GR, BR, and MR: From heroes to the Zero Draft in Geneva

The Sunday papers in Colombo gave a heads-up on the new resolution (currently at the stage of the ‘Zero Draft’) on Sri Lanka reportedly being negotiated at the United Nations Human Rights Council in Geneva, revealing that “the Zero Draft resolution seeks to recommend action against political leaders and state officials responsible for economic crimes that have adversely impacted on human rights in Sri Lanka.”

The news reports indicate that “…The names of ex-President Gotabaya Rajapaksa and his brother, former Finance Minister, Basil Rajapaksa, have figured in these consultations…reference is to be made to then President Mahinda Rajapaksa…” 

Evidently, two of the Rajapaksa brothers, former President Gotabaya and former Finance Minister Basil have come up in discussions in relation to economic crimes, while the third, former President Mahinda, President during the last stages of Sri Lanka’s war against the Tigers, is to be mentioned “for not fulfilling ‘assurances’ given to Ban Ki-moon, then UN Secretary General, during his visit to Sri Lanka on May 26, 2009”. This covers between them, transgressions of pretty much most of the social, economic, civil and political rights guaranteed under the Universal Declaration. 

President Ranil Wickremesinghe needn’t feel left out because he will find that his own recent ‘see-if-I-care’ violations of the rights of protesters, more in-your-face than any since the war, hardly went unnoticed by the OHCHR fact-finding mission recently in Colombo, which included them in the Human Rights High Commissioner’s Report. Together, these personalities comprise the larger part of the top rank of the ruling elite in Sri Lanka over the last decades. No one should be surprised that Sri Lanka is in unprecedentedly deep crisis. 

Early elections

Twice elected president of Chile, UN Human Rights High Commissioner Michele Bachelet recently completed her tenure and has left office, but not before she did right by Sri Lanka and ensured that her report presented to the Human Rights Council on Sri Lanka was comprehensive and up-to-date. 

She concludes that the current administration “appear[s] to reflect a continuity with the past.” 

Actually, it has been getting progressively worse and her report acknowledges it: “Following the installation of the new administration, there has been a notable hardening of approach, with increasing public rhetoric characterising the protesters as violent extremists.” 

It is probably in this context that her report includes an unambiguous reference to and tacit endorsement of calls for an early election: “There remains a significant deficit in confidence and trust between the Government, protest movement and broader civil society and calls have continued for early elections for a renewed democratic mandate.”

In addition to introducing the new category of “economic crimes” perpetrated against the people, the Report of the outgoing High Commissioner itemises the recent spate of state violence against the protesters impacted by those economic crimes, in some detail: 

“On 31 March 2022, police dispersed protesters…injuring 50 people and arresting over 20; some were allegedly ill-treated including by men in civilian clothing reportedly belonging to presidential security. 

On 19 April 2022, police opened fire at a spontaneous protest in Rambukkana … One person was killed by live ammunition and 24 others were injured. An investigation by the HRCSL found that police had used excessive use of force. 

On 9 May 2022, widespread violence erupted after supporters of then Prime Minister Mahinda Rajapaksa attacked peaceful protestors in Colombo…and destroyed their makeshift tents. 

Instances of beatings and use of live ammunitions by police or military have been captured and circulated on social media. 

On 18 June 2022, the military confronted protestors at a fuel station in Mullaitivu … Two people were injured by the soldiers who allegedly also opened fire into the air.

On 3 July 2022, a video of an army officer assaulting a civilian in a fuel station in Kurunegala was widely circulated on social media. A similar incident involving a police officer assaulting a motorist and handling a handgun irresponsibly occurred on 17 June also in Kurunegala. On 13 July 2022, a protestor died after police fired tear gas. 

On 22 July 2022, security personnel, including police and military, stormed at a protest camp near the presidential offices in Colombo, injuring at least 48 people; nine others were arrested. The evacuation and medical treatment of injured protestors was obstructed.  Since then, a number of leaders and members of the protest movement and trade unions have been arrested, some in an irregular manner by plain-clothes personnel using unmarked vehicles.

Excessive force was most recently used in breaking up a peaceful student protest in Colombo on 18 August 2022 with 20 arrests.”

This clearly tells a less than savoury story about the new administration to the entire world, including to the people of Sri Lanka.

Economic crimes, international accountability

Referring to economic crimes, the Report says, “The High Commissioner hopes that the new administration will respond to the popular demand for accountability for economic crimes, including corruption, and abuse of power with a renewed commitment to end impunity.”

The Office of the High Commissioner for Human Rights (OHCHR) is also developing “possible strategies for future accountability processes at international level”. They have talked to victims and civil society organisations and national authorities. It has declared that it “supports judicial and non-judicial proceedings with competent jurisdictions through the sharing of relevant information …”

It has evidently got requests to provide evidence against 8 named individuals with a “number of alleged violations”.

It is interesting to note that a couple of foreign missions in Colombo felt they couldn’t leave anything to chance and decided to head over to Geneva themselves. It is reported that UK High Commissioner in Sri Lanka “was in Geneva this week helping to promote the resolution”. The Chief Political/Economic Officer of the US Embassy in Colombo is to join “a delegation from the US State Department’s Global Criminal Justice Division” apparently to assist with “the same task”. The Resolution on Sri Lanka is being taken very seriously indeed. 

It is reported that the focus of these teams in Geneva is “to help provide legal and other guidelines to countries that want to exercise universal jurisdiction permissible under their laws and try those against whom there is ‘credible’ evidence for a period of two years (September 2022 to September 2024)”.

The Sunday paper quotes diplomats in Geneva disclosing that “seven countries had agreed to enforce provisions of universal jurisdiction under their laws to deal with matters relating to Sri Lanka”. So that’s seven countries which could initiate proceedings in their own territories against human rights violators in Sri Lanka.

Sri Lankan Govt. responds 

The Government of Sri Lanka (GoSL) has responded to the High Commissioner’s Report in writing, insisting at length that this reply be given equal prominence to that of the Report. GoSL may regret this given some of its content. 

While rejecting the earlier resolution on war crimes investigations (46/1) and the new mechanism in Geneva called the Sri Lanka Accountability Project, the Government has denied all allegations of recent violations in the context of protests:

“The Government’s response to the current political and social challenges has been firmly within a democratic, constitutional framework, respecting the civil and political rights of the people, including their right to peaceful assembly and protest.” 

Seriously? There was no fog of war, and cameras were everywhere.  

There is more on the subject:

“Those arrested were produced in courts within 24 hours, and a majority were granted bail.”

“…the dispersal of the protestors illegally occupying the Presidential Secretariat and obstructing its entrance, was carried out in accordance with the Criminal Procedure Code.”  

“…law enforcement authorities have been instructed to follow due process in the conduct of investigations under the PTA and to use this legislation only in instances of extreme necessity.” 

“…when some protestors burned down the private residence of the President (the then Prime Minister) on 9th July 2022, no excessive force was used beyond the maintenance of public order and security.”

“…no excessive nor disproportionate force was used when protestors tried to forcibly enter the Parliament on 13th July 2022 when the Party Leaders were meeting.” 

Replying to the High Commissioner’s reference to the 2019 Easter Sunday attacks, the GoSL reminds the Council that despite the “extensive investigations”, since the perpetrators were suicide bombers, they have been unable to “identify their wider connections”.  

They also submit that the new President’s policy as outlined in Parliament is to “achieve a more just, fair, inclusive and sustainable society where all Sri Lankans can live longer, healthier and more dignified lives, including human rights and reconciliation.” 

In Geneva, the Government will need to show more than just good intentions, which are not patently contradicted by actual practice. 

The High Commissioner doesn’t mince her words in her suggestion to the GoSL: “The new Government should immediately reverse the drift towards militarization, end the reliance on draconian security laws and crackdowns on peaceful protest”.

High Commissioner’s recommendations

The most important segment of the High Commissioner’s report is the final section with its recommendations, addressed to the Council. The first one addresses the urgent need to ensure social protection for the most vulnerable groups at this time of economic crisis. 

Immediately afterwards, it deals with the related issue of “international finance assistance” (read IMF) and recommends that the Government should “assess any potential human rights impact of international financial assistance programmes and take preventive measures to reduce it to the bare minimum”.

In this context, it is just as well that the Governor of the Central Bank has declared that he has no objections to revealing the contents of the IMF agreement which had it been kept a closely guarded secret, couldn’t have been assessed for its human rights impact.

It’s now down to the President to prove that he meant what he said about a dignified, sustainable and long life, etc., for the citizens by sharing the relevant contents of the IMF agreement in Parliament. No one can be convinced that he should be the sole arbiter in the evaluation that the UN Human Rights High Commissioner recommends.

The President’s current legislation of choice in the arrests of protestors, the infamous PTA, also comes in for criticism. The High Commissioner recommends to the Council that Sri Lanka should “Observe a strict moratorium on the use of PTA and expedite the release of detainees and long-term prisoners under the PTA.” 

In a robust set of recommendations on “economic crimes”, the Report assures its support for Sri Lanka “in the investigation of economic crimes that impact on human rights and the tracing and recovery of stolen assets” which will be music to the ears of the people of Sri Lanka who have suffered corruption too long in silence. 

It includes monitoring of the “steps to address” economic crimes in the “enhanced monitoring and report regularly to the Council on the human rights situation in Sri Lanka” and also encourages “relevant thematic special procedures to examine and make recommendations on human rights dimensions of the economic crisis”. 

Thematic Special Procedures include the Independent Expert on the effects of foreign debt and other related international financial obligations, and the Working Group on the issue of human rights and transnational corporations and other business enterprises, among many others such as the expert on Right to Food (who may have much to say about the fertiliser ban), Freedom of Opinion and Expression, Freedom of Assembly, Arbitrary Arrests to name a few that come to mind.

Sri Lanka’s new Foreign Minister, in Geneva to present the administration’s case, will have little success if the written response of the GoSL forms the basis of his submission, in the face of the evidence gathered by the OHCHR in its monitoring function. 

The High Commissioner assures that her office is “ready to provide technical assistance” to implement the Report’s recommendations “through the strengthening of its country presence” in support of the people of Sri Lanka. 

It will be of great value if the Human Rights Commission of Sri Lanka could work closely with a strengthened UN country presence qualitatively enhancing the capacity of the Commission to carry out its work, including perhaps the development of a joint program of Human Rights training and monitoring, including for politicians at all levels of governance, bureaucrats and law enforcement authorities.