Decoding the UNHRC resolution

by Dr. Gamini Ilangakoon

The UNHRC report titled ‘Comprehensive report of the United Nations High Commissioner for Human Rights of Sri Lanka.’ It was furnished under Agenda item 2 at the 30th Session of the Council on September 28. The Report retains data, discovered by the comprehensive investigation, carried out by the OHCHR, into alleged violations and abuses of human rights and associated perpetrations of crime, during the conflict epoch of Sri Lanka.

The OHCHR proclaims that it takes into its positive consideration, the democratic reforms, aimed at the development of human rights affairs in Sri Lanka, since March 2014 and also the steps, taken by the present Government of Good Governance, under President Maithripala Sirisena, in respect of the predication of accountability and ethnic reconciliation.

Report contents include an introduction, engagement of the Office of the High Commissioner and the special procedures, human rights and related developments, principle findings of the investigation (including unlawful killings, violations relating to the deprivation of liberty, enforced disappearances, torture and other forms of cruel , inhuman or degrading treatment), steps towards accountability and conclusions and recommendations.

In an objective exegetical approach to an international instrument of the present calibre, particularly, when it is closely linked with a third world island Sri Lanka, perched at the southern-most edge-tip of India, the concept of perfection becomes a phenomenon of relativity, devoid of absoluteness.

Therefore, its comprehension, having one’s recourse to it, the domestic application of its recommended contents and finally its criticizing too, have to be done with caution and the intensity of circumspection. Thus, the perceptions of perfection in regard to the resolution must be not only general, but also particular.

Methodology

The present text does not intend to generate a general exegesis on all the contents of the UNHRC report.

It only pleases to touch those, which would show us the so-called investigated facts that weaken Sri Lanka’s position, so that the competent authorities may galvanize in to action, in order to strengthen, enhance and solidify the position of Sri Lanka, to courageously encounter the global challenge via a winning diplomacy.

Besides, the present analysis intends to interpret HRC sophisticated resolution texts, in simple English, for the general public to know the truth and to dispel the disillusions and deceptions.

The report commends a couple of attempts of commitments of the new government to empirically pursue the principle of accountability, notwithstanding the pragmatic presence of several opposing political parties, sections of the military and general public.

It also emphasizes the strong wish of the Sri Lanka Government to deal with the accountability issues, within the orbit of the legal framework of Sri Lanka. Simultaneously, it also did not forget some powerful contents, carried in the HRC resolution 25/1. To be more precise, the comprehensive approach to the problem, execution of transnational justice, incorporation of the full range of judicial and non-judicial measures, including individual prosecutions, reparations, truth-seeking, institutional reforms and vetting of public employees and officials.

The report seems to doubt the commitments, the GOSL made, while such commitments are commended by its Preambular Paragraphs (Pp) 74 and 75.

*It illustrates that whether the proposed mechanism must be domestic, international or hybrid of the two is a debatable question.

*Besides, it demonstrates its sincere concern about the credibility of Sri Lanka’s criminal justice system, fettered in its non-readiness and non-equipment to conduct an independent, impartial and credible investigation in to the allegations, reported by the UNHRC investigative team or to hold accountable those responsible for such violations, as required by the HRC in resolution 25/1.

*The Pp:76 of the report informs that judicial system of Sri Lanka lacks a dependable mechanism to protect victims and witnesses and of a context, wherein, risk of reprisals are very high, though, the Victim and Witness Protection Act was incorporated in to indigenous law, since, no concrete action have been taken to render the incorporated act operative.

*The report also, perturbs the UNHRC respecting the integrity of the individuals, to be appointed, to legally manage the affairs of the witness protection authority and about the needed financial and infra structural resources, to be allocated, for the authentic functioning of the newly framed institution.

Void in international law

The void of international law is directly and confidently guided to the nexus with the Sri Lanka’s domestic legal framework. The void is marked as a serious remark, partially disqualifying the indigenous judicial structure, in dealing with international crimes of the magnitude, as reported by the HRC investigative team. That is what the Pp: 77 of the UNHRC report notes.

In order to validate its statement, the report states the following:

*Sri Lanka has not acceded to several key instruments

*Notably the Additional Protocols to the Geneva Conventions, in particular Additional Protocol II,

*The International Convention on the Protection of All Persons from Enforced Disappearance and

*The Rome Statute of the International Criminal Court

*It does not have laws criminalizing enforced disappearances, war crimes, crimes against humanity or genocide.

The UNHRC report drags the concept of system crimes in to body of its discussion. The seeming judicial inefficiency, the report worries about is closely linked to the international law void. In Sri Lanka, the report stipulates, the conflict-related cases are determined by the regular criminal laws of the island. These local laws are not competent enough to address the globalized criminal issues of extreme gravity, regulated by norms and principles of international law.

*The Pp:78 of the report elaborates that it also constrains and undermines prosecution strategies, as it does not follow the chain of responsibility and does not prosecute those who planned, organized or gave the orders for what may be system crimes.

*The Pp: 79 states that effective prosecution strategies for large-scale crimes, such as those described by the investigation team, focus on their systemic nature and their planners and organizers.

Purpose-specific legislation

The UNHRC report strongly stresses the failure of the GOSL- appointed commissions with no lasting final results.

It encourages the principle of truth-seeking and the accountability to be augmented with a genuine, informed and participatory consultation to the inclusion of victims and their families. Thus, Pp: 81 of the report recommend the introduction of purpose-specific legislation to fructify the set of anticipated goals.

The presence of the decades of emergency law, the continuity of an ethnic conflict and the impunity of the perpetrators of various crimes are characterized as the foundation for the distortion of the security sector and the system of the administration of justice in the island.

Pp: 82 of the report points to the political interference, by the Executive of the country with the judiciary and its becoming a routine practice.

It urges a firm process of establishing the integrity and independence of the Attorney General’s Department and the Human Rights Commission, two key institutions, for them not to be compromised:

The UNHRC report proposes immediate implementation of significant reforms in the security sector and the justice system to address the following:

Impunity of security forces, police and intelligence

The Prevention of Terrorism Act and the Public Security Ordinance Act

Military presence in the war-affected areas

Occupation of extensive lands by the military in war-affected territories Maintaining a culture of surveillance and harassment of the local population

What is proposed are institutional and legal reforms with a guarantee of non-occurrence in future.

The report expresses its total disappointment with various governments, which promised to bring the perpetrators in to book, yet, turned up with their impunity, introducing the white van culture on the top of all that. Thus, Pp: 85 of the HRC report alludes to following reform measures:

*Reform in the security sector

*Reform in the system of justice

*A vetting process of security officers

*A vetting process of public officials

*Removal of perpetrators from the office after vetting

*Implementation of the above before accountability process and reconciliation