On March 21 the United Nations Human Rights Council (UNHRC) adopted a resolution requesting the UN Human Rights Commissioner to undertake “a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka”.
The “both parties” to which the resolution refers are the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (the so-called Tamil Tigers) who fought a bloody war that finally ended in May 2009 after 26 years.
However, the Sri Lankan government has firmly stated that it does not accept the UNHRC resolution and it will not co-operate with any investigation launched by the Commissioner.
Whether or not the Sri Lankan government accepts and co-operates with the UN-mandated investigation, it will take place. Therefore, by not co-operating, the Sri Lankan government’s side of the story will not be told to the investigators. But, the government seems to be more concerned about what the investigation might reveal about its own actions than with meeting its commitments to binding UN Human Rights Conventions.
In an intervention at the UNHRC council debate, the Sri Lankan representative expressed concern that since the resolution failed to specify a time period, the investigation might be confined to the period between 2002 and 2009 “thus completely excluding the atrocities and violations of human rights and humanitarian law committed by the Liberation Tigers of Tamil Eelam prior to 2002”
In the meantime, myriad Sri Lankan-Tamil organisations and many Tamils, who claim to have been victims of Sri-Lankan military atrocities, will give testimony to the international investigation that will take place outside of Sri Lanka since the government will not co-operate with it.
The Tamils’ testimony will be bolstered by photographs and videos of Tamils who were killed in the final months of the conflict allegedly by government troops. At least 40,000 Tamil civilians are reported to have been killed by Sri Lankan military shelling of areas into which Tamils had been deliberately herded.
Several human rights organisations, including Amnesty International, Human Rights Watch and the Commonwealth Human Rights Initiative, as well as Channel 4 News in Britain, have amassed material that identifies the Sri Lankan military as the perpetrators of the atrocities and senior representatives of the government as the authority behind them.
However, the UNHRC resolution does not call for an investigation of the Sri Lanka government alone; it was careful to say that it wanted an investigation into human rights abuses and related crimes by “both parties”. The Tamil Tigers themselves are reported to have been brutal during the war, including to Tamil civilians.
The predicament for the Commonwealth is that the President of Sri Lanka, Mahinda Rajapaksa, is the current Chairman-in-Office of the association, yet his government is refusing to accept and co-operate with a UN-mandated investigation.
Such a refusal is not consistent with the ‘values-based’ organisation that the Commonwealth claims it is in numerous declarations that proclaim its commitment to principles, including ‘the rule of international law’.
The organisation has already been heavily criticised for failing to deal with he Sri Lankan government’s unconstitutional impeachment of the Chief Justice and to investigate alleged attacks on journalists, human rights defenders, members of religious minority groups and other members of civil society, as well as on temples, mosques and churches.
The decision to allow Sri Lanka to host the 2013 Commonwealth Heads of Government Meeting amid all this controversy attracted widespread disapproval and led to Stephen Harper, the Prime Minister of Canada, declining to attend the meeting. Indeed, only 26 of the 53 Heads of Government turned up in Sri Lanka.
If the Commonwealth does not take some form of action about this development with the Sri Lankan government, it will be further criticised as hypocritical and meaningless.
But, is any action now likely from the Commonwealth even in face of the Sri Lankan government’s rejection of a UN-mandated investigation? Most probably not. Nine Commonwealth countries are members of the UNHRC. Of the nine, 3 voted in favour of the resolution (Sierra Leone, United Kingdom and Botswana); 3 voted against (Kenya, Maldives and Pakistan); and 3 abstained (India, Namibia and South Africa).
The members of the Commonwealth would therefore be divided on the matter, and since the Commonwealth would have to take a decision on this matter by consensus, the association would be stymied.
The body that could take-up the matter is the Commonwealth Ministerial Action Group (CMAG) – a group of nine rotating foreign ministers – which is a ‘custodian of the Commonwealth’s fundamental values and principles’. By its own rules any member of CMAG could raise the Sri Lanka issue at its meeting under ‘Other matters of interest’ or as a formal agenda item.
But, so far CMAG has shied away from dealing with the Sri Lanka matter on the basis that there has been ‘no serious or persistent violations’ of Commonwealth fundamental values – an assertion that has stunned civil society organisations and some Commonwealth governments.
In any event, one of the current members of CMAG is the Sri Lanka foreign minister, Professor G L Peiris, by virtue of his President being Chair-in-Office of the Commonwealth. Peiris will certainly not tolerate any discussion of the UN resolution that he has already strongly rejected. Other members of CMAG include Pakistan that voted against the resolution and India that abstained.
The only country on CMAG that voted for the resolution is Sierra Leone which might reasonably expect support from New Zealand and Cyprus which are also members. Thus, the dissension within CMAG would paralyse any action even if some of its members – which include Guyana and Solomon Islands – might be in favour of at least a discussion.
But at the very least CMAG should encourage the Sri Lankan government to cooperate with the UN process. Equally, it should urge the UNHRC to ensure that the investigation will look at abuses by both sides from the time the conflict began.
(Sir Ronald Sanders is a Consultant, Senior Fellow at London University and former Caribbean diplomat)