At the 40th session (February-March 2019) of the United Nations Human Rights Council (UNHRC), which began on February 25, Sri Lanka is expected show that it has complied with Resolution 30/1, which was passed during the 30th  session (September-October 2015). Between March 2012 and March 2014, three resolutions were passed by the UNHRC calling on the Sri Lankan government to promote reconciliation, accountability and human rights. The main component of these resolutions called for an impartial international investigation into alleged war crimes committed during the final phase of the civil war.

However, at the 30th session, the UNHRC relaxed its call for an international inquiry by opting for a hybrid court that included both international and local judges and prosecutors to conduct the probe into war crimes.  At the UNHRC’s 34th Session in March 2017, the Sri Lankan government was allowed by way of Resolution 34/1 a period of two years to meet the requirements outlined in the 30/1 Resolution.

Duplicity, delay and defiance

Having vehemently opposed the resolutions passed between 2012 and 2014, the Sri Lankan government co-sponsored resolutions 30/1 and 34/1. This appeared to indicate a willingness to cooperate with the UN, signaling a change in the attitude of the new government under President Maithripala Sirisena, who had taken over from the hard-line Mahinda Rajapaksa in January 2015. Instead, it turned out to be part of a broader strategy to thwart any probe into alleged war crimes.

According to Human Rights Watch, despite government pledges, there has been little progress in prosecuting those responsible for wartime abuses or providing justice for victims. This comes as no surprise in view of President Sirisena’s declaration in November 2017, within seven months of co-sponsoring a resolution extending the probe by a further two years, that “There won’t be electric chairs, international tribunals or foreign judges. That book is closed.”

On February 12, Prime Minister Ranil Wickremesinghe presented to cabinet a memorandum to establish a Truth and Reconciliation Commission, similar to what was established in post-apartheid South Africa. There was no mention of any probe into alleged war crimes. This was promptly condemned by former United Nations High Commissioner for Human Rights Navi Pillay, who was highly critical of the Sri Lankan government in an interview with Ceylon Today, saying:

‘’I am disappointed to learn that on the eve of the interactive dialogue on the Office of the United Nations High Commissioner for Human Rights’[OHCHR] report on Sri Lanka in the UN Human Rights Council, the government of Sri Lanka is resorting to yet another delaying tactic to escape……implementation of Resolution 30/1.”

A large number of Tamil people, including infants and children under 10 years, who surrendered to the army division under Silva’s direct command were never to be seen again and are now regarded as having “disappeared”

Ignoring Pillai’s strong criticism, on February 16, nine days before the commencement of the UNHRC’s 40th session, Prime Minister Wickramasinghe sealed the issue once and for all by calling on the Tamils to “forget the past and move forward” implicitly dismissing any investigation into war crimes agreed under Resolution 30/1. Journalists for Democracy Sri Lanka  (JDS) pointed out that after four years of inaction to prosecute the armed forces accused of war crimes and crimes against humanity, Wickremesinghe had made it clear that the government has no intention of establishing accountability.

The Sri Lankan Prime Minister’s actions were not surprising. Since co-sponsoring Resolution 30/1, Colombo has done little to implement the resolution. This was quite evident even by early last year.

Universal jurisdiction

Therefore, it was not surprising that the then high commissioner for the UNHRC,  Zeid Ra’ad Al-Hussein, should urge member states to explore other avenues to foster accountability in Sri Lanka, including the application of universal jurisdiction. Unfortunately, actions taken in pursuance of universal jurisdiction do not succeed where the alleged criminal enjoys diplomatic immunity. In Sri Lanka’s case, many of the alleged war criminals are senior diplomats or enjoy immunity because of their high office. Indeed there were at least three instances where attempts to foster accountability through the application of universal jurisdiction against alleged Sri Lankan war criminals failed.

Colombo’s behavior since then has been deliberately provocative. In early 2019, Major General Shavendra Silva, an alleged war criminal, was appointed as chief of staff of the army. This was the man under whose command places designated as safe zones (no fire zones) and hospitals were deliberately bombed, resulting in the deaths of tens of thousands. Also, a large number of Tamil people, including infants and children under 10 years, who surrendered to the army division under Silva’s direct command were never to be seen again and are now regarded as having “disappeared.”  The human rights organization International Truth & Justice Project (ITJP), which has focused its work on atrocities committed during the Sri Lankan civil war, called the appointment “a shocking new low for Sri Lanka“.

Although the UNHRC can pass resolutions, it has no mandate to implement resolutions or impose sanctions. At best, its resolutions are just recommendations.

Aware of this shortfall, the International Commission of Jurists (ICJ), an international non-governmental organization which promotes human rights and the rule of law, in its written submission to the 40th Session of the UNHCR, argued that the gravity of the crimes committed and the failure to mete out justice fully warrants referral to the International Criminal Court or the creation of another international mechanism to facilitate criminal accountability. The ICJ’s recommendations carry considerable weight as it is a standing group of 60 eminent jurists (including senior judges, attorneys and academics) with consultative status with the UN since 1957. Much will depend, however, on how the ICJ’s argument is acted upon as the process requires the matter being referred to the UN’s Security Council.

In the meantime, Sri Lanka has been successful in warding off any investigations into war crimes. Its strategy of duplicity, delay and defiance appears to have paid off.