Spotlight on Sri Lanka as UN Human Rights Council Prepares Next Session

(Editor’s Note: This is the first article of a series on the spotlight to be placed on allegations of war crimes and other abuses in Sri Lanka during the next session of the United Nations Human Rights Council, Feb. 22 to March 23. The series includes the voices of former U.N. officials, international NGOs, human rights litigators, and researchers. Find links to the full series, as installments are published, at the bottom of this article.)

The U.N. Human Rights Council (HRC) is gearing up to launch its 46th session virtually on Feb. 22. Although President Donald Trump relinquished the U.S. seat on the council, the upcoming assembly offers the new Biden administration a multilateral forum to immediately demonstrate its revived commitment to international human rights and to start laying the groundwork to once again stand for election. In the meantime, the United States should convene an inter-disciplinary, inter-agency delegation to fly the proverbial flag at this meeting.

The opening session, debates, and interactive dialogues with the council members and the various mandate holders offer timely opportunities to articulate the Biden-Harris vision for how the promotion and protection of human rights will be situated within the administration’s foreign policy agenda and to fully repudiate its predecessor’s approach of undermining universal human rights within multilateral fora and at home. (In a welcome move, former Secretary of State Mike Pompeo’s widely scorned Commission on Unalienable Rights has been disbanded and the web pages associated with it have been archived – see analysis of that commission’s work at Just Security here, here and here.).

Indeed, given that the HRC session will be convened virtually, President Joe Biden himself could address the council during the high-level session to signal his resolute support for the council’s mission. Whoever attends on its behalf, the United States – having teetered toward autocracy for the last four years, culminating in an attempt at insurrection – should approach these issues with the humility it has pledged and with an acknowledgement of having been through an experience shared by too many other states.

Long-Awaited Report on Sri Lanka

A number of country situations and topical matters will be taken up over the course of the session, as set forth in the council’s anticipated program of work. Impunity in Sri Lanka will appear prominently, with the long-awaited report by High Commissioner for Human Rights Michelle Bachelet, the former president of Chile, being presented in an interactive dialogue on the second day of the session.

The report was mandated by Resolution 40/1 (2019), which directed the high commissioner to assess progress – or actually the lack thereof – on the implementation of the HRC’s recommendations related to reconciliation, accountability, and human rights. A draft of the report was recently leaked to the press; it does not mince words in describing the retrograde trends over the past year when it comes to transitional justice in Sri Lanka. The paper has been shared with the government of Sri Lanka, which has a right of reply.

In light of the report and other troubling developments, the HRC probably will produce a new resolution on Sri Lanka. In prior HRC sessions, Sri Lanka co-sponsored important resolutions and pledged to implement a range of transitional justice mechanisms identified within them. It also accepted a number of such recommendations as part of its Universal Periodic Review process, also convened by the HRC.

Sacrifices at the Alter of Consensus?

However, in 2019, Sri Lanka withdrew support for the key resolutions amidst a deteriorating human rights situation on the island. As such, it was at first anticipated that any resolution to come out of the council this year would be contested (and thus subject to a vote). But new reporting suggests that the U.K.-led Sri Lanka Core Group is working to negotiate a consensus resolution. It remains to be seen what might be sacrificed at the alter of consensus.

In this regard, one proposal being pushed by civil society actors involves launching a more robust investigative mechanism along the lines of the International, Impartial, and Independent Mechanism for Syria (IIIM), created by the U.N. General Assembly, and the Independent International Mechanism for Myanmar (IIMM) created by the HRC. Berkeley Law human rights clinical students have just completed a report that tracks votes on prior investigative mechanisms with an eye toward identifying states that might support a parallel effort for Sri Lanka.

The U.N. engagement in Sri Lanka has been decidedly mixed over the years. But the HRC started taking a strong stance in 2012, in part due to interventions by the U.S. mission in Geneva – then led by Ambassador Eileen Donahoe – and a core group of supportive states. The timeline that follows sets forth some key events and instruments in preparation for Sri Lanka re-appearing on the agenda of the council in February. The U.N. is now deeply invested in Sri Lanka, so it is no time to back down.

May 19, 2009 – The Sri Lankan civil war finally ends after almost three decades of violence. The government militarily defeated the Liberation Tigers of Tamil Eelam (LTTE) in a final offensive that resulted in tens of thousands of civilian casualties and the summary execution of scores of captured LTTE combatants (footage appeared in a Channel 4 documentary).

May 23, 2009 – The Government of Sri Lanka and the U.N. Secretary-General issue a joint communiqué in which the government made a number of pledges toward “relief, rehabilitation, resettlement and reconciliation.”

May 2010 – Sri Lanka’s then-President Mahinda Rajapaksa sets up a competing truth commission of sorts, the Lessons Learnt and Reconciliation Commission (LLRC), to report on the facts and circumstances that led to the failure of the 2002 ceasefire agreement and “the sequence of events that followed thereafter up to 19th May 2009.” The LLRC holds hearings in 2010 and 2011.

June 2010 – Then-U.N. Secretary-General Ban Ki-Moon forms a Panel of Experts with a mandate to advise him on accountability options for the human rights violations committed “during the final stages” of the civil war in Sri Lanka. The panel is composed of Marzuki Darusman (former Prosecutor General of Indonesia), Yasmin Sooka (a South African human rights lawyer), and Steven Ratner (a U.S. law professor).

April 2011 – The Panel of Experts presents its final report, which concludes that the government and the LTTE committed war crimes and crimes against humanity and that both sides conducted military operations “with flagrant disregard for the protection, rights, welfare, and lives of civilians and failed to respect the norms of international law.” The government rejects these conclusions, calling the report biased and flawed. The report also offers criticism of the U.N., indicating that agencies failed in their mandate to protect civilians, under-reported governmental violations, and suppressed reporting efforts by people in the field.

September 13, 2011 – The Government of Sri Lanka does not respond to the report. The Secretary-General forwards the report to the President of the Human Rights Council and the Office of the High Commissioner for Human Rights.

November 2011The LLRC’s report is released. While it contains some important concessions and almost 300 recommendations, it is roundly criticized for overlooking abuses by the government, exonerating its military strategy, and deliberately mis-applying international law.

March 2012 – The HRC issues Resolution 19/2 on promoting reconciliation and accountability. It took note of the constructive recommendations within the LLRC (while acknowledging its shortcomings) and urges the government to present a comprehensive action plan. Notably, India – which enjoys a lot of influence in Sri Lanka – joins this resolution along with 23 other states.

April 2012 – The U.N. Secretary-General convenes an Internal Review Panel to investigate U.N. actions during the Sri Lankan civil war, particularly regarding the faulty implementation of its humanitarian and protection mandates.

November 2012 – The U.N. Internal Review Panel releases the so-called Petrie report, named after its chair, Charles Petrie. With uncharacteristic bluntness, it criticizes the U.N. for not doing more to protect civilians and for concealing the full scope of the risk and harm to the civilian population. The report galvanizes the international community and inspires the U.N. Human Rights Up Front initiative, which aims to ensure that the U.N. takes early and effective action to prevent and respond to serious violations of human rights and international law.

August 2013 – U.N. High Commissioner for Human Rights Navi Pillay visits Sri Lanka to discuss these issues. In her post-trip remarks, she notes that the

level of human rights violations in the country remains critically high. The Sri Lankan government still shows no real will to account for past crimes, combined with new attacks on those calling for accountability.

March 2013 – The HRC issues Resolution 22/1, reiterating its support for transitional justice efforts, expressing support for the national plan of action the government had produced on implementing the LLRC’s recommendations, and welcoming a technical report from the High Commissioner on establishing a truth-seeking mechanism (A/HRC/22/38). This resolution enjoys the support of 25 states, including India again.

March 2014 – With Resolution 25/1, the HRC authorizes a comprehensive investigation into crimes committed in Sri Lanka between February 2002 (the signing of the ceasefire agreement) and 2011 (the presentation of the LLRC report). In so doing, the council laments the lack of progress on earlier recommendations and expresses continued concerns about sectarian violence, attacks on journalists, and retaliation against individuals who engage with U.N. human rights mechanisms.

July 2014 – The HRC launches the OHCHR Investigation in Sri Lanka (OISL) under the leadership of Martti Ahtisaari, former president of Finland; Dame Silvia Cartwright, former High Court Judge of New Zealand; and Asma Jahangir, former president of the Human Rights Commission of Pakistan.

2014 – Starting in 2014, and as discussed on these pages, the government of Sri Lanka begins to retain a number of noted international lawyers to provide it with legal memoranda, later leaked to the press (see, e.g., here, here, and here). The documents appear to justify the military’s attacks on civilians trapped in LTTE-controlled areas on the theory that the civilians were, in essence, human shields not entitled to the protections of the principles of distinction or proportionality.

January 9, 2015 – Amidst concerns about increasing authoritarianism, Mahinda Rajapaksa is defeated in national elections. Maithripala Sirisena (who had defected from Rajapaksa’s party to run) is installed as the new president, which changed Sri Lanka’s stance toward the United Nations. Sirisena vows to root out corruption and bring about constitutional reforms. His election also raises hopes about the possibility of accountability.

January 13, 2015 – Pope Francis visits Sri Lanka and draws huge inter-faith crowds with a message of justice, unity, and reconciliation.

September 2015 – OSIL releases an extensive report, which systematically documents extrajudicial killings, enforced disappearances, gender-based violence, and forced recruitment (including of children) into armed conflict during the relevant period, as well as the main obstacles to accountability. The government’s response is non-committal. Then-High Commissioner Prince Zeid Ra’ad Zeid Al Hussein urges the creation of a hybrid court given “the repeated failure of successive domestic initiatives” (see my coverage of options for hybridity here).

October 2015 – The HRC, with the United States as president of the council, releases Resolution 30/1, which Sri Lanka joins. The resolution calls for a domestic accountability mechanism with some international involvement, including potentially international judges, as well as a range of other transitional justice approaches. It also praises Sri Lanka for its willingness and commitment to embark upon a genuine transitional justice program – including some initial steps taken on witness protection, demilitarization of the north, and the return of land – and stresses that accountability is essential to uphold the rule of law.

March 2017 – The HRC passes Resolution 34/1 by consensus, which requests the high commissioner to continue to assess progress on the implementation of its recommendations and to provide a further update. This follows on the heels of a further visit to Sri Lanka by the high commissioner and the U.N. secretary-general, as well as a number of U.N. special procedures mandate holders.

April 7, 2019 – Ahimsa Wickrematunge, the daughter of assassinated journalist Lasantha Wickrematunge, files suit against Gotabaya Rajapaksa in a U.S. court after the defendant is served in a Trader Joe’s parking lot. The complaint alleges “Gota” was involved in the extrajudicial killing of her father and the systematic targeting of other journalists considered to be overly critical of the Rajapaksa government. The suit is later vacated without prejudice when Gota is elected president.

April 21, 2019 – On Easter Sunday, suicide bombers kill over 250 people and injured more than 500 in coordinated attacks on hotels and churches around the country. An Islamist group with some apparent links to ISIL is blamed.

May 2019 – The U.N. special advisers on prevention of genocide (Adama Dieng) and the responsibility to protect (Karen Smith) issue a joint statement expressing alarm at growing acts of violence on the basis of religion and particularly attacks against Muslim and Christian communities.  They conclude:

Sri Lanka has a pluralistic society. To be a Sri Lankan is to be a Buddhist, to be Hindu, to be a Muslim, to be a Christian. All these communities are entitled to their identity, to freely exercise their religion and to live in peace and security in Sri Lanka, as recognized by the country’s Constitution. We call on all Sri Lankans to respect one another.

Sri Lanka, through its permanent representative in New York, rejects the statement as an “oversimplified narrative.”

November 17, 2019 – Gotabaya Rajapaksa (the brother of the former president) is elected president. Gota led the Sri Lanka armed forces during the end of the civil war while his brother was President and campaigned on a national security platform following the Easter Sunday bombings.

February 2020 – The government of Sri Lanka informs the HRC that it is withdrawing co-sponsorship of Resolutions 30/1, 34/1, and 40/1, expressing its intention to pursue instead an “inclusive, domestically designed and executed reconciliation and accountability process.”

January 2021 – High Commissioner Michelle Bachelet releases her report on Sri Lanka, which is highly critical of the continued impunity, backsliding on human rights and transitional justice, increased militarization, the intimidation of civil society, and the re-emergence of ethno-nationalist rhetoric. The high commissioner also calls for the International Criminal Court to investigate the commission of international crimes during the civil war and the entrenched impunity, noting:

Domestic initiatives for accountability and reconciliation have repeatedly failed to produce results, more deeply entrenching impunity, and exacerbating victims’ distrust in the system.

Fiji is elected president of the HRC, beating out candidates from the region (Bahrain and Uzbekistan that were reportedly backed by China). Normally, this is a consensus process, but the regional members could not agree on a candidate, so a vote was required.

Next articles in the series, as they are published:

Sri Lanka’s UN Efforts to Stave Off Justice for War Crimes by Brad Adams

US Re-Engagement in UN Human Rights Council Brings Influence, Leverage, Amb. Donahoe Says by Beth Van Schaack

The Human Rights Council Must Establish an Accountability Mechanism for Sri Lanka’s Victims by Laurel Fletcher, Ashleigh Lussenden, Blaire Lee-Nakayama and Helena von Nagy

A Catalogue of Suffering Behind the Calls for Action on Sri Lanka’s War Crimes by Daniela Gavshon

Former UN High Commissioner Pillay Says It’s Time for the Human Rights Council to Act on Sri Lanka by Laurel E. Fletcher

Escalating Attacks on Journalists in Sri Lanka Demand New Tack from Human Rights Council by Elise Baker and Nushin Sarkarati

US Can Restore Leadership on Human Rights by Promoting Accountability in Sri Lanka by Ambassador Stephen J. Rapp and Duncan Pickard

Tamils – and Justice – Can’t Wait: The Need for Decisive UN Action on Sri Lanka by Tasha Manoranjan

Emblematic Cases Expose the Long Road to Justice in Sri Lanka by Bhavani Fonseka

Universal Jurisdiction — the Most Difficult Path to Achieve Justice for Sri Lanka by Andreas Schüller

Sri Lanka’s Evasion of Accountability Tests the Limits of the International Human Rights System by Kumaravadivel Guruparan

Heeding Victims’ Voices: The Struggle of Tamil Families of the Disappeared in Sri Lanka by Dharsha Jegatheeswaran

Highlighting Sri Lanka’s Abuses to the UN in Reviews and Strategic Litigation by Rupert Skilbeck

UN Should Suspend Sri Lanka from Peacekeeping Over Human Rights Abuses by Yasmin Sooka

When War Criminals Run the Government: Not Too Late for the International Community to Vet Sri Lankan Officials by Sondra Anton and Tyler Giannini

UN Human Rights Council Outlines Sri Lanka Abuses, But Demurs on Action by Kate Cronin-Furman

IMAGE: Relatives and friends hold photos of their missing loved ones at Galle Face promenade in the Sri Lankan capital Colombo on August 28, 2018. -Amnesty International organized the demonstration to draw attention to the plight to tens of thousands of families still looking for their loved ones missing in South Asian nations, including Sri Lanka, where over 60,000 people are still listed as missing after decades of internal conflict. (Photo: LAKRUWAN WANNIARACHCHI/AFP via Getty Images)

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Member of the editorial board of Just Security. Follow her on Twitter (@BethVanSchaack).