Columns

The United Nations Human Rights Commissioner’s annual report on the situation of human rights in Sri Lanka, prepared for the forthcoming 54th session of the Human Rights Council (11th September – 6th October 2023) has an interesting titbit tucked away in its pages.

Sri Lanka’s ‘commitment’ to justice

This is contained in the report’s most significant portions dealing with ‘activities pursuant to Human Rights Council Resolution 46/1.’ For those of us with short memories, it must be reminded that Resolution 46/1 relates to ‘Promoting reconciliation, accountability and human rights in Sri Lanka” (March 2021) which was advanced further by Resolution 51/1 (in October 2022).

Unsurprisingly Sri Lanka has ‘consistently and categorically’ rejected both Resolutions, particularly operative paragraph 6 of the 2021 Resolution and operative paragraph 8 of the 2022 Resolution. The State’s position has been that these amount to an ‘intrusive’ intervention into sovereignty by authorising an ‘external evidence gathering mechanism’ into gross human rights violations.

Strident protests by the country’s Minister of Foreign Affairs in Geneva last year were on the basis that such a step ‘prejudged the commitment’ of the country’s domestic legal processes. At the time, that Ministerial interjection raised the eminently logical question as to where, what and how was this ‘commitment’ manifested.

The pain of victims

This was so given that no final judicial outcome had been evidenced for emblematic cases of targeted killings of civilians, painfully dragging their way through court. Foremost among these were the 2006 killings of seventeen local Tamil/Muslim humanitarian workers in Mutur. Writing in the Sunday Times of  March 11th 2007 (see Focus on Rights, ‘Where is the law in Sri Lanka today’), I pointed to some glaring problems with our domestic ‘commitment’ thereto.

Police investigations into the atrocity which blackened Sri Lanka’s name internationally were lackadaisical at best. A call was made for an effective and independent body that is functionally separate from the police to conduct investigations into such ‘particular crimes.’ An independent office of a Special Prosecutor structurally insulated from political interference, was equally imperative.

A state law office at the beck and call of the political command or expecting the police who are even more politicised to conduct effective inquiries is farcical. Even when the state law office attempts to free itself from political tentacles, it becomes more entangled. Witness outgoing Attorney General Dappula de Livera’s frustration in 2019 as he confessed his inability to file indictments relating to the 2019 Easter Sunday jihadist attacks on churches and hotels.

The Easter Sunday attacks

He made it a point to publicly state that this was due to the police not properly completing their investigations. For that statement as well as for pointing to a ‘grand conspiracy’ in regard to the attacks, the former Attorney General was sought to be hauled up before the Terrorist Investigation Department in obedient salams to political directives.

The current Attorney General had to then assure the Court of Appeal earlier this year that his predecessor in office would not be arrested. In that sense, revelations made by the British Channel Four network regarding that same ‘grand conspiracy’ a few days ago are nothing very new. They collate allegations made against key pro-Rajapaksa intelligence operatives from several years back, some in Parliament, some in public spaces.

Similar allegations had been made by the head of Sri Lanka’s Roman Catholic Church Cardinal Malcolm Ranjith. The Cardinal’s claim last week was that close to fifteen thousand state officers, including police and intelligence chiefs knew of the attacks in advance but did not take pre-emptive action. Hysterical denials by the State that are not taken seriously by Sri Lanka’s own citizenry achieve nothing.

Common patterns of state impunity

Certainly the State’s answer to the most recent Channel Four allegations must not be to seek refuge in yet more parliamentary or other committees as President Ranil Wickremesinghe has reportedly promised. As in the case of the Easter Sunday attacks or in relation to the Mutur killings, similar patterns of impunity prevail even though decades separate the two incidents.

Where the Mutur atrocities are concerned, the then Attorney General directed the police to ‘expedite’ investigations into the case in 2019 along with the similarly unresolved assassination of Sunday Leader editor Lasantha Wickremetunge due to ‘continuing public distress.’ Since then, we have not heard ‘a dicky bird’ as common slang goes, in relation to the ‘progress’ of the cases.’

In other instances, impunity has been afforded to perpetrators at the highest levels of the political establishment, regardless of whatever Government or Presidency was in power. One illustrative example is the ghastly gunning down of five Tamil students celebrating the completion of their examinations at the Trincomalee beach also in 2006.

Vainly optimistic calls for the law to work

The Udalagama Commission of Inquiry (2007) conservatively remarked that, ‘strong grounds’ existed to ‘surmise the involvement of uniformed personnel in the commission of the crime.’ This was also a case where the Lessons Learnt and Reconciliation Commission (2011) strongly recommended that investigations should be backed by the full strength of the State so as to bring the perpetrators to justice.

That was a vainly optimistic call. Eight years later, thirteen Special Task Force (STF) accused in the ‘Trinco 5’ case were all acquitted in the Magistrate’s Court due to ‘lack of evidence.’ These are just a few of a string of unresolved human rights violations during Sri Lanka’s turbulent and grisly history of extrajudicial killings of minority targets, dissenters and journalists attributed to a ‘deep security State.’

Unsurprisingly, Sri Lanka’s pleas that investigations take time and that the State cannot interfere into the ‘legal’ handling of these contested cases were to little avail. The Resolutions authorised a two-fold task for the Office of the High Commissioner. First, to ‘collect, consolidate, analyse and preserve information and evidence…’

The High Commissioner’s 2023 report to the UN

That was intertwined with developing ‘possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law.’ Secondly, it was called upon to advocate for victims and survivors and ‘to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction.’

Both tasks were premised on the overall objective of ‘preserving and analysing evidence…with a view to advancing accountability.’ This week, the status update of the High Commissioner’s Office to the Council outlines its development of a repository of information and evidence with regard to perpetrators. Four priority areas are identified based on an analysis of patterns of violence and crimes.

These areas are, unlawful killings, sexual and gender based violence, torture in detention settings, enforced disappearances and violations against children, including the recruitment and use of children in hostilities. A specific focus is maintained on ‘material linking violations to particular individuals whether those ‘directly involved or bearing command responsibility.’

The mills of international justice

It is in that background that the Sri Lankan Government is best advised to take note of a ‘steady increase’ in the number of requests to the Office by investigative, prosecutorial or judicial authorities of member states of the UN in regard to ‘information and evidence’ as the report details. It is noted that specific requests have been received in regard to ten ‘named individuals.’

This is important by and of itself. In the end, Ministerial bleating about Sri Lanka’s ‘commitment’ to end impunity in Geneva will not do. The mills of international justice have begun to grind.

For that we have only ourselves in large part to blame.