Sri Lanka, UNHRC Resolution and India

Dr. N Manoharan 

(Senior Fellow, VIF)

Sri Lanka is facing second successive resolution in as many years at the UN Human Rights Council (UNHRC) this month. Exactly last year at the 19th session of the UNHRC, a US-sponsored resolution was passed against the island state. Backed by 24 countries, including France, Norway and India, the resolution placed three requests for Sri Lanka:

1. To “implement the constructive recommendations made in the report of the Lessons Learnt and Reconciliation Commission” (LLRC) and to “initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans.”
2. To “present a comprehensive action plan as expeditiously as possible detailing the steps the Government has taken and will take to implement the LLRC recommendations and also to address alleged violations of international law.”
3. To “accept, advice and technical assistance from the Office of the United Nations High Commissioner for Human Rights and relevant special procedures mandate holders on implementing the above-mentioned steps, and requests the Office of the High Commissioner to present a report on the provision of such assistance to the Human Rights Council at its 22nd session”

One year down the line, how far these requests were taken forward by Sri Lanka? It would be prudent if the upcoming voting depends on the evaluation of the progress made and a clear plan of action for the future. There are two aspects to the debate: one is fixing accountability for excesses committed by the Sri Lankan forces during ‘Eelam War IV’; and the other is the way forward in the form of post-war reconciliation in the island.

On the question of accountability, the Army has appointed a Court of Inquiry as an initial fact-finding mission. The five-member body in its first part of report submitted on 15 February 2013 concluded that the Army “took all the precautions to avoid civilian casualties and all those who came under the control of the Sri Lanka Army, including surrendered/captured LTTE cadres, were treated humanely observing the IHL [international humanitarian law] to the letter.” On the other hand, it blamed the LTTE for “using of civilians as Human Shields, summary executions of civilians who attempted to escape to army lines, forced conscription of children for combat purposes etc.” and the international community for failing “in their duty to stop the war crimes committed by the LTTE terrorists.” While there is no doubt about the LTTE’s involvement, the Army’s total denial of the killings is perplexing. According to the Report of the Secretary-General’s Internal Review Panel on United Nations Action in Sri Lanka submitted in November 2012, “most casualties were caused by Government fire and included attacks on UN premises and hospitals.”¹ Even if the UN’s report is discounted as an exaggeration and consider that both sides were equally responsible for the killings then the Army would still be responsible for at least 20,000 of estimated 40,000 killings. Fresh video evidences on the killing of 12-year-old son of the LTTE’s leader Prabhakaran has made the task of the Sri Lankan delegation at the UNHRC bit more difficult. The call, therefore, has been for an independent international enquiry.

On the implementation of LLRC recommendations, some headway has been made but results on the ground are not encouraging. Colombo presented the National Action Plan in July 2012 listing out implementation of recommendations according to Activity, Key Responsible Agency, Key Performance Indicator and Timeframe. A Task Force (headed by the Secretary to the President) was appointed to oversee the implementation of the Action Plan. But there were too many implementing agencies identified without clear-cut budget breakups.² Surprisingly, Provincial Councils and other local bodies, which are closer to the people and which are in a better position to implement the recommendations, are totally left out.

Though the United States acknowledged “some progress” in the LLRC implementation, some of the undemocratic acts like impeachment of Sri Lankan Supreme Court’s Chief Justice and the passage of Divinugema Act (that encroached on Provincial Councils on development) turned the tables against the island state. Therefore, Washington that is once again sponsoring the resolution has indicated that the new “resolution will ask the Government of Sri Lanka to follow through on its own commitments to its people, including implementing the constructive recommendations from the report by Sri Lanka's Lessons Learnt and Reconciliation Commission.”

India is once again in a dilemma. On the one hand, it does not wish to support an “intrusive” resolution against Sri Lanka. At the same time, New Delhi wants Colombo to take reconciliation and devolution seriously. Pressures from Tamil Nadu in this regard are difficult to ignore. Tempers are higher this time with even ruling members of Parliament from Tamil Nadu joining the others. India’s stand is keenly watched by fence-sitters at the UNHRC before taking a decision on the voting. With countries like China and Russia not being part of the Council this year, India’s influence as member of the UNHRC is going to be important. Last year, India, though voted for the resolution yet it played a significant role in toning down the original draft making it more “non-intrusive and non-judgemental”. This year, India has so far not divulged its stand on the resolution. However, New Delhi has advised Colombo to engage directly with Washington “on the draft resolution and aim for a mutually acceptable outcome.” A consensual resolution acceptable to all would be easier when it comes to implementation. Outside pressure has its own limitation and an expiry date. On its part, Sri Lanka should realise that military defeat of the LTTE was not the end of all. Only a political settlement that addresses grievances of minority communities is the gateway to lasting peace in the island.

End notes

1. Full text of the Report is available at http://www.un.org/News/dh/infocus/Sri_Lanka/The_Internal_Review_Panel_re..., accessed on 28 February 2013.
2. The action plan lists the Ministry of Defence, Attorney-General’s Department, Department of Census and Statistics, Police Department, Legal Aid Commission, Ministry of Justice, Information and Communications Technology Authority, Ministry of Public Administration and Home Affairs, Ministry of External Affairs, Ministry of Education, Commissioner General of Rehabilitation, Ministry of Lands, Ministry of Resettlement, the Presidential Task Force for the North and East, Ministry of Mass Media and Communication, the Press Council, Ministry of Religious Affairs, the Department of National Planning, Ministry of Rehabilitation and Prison Reforms, Ministry of Health, Ministry of Child Development and Women’s Affairs, Ministry of Plantation Industries, Ministry of National Languages and Social Integration, University Grants Commission, Ministry of Higher Education, Ministry of Sports, and the Ministry of Cultural Affairs as implementing agencies.

The State of India-Sri Lanka Relations: Ethnic Issue as an Irritant

Dr. N. Manoharan
Senior Fellow, VIF

In the recent days, the southern Indian state of Tamil Nadu has figured in at least four issues pertaining to Sri Lanka: protests against training of Sri Lankan defence personnel in the state, threats to Sri Lankan pilgrims touring the state, turning over of Sri Lankan sports teams, and agitation over alleged attacks on Tamil Nadu fishermen by the Sri Lankan Navy. All these have resulted in an unusual response from Colombo in the form of a travel advisory directing its citizens not to visit Tamil Nadu. These incidents have also raised doubts on the upcoming visit of the Sri Lankan President, Mahinda Rajapaksa, to India. Few months back, the bilateral ties perceivably took a slight dip when India voted for a US-sponsored resolution advising Sri Lanka on post-conflict reconciliation measures. How far have these events impacted bilateral ties between the two countries?

Despite few strains from time-to-time, traditionally, bilateral relations between India and Sri Lanka have by-and-large been cordial. India has always stood by Sri Lanka’s difficult times and strived to remove those irritants that stood in the way of maintaining friendly relations. No two countries in the world enjoy bilateral relations as unique as India and Sri Lanka with differing characteristics. India is not only Sri Lanka’s closest, but also important and powerful neighbour. Relations between the two neighbours stretch to more than two millennia in wide-ranging areas – political, economic, socio-cultural and military. In the post-LTTE phase, the bilateral ties between the two countries have revolved around four issues: short and long-term aspects of the island’s ethnic issue, straying of fishermen, economic/trade interactions, and the role of forces inimical to Indian interests. Of all these, the dominance of the island’s ethnic question in steering the bilateral relations is telling.

Since the end of Eelam War IV, India has taken keen interest in the relief, rehabilitation and resettlement of those displaced by the conflict. Apart from providing requisite monetary assistance, India has sent 2,600 tonnes of galvanized steel sheets to construct shelter for approximately 5,000 families living in relief camps in northern Sri Lanka and an additional aid to construction of 50,000 houses to the IDPs. New Delhi has also deployed over eight demining teams in sanitising the conflict areas of landmines and unexploded objects to facilitate resettlement. From time-to-time India expressed concerns to the Sri Lankan government over the progress of the resettlement. To New Delhi, decent resettlement of the IDPs would also take care of hue and cry in Tamil Nadu over the humanitarian issue.

On the long-term aspect of the ethnic issue, India’s consistent position has been in favour of “a politically negotiated settlement acceptable to all sections of Sri Lankan society within the framework of an undivided Sri Lanka and consistent with democracy, pluralism and respect for human rights.” India wants Colombo to deliver a meaningful devolution package to the minorities. New Delhi believed that with the military defeat of the LTTE, the armed component of the Sri Lankan ethnic issue has come to an end, making the conflict resolution easier. However, to India’s disappointment, Colombo has not taken the political process forward. The report of much-hyped All Party Representative Committee (APRC) has long been forgotten. The focus then shifted to the report of Lessons Learnt and Reconciliation Commission (LLRC) submitted in November 2011. LLRC was a good step, but its mandate was very limited. Although it was not 100 percent objective, it was not disappointing either. It tried to do a balancing act containing both positive and negative aspects. On positives it talked about the need for demilitarisation, investigation of disappearances, apart from acknowledging existence of ethnic grievances; surprisingly, it supported devolution of powers to minorities, although did not spell them out. At the same time, it did not fix accountability for human rights abuses during Eelam War IV. On the killings during Eelam War IV, the report reasoned them out as a result of LTTE action and military reaction. Most importantly, the LLRC did not give any action plan on the way forward either on reconciliation or devolution. Yet, to India’s disappointment the implementation of recommendations of LLRC has been lethargic despite gentle reminders. It was in this context India supported US-sponsored resolution at the UN Human Rights Council in March this year. The move was not to upset Colombo, but with good intentions to move the process of reconciliation forward. India is convinced that a successful reconciliation is the first step in arriving at a meaningful long-term solution to the ethnic issue. In the present situation, devolution of powers to provinces through the ‘13th Amendment Plus Plus’ is a realistic option. There will be stiff opposition from the Sinhalese hardliners to this. However, riding on popular support, President Rajapaksa should be in a position to withstand these nationalistic pressures and forge an island-wide consensus for a lasting solution to the ethnic question.

All hoped that with the military defeat of the LTTE there would be a political settlement to the ethnic question. But, the issue lingers on. India has repeatedly conveyed its willingness to do whatever is required for the satisfactory resolution of the ethnic question in a manner that respects the sentiments of all the communities in Sri Lanka. New Delhi must voice its concerns without hesitation to ensure that Colombo moves forward in resolving the ethnic issue at the earliest and in all seriousness. Simultaneously, India, in the short-term, should continue to provide the resources required for the resettlement of IDPs and invest in the economic development of the war-ravaged Northeast of Sri Lanka. This will not only ensure that another armed conflict does not occur, but also open up immense economic opportunities for India. A durable peace in Sri Lanka will also take care of supplementary issues in the bilateral relations like security of Indian fishermen, the space for foreign powers like China and Pakistan in the island and, most importantly, anti-Sri Lankan sentiments in Tamil Nadu.

Sri Lanka: Where is the Reconciliation?

Dr. N. Manoharan
Senior Fellow, VIF

Sri Lanka has recently submitted the Universal Periodic Report to the United Nations Human Rights Council (UNHRC) on the status of implementation of recommendations made by Lessons Learnt and Reconciliation Commission (LLRC). The Report cites drafting of a National Action Plan¹ to implement the LRRC recommendations and setting up of a Task Force to oversee the implementation as per the Action Plan. The Action plan has rearranged the 285 LLRC recommendations under five themes: International Humanitarian Law issues, Human Rights, Land Return and Resettlement, Restitution/ Compensatory Relief and Reconciliation. The key question is how serious is the Government of Sri Lanka on reconciliation and especially in finding a long-term political settlement to the ethnic issue?

On reconciliation, to pre-empt United Nations’ move to appoint an experts panel on “war crimes” during the last stages of war, Sri Lankan President appointed a eight-member Commission on ‘Lessons Learnt and Reconciliation’ (LLRC) in May 2010. LLRC is a good step, but its mandate is very limited and ethnic reconciliation in the real sense has not been looked into seriously. As per the notification, the Commission was mandated to inquire and report on the facts and circumstances which led to the failure of the ceasefire agreement (CFA) operationalised on February 21 2002 and the sequence of events that followed thereafter up to 19 May 2009 when the war ended; whether any person, group or institutions directly or indirectly bear responsibility; lessons to learn from those events and their attendant concerns in order to ensure that there will be no recurrence; and methodology whereby restitution to any person affected by those events or their dependents or their heirs, can be effected.² The assumption that the CFA was a failure is not true. Although, it is claimed that the LLRC is on the model of Truth and Reconciliation Commission of South Africa, there is no mechanism for reconciliation in the real sense. When the LLRC submitted its report in December 2011, things became clear. Although it was not 100 percent objective, it was not disappointing either.³ It tried to do a balancing act containing both positive and negative aspects. On positives it talked about the need for demilitarisation, investigation of disappearances, apart from acknowledging existence of ethnic grievances; surprisingly, it supported devolution of powers to minorities, although it did not spell them out. At the same time, it did not fix accountability for human rights abuses during Eelam War IV. On the collateral damage, the report reasoned that as a result of LTTE action and military reaction. Most importantly, the LLRC did not give any action plan on the way forward either on reconciliation or devolution. Yet, the major concern is that the need for fuller implementation of whatever the LLRC report has recommended. This was the main emphasis of the resolution passed in March 2012 at the UNHRC meeting in Geneva.⁴

Efforts in finding a long-term political settlement to the ethnic issue is nowhere in sight. Devolution of powers to the minorities seems to be the last priority. The Rajapaksa government has been talking of finding a “home grown solution” to the ethnic issue. In this regard, President Rajapaksa did appoint an ‘All Party Representative Committee’ (APRC) in 2006 to “fashion creative options that satisfy minimum expectations as well as provide a comprehensive approach to the resolution of the national question”. However, instead of exploring “creative options”, the APRC, in its interim report submitted in January 2008, advised the President to implement the 13^th amendment to the Constitution, which outlined devolution to the provinces in the aftermath of the Indo-Sri Lankan Accord of 1987. Even after 20 years, ideas for seeking a solution were back to square one. At last, the APRC reportedly submitted its final report to the President in June 2010. The President, however, chose not to make it public as of now.⁵ It is more or less a dead piece of document, though the process is being continued through a Parliament Select Committee appointed to forge a consensus on the issue.

Tamil minorities called the PSC appointment as a “time-buying tactic”, but President Mahinda Rajapaksa, in an interview, observed that “We are keen on a sustainable political settlement. But it must have wide acceptance, especially in the context of the post-conflict situation.”⁶ When this pronouncement is taken seriously, writing on the wall is clear. At the maximum, what is on cards is some arrangement revolving around the existing 13^th amendment. Through 13th Amendment, the island was divided into various provinces and granted some powers under Provincial List. However, the Provincial Councils lacked sufficient powers – especially land, police and finance – to run their affairs in an efficient manner. In addition, the Centre wields immense powers of overruling any of Provincial decisions. Instead of strengthening the Provinces, the present government is planning to dilute the present arrangement further. Unless there is genuine power sharing, the Provincial Council arrangement will be mere eyewash.

The Rajapaksa government also has to go beyond the constitutional tinkering in reaching out to minorities by showing magnanimity. Trust deficit that exists between various communities of the island must be bridged on a priority basis. Talks with TNA were a good move, but that did not take things any further. Any kind of sincere confidence building measure will go a long way in assuaging the Tamil diaspora that is presently keeping the hopes of Tamil Eelam alive. It is important for the Sri Lankan government to constructively engage the diaspora to make them positively contribute to the development of the country.

In the same vein, the Sri Lankan government must count-in the Opposition’s contribution in the nation-building. Without bi-partisan consensus, any political settlement to the ethnic question would be unsustainable. Political history of Sri Lanka since independence is witness to this. Colombo should also reconcile diplomatically with the West that is upset with former’s stand on human rights issues. Western and UN concerns are genuine and there is no “Church conspiracy” in this. It is vital to have them as ‘partners in development’ rather than overly depending on countries like China.

Endnotes

1. The full text of the Action Plan is available at http://www.priu.gov.lk/news_update/Current_Affairs/ca201207/20120726national_plan_action.htm, accessed on 12 August 2012.
2. For the text of the Warrant issued by President Mahinda Rajapaksa dated 15 May 2010, see http://www.priu.gov.lk/news_update/LLRC%20news/20100826warrent_issued.htm
3. Full report of the LLRC is available at http://www.priu.gov.lk/news_update/Current_Affairs/ca201112/FINAL%20LLRC%20REPORT.pdf, accessed on 12 August 2012.
4. UN Human Rights Council, ‘Resolution Promoting Reconciliation and Accountability in Sri Lanka,’ 19th Session, 22 March 2012, Full text of the Resolution is available at http://geneva.usmission.gov/2012/03/22/sri-lanka-resolution/, accessed on 13 August 2012.
5. Leaked version of the final report is available at http://www.groundviews.org/wp-content/uploads/July-20-APRC-Final-Report.pdf, accessed on 13 August 2012.
6. Interview with Sri Lankan President Mahinda Rajapaksa by R. Bhagwan Singh, Asian Age, 28 December 2011.