As Sri Lanka prepares for the 3rd cycle of the Universal Periodic Review (UPR) on November 15th 2017, a critical look at how Sri Lanka has fared in its commitment to the international community in the past is essential to understand whether Sri Lanka, a country battered by 30 years of civil war is really interested in promoting Justice and Accountability among its citizens.
During its first review in 2008 Sri Lanka in all received 95 recommendations from 39 countries. In all it accepted 52 recommendations to be implemented over a period of 4 years and rejected 25 with no clear position on 8.
The very next year Sri Lanka set out on a path to destroy the Tamils ending its successful campaign ending with the Mullivaikal carnage of innocent Tamil civilians in May 2009.
During the second UPR in November 2012, the then mute international community woke up to see the cruel treatment of the Tamils in the ‘war without witness’ with a series of expose’ in the international media. It reflected the participation of 99 countries. 29 NGOs and INGOs made their submissions along with 17 joint submissions by individuals.
210 concrete recommendations were made by these 99 countries. Sri Lanka accepted 110 of those recommendations and rejected an overwhelming 100 recommendations, nearly half the recommendations made. This was the highest rejection by a member state in the history of UPR to date. In all Sri Lanka rejected the recommendations of 45 countries. Some of the most concrete suggestions which would have gone a long way to mend fences with the Tamils, Muslims and the international community. Those that were rejected included:
Accede to the Rome Statute of the International Criminal Court (ICC) and draft a law on cooperation between the State and the Court. This would have led to the booking the war criminals and paved the way for reconciliation.
Accede to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Though Sri Lanka has moved towards this, torture is rampant and most of the time goes unreported as the perpetrators are uniformed men.
Sign the International Convention for the Protection of All Persons from Enforced Disappearance. Though the government has established an Office of the Missing Person (OMP), it is yet to become fully functional which adds to the woes of the families of Enforced Disappeared people.
Fully incorporate the Convention on the Elimination of Discrimination against Women into its domestic system which would begin the process of protecting women.
Abolish the death penalty. There is a moratorium but the death penalty is not abolished.
Adopt the draft bill on witness and victim protection. Though this has been done, there is no guaranteed protection for the whistle blowers as the entire North and East are completely militarized.
Fully implement the recommendations of the LLRC, in particular steps to ensure independent and effective investigations into all allegations of serious human rights violations, in the context of Sri Lanka’s civil war and its aftermath. This has been totally discarded.
The United States sought removal of the military from civilian functions and the creation of mechanisms to address cases of the missing and detained, issuance of death certificates, land reform; devolution of power; and disarming paramilitaries. Only disarming of the para-military has been accomplished!
Expedite implementation of reconciliation measures in the North. This would include removing oversight of humanitarian and NGO activities from the purview of Ministry of Defense to a civilian body, reducing the intrusiveness of military presence on civilian life in the North and setting a specific date for free and fair Northern Provincial Council elections.
Adopt a national policy to provide human rights defenders with protection and ensure investigation and punishment of threats or attacks against them.
Fully cooperate with United Nations Human Rights mechanisms and create a reliable investigation commission consisting of professional and independent investigators to identify, arrest and prosecute the perpetrators of the Muttur murders. There’s no progress on this as the uniformed perpetrators are free.
Publish the names and places of detention of all the imprisoned persons.
Take action to reduce and eliminate all cases of abuse, torture or mistreatment by police and security forces.
End impunity for human rights violations and fulfill legal obligations regarding accountability.
Strengthen judicial independence by ending government interference with the judicial process, protecting members of the judiciary from attacks and restore a fair, independent and transparent mechanism.
Grant due process rights to all detainees held in both military and police facilities, including those held in administrative detention; disclose all unofficial detention sites; and facilitate effective and independent monitoring of detainees.
Allow the International Committee of the Red Cross unrestrictive access to detention centres.
Undertake measures that would allow citizens to have access to public information, in particular on alleged violations of human rights.
Ensure that all human rights defenders, including individuals cooperating with UN Human Rights mechanisms, are protected effectively from unjustified criminalization, harassment or intimidation and can freely perform their legitimate duties.
These recommendations were rejected by Sri Lanka as they were directed towards addressing issues of war crimes, crimes against humanity and genocide. Whichever political party rules, the Tamils will never get justice until the international community recognizes their right to Self Determination.
Sri Lanka is a tiny island, why should more than half the member nations of the UN make these recommendations? The participation of so many countries clearly shows that Sri Lanka is on the wrong path. Already four resolutions have been passed on Sri Lanka since March 2012 to mend its ways in its treatment of the Tamils.
In 2015, the Sirisena government committed to repeal and reform the draconian Prevention of Terrorism Act (PTA), which allows the detention of persons for long periods in violation of international law and was widely used against HRDs, journalists and members of civil society during the Rajapaksa years. Cases against several HRDs have not yet been dropped, and HRDs who were PTA detainees under the previous government continue to be subjected to investigations, restrictions and harassments under this law. A new law, supposed to replace the PTA is a nonstarter.
Among others, the Special Rapporteurs on the Promotion of Truth, Justice, Reparations and Guarantees of Non-recurrence, on the Independence of Judges and Lawyers, and on Torture and other Cruel, Inhuman or Degrading Treatment and Punishment, and the UN Working Group on Enforced or Involuntary Disappearances have visited Sri Lanka in the last two years.
Of all the Special Rapporteurs, none of them on record have seen any positive developments in terms of treatment meted out to the Tamils in their quest to seek justice. Militarization and Sinhalisation, the two core issues remain unanswered.
There are no signs of the beginning of the process of transitional justice. The hybrid mechanism of transitional justice proposed by the UNHRC in 2015 has been out rightly rejected by the Sinhala politician. The prime minister and president have categorically stated that “war heroes” will not be tried under any circumstances.
The UPR process is to help countries to correct their past mistakes and morally accept responsibility. It is also meant to usher in a new beginning through democratic processes and plan a better future.
Keeping these things in mind, one wonders if Sri Lanka is serious about its commitments to the UN or the international community. Justice to the war victims and their families look like a distant dream.
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