UNHRC Resolution: A mechanism to try Lankans in foreign Courts

The resolution on Sri Lanka passed at the 46th regular session of the United Nations Human Rights Council (UNHRC) on Tuesday was different from the previous resolution except for the one adopted by the council on the country in 2014.  The resolutions adopted in 2012, 2013, 2015, 2017 and 2019 had always stressed that Sri Lankan government investigate allegations of human rights in the country.

However, the 2014 resolution called on the United Nations High Commissioner for Human Rights to conduct an investigation into the allegations of human rights violations in Sri Lanka during the war.
Accordingly, the then Human Rights High Commissioner Navaneetham Pillai appointed a 12-member team of investigators including two forensic experts, a legal analyst, a gender specialist and investigators to probe into war crimes allegations in Sri Lanka with Sandra Beidas, a controversial British national, previously worked with the UN mission in South Sudan coordinating the investigating team.

The report of the investigation which was a general probe on the allegations and not a criminal investigation against individuals or institutions was presented to the World human rights body in the following year. 
The investigators had analyzed the evidence they had gathered and given an overall picture of trends of human rights violations. The analysis is so important in that for the first time in an international official report a plethora of atrocities committed by the LTTE during the war had been compiled, utterly disappointing the Tiger sympathizers around the world who had long demanded an international investigation. Almost every allegation leveled against the security forces except for the sexual violence had been levelled against the LTTE as well. 

While the security forces were accused of unlawful killings of Tamil politicians, humanitarian workers and journalists, the LTTE had been held responsible for indiscriminate suicide bombings and claymore mine attacks on civilians and for killing Tamil, Sinhalese and Muslim civilians perceived to hold sympathies contrary to the outfit. Both the armed forces and the LTTE have been accused of abduction of people alike while the LTTE, according to the report have abducted and recruited adults as well as children. The security forces have been implicated to the child recruitments by the Karuna group.

Both the security forces and the LTTE had been held responsible for the civilian casualties within the ‘No fire Zones’. It has to be noted that only the armed forces had thus far been accused for the human carnage that had taken place in Mullivaikkal, exonerating the LTTE who had created one of the largest human shields in the history.  The report charged that the armed forces had targeted civilian facilities such as hospitals in the No fire Zones while the LTTE had constructed military fortifications and positioned artillery and other weaponry in close proximity to civilian areas including medical facilities.

Also the report had rejected the notion of “genocide” with regard to the Sri Lankan context and it had disappointed the Tamil nationalists including those in the diaspora who have been accusing the Sri Lankan security forces for carrying out genocide against Tamils. This also came in the wake of a resolution adopted by the Northern Provincial Council asserting that genocide has been taken place during the war.
This year’s resolution, going another step forward is to establish a central database at the Office of the High Commissioner for Human Rights (OHCHR) where information and evidence of human rights abuses in Sri Lanka can be stored and analysed. This international mechanism will serve to support future trials of Sri Lankans accused of rights abuses in foreign countries and support victims of atrocities in their quest for justice. 

The budgetary estimate provided to the Council by the OHCHR indicated that setting up the database would cost US$ 2.8 million over an 18-month period. OHCHR estimates it will require 12 personnel to staff the mechanism, including three legal advisors, two analysts, two investigators/human rights officers, an information and an evidence officer, two juris-linguists, one victim support officer and one programme assistant. The budget estimate also makes provision for a high-level human rights officer for enhanced monitoring to the human rights situation in Sri Lanka. 

Earlier, in January the UN Human Rights Chief, Michelle Bachele in her report “Promotion reconciliation, accountability and human rights in Sri Lanka” also recommended the Human Rights Council and its member States to collect evidence and to support relevant judicial proceedings in Member States. The report also recommendedto “explore possible targeted sanctions such as asset freezes and travel bans against credibly alleged perpetrators of grave human rights violations and abuses.”

Even if one accepts the process of collecting evidence and preserving them for future judicial proceedings in Member States in the hope that those who are prosecuted would be given the opportunity to defend themselves, it is not clear as to why one should accept the targeted sanctions without judicial proceedings but just for being “credibly alleged”.

The Human Rights Council which has no legally binding power over states and any tangible action, including targeted sanctions, asset freezes and travel bans against perpetrators of human rights abuses in Sri Lanka will depend on individual countries. That is why the UN Human rights Chief and the council requests the member countries to take action against the perpetrators of human rights violations in their own countries. 
However, according to analysts, the real test of the effectiveness of the resolution will rely largely on the commitment of UN member states to pursue justice against alleged Sri Lankan perpetrators. Amnesty International also said following the passage of the resolution “While the resolution was an important first step, the real impact will rely on UN member states using it as a basis for concrete action. 

Will individual States take legal action in their countries against those who are accused of human rights violations or war crimes in Sri Lanka? And who is going to lodge complaints? Who would possibly be accused? Will the Sri Lanka government take the opportunity to take the LTTE leaders in other countries to task? 
There are lobbyists among the Tamil diaspora and human rights activists around the world who can lodge complaints. It must be recalled that that they had created problems for high ranking Sri Lankan military officials when they were appointed as ambassadors to other countries and even high offices in Sri Lanka itself. Also there are people who can considerably influence the UN mechanism. 

In a recent interview Navi Pillai, in an undiplomatic manner said “Gota’s war” against terrorism must not be allowed to become a war against the rule of law and International standards of conduct towards defeated people.” And she also said “There is a role for the US to continue to press for justice and accountability even though President Trump withdrew from the council. The Biden-Harris administration should seize the opportunity to reinforce its support for justice and accountability and make known to the world its return to values-based leadership.”

The situation demands professional and high standard diplomacy on the part of Sri Lankan government when dealing with the international community, especially the major world powers and also with human rights issues. An antagonistic approach or reprisal complaints towards them would not help, as not only the merits of the allegations but also the approach towards the major powers would matter. And it also demands a political strategy on the part of the government to win over the minority communities in the country.