Time For UNHRC To Act Firmly On War Crimes Committed By Sri Lanka
Kumarathasan Rasingam
Lanka is fast moving towards a military state and is now promoting alleged war criminals to top posts in Military and Government Departments.
The appointment of Lt. General Shavendra Silva: Lt Gen Shavendra Silva’s name was mentioned in the resolution passed by the UN Human Rights Council (UNHRC) in 2013, alleging rights abuses by the Sri Lankan Army.
Defence Secretary Major General [Retd.] Kamal Gunaratne is a long associate of Rajapaksa family and played a key role in organising his presidential election campaign. The former major general commanded the Army’s 53rd division during the final phase of the brutal war and has been accused of gross human rights abuses. An estimated 70,000 civilians were killed in the conflict as per UN Reports.
In another move, President Rajapaksa has for the first time appointed a military officer, Brigadier Suresh Sallay, to head the country’s State Intelligence Service (SIS). The spy agency previously operated as part of the police department. New SIS chief Sallay is the former head of military intelligence.
President Gotabaya Rajapaksa, the former Defence Secretary who directed the genocidal war and being accused of war crimes and crimes against humanity amounting to genocide by the United Nations and UNHRC under the ‘Command Responsibility’ stated at a News conference on November 15, 2019 that “I cannot recognize what they have signed. Have to move forward, we have to forget hanging on to old allegations and all that”. By this statement he has simply rejected the implementation of UNHRC Resolution 30/1.
War crimes, crimes against humanity, breach of International Human Rights Law etc. which were committed by the Security Forces amounted to Genocide as described by various International Organizations, Human Rights Groups, UN Rapporteurs, and Peoples’ Tribunals on Sri Lanka held from December 07-10 2013 in Bremen, Germany and from 14-16 January 2010 in Trinity College, Dublin. Etc. Hand in hand, structural genocide has also been set in motion against the Tamils in the North and East of Sri Lanka since 1948. This agenda which is now openly declared and pursued is to make Sri Lanka, a Buddhist-Sinhala State based on Buddhist philosophy, as recently declared by the President Gotabaya Rajapaksa.
The recent statements of President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa made in December 2019 respectively have cut short the obligations of Sri Lankan Government regarding the 30/1 Resolution. They have almost rejected the Resolution by saying that it is not binding on them. They have also rejected any more foreign country’s or Organizations interferences in the internal affairs of Sri Lanka.
This callous and casual statement by President Gotabaya confirms his intention to close this matter and shield the Security Forces for any liability and culpability. To redress the grievances of Tamils, United Nations has the option to set up Hybrid Courts or Ad-Hoc Tribunals as it has done earlier to deal with the question of genocide in East Timor, Sierra Leone, Cambodia and Kosovo. Ad-Hoc Tribunals can try individuals accused or core international crimes like war crimes, crimes against humanity and genocide, as done for Congo, Iraq, South Sudan, Syria and Yemen. It is to be noted that Hybrid Tribunals consists of foreign and domestic judges and usually operate within the jurisdiction of a state with its consent. However, Sri Lanka has already rejected this mechanism as interference in its internal matter and the option left is to seek United Nations to set up an Ad-Hoc Tribunal
Regarding the fate of the disappeared, the relatives mostly women are in sit-in-protest for more than three years in hot sun, dust, rain and wind demanding to know the whereabouts of their loved ones.
The Government has signed and ratified the International Convention for the Protection of all Persons from Enforced Disappearances in August 2016.
Among other matters, this UN Convention commits a State to investigate acts of enforced disappearance and bring those responsible to justice, and ensure that victims of enforced disappearance or those directly affected by it have a right to obtain reparation and compensation. Furthermore the crime of enforced disappeared disappearance is defined as a crime against humanity.
When one reviews the track record of Sri Lanka regarding the implementation of all the recommendations after a lapse of seventeen months, one can only observe a dismal and depressing performance coupled with defiance of UNHRC and rejection of its own commitments. The recommended comprehensive approach to dealing with the past incorporating the full range of judicial and non-judicial measures has not materialized so far.
The emerging accusations have confirmed the commission of war crimes by Sri Lanka Security forces which need to be further investigated by independent bodies.
Under International Law, the principle of command responsibility for war crimes lies from the top to bottom covering the President, Minister of Defence, Defence Secretary and Commanders of various Battalions and Brigades. It is to be noted that under the constitution, the commander-in-charge of the Sri Lanka armed forces is the President of the Republic of Sri Lanka who only appoints the Army, Navy and Air Force Commanders, and Mahinda Rajapaksha was the Commander-in-Chief from November 2005 until December 2015. He also held the Office of Minister of Defence who also appointed the Secretaries to Government Ministers. Former President Mahinda Rajapaksa appointed his brother Gotabaya Rajapaksa as the Secretary of Defence from November 24, 2005 which post he served until December 2015. The Secretary of Defence exercised supervision of Government Departments in the charge of Minister of Defence and was subject to the direction and control of the Minister of Defence, former President Mahinda.
The Army Commander reported directly to the Secretary of Defence, Gotabaya who was responsible to the President, [source ICEP 2014]
Even Sri Lanka’s own UNHRC 30/1 Resolution’s recommendations appear to have been treated with scant respect and in defiance of UN, UNHRC and UN Special Rapporteurs. Viewing the past handling and lopsided treatment by Sri Lanka for its own commissions’ recommendations like the recent LLRC, CTF and Paranagama Commission it would be naive and foolhardy to expect or have faith on any Sri Lankan Government to implement any or all recommendations in good faith which are harmful and inimical to the Security Forces, Government Officials and those interfering with the progress of Buddhisisation and Sinhalisisation [of Tamils traditional and historical homeland] agenda which was set in motion since independence in 1948.
It is relevant to note that the investigation on the following vital cases is still delayed to protect the Security Forces who are alleged to have committed these crimes:
