Two Lankan women take their cases to Pillay

Sunday, March 17, 2013

United Nations Human Rights High Commissioner Navi Pillay had just walked out from a room where there was a side event on Wednesday – a meeting of non-governmental organisations.�Walking up to her was Swarna Gunaratne, a sister of late Bharatha Lakshman Premachandra who died in a shoot-out with Parliamentarian Duminda Silva.

She lives in Canada and had travelled all the way to Geneva to ensure justice is meted out to her brother’s killer. The UN Human Rights Council is now in session.�Swarna is seen here pleading her case before Pillay whilst two of her aides listen earnestly.

Sandhya Ekneligoda, wife of missing cartoonist Prageeth Ekneligoda also similarly buttonholed Pillay on a different occasion to plead her case. Mid-way through her conversation, she wept prompting Ms. Pillai to console her.

Ranil drives back to stadium car park
Opposition UNP Leader Ranil Wickremesinghe attended a meeting at Kaleel grounds in Maligawatta last week to look into the grievances of people whose lands were acquired by the Urban Development Authority.He recalled how the nearby Khettarama International Cricket Stadium (renamed Premadasa Stadium) was built sans a car park. Wickremesinghe said one day former President Ranasinghe Premadasa asked him whether he had gone to Lords cricket ground in England. “I said yes”.

Then he asked me whether it had a car park. I just said no, because I went there in a taxi. Actually it doesn’t have a car park. Then he told me, if so Ranil, I wouldn’t have a car park for thr Premadasa Stadium.
But in fact, the Premadasa Stadium does have a car park now. It is the only ground in Sri Lanka that has a separate car park for the media.

The Bitter Fruits Of Our Own Only

By Kishali Pinto-Jayawardena -March 17, 2013 

Kishali Pinto-Jayawardena

As family members of a murdered ruling party politician travelled to Geneva this week to lay their case for denial of justice before the United Nations Human Rights Council, the ironies are palpable, almost painful. Are we to see in coming months, an unfairly impeached Chief Justice, persecuted Cabinet Ministers and scores of once loyal supporters of this administration following in their wake?

Good enough for some but not for others?

These are questions that demand reflectively serious answers. True enough, the hysterical cries of Sinhalese ultranationalists that to complain or to state a particular fact before the United Nations in Geneva was unpatriotic and near traitorous, had scarcely any sincerity to it. After all, it was none other than that ardent patron of the Sinhala Buddhist State, President Mahinda Rajapaksa himself who, as an opposition politician in the nineteen eighties with no tinge of the ruthlessly authoritarian ruler that he was to become, went to Geneva and lobbied the cause of the Sinhala ‘disappeared’ in the corridors of the United Nations. Indeed, as the Sri Lanka law reports would testify to, he was bold enough at that time to file a fundamental rights complaint before a Supreme Court when he was stopped in his tracks at the Katunayake International Airport.

This by the way, was a Court which was still untouched by the savagery that were to be later inflicted on it by his own administration with its inquisition, impeachment and ongoing witch hunt of the 43^rd Chief Justice of Sri Lanka.

At that time, the United Nations was good enough for the ‘disappeared’ of the majority community. And the question may well be as to what is the substantive distinction between using the United Nations then and using it now for current victims? Does the distinction of traitor and patriot depend on the race of nationality of the people whose cause one is espousing? Or does that depend on the nature of the administration that is in power at a particular time?

Current abuses despite party divisions

So, to take the cases of the tortured and the ‘disappeared’ to Geneva during the days of the United National Party regime was perfectly acceptable but to engage in exactly that same action during the period of the Rajapaksa Presidency is somehow different? Is that what we are supposed to believe? But only a fool or a knave can maintain that distinction. To argue otherwise is to be disingenuous which is why perhaps these very same ultra-nationalists get vastly uncomfortable and start fidgeting in their incongruous Western suits when President Rajapaksa’s human rights crusading, (and pleasanter), days emerge in random conversations.

But even during those times, eyebrows would certainly have been raised and considerable shock occasioned if the family of a prominent ruling party politician had made the trip to Geneva. In that sense, this Government’s abusive reign is regardless of party political divisions. The one rule is unquestioning obedience to the ruling family. Violate that cardinal principle and it does not matter if your record in that very political party has been that of impeccable loyalty to the party itself. To all intents and purposes therefore, the Sri Lanka Freedom Party does not exist anymore. Neither does the UPFA as we saw very well during the impeachment of the 43^rd Chief Justice of Sri Lanka when remonstrations by coalition partners did not stop the Government from throwing the head of the judiciary out, using political thuggery and finally military muscle. What does exist is only one family, not one party or a coalition. That is unquestionable.

Voluntarily reducing ourselves to the scrutiny of others

But the larger point here is that the forums of the United Nations are not supposed to be duplicate political or legal bodies for the resolving of each and every question of law and governance within the territorial boundaries of a State.

Essentially, they are advisory bodies that are supposed to guide countries that are parties to the United Nation in their conformity to international obligations. And there is a strong element of caution that these bodies observe when commenting on the performance or lack thereof by a particular country. For example, when the United Nations Human Rights Committee comprising of jurists from around the world, deliberates on an individual communication submitted to the Committee complaining that a particular action or a particular local law violates the provisions of the Covenant, the conclusions of the Committee are phrased as ‘Communications of Views’ not as binding decisions on a particular State.

States are free to adopt or to brush aside these Views as they please. The rider is that if there is a pattern in the flouting of international law norms, then the State concerned will, at some point or the other, be called upon to explain and justify why that is the case. But on no account are these members of the Committee sitting as judges when they look into these issues.  This was a distinction that was ignored by former Chief Justice Sarath Silva in 2006 when in the now infamous Singarasa Case (S.C. SpL (LA) No. 182/99, SCM15.09.2006) when he came to the conclusion that Sri Lanka’s ratification of the First Optional Protocol to the ICCPR which allows individual communications to be submitted to the Committee involved an exercise of judicial power by the Committee and was therefore unconstitutional.

Disastrous course of action

This ratification of the Protocol was effected during the shrewd and wise policy making times of former Foreign Affairs Minister, the late Lakshman Kadirgamar who was one of Sri Lanka’s staunchest advocates in the international arena, adept at the art of meeting unjustified international interventions with impeccable skill but yet cognizant of the need to be part of the community of nations. The ratification was on the rationale that Sri Lanka was open to measured and friendly advice from outside its borders and would respond to such advice.

Alas, the course that Sri Lanka followed since then was heedlessly disastrous, be it the administrations ofChandrika Kumaratunga, Ranil Wickremesinghe and Mahinda Rajapaksa, commencing from the ignoring of each and every Communications of Views of the Committee to the Singarasa case which thrust the country’s legal system into the harsh spotlight of international attention. Ultimately, the impeachment of the 43^rd Chief Justice under this Presidency against all norms of fair trial and due process has centered the entre debate on Sri Lanka’s judiciary and the failure of the Rule of Law, reducing us to the state of a pariah nation where no justice is available internally but we are compelled to rush elsewhere and therein, to be pushed and prodded at the will of others.

Now the laughing stock of the world

So the sagacity that was shown earlier by reasoned policy makers have now been thrown to the winds. We treat bodies like the United Nations Human Rights Committee with contempt, either react with bullying and thuggery when resolutions militating against this government are sought to be passed in the political arm of the United Nations, the Council or we bluster and swagger with lies that get to be more diabolical at each point.

Thus, this week’s assurances by government representatives before the Council that the killings of five Trincomalee students in 2006 has been directed for a non-summary inquiry and that the Attorney General is reviewing the equally gruesome killings of seventeen aid workers in Mutur that same year only invites skepticism if not outright disbelief. As the family members of these victims along with family members ofBharatha Lakshman Premachandra and Prageeth Ekneligoda plead for justice in the international forum, their cause is the same.

What is this outrage that we have allowed to be inflicted on ourselves so as to make us the virtual laughing stock of the world? How did a once functional, (though admittedly flawed), democracy in the Commonwealth of nations end up in this pitiable state?

Chidambaram hints at likely vote against Sri Lanka at UN meet

Click to Expand & Play

March 16, 2013 

Karaikudi, Tamil Nadu: Finance Minister 

P.Chidambaram today hinted at a possible vote against Sri Lanka at a session of the United Nations Human Rights Council (UNHRC) later this month. 

Addressing a budget explanatory public meeting his home town, Karaikudi, Mr Chidamabaram said, "I'm not the Prime Minister nor I am the External Affairs Minister. I'm confident that if phrases in the UN resolution sought credible independent international probe, India would support it." 

The minister also sought to assure students who are gearing up to organise massive protests from Monday across Tamil Nadu, demanding affirmative action against Colombo at the UN session. "I'm feeding you my confidence and you feed this confidence to our students," Mr Chidambaram said.

This comes a day after the UPA's southern ally, the DMK, threatened to pull out its ministers from the union cabinet if India did not amend the resolution to incorporate demand for international probe and time bound action against those who may be found guilty of war crimes.

With 18 MPs, Mr Karunanidhi's party, the DMK, is the second biggest constituent of the Congress-led UPA, providing crucial support to a government that has, of late, been tested vigorously by several coalition partners. 

Earlier in the day, the government, which has so far been non-committal over its stand on the Lankan Tamils issue, quickly moved to placate the southern ally - Union Minister V Narayanasamy said the Prime Minister would "definitely consider all aspects" before taking a decision on the resolution.

The US-sponsored motion puts the island nation in the dock over alleged war crimes and rights violations against Tamil civilians during the final phase of the war against the Liberation Tigers of Tamil Eelam (LTTE).

The resolution is moved by the US for the second time. Last year, India had supported a similar resolution following pressure from political parties in Tamil Nadu. This time, though, the Centre, has maintained that it will decide its position based on the wording of the resolution.

Pushing for consensus resolution

by Ranga Jayasuriya 2013-03-17 Sri Lanka is pressing for a consensus resolution in Geneva and has indicated it does not plan to call for a vote on the US-sponsored resolution on promoting reconciliation in Sri Lanka, diplomatic sources said. The latest government posture comes in the wake of the Indian decision that had been communicated to member states of the UN Human Rights Council (UNHRC) in Geneva that it would support the US-sponsored resolution. "New Delhi has made it clear it would vote with the US, and Sri Lanka has made it clear it would not oppose the United States," a well-placed diplomatic source said, adding that like-minded countries of the Non-Aligned Movement are likely to abstain, even if Sri Lanka pushes for a vote on the resolution. "They would not go against India. Sri Lanka is in the sphere of influence of India and in case India voting with the US, countries in Africa, Asia and Latin America would abstain," the former diplomat added. On Friday, Minister Mahinda Samarasinghe, delivering his speech at the Universal Periodic Review (UPR) sounded a conciliatory note and said Sri Lanka has accepted 113 recommendations out of 204 recommendations made during the second cycle of the UPR in November, last year. However, US Ambassador Eileen Chamberlain Donahoe, in her statement delivered at the adaptation of the UPR report on Sri Lanka noted: "We are disappointed that the government rejected all UPR recommendations from States that called upon it to implement the LLRC recommendations." She also noted the Sri Lankan delegation 'attempted to reframe Sri Lanka's human rights commitments in terms of the government's National Plan of Action, which does not address the broad spectrum of recommendations put forward by the LLRC report, and by lobbying other delegations to revise their UPR recommendations to exclude reference to the LLRC report after they had been orally presented.'

2013-03-17

Ranil says Govt. has signed too many HR treaties

Ranil says Govt. has signed too many HR treaties

TUESDAY, MARCH 12, 2013

Even as Sri Lanka comes under heavy international scrutiny about its human rights record in Geneva this month, Opposition Leader Ranil Wickremesinghe yesterday faulted the incumbent regime for signing certain international conventions and protocols that obliged the country to abide by international humanitarian law.Wickremesinghe who was addressing party activists at the UNP Headquarters Sirikotha yesterday said that the Government had supported a resolution at the UN Human Rights Council in Geneva in 2009 that accepted the Council’s power to investigate human rights violations in UN Member states.



According to the UNP Leader, the 2009 resolution that had been supported by the Government, Sri Lanka had accepted that the international community and the UN Expert Panels like the Darusman Panel had the right to investigate rights abuses in the country.
“The Government has also given an undertaking to the international community, through this that it would take action against those who violate human rights during the war by these covenants,” Wickremesinghe said. He added that the Government had placed the country in a precarious position by signing these international protocols.
He said that during his tenure as Prime Minsiter of Sri Lanka he had completely rejected signing on the Rome Statute that established the International Criminal Court. “As a political leader even during a time when peace talks were underway with the LTTE, I knew that if war was to resume, signing the Statute would make Sri Lankan leaders open to war crimes prosecutions,” Wickremesinghe said.
It was another matter to become a signatory to the Rome Statute once the war ended, but under the condition that the protocols would not apply to Sri Lanka retroactively, he said. In other words, Wickremesinghe said, the international community would have no power to investigate incidents prior to the signing.
“I was criticized at the time by human rights organizations for my decision not to sign the Statute,” the UNP Leader said.
Wickremesinghe said that the Mahinda Rajapaksa Government had undone his good work in 2002-2003 on behalf of the country.

The Need To Answer Allegations Intelligently

By Rajiva Wijesinha -March 17, 2013

Prof Rajiva Wijesinha

As pressures mount in Geneva, my bemusement increases at our failure to answer systematically the many charges made against us. I had long pointed out that the criticisms made were by and large untenable, but there were certain incidents which required to be investigated further. This view, based on close observation from the vantage point of the Peace Secretariat where I had set in place mechanisms to monitor allegations and check on them, was confirmed by the LLRC Report. That highlighted the need to check on the treatment of surrendees while affirming that indiscriminate attacks on civilians etc were absurd and tendentious charges.

To dismiss those charges however requires logical argument based on evidence. This approach is sometimes not acceptable, as I realized when I was roundly attacked for having declared way back in June 2009 that there had been civilian casualties. The then Attorney General asked me why I had said this, to which my answer was that it was true. I could however understand his assertion that people would try to make use of my answer, and I sympathize with those who feel they might succumb to leading questions and therefore stay silent. But the way of dealing with such matters is to point out the nonsensical nature of such stratagems – as I did with Stephen Sackur on ‘Hard Talk’ when he asked whether I was admitting there were civilian casualties – rather than hiding one’s head in the sand, ostrich-like, and pretending one knew nothing, or even worse, denying reality.

Unfortunately, given that we have so many ostriches in the country, blank denials are thought preferable to logical argument. Thus we seem internationally to have lost the battle with regard to the number of casualties, which has reached the inflated figure now, sanctified by the blessed Darusman, of at least 40,000. These are claimed to be civilians who were killed in indiscriminate firing.

The facts speak otherwise, but we do not use the facts. The recent census report is not publicly discussed, and though there is a report that tries to use data from it to rebut allegations, the process is flawed because the report is long-winded and would not be read by anyone except those already convinced.

What is needed rather is short, sharp arguments based on facts. In this case the statistics are in line with those maintained by other agencies such as the ICRC, but since for a long time we did not work sensibly with the ICRC – for reasons that were not entirely our fault, but reasons that were outdated a couple of years ago – we have not been able to present our arguments forcefully.

In this case, the statistics indicate that the vast majority of alleged disappearances are of those of an age in which they would have been forced by the LTTE into combat. There are very few children amongst them or adults over 40, and a very high percentage are of those in the 20-30 age group – which suggests that deaths were of those engaged in combat.

There is other inductive evidence to show that attacks were not indiscriminate and few civilians in the fullest sense – that is civilians who had not been forced into the frontlines by the LTTE – were killed. We all know that the UN had several workers in the Wanni whom the LTTE kept back, using them at one stage to slow down the army advance – when it kept pretending to be about to release them, to the infamous remnants of convoy 11. Not one of those UN workers was harmed, except that one of them trod on a landmine when she finally made her escape, and was attended to immediately by our forces, who arranged special transport to Colombo.

Again, the LTTE kept back all the workers of the NGOs, when these were asked to leave the Wanni in September 2008. They, along with the UN staff, continued to provide the humanitarian assistance which it is claimed we stopped. Indeed the one person who tried to stop this was Guy Rhodes (of the shadowy Solidar whose vehicles the Tigers used to build defensive bunds) who turns out to be the principal source of American allegations against us, according to Wikileaks. I was present at a meeting at which he claimed, contrary to the position of the other more established agencies such as Oxfam and Save the Children, that they would have to stop functioning in the Wanni since there were no internationals. His rationale for this was that their agreements with donors demanded the presence of international staff, but I stopped that nonsense by pointing out that he had no business to have clauses in aid agreements pertaining to Sri Lanka that were kept secret from the Sri Lankan government. Needless to say, he could not produce such texts, and his colleagues, who were genuine humanitarians as opposed to politicians in disguise, continued with their good work.

None of those NGO workers was killed. Had our firing been indiscriminate, it is unlikely that we managed to avoid all these purveyors of aid. But equally, we could be sure that they would not have been sent to the frontlines, whereas others were ruthlessly conscripted, which is why we do have records of about 3000 youngsters missing.

They do not include priests or doctors or anyone who could have avoided conscription. Indeed, though this should be studied more, I believe all Principals and most public servants remained safe. Unfortunately no one in government has had the sense to draw up statistics of such persons, which would go a long way to establishing that firing was not at random. And indeed the survival of all the doctors makes it clear that there was no random shooting at hospitals either.

But to make all this clear, and in brief, requires an intelligence that government is not willing to deploy, when ostriches are much easier to emulate.

Rapporteur Refused Entry 

By Easwaran Rutnam- Sunday, March 17, 2013

The government has refused to accede to a request by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, to visit Sri Lanka.

The Permanent Mission of Sri Lanka to the United Nations Office at Geneva has told La Rue that his mandate on Sri Lanka was only for the period the UN Human Rights Council resolution 19/2 adopted in March 2012 was in force and not after.

Sri Lanka’s Ambassador to the UN in Geneva Ravinatha Aryasinha had told the Special Rapporteur that the March 2012 resolution has now lapsed and is ready to be submitted to the 22nd session of the Human Rights Council currently meeting in Geneva.

“I hereby wish to inform you that your previous requests to visit Sri Lanka were transmitted to the relevant authorities for processing. However, with regard to your latest request to undertake an official visit to Sri Lanka, in the context of the mandate granted to you by the resolution 19/2 should have been made, as per due process, either immediately after the adoption of the resolution 19/2 in March 2012 or within a reasonable timeframe thereafter,” Ambassador Aryasinha said.

Aryasinha says it is evident that the relevant timeframe has lapsed for any special procedures mandate holder to request to visit Sri Lanka in fulfillment of the mandate of resolution 19/2.

He also reminded the Special Rapporteur on the Code of Conduct for Special Procedures Mandate holders of the Human Rights Council, in particular to the article which calls upon mandate holders to act in an independent capacity, and exercise their functions in accordance with their mandate, through a professional, impartial assessment of facts based on internationally recognized human rights standards, and free from any kind of extraneous influence, incitement, pressure, threat or interference, either direct or indirect, on the part of any party.

The Ambassador also reminded the Special Rapporteur of the article which calls upon mandate holders to ensure that their visit is conducted in compliance with the terms of reference of their mandate.

“In this context, I would be happy to provide information to you with regard steps taken to implement the National Action Plan for the implementation of the LLRC recommendations, relevant to your mandate, as part of our continuing and legitimate process of engagement with the special procedures mandate holders,” he said.

Lanka faces growing call for international probe

• US toughens resolution, approval virtually certain with India also supporting it
• Direct and indirect diplomatic moves fail; attack on Pillay provokes angry response

By Our Political Editor-Sunday, March 17, 2013

Last Monday, a day ahead of embarking on his four-day official visit to Japan, President Mahinda Rajapaksa set out Sri Lanka’s strategy for the second US resolution due next week before the UN Human Rights Council.

The move came after the Government had exhausted diplomatic options, some of which were covert and informal. Such moves included soundings to the US, both in Geneva and in Washington DC, to water down the text of the resolution. One approach came when Ravinatha Aryasinha, Sri Lanka’s Ambassador to the UN in Geneva, held talks with his counterpart Eileen Chamberlain Donahue. In what seemed a counter, Donahue suggested that both Sri Lanka and the US move a joint resolution. It was not accepted by Sri Lanka. Donahue made this public at the first informal meeting on March 8 the US convened in Geneva to officially disclose the contents of its latest resolution.

Among the channels to Washington was Indian parliamentarian and Janatha Party leader Subramaniam Swamy. He met Robert Blake, outgoing Assistant Secretary of State for South and Central Asia. His efforts, however, did not meet with success. Dr. Swamy is an academic, politician and economist. In 1991, he was Minister of Law and Justice. He was once at the centre of a heated controversy after he wrote an article to an Indian newspaper on “How to wipe out Islamic Terror.” In that, he had advocated declaring India a “Hindu Rashtra” (or a Hindu Nation). He said non-Hindus can vote only if they proudly acknowledge that their ancestors were Hindu. This article was to later lead to the prestigious Harvard University choosing to discontinue its association with him. Dr. Swamy lectured there.

Last Thursday, Dr. Swamy tweeted, “Those Italians who are wanted in India go away, and those who we want to go away stay and stick here.” This veiled attack on Congress leader Sonia Gandhi was after a spat between India and Italy where two Italian marines charged for murdering two Indian fishermen have disregarded an Indian Supreme Court order and are now in Italy. They had gone to vote in the Italian elections but had chosen not to return.

President Rajapaksa told Sri Lanka delegation leader and his Human Rights Special Envoy and Minister Mahinda Samarasinghe that the Government would ask friendly countries which are members of the UNHRC, to vote for Sri Lanka when the resolution comes up on March 21. Since Sri Lanka is not a member of the Council, a friendly nation would urge that the anti-Sri Lanka resolution be put to vote. Even if such a vote was not called for by a friendly country, diplomatic sources in Geneva said the US delegation also proposed to call for a vote. No sooner President Rajapaksa spelt out the position to be taken by Sri Lanka, the External Affairs Ministry sent out instructions to the country’s diplomatic missions abroad. They were also advised that Sri Lanka had chosen to seek a vote.

Even if the Government’s diplomatic efforts to water down the text of the resolution did not meet with greater success, there were other dividends. Some countries friendly to Sri Lanka did speak out. At the second informal meeting convened by the US last Wednesday, a Cuban diplomat banged his hand on the table in anger many times as he spoke against the resolution. Those present at the event said, he walked out a few times to speak on his mobile phone and turned angrier every time he returned. He was followed by diplomats from Pakistan, Russia, China and Indonesia, all of them voicing strong protest against the US move. When a Canadian diplomat rose to counter some of the issues raised, he came in for constant heckling by the duo from Cuba and Pakistan. Ambassador Aryasinha did not take part in this second informal meeting. Of the countries that spoke in favour of Sri Lanka, only Indonesia and Pakistan are members of the UN Human Rights Council.

The US resolution, revealed in these columns last week, showed some modifications, the result of contributions by participants at the previous informal meeting. Though no other informal meeting, aimed at allowing countries to make their own contributions towards shaping the resolution, is likely now, US diplomats in Geneva expect the European Union to offer some additions. Immediately thereafter they are expected to hand over the final text of the resolution together with a list of countries that are co-sponsoring it to the UNHRC Secretariat.

A comparison of the draft resolution, as it stood yesterday with what emerged last week and published in these columns, makes some interesting revelations. Contrary to claims in some sections, the US resolution has not been softened. To the contrary, some of the provisions have been re-worded or added to make it even stronger. However, there is a paragraph which has been added to “welcome” and “acknowledge” the various steps taken by the Government of Sri Lanka. It reads: “Welcoming and acknowledging the progress made by the Government of Sri Lanka in rebuilding infrastructure, de-mining, resettling the majority of internally displaced persons, and noting nonetheless that considerable work lies ahead in the areas of justice, reconciliation and resumption of livelihoods.”

The word “urges” has been dropped and substituted with the word “encourages” when calling upon the Government of Sri Lanka to implement the LLRC report or the report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) among others. In this regard, of greater significance is a thawing of the earlier US position which “urged” unfettered access to “special mandate holders”. However, the new draft says it only “encourages”. Diplomatic sources say the change was at India’s request during informal contacts with the US and that country’s delegation. As revealed earlier in these columns, India will vote in favour of the resolution. During both informal meetings convened by the US, the Indian representative remained silent. A Sri Lankan diplomat remarked that “nomenclature apart, we are a sovereign nation. Whom we allow into our country therefore is our business and nobody else’s.” The remarks underscored the possibility that the Government would ignore the request for such access. A new addition of some significance is the wording that expresses concern over “discrimination on the basis of religion or belief.” This is in the wake of the continuing controversy between the Bodu Bala Sena and the All Ceylon Jamiauthul Ulema (ACJU). If the previous draft called for an “interactive dialogue,” the latest one seeks a “comprehensive report” and a “dedicated general debate” at the 25th sessions of the UNHRC (in March next year) on the issue. The passage of the resolution would mean Sri Lanka will remain on the UNHRC agenda for years to come.

Besides changes in the preamble, the latest draft could easily be compared with the previous one. The additions are underlined whilst deletions have been marked with a line across the text in the latest resolution as of Thursday.
“Draft resolution HRC 22
Promoting Reconciliation and Accountability in Sri Lanka
The Human Rights Council,
PPO Reaffirming , the purposes and principles contained in the Charter of the United Nations

PPI Guided by the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenants on Human Rights and other relevant instruments, (PP1 19/2)
PP1 bis Bearing in mind General Assembly resolution 60/251 of 15 March 2006.

PP 1 ter Recalling Council resolutions 5/1 and 5/2 of 18 June 2007, on institution-building of the Human Rights Council.
PP2 Recalling Human Rights Council Resolution 19/2 on Promoting Reconciliation and Accountability in Sri Lanka,
PP3 Reaffirming that it is the responsibility of the Government of Sri Lanka to ensure the full enjoyment of all human rights and fundamental freedoms of its entire population,
PP4 Reaffirming that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable, (PP3 19/2)

PP 4 bis Welcoming and acknowledging the progress made by the Government of Sri Lanka in rebuilding infrastructure, demining, resettling the majority of internally displaced persons, and noting nonetheless that considerable work lies ahead in the areas of justice reconciliation and resumption of livelihoods

PP5 Taking note of the Government of Sri Lanka’s National Plan of Action to Implement the Recommendations of the Lessons Learnt and Reconciliation Commission (LLRC) and its commitments as set forth in response to the findings and recommendations of the LLRC,

PP6 Noting with concern-that the National Plan of Action does not adequately address all of the findings and constructive recommendations of the LLRC,

PP7 Recalling the constructive recommendations contained in the LLRC’s report, including the need to credibly investigate widespread allegations of extra-judicial killings and enforced disappearances, demilitarize the north of Sri Lanka, implement impartial land dispute resolution mechanisms, re-evaluate detention policies, strengthen formerly independent civil institutions, reach a political settlement on the devolution of power to the provinces, promote and protect the right of freedom of expression for all and enact rule of law reforms, (PP5 19/2, modified)

PP8 Also, nNoting with concern that the National Plan of Action and the LLRC’s report do not adequately address serious allegations of violations of international human rights law and international humanitarian law, (PP6 19/2, modified)
PP9 Expressing concern at the continuing reports of violations of human rights in Sri Lanka, including enforced disappearances, extra-judicial killings, torture, violations of the rights to freedom of expression, association and peaceful assembly, as well as intimidation of and reprisals against human rights defenders, members of civil society and journalists, and-threats to judicial independence and the rule of law, and discrimination on the basis of religion or belief,
PPIO Encouraging, Also noting with concern the failure by the Government of Sri Lanka to fulfill its public commitments, including on devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population,

PP11 Expressing appreciation for the Government of Sri Lanka’s efforts in facilitating the visit of a technical mission from the Office of the United Nations High Commissioner for Human Rights (OHCHR), and encouraging the Government of Sri Lanka to increase its dialogue and cooperation with the OHCHR,

1. Welcomes the Report of the OHCHR on advice and technical assistance for the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka and the recommendations and conclusions contained therein, in particular on the establishment of a truth-seeking mechanism as an integral part of a more comprehensive and inclusive approach to transitional justice; and notes the High Commissioner’s call for an independent and credible international investigation into alleged violations of international human rights law and international humanitarian law;
2. Urges Encourages the Government of Sri Lanka to implement the recommendations in the OHCHR report;
3. Reiterates its call upon the Government of Sri Lanka to expeditiously and effectively implement the constructive recommendations made in the LLRC report and to take all necessary additional steps to fulfill its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability, including investigations of alleged violations of international human rights law and international humanitarian law and reconciliation for all Sri Lankans; (OP1 19/2, modified)

4. Encourages Urges the Government of Sri Lanka to cooperate with special procedures mandate holders and formally respond to outstanding requests, including by providing unfettered access to the Special Rapporteurs on independence of judges and lawyers; human rights defenders; freedom of expression; freedom of association and assembly; extrajudicial, summary or arbitrary executions; minority issues; and the Working Group on enforced or involuntary disappearances; and discrimination against women;

5. Encourages the OHCHR and relevant special procedures mandate holders to provide, in consultation with, and with the concurrence of, the Government of Sri Lanka, advice and technical assistance on implementing the above-mentioned steps; (0P3 19/2, modified)

6. Requests the OHCHR, with input from relevant special procedures mandate holders, as appropriate, to present an interim oral report at the twenty-fourth session and a comprehensive report in an interactive dialogue followed by a dedicated general debate at the twenty-fifth session of the Human Rights Council, on the implementation of this resolution.”

The Government has chosen to face the brunt of the resolution which is certain to be approved. This is notwithstanding fears that the number of votes in favour of Sri Lanka this time will be less than the last time. Last year, the US moved the first resolution co-sponsored by 40 countries, 13 of them Council members. Of the 47 members in the UN Human Rights Council, twenty four countries voted in favour of the resolution, 15 opposed it whilst eight abstained.

As repeatedly pointed out in these columns, the absence of a clear and cohesive approach in Geneva both before and during the Council sessions which began last month has become increasingly evident as events played out.

Minister Samarasinghe who was called upon to lead the Sri Lanka delegation at the eleventh hour, it appears, was compelled to hit out not only at the UN system but also personally at UN Human Rights Chief Navi Pillay, in Sri Lanka’s National Statement.

He called into question Pillay’s “bona fides” and objectives “by virtue of her shifting the goalposts and seeking to impose new conditionalities.” This was when he addressed the high level segment.

Here are the relevant extracts of Samarasinghe’s speech: “�. the Report of the High Commissioner for Human Rights titled ‘Advice and technical assistance to the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka (A/HRC/22/38) has been compiled pursuant to Resolution 19/2. This Report will be considered later during the session. Comments and observations of the GoSL in general on the High Commissioner’s Report were forwarded and our comments in full are placed on the website.

“In relation to further engagement, it may be recalled that an invitation was extended to the UN High Commissioner for Human Rights in April 2011 for a country visit. Thereafter according to her Report, she indicated in May 2012 that the visit to Sri Lanka will be undertaken after an advance visit by a team of officials from the OHCHR to explore possible areas for cooperation, and I quote: to help prepare the ground for an eventual country visit by the High Commissioner herself; unquote. The High Commissioner expressed her satisfaction with the cooperation extended by the GoSL to the OHCHR delegation whose visit in September 2012 was facilitated in close consultation with the UN Country Office. In granting the team unfettered access, the Government acted in the good faith expectation that it would in fact prepare the ground for her visit.

“Subsequently the High Commissioner addressed a letter in November 2012 proposing possible areas of technical cooperation between the GoSL and the OHCHR. She also chose to introduce a new conditionality: stating that meaningful progress needs to be achieved in areas outlined for technical cooperation, before visiting Sri Lanka at some time in the first half of 2013. Thus it now appears the team’s agenda was purely to collect material for her present Report and not to “help prepare the ground” for a visit. The GoSL’s reply in December 2012 was to emphasize that, since the implementation of the NPoA (National Plan of Action) and the NHRAP (National Human Rights Action Plan), are continuously evolving national processes which were being monitored, in order to arrive at a considered opinion on the progress of human rights related issues, that there is no substitute for experiencing, at first hand, the ground situation.
“We reiterate that, therefore, a visit by the High Commissioner would be an ideal opportunity to view the developments objectively and holistically, imperative for the discharge of her mandate. As such, the bona fides of the High Commissioner’s objectives may be called into question, by virtue of her shifting the goalposts and seeking to impose new conditionalities.

“We also note that an inordinate amount of attention is paid to Sri Lanka in the High Commissioner’s statements within and outside UN forums. Whether it be in the UN Security Council or successive sessions of the Human Rights Council, democracy conferences or merely comments from her on incidents or events in Sri Lanka ranging from economic migrants to the judiciary, the High Commissioner, has had, from around the end of the conflict in May 2009, a regular negative observation to make. Her frequent comments to the media, some in close proximity to sessions of the Council, could well have the effect of influencing delegations, especially when there are Resolutions contemplated.
“This runs counter to the detachment, objectivity and impartiality expected from the holder of such an exalted office. Sweeping generalizations using such terms as “massive violations” of human rights and the constant targeting of Sri Lanka – based on unsubstantiated evidence founded on conjecture and supposition only supports the impression of a lack of objectivity.”

During the UNHRC sessions, as revealed in these columns, the remarks drew an immediate response from Germany’s Ambassador to the UN in Geneva. Germany felt that Sri Lanka’s criticism of the UN High Commissioner for Human Rights was unjustified, said Ambassador Hans H. Schumacher. The matter did not end there. A provision which was not present in greater detail in the first draft of the US resolution was thereafter included in subsequent drafts. This is how the latest draft describes it:

“Welcomes the Report of the OHCHR on advice and technical assistance for the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka and the recommendations and conclusions contained therein, in particular on the establishment of a truth-seeking mechanism as an integral part of a more comprehensive and inclusive approach to transitional justice; and notes the High Commissioner’s call for an independent and credible international investigation into alleged violations of international human rights law and international humanitarian law; Encourages the Government of Sri Lanka to implement the recommendations in the OHCHR report;�.”

In the first draft in mid-February, there was only a sentence which said the resolution “Welcomes the report of the High Commissioner for Human Rights on the human rights situation in Sri Lanka.” The enlarged version, a diplomatic source in Geneva said on grounds of anonymity, was to express support for Human Rights High Commissioner Pillay by US and co-sponsors of the resolution. This is by welcoming the report of her office as well as taking note of her call “for an independent and credible international investigation into alleged violations of international human rights law and international humanitarian law.” The source added, “in the light of Sri Lanka Government’s official position spelt out in their National Statement at the Council, an elaboration to acknowledge the actions of the High Commissioner became necessary.”

On Friday, Sri Lanka figured for two hours at the Council sessions. This was when the country’s case was taken up under the Universal Periodic Review (UPR). Every four years, all member countries of the UN subject their human rights record for review. Besides Sri Lanka, the UPR of Peru was also taken up on the same day. As is the custom, the reports of both countries were adopted without a division being called. Speaking at the Sri Lanka event, Minister Samarasinghe said, “In the overall process of accountability which was the subject of some interventions during the working group session, the first issue that must be addressed is that of the 40,000 so-called civilian victims. This figure has been repeated by several sources without once verifying the facts. This is why our national census of 2012 and the enumeration in the North preceding it in 2011 were of such importance. Ground verification of facts is continuing into the results of these processes. We believe we will be able to gain an accurate picture of the several causes of civilian deaths.

“A Cabinet Memorandum titled “Assistance and Protection of Victims of Crime and Witnesses Bill” was submitted by the Ministry of Justice and was taken up for policy approval at the Meeting of the Cabinet of Ministers held on 07 February 2013. It was decided to obtain the views of the Attorney General on this matter to aid in the deliberations of the Cabinet.
“Subsequent to the recommendations of the LLRC, the Attorney-General reviewed the cases relating to the five (5) students from Trincomalee and of the Action Contre La Faime (ACF) workers. Having concluded the work on the five students from Trincomalee, the Attorney-General has directed the Police to commence Non-Summary Judicial proceedings. The review with regard to the ACF case is also ongoing.

“Also on the question of accountability, inquiries are in train by the military authorities as to questions of civilian casualties during the humanitarian operation including the Channel 4 video footage irrespective of its authenticity.
Further to the recommendation of the LLRC, the database on detainees is available to next of kin (NoK) who are able to obtain details in response to their inquiries. The investigations into those allegedly disappeared are ongoing through national mechanisms���”

US Ambassador Donahue made some strong comments after Samarasinghe spoke. She charged that “the Sri Lankan delegation attempted to reframe Sri Lanka’s human rights commitments in terms of the government’s National Plan of Action, which does not address the broad spectrum of recommendations put forward by the LLRC report, and by lobbying other delegations to revise their UPR recommendations to exclude reference to the LLRC report after they had been orally presented. Major changes were made to the substance of recommendations after the interactive dialogue. This is inconsistent with the transparent, interactive character of the UPR. We are also disappointed that the Government rejected nearly all recommendations regarding engagement and cooperation with UN special procedures mandate holders. We urge the government to expeditiously implement both the UPR and LLRC recommendations.”

A media statement from the UNHRC Secretariat gives an account of how the UPR on Sri Lanka went. Here are excerpts:
Oman said that Sri Lanka had accepted most of the recommendations made, which demonstrated its willingness to cooperate with the Council and showed its determination to comply with human rights obligations.
Pakistan said that it was encouraging to see that Sri Lanka had made 19 voluntary commitments, including for the protection of the rights of women and children, the advancement of the reconciliation process, and the reintegration of ex-combatants in society.

Philippines said that Sri Lanka had shown deep commitment to the advancement of human rights. The Philippines welcomed in particular acceptance by Sri Lanka of the recommendation pertaining to the National Action Plan and the Lessons Learnt and Reconciliation Commission. Concern was expressed at the situation of migrant workers and their families, and the Philippines looked forward to the ratification by Sri Lanka of International Labour Organization Convention 189.

Russia said that Sri Lanka’s second cycle of the Universal Periodic Review had again confirmed its readiness and openness to engage in open dialogue. Sri Lanka had agreed to the majority of recommendations made and those accepted were truly constructive and non-politicised in nature. Russia appreciated Sri Lanka’s list of voluntary commitments on many aspects of human rights.

Sudan said that Sri Lanka had accepted a great number of recommendations, most of which were positive and constructive. Sudan welcomed the acceptance of two recommendations on consolidation of law enforcement and resettlement of internally displaced persons. It was important to create an environment that made it possible for citizens to enjoy their rights.

United Arab Emirates welcomed positive measures undertaken by the Government to implement the recommendations from the first cycle of the Universal Periodic Review. The United Arab Emirates took note of Sri Lanka’s statement on giving new impetus to the human rights system and promoting human rights. It was fully confident that Sri Lanka would move forward and hoped it would be supported in this.

United Kingdom expressed serious concern about freedom of expression in Sri Lanka and asked why the recommendation to invite the Special Rapporteur on freedom of expression and opinion to visit the country was rejected. Sri Lanka gave no justification for the rejection of the recommendations relating to the independence of the judiciary. The impeachment of the Chief Justice ran contrary to the clear rulings of Sri Lanka’s highest courts and contravened principles of fairness, due process and respect for the independence of the judiciary.

Venezuela welcomed the spirit of openness and cooperation that Sri Lanka had demonstrated in the second Universal Periodic Review process and urged it to implement the recommendations of its Lessons Learnt and Reconciliation Commission. Venezuela recognized the efforts of Sri Lanka to implement recommendations from its first Review, notably those relating to the improvement of the enjoyment of human rights and those related to peace.

Vietnam said that serious efforts had been made by Sri Lanka in relation to the national reconstruction and reconciliation process, and noted with satisfaction the ongoing implementation of 19 voluntary commitments made by Sri Lanka. Nevertheless, challenges and hardships remained to be overcome, for which an environment favourable to creating a stable and peaceful Sri Lanka was crucial.

Algeria said that Sri Lanka had actively shown it was willing to further advance human rights by intensifying the policies it was undertaking for the protection of the human rights of women and children in particular. Belarus commended Sri Lanka on the adoption of a National Action Plan and the measures taken to reform and enhances national legislation, and said that Sri Lanka had shown strong commitment to the promotion and protection of human rights.

China said that it appreciated Sri Lanka’s important achievements in advancing domestic reconciliation. China called on the international community to respect Sri Lanka’s sovereignty, objectively look at its advancements, provide constructive assistance, and avoid interfering in its domestic affairs. China supported the adoption of the outcome.
A member of the delegation of Sri Lanka, in response to a statement made by the United Kingdom with reference to the impeachment of the Chief Justice, stated that the Constitution and procedural matrix involved in the impeachment of judges of the Superior Court was not some process invented on a person-centric, ad hoc manner. In that context it was correct to state that the invocation of that procedure to meet requirements that emerged consequent to facts to the case concerned was justifiable. However, the entire process and a ruling by a division by the Supreme Court on the matter had now been brought under judicial review.

Representatives of several INGOs recognised by the UN system also spoke. Events related to Sri Lanka continue to unfold in Geneva at a time when there will also be some attention abroad over an event in the country. Tomorrow, President Mahinda Rajapaksa will declare open the Mattala Rajapaksa International Airport. He returned to Colombo after a four day visit to Japan. There, he and Prime Minister Shinzo Abe decided on closer maritime co-operation. Japan also showered Rajapaksa with 41.1 billion Yen (Rs. 55 billion) in loans and 2.7 billion Yen (Rs. 3 billion) as grant aid. Sri Lanka diplomatic missions abroad have been advised to help in Government efforts to develop the new airport as an important hub in Asia. The Sri Lanka Embassy in Washington has also been somewhat distracted with the event with little time to focus on the US-backed resolution. Ambassador Jaliya Wickremesuriya is heading a group of expatriate Sri Lankans and journalists who will arrive in Dubai to board a Sri Lankan Airlines flight that will land in Mattala tomorrow morning. The visitors have been offered concessionary travel to places of interest in Sri Lanka or free transport from Mattala to Colombo after the event is over.

Last month, the Embassy offered free travel to Sri Lanka for US Senators, a perfectly legal exercise. However, the only one who accepted was Eni Fa’aua’a Hunkin Faleomavaega, Jr. He is a non-voting member of the House of Representatives and represents American Samoa. He serves in a Sub Committee of the Senate Foreign Relations Committee. During a visit to Sri Lanka last month, Faleomavaega declared that the United States should not bully a small country like Sri Lanka, considering the difficulties it has had to face during a 30-year conflict. He asked whether it was moral for the US to look at other countries when its own situation is yet to be cleared, for example even in Viet Nam.

Now a member of the US House of Representatives has reacted.�Eliot Engel (D-NY), the top legislator on the House Foreign Affairs Committee, wrote to Secretary of State John Kerry on Tuesday expressing “serious concern” over what he calls “the deterioration of democracy and the lack of progress on reconciliation and accountability in Sri Lanka.” Here are highlights of his letter:

“I am writing to express my concern about the continued erosion of democracy in Sri Lanka and to urge you to call for an independent international investigation into allegations of war crimes by both the Government of Sri Lanka and the terrorist group, the Liberation Tigers of Tamil Eelam (LTTE), during their final battles.

Instead, it has used the space to consolidate its power, and to remove some of the checks and balances that are the hallmarks of true democracy. Four years later, rule of law is endangered, media freedom and freedom of speech are under attack, and reconciliation seems even more distant than it did during the long years of conflict.

“While certainly the government should be applauded for some of its efforts at rehabilitation and reconstruction in the northern parts of the country, it has made little real progress in addressing the conflict’s underlying issues, or in answering questions of accountability that must be addressed in order to achieve lasting reconciliation and peace in the country.

“In fact, the Government’s post-war actions in this direction have all been significantly influenced by the international community. One such example: in May 2010, the government established a Lessons Learnt and Reconciliation Commission (LLRC), partly in response to international pressure over the deaths of an estimated 40,000 civilians at the war’s conclusion. The Sri Lankan Government presented the LLRC as evidence of its commitment to accountability, and argued that the LLRC review precluded the need for other processes on an international level. However, the LLRC had a limited mandate: it examined only the period 2002-2009 and had unclear investigative powers. Critics said it was neither transparent nor impartial.

“Nonetheless, even the flawed process of the LLRC review acknowledged important events and grievances that have contributed to decades of political violence and civil war in Sri Lanka. The final LLRC report makes constructive recommendations on a wide range of issues, including the need to credibly investigate widespread allegations of extrajudicial killings and enforced disappearances; demilitarization of the north and the country as a whole; the importance of a political settlement for minorities, with meaningful devolution of power; the protection of the right to freedom of expression for all, including the enactment of a right to information law; and the enactment of rule of law reforms. The report also acknowledged the disproportionate impact of the conflict and its aftermath on women and children.

“I commend the leading role the State Department played last March with the passage of the UN Human Rights Council Resolution calling for the Government of Sri Lanka to implement the LLRC’s recommendations. Unfortunately, almost a year has gone by since that resolution passed and the Government has failed to take it up. Its National Action Plan addresses less than a third of the LLRC recommendations, a fact conveniently left out of government responses to international criticism.

“The lack of accountability in this instance sets a dangerous pattern, in fact, for the country as a whole. The deterioration of democracy in Sri Lanka includes a 2010 amendment to Sri Lanka’s constitution, hurriedly passed by its Parliament, that removed the two-term limit for the President, provided him legal immunity, and gave him the final say in appointments to the civil service, the judiciary, and the police. Urban Development now comes under the Defence Ministry. And earlier this year, Parliament impeached Chief Justice Shirani Bandaranayake, even though the Supreme Court had deemed that move unconstitutional.

“As Assistant Secretary of State for South and Central Asia Robert O. Blake has said, “International mechanisms can become appropriate in cases where states are either unable or unwilling to meet their obligations.” The State Department’s April 2012 report to Congress on Sri Lanka acknowledged that no one has been held to account since the publication of the LLRC. In February, the UN High Commissioner for Human Rights issued a strong report questioning the government’s commitment to follow through on the recommendations of the LLRC and urged Sri Lankan authorities to permit international experts to probe allegations of serious human rights violations. I agree with the Commissioner. It is time the U.S. join the call for an independent international investigation�..”

Other than the addition of a second international airport, most Sri Lankans will remain focused in the coming week on what transpires at the Human Rights Council in Geneva. If the second US resolution is a fait accompli, what would follow in the months thereafter would be of great interest to most.