The UN Human Rights Council (UNHRC)’s resolution on the rights situation in Sri Lanka, which was passed in Geneva on Thursday through consensus, meets Colombo’s requirements.
Resolution 40/L.1 not only gives two years’ extension for the implementation of resolution 30/1 of 2015, but also says that the recommendations will be implemented “with the concurrence of the Sri Lankan government.”
This gives Colombo the right to decide what will be implemented and to what extent a recommendation will be implemented. It gives room to the Lankan government to fulfill its wish not to implement the recommendation for a Judicial Mechanism with foreign judges and lawyers to try alleged cases of war crimes.
Relevant Provisions of Resolution A/HRC/40/L.1:
It reaffirms Human Rights Council resolutions 30/1 of 1 October 2015 and 34/1 of 23 March 2017 on promoting reconciliation, accountability and human rights in Sri Lanka,
It welcomes the establishment of the Office on Missing Persons (OMP) in September 2017 and the appointment of its Commissioners in February 2018 and the assumption of its work to fully implement its mandate,
Welcomes the visits made by the Special Rapporteur on human rights and counter terrorism from 10 to 14 July 2017, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence from 10 to 23 October 2017, the Working Group on Arbitrary Detention from 4 to 15 December 2017 and the Independent Expert on the effects of foreign debt on the full enjoyment of human rights from 3 to 11 September 2018,
Notes with appreciation the return of some private land previously occupied by the military to civilian ownership while recalling repeated public commitments by the Government of Sri Lanka to release all private land occupied by the military, to enable local populations to resume livelihoods.
Notes the other steps taken by the Government of Sri Lanka to implement Human Rights Council resolution 30/1, including progress towards establishing an Office on Reparations and the submission to cabinet of a concept paper on a Bill to establish a Truth and Reconciliation Commission, the proposed repeal of the Prevention of Terrorism Act 1978 and the preparation of a draft Counter Terrorism Act, while reiterating in this context the need for further significant progress and encouraging in this regard the adoption of a time-bound implementation strategy.
It requests the Government of Sri Lanka to “implement fully” the measures identified by the Council in its resolution 30/1 that are outstanding.
It requests the Office of the High Commissioner and relevant special procedure mandate holders, to continue to strengthen their advice and technical assistance on the promotion and protection of human rights and truth, justice, reconciliation and accountability in Sri Lanka but this has to be done “ in consultation with and with the concurrence of the Government of Sri Lanka.”
Provision For Govt’s Concurrence
The expression “in consultation with and with the concurrence of the Government of Sri Lanka,” is crucial from the point of view of the government of Sri Lanka.
It means that Sri Lanka has room to reject a Judicial Mechanism with foreign judges, prosecutors and defense lawyers as enjoined by the basic resolution 30/1 of 2015.
Foreign Minister’s Assertions
After the resolution was adopted without a vote, the Sri Lankan Foreign Minister Tilak Marapana, said that the passing of the resolution is a mark of recognition of Sri Lanka’s political commitment and the progressive steps already taken by the Government since 2015 towards ethnic reconciliation, assurance of human rights and accountability.
“We have to set our priorities right and we are committed to finding innovative and pragmatic solutions to protect the country’s national interest and the well-being of all Sri Lankans alike, guided by the provisions of the supreme law of the land – The Constitution.”
“In implementing the resolution, Sri Lanka will be guided by the constitution, national interest and the well being of all,” Marapana said.
“Sri Lanka’s co-sponsorship of this year’s Resolution assures to all concerned persons, the Sri Lankan society at large, and to all our interlocutors outside the country, that we will continue to move forward within these parameters, to ensure eventual closure,” he added.
“We welcome the assistance and cooperation we have received from partners as required, and invite the OHCHR to engage closely with the relevant local institutions and independent bodies including the National Human Rights Commission, in verifying facts on ground, which will help OHCHR to provide more objective and realistic assessment on the progress made in Sri Lanka and on its genuine challenges, to this Council next year,” he added.
Marapana’s reference to compatibility with the Sri Lankan constitution and also its national interest, indicates that there will be adjustments in implementation.
His reference to a “realistic assessment” stems from his earlier observation that the human rights High Commissioner Michelle Bachelet’s statement on Sri Lanka had got some key facts wrong, and that her interpretations were, in part, baseless.
It is therefore very unlikely that Colombo will agree to her recommendation to extend “universal jurisdiction” to Sri Lanka or for a Judicial Mechanism with foreign judges to try alleged war crimes cases.
Lanka Denies War Crimes
Earlier, in his remarks on the High Commissioner’s speech, Foreign Minister Marapana denied the allegation that war crimes had been committed by the Sri Lankan armed forces.
“ It must be asserted that there are no proven allegations against individuals on war crimes or crimes against humanity in the 2015 report of the OISL ( OHCHR Investigation on Sri Lanka) .or in any subsequent official document.”
“ It is an injustice to deprive any serving or retired officer of the Sri Lankan security forces or the police of their rights,” he added.
The Minister further said that the damaging assertions of the High Commissioner “remain in direct contradiction to independent assessments sent by Colombo-based foreign missions, UN agencies as well as other international organizations, including the ICRC, some heavily redacted accounts of which have been presented not only in the House of Lords in the UK on 12 October 2017, and in writings by academics and journalists which are found in the public domain.”
Nay To Foreign Judges
Referring to the High Commissioner’s advocacy of a hybrid court with Sri Lankan and foreign judges to try alleged war crimes cases, Marapana said: “ I wish to make it clear that the Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioners for Human Rights and other interlocutors, explained the constitutional and legal challenges that precludes it from including non-citizens in its judicial processes.”
“It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favor and also the approval of the people at a Referendum.”
Inaccurate Data on Lands
On the charge that the Lankan government and the armed forces are still holding on to large tracts of land taken from the minority Tamils during the 30 year war against the Tamil militants, Marapana said: “ The data reflected in the High Commissioner’s report in Para 35, that only 75% of the land occupied by the security forces as at 2009 has been released, is at significant variance with the actual numbers. As on March 2019, 88.87% of State lands and 92.16% of private lands have been released.”
Presumptuous Remarks On Mass Graves
On the discovery and dating of skeletal remains in a mass grave in Mannar, and the innuendoes made by the High Commissioner in this regard, Marapana said: “As for the mass graves in Mannar, referred to in para 23 of the High Commissioner’s Report, despite the fact that the test results obtained from a US laboratory have revealed that the said skeletal remains date back to 1499-1719 AD – a period when Sri Lanka was largely under European colonial rule – the report presupposes ‘other mass graves might be expected to be found in the future.’ An assumption of this nature in a public report, on a matter of this magnitude and seriousness, is not acceptable, and may even cast a doubt as regards other assertions in the report.”
Biased Approach To Facts
The Minister pointed to the considerable unevenness in the standards of proof applied to the Government of Sri Lanka, compared to those applied to the unsubstantiated allegations made by Sri Lanka’s detractors and said that this is “problematic and confounding.”
Expanding on this, Marapana said: “Conventional wisdom teaches us that when facts do not fit a theory, the theory has to change. However, conventional wisdom does not seem to be applied to Sri Lanka’s case. It seems that even if the theory is disproved through hard evidence that absolves Sri Lanka, as in the case of the Mannar graves, a matter in which some sceptics sought to implicate the Government of Sri Lanka, such facts are cast aside for further inquiry.”
“At the same time when evidence surfaces, which contests the culpability of the Sri Lankan security forces and police in having deliberately caused civilian casualties during the last phase of the conflict, this evidence is summarily disregarded.”
Denies Colonization of Tamil Areas
On the charge that the government is encouraging the systematic colonization of the Tamil areas, Marapana said: “The Government of Sri Lanka has no policy of colonization of either the Northern Province or Eastern Province, or as a matter of fact, of any province in the country.”
“As regards the contention that land owners are deprived their land by declaring their land as forest cover or as archeological projects, it must be clearly and categorically stated that the Government has not resorted to any such measures.”
“However, it must be born in mind that the protection of forest land and archaeological projects is an obligation cast on any State in accordance with its international obligations that mandate protection and preservation of the environment and of the cultural heritage.”
“Furthermore, in identifying the relevant forest land and the cultural heritage, respective provincial administrations are also consulted.”