Dr. Jehan Perera charts a path to curb international scrutiny of Sri Lanka

The latest UN Human Rights Council (UNHRC) resolution on Sri Lanka (40/1 of March 2019) was a rollover of 30/1 of 2015. This extension contains an appreciation for what Sri Lanka has achieved since it committed to implementing pledges in October 2015.

It recognises “the strong role played by democratic institutions in Sri Lanka in the peaceful resolution of the political situation that arose from October to December 2018,” and welcomes “the establishment of the Office on Missing Persons in September 2017 and the appointment of its commissioners in February 2018 – and the assumption of its work to fully implement its mandate.”

The resolution also notes steps taken “including progress made towards establishing an Office on Reparations and the submission to cabinet of a concept paper on a bill, to establish a Truth and Reconciliation Commission.” The UN High Commissioner’s report is the new element that has come into this UNHRC led process of reform, which makes three strong recommendations to the government in addition to Sri Lanka’s obligations contained in the cosponsored resolution.

It calls for establishing a fully fledged office of the UN High Commissioner for Human Rights in Sri Lanka to monitor and support implementation of the government’s commitments to resolution 40/1. And it calls for the setting up of a hybrid court to look into war crimes allegations, and the international community to apply the principle of universal jurisdiction to Sri Lankans accused of offences such as torture, enforced disappearances and war crimes.

But it is important to note that the high commissioner’s recommendations are not decisions of the international community but those that could become unnecessary if Sri Lanka takes sufficient corrective action.

The more important matter taken up by the UNHRC was the resolution on Sri Lanka. Those who have opposed and continue to oppose the government cosponsoring the UNHRC resolution must also consider what might have happened if the state hadn’t agreed to it. The pre-2015 regime took the position that Sri Lanka didn’t need to heed the international community on matters of its own internal affairs.

But the resulting outcomes were fraught with difficulty.

Due to the former government’s refusal to cooperate with the international community, Sri Lanka lost the EU’s Generalised System of Preferences Plus (GSP+) tariff concession – and thereby markets in garment and fisheries exports – at the cost of income and livelihoods.

There was a looming prospect of tougher sanctions including travel bans being imposed on Sri Lankan government and military personnel, and barriers in their path to participate in UN peacekeeping forces.

Given the controversy surrounding the Geneva process, Sri Lankans must be informed of the main issues that continue to be of concern to the international community and human rights organisations. The latest update of these is found in the report of the UN High Commissioner for Human Rights, which states that slow progress in establishing meaningful transitional justice measures has engendered mistrust among victims and other stakeholders.

This slow progress covers nearly all the main areas that Sri Lanka had committed to delivering – including finding missing persons, returning land, releasing detainees held without trial, replacing the Prevention of Terrorism Act, and bringing those accused of war related and other serious crimes to justice. The latter is the most politically contentious and gives rise to misgivings among the people.

Sri Lankans must unite to find a mechanism by which those who take decisions are widely acknowledged by all parties to be ethnically and politically unbiased. The applicable principle would be that those who have to live with the consequences of decisions should be the ones to make them.

The government has to act with integrity and perform its duty through strengthened national institutions, which are supported by the participation of global experts who may be judges, prosecutors and investigators acting as advisers rather than decision makers.

If Sri Lankan institutions act with integrity and carry out duties in a sustained manner, there won’t be a need for universal jurisdiction or hybrid courts to become operational – or indeed, for further global intervention to facilitate national reconciliation. Instead of an engagement based on legal polemics, it would be better for outstanding issues to be settled by all national parties and institutions that become part of the solution.