consensus is gradually being built in the country that the allegations of human rights violations committed by the combatants during the final stage of the war between the security forces and the Liberation Tigers of Tamil Eelam (LTTE), should be investigated, amidst meek protests by some leaders of the former regime.
The foundation for the emerging consensus was laid with the announcement by the new government of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe soon after it came to power in January that it would create a domestic mechanism for the investigation of the allegations.
Hence there were no considerable protests, demonstrations or fast-unto-death protests, when UN Human Rights High Commissioner Prince Zeid Ra’ad Al Hussein recommended in his report on the investigation on Sri Lanka last week to create a “special hybrid court” to investigate into the specific cases of violation of human rights during the final battle of the war.
Sri Lankan government has not accepted the UN Human Rights chief’s recommendation on the “Hybrid Court” and stands by its earlier stance, creating a domestic mechanism. Premier Wickremesinghe reiterated it this week as well in Parliament.
Despite his strong arguments on the validity of his recommendation on the “Hybrid Court” the Human Rights High Commissioner levels two new allegations against Sri Lankan authorities, which have never been made even by the LTTE during the war. They are the usage of starvation of civilian population and rape as a method of warfare.
There may be chances of rape after the war as the civilians had been interned in “welfare camps” run by the security forces, and there may also be individual cases of sexual violence during the war, when civilians were living within LTTE controlled areas leaving minimal or no chances of rape being used as deliberate means of torture at that time.
On the other hand, the international relief organisations such as the ICRC and UNHCR, which were functioning within the war theatre have never accused the government of using food as a weapon, in spite of occasional hindrance to the food supply into the LTTE controlled areas due to the intensity of the fighting.
The UN Human Rights Commissioner cites two reasons to justify his recommendation on the “Hybrid Court.”
One is Sri Lanka’s unreliable history of handling of human rights issues. The other one, as cited by Prince Hussein is the “inadequacy of Sri Lanka’s legal framework to deal with international crimes of this magnitude.”
"Since independence in 1948, Sri Lanka has established at least 10 such commissions, none of which has produced any significant results....Therefore it would be a difficult exercise to convince the international players that Sri Lanka could handle the human rights issue on its own. "
One cannot totally dismiss or deny what the Human Rights High Commissioner said about the history and it is not something said only by him. For instance, when former President Mahinda Rajapaksa appointed the Lessons Learnt and Reconciliation Commission (LLRC) in 2010 soon after the UN Secretary General Ban ki-moon appointed the Darusman Panel to advise him on Sri Lanka, the New York based Human Rights Watch (HRW) said in a statement “Every time the international community raises the issue of accountability, Sri Lanka establishes a commission that takes a long time to achieve nothing.”
Reminding the joint communiqué President Mahinda Rajapaksa had signed just days after the end of the war in May 2009 with Ban ki-moon promising that “the government will take measures to address allegations related to violations of international humanitarian and human-rights law” and the LLRC recommendations the HRW said “Sri Lanka has a long history of establishing ad-hoc commissions to deflect international criticism over its poor human rights record and widespread impunity.”
It added “since independence in 1948, Sri Lanka has established at least 10 such commissions, none of which has produced any significant results.”
Therefore it would be a difficult exercise to convince the international players that Sri Lanka could handle the human rights issue on its own.
Referring to the inadequacy of Sri Lanka’s legal framework to deal with international humanitarian and human rights laws Prince Hussein points out that Sri Lanka has not acceded to several key instruments, notably the Additional Protocol to 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. He also says “Sri Lanka does not have laws criminalizing enforced disappearances, war crimes, crimes against humanity or genocide.”
Despite the history that may be unsatisfactory in general there have been instances where Sri Lanka has had at least one mechanism to deal with human rights issues which had satisfied the international community.
That is the LLRC the report of which has been accepted by almost all international players and the three US sponsored resolutions on Sri Lanka adopted in the UNHRC wanted Sri Lanka to implement the recommendations of the Commission.
It goes without saying that Sri Lanka cannot handle the accountability issues without the necessary legal frameworks conforming to the relevant protocols and conventions the Office of the UN High Commissioner for Human Rights had referred to in its report.
However it is too early for the Human Rights High Commissioner to impose a “Hybrid” mechanism on Sri Lanka before any sign of a negative response by the new government is sighted.