during last year’s session, the world’s human rights body is continuing to pressure the government. The draft of the latest report by the United Nations Human Rights High Commissioner Michelle Bachelet has recommended the harshest measures since 2012 against Sri Lankan authorities. She recommends that the, “Member States can also apply targeted sanctions, such as asset freezes and travel ban against State officials and other actors credibly alleged to have committed or be responsible for grave human rights violations or abuses.”

Apparently responding to the demands by Tamil leaders, the report further recommends the member States to “take steps towards the referral of the situation in Sri Lanka to the International Criminal Court” while requesting, as done earlier in 2019, to “actively pursue investigation and prosecution of international crimes committed by all parties in Sri Lanka before their own national courts, including under the principles of extraterritorial or universal jurisdiction.”

These facts indicate the difficult situation that the government is faced with. Even last year while withdrawing the co-sponsorship to UNHRC resolutions Foreign Minister Dinesh Gunawardena told the world body that the existing reconciliation mechanisms established by an Act of Parliament such as the Office on Missing Persons (OMP) and the Office of Reparations (OR) will be continued. This commitment goes against the government leaders’ stance on missing persons and compensating war victims. The government which withdrew the co-sponsorship to previous resolutions is now awaiting a consensual resolution with mutually agreed upon provisions, according to Foreign Secretary Admiral Prof. Jayanath Colombage.  

Now, government leaders are compelled to handle the issue of targeted sanctions and prosecution in other countries. On the other hand, giving in to the pressure by the UNHRC to investigate human rights violations during the war might amount to a political suicide. Only solace for the government is that nobody has been accused of specific crimes yet, with credible evidence.