Ron Ridenour

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Human Rights Council to investigate Sri Lanka for human rights abuse

[March 27, 2014]

Five years after the ethnic civil war in Sri Lanka was won by the Sinhalese government, with massive killings of Tamil civilians in the last few months, the UN Human Rights Council authorized the High Commissioner of the HRC to investigate if human rights abuse occurred.

On a vote of 23 for, 12 against and with 12 abstentions, the HRC voted to promote reconciliation, accountability and human rights in Sri Lanka by having its High Commissioner, Navi Pillay, and her successor soon-to-be:

“To undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties [referring to the Liberation Tiger of Tamil Eelam guerrilla organization as well as the government] in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission, and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedures mandate holders.” (1)

The Commissioner will then “present an oral update to the Human Rights Council at its twenty-seventh session, and a comprehensive report followed by a discussion on the implementation of the present resolution at its twenty-eighth session.” The process could take three years.

This resolution is the fourth since May 2009, and the third sponsored by US/UK and allies. The resolutions of 2012 and 2013 merely asked Sri Lanka to implement its own Lessons Learnt and Reconciliation Commission (LLRC) mild report, in which no mechanisms were proposed to end impunity for those who committed human rights abuse.

The biggest surprise in these sessions is that India abstained instead of voting yes as had been expected. This is a boon to Sri Lanka’s President Mahinda Rajapaksa and a disappointment to Tamils.

India maintained that the resolution will “undermine national sovereignty,” that it is an “intrusive approach, counter-productive,” and that the tough language “will hinder efforts” for rehabilitation.

Some analysts believe that India may also object to the resolution because it could set a precedent that might implicate India for its conduct in Kashmir.

India’s Congress party-led government will face sharp internal criticism from its southern states where more than 100 million Tamils live. It could even tip the balance of upcoming national elections. The conservative Bharatiya Janata Party stands an increasingly good chance of winning.

The conciliatory role India’s central government has played to placate Sri Lanka with massive economic and military aid, and by diluting the original drafts of both the 2012 and 2013 resolutions, led the Tamil Nadu governing DMK party (Dravida Munnetra Kazhagan) to withdraw its participation in the coalition UPA (United Progressive Alliance) government last year.

In abstaining to the current stronger resolution, India referred to the UN General Assembly 2006 mandate creating the new Human Rights Council, which it maintains did not provide for the HRC to conduct independent investigations. India cited the section: “Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights…”

Others point out that the HRC does have the right to investigate a state when it does not engage effectively to end impunity and achieve rehabilitation.

In the 2006 resolution the General Assembly also mandated that “the Council shall be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner;” and also “the Council should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. It should also promote the effective coordination and the mainstreaming of human rights within the United Nations system.”

While the final HRC resolution goes a step further than the original draft and the resolutions of 2012 and 2013, which did not ask the OHCHR to conduct an investigation, it again asks the Sri Lanka government to conduct its own “independent and credible investigation into allegations of violations of international human rights law and international humanitarian law, 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 Office of the High Commissioner.”

Nor does the resolution suggest that the Sri Lankan government may have committed war crimes and crimes against humanity, as the UN’s own panel of experts suggested in its 2011 report to the Secretary-General. Genocide is not mentioned either, despite the findings of the Permanent People’s Tribunal in its December 2013 hearings. The PPT not only found Sri Lanka guilty of committing genocide against the Tamil people but also found the US and UK co-responsible for genocide.

Another India objection to the resolution was its recognition that the Sri Lankan government had recently granted a partial implementation of devolvement of powers by creating the Northern Province Council (NPC), in September 2013.

The Tamil National Alliance (TNA), which represents most Tamils in their traditional homeland, received 79% of the vote, gaining 30 of the 38 seats. The central government coalition, United People’s Freedom Alliance (UPFA), won only 18% of the vote, for seven seats, and the Sri Lanka Muslim Congress took 1.5% of votes for one seat.

As the upcoming HRC 25th session approached, the NPC called for an international independent investigation into war crimes allegedly committed by the government, much to the chagrin of Rajapaksa. This encouraged Tamils around the world to press all the more for such an investigation. Tamils in southern India states added genocide to the proposed investigation. Scores of Tamil groups in the May 17 Movement staged protests in five cities in India.

Many Tamils living in Europe walked from their new countries to Geneva where upwards of 10,000 demonstrators demanded that any resolution should guarantee an international independent investigation into war crimes.

A renowned lawyer in international law, Professor Francis Boyle, criticized the final resolution for being ineffectual. He told Tamil Net that, “While noting that `investigation´ by the UNHCR is better than nothing—with all due and sincere respect for the UNHCR—dissemination of that `investigation´ will be subject to the control of the UN Human Rights Council for political reasons, and the dissemination of that UNHCR `investigation´ will be dragged out for as long as possible by the Human Rights Council, thus enabling the GOSL to continue its campaign of ongoing genocide against the Tamils despite the requirement of article 1 of the Genocide Convention that every UN Human Rights Council state member is obligated both `to prevent and to punish´ the GOSL for genocide against the Tamils."

Also commenting on the resolution, the president of Sri Lanka Campaign for Peace and Justice, Edward Mortimer, said:

"In the last two weeks we have seen a severe crackdown on all forms of dissent. Campaigner for the Disappeared Balendran Jeyakumari, and at least 10 others, remain in detention without access to their lawyers, and no evidence has been produced against them. Meanwhile Ruki Fernando and Fr Praveen Mahesan, the activists who were released last week, are still subjected to a gagging order and other forms of judicial harassment. It is terrifying to think how much further the Sri Lankan authorities will go if the international community's attention moves on. They need to be told firmly that there will be real consequences if the crackdown continues."

The Sri Lanka research Centre for Policy Alternatives noted that the recent incarceration of scores of relatives of disappeared persons, and the surveillance and harassment of former President Chandrika Kumaratunga and her friends seems to “prove the case against” the government.
A small breakaway party from the Tamil National Alliance in the Northern province, the Tamil National People’s Front, stated that this investigation will not be effective. Its president, Gajendrakumar Ponnambalam, concurs with the Permanent People’s Tribunal in the necessity of addressing genocide.

He asserted that, "the remedy for violations at the level of gravity that occurred ultimately, cannot be anything short of a judicial process through the ICC [International Criminal Court] or an Ad Hoc special tribunal," adding…”anything less would undermine the concept of international justice and the application of humanitarian law."

In the “real world” of geo-politics, Cuba, China, Russia and Venezuela stand against the Western-led resolution. China is a main opponent of any investigation or sanctions for human rights abuse. China’s President Xi Jinping said that his government opposes “politicizing and imposing double standards on the issue of human rights”. On the sidelines, China and Cuba point out the hypocrisy of the key accusing nations for numerous aggressive invasions of sovereign states and human rights abuse of their peoples while they enjoy impunity.

Despite UK’s verbal criticism of President Rajapaksa’s treatment of Tamils, the city venue for the Commonwealth Heads of Government Meeting (CHOGM) was held in Colombo last year. The Bandarnaike Memorial International Conference Hall—an "outright gift from the Government and People of the People's Republic of China,” as stated at the summit—was the major venue.

However, the queen of Britain, and top leaders of Canada, Mauritius, and India refused to attend the ceremonies. Colonel R. Hariharan, former head of India Peace Keeping Force’s intelligence branch, said that India’s prime minister’s absence could damage India’s attempts to build stronger bridges with Sri Lanka.

India may be trying to make up for this by abstaining from the current resolution.

Tamils could aid their cause by identifying with a report of UN Special Rapporteur Richard Falk. After six years as HRC’s independent expert charged with monitoring and reporting on human rights in Palestinian territories since 1967, he delivered his final report on March 21. He called upon the International Court of Justice to assess Israel’s occupation, which Falk characterizes as “colonialism”, “apartheid”, “ethnic cleansing.”

“We mustn’t forget that thousands of Palestinian political detainees, including children, remain in Israeli prisons. Among them are more than a hundred administrative detainees. Many of them are subjected to ill-treatment and torture from the time of their arrest to their interrogation in detention.”

The ethnic cleansing of Palestinians and Sri Lanka Tamils, the seizure of their homes and the false imprisonment and torture that the Zionist Israeli and the Sinhalese chauvinist Sri Lankan governments impose should bring those peoples together in a common struggle.

1. Yes: Argentina, Austria, Benin, Botswana, Brazil, Chile, Costa Rica, Cote D’Ivoire, Czech Republic, Estonia, France, Germany, Ireland, Italy, Mexico, Macedonia, Montenegro, Peru, Republic of Korea, Romania, Sierre Leone, UK, USA.
No: Algeria, China, Congo, Cuba, Kenya, Maldives, Pakistan, Russian Federation, Saudia Arabia, United Arab Emirates, Venezuela, Vietnam.
Abstentions: Burkina Faso, Ethiopia, Gabon, India, Indonesia, Japan, Kazakhstan, Kuwait, Morocco, Namibia, Philippines, South Africa

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