In March 2021, the UN Human Rights Council adopted resolution 46/L.1/Rev.1 for the promotion of reconciliation, accountability and human rights in Sri Lanka. This gave the country two additional years to implement resolution 30/L.1 from October 2015 in dealing with war crimes. The document reports serious concerns about the fragile human rights situation in Sri Lanka. The resolution was submitted by the core group of the UK, Canada, Germany, Malawi, Montenegro and North Macedonia as the main sponsors. In his opening statement, the UK Representative to the UN raised what the UK perceived to be worrying developments that could have negative impacts on the already limited progress achieved in recent years and risked the “return of policies and practices that gave rise to the severe violations of the past.” In showing support to the resolution, Elisabeth Tichy-Fisslberger, speaking on behalf of the European Union, highlighted that human rights violations had been exacerbated by the country’s response to the COVID-19 pandemic, such as the reported efforts to restrict Muslims and members of other beliefs from practising their own religious rituals. More than 40 countries co-sponsored the resolution, which was approved with 22 votes in favour, 11 against, and 14 abstentions. India abstained from voting, even while the Indian leaders expressed support to the rights of the Tamil minority in Sri Lanka to “live with equity, equality, justice, peace and dignity” in February and also voted in favour of resolutions that have been critical in 2012 and 2013. After the adoption, India evaded making a commitment to any position, affirming that its approach to human rights in Sri Lanka was guided by ensuring the unity, stability and territorial integrity of the concerned states. On the other hand, China, the Philippines and Bangladesh voted against the resolution. The Bangladeshi voting behaviour may have been influenced by the visit of Sri Lankan Prime Minister Rajapaksa the week before. Meanwhile, the representative of the Philippines stated that the content of the resolution was “driven by oversimplifications of complicated circumstances on the ground”. Then, the Sri Lanka’s ambassador rejected the document, considering it to be unhelpful and divisive, and one that would “polarise Sri Lankan society and adversely affect economic development, peace, and harmony.”
Since the adoption of the resolution in 2019, little progress has been made and the victims have not felt any change. The promised commitments had been fulfilled slowly, and the structures and measures put in place so far have been inadequate in ensuring proper progress in the establishment of justice for the victims. The March 2021 resolution followed the publication of the UN report in January 2021 warning the impunity of those committing serious crimes during the civil war, the ethno-nationalist rhetoric, and the intimidations to the civil society, as well as the deterioration of the human rights situation after the election of the President Gotabaya Rajapaksa in November 2019. The January report also noted that the armed conflict emerged against the backdrop of intensifying discrimination and marginalisation of the country’s minorities, particularly the Tamil and Muslim communities. In February 2021, the UN High Commissioner for Human Rights Michelle Bachelet expressed that the national initiatives repeatedly failed to guarantee justice to victims and promote reconciliation. She added that the systems and the policies at the origin of grave violations remain and recently have been even reinforced. Ms. Bachelet affirmed that the people involved in such violations still hold a position of power, and the country is also witnessing an increasing militarisation of governmental functions. In concluding her speech, the High Commissioner asked the Human Rights Council to explore new methods to prosecute crimes at the international level, including the International Criminal Court and judicial proceedings against individuals in other UN member states according to the principle of universal jurisdiction.
In this sense, the 2021 resolution represents a significant positive progress because it does not only enhance international monitoring and inquiry of the human rights situation in the country but also authorises the UN human rights office to “collect, consolidate and preserve evidence for future prosecutions” and provides recommendations on justice and accountability with the aim of putting an end to years of impunity. The document also calls upon the state to review the Prevention of Terrorism Act (PTA) and bring it in line with international law. The PTA is considered a threat to the promotion and protection of human rights due to the risk of it being used to target dissidents and minorities within the country. Indeed, the law authorises the national authorities to arrest anyone suspected of causing “acts of violence or religious, racial or communal disharmony”.
“When governments fail to respect their international law duties, it is crucial for the UN Human Rights Council to intervene with measures like these”, said John Fisher, Human Right Watch Geneva Director. The UN Human Rights Council’s breakthrough resolution on Sri Lanka shows that if justice is negated, the UN will step up to provide accountability for atrocities. The survivors and the relatives of the victims of the thirty-year conflict that ended in 2009 perceived the resolution to be a beacon of hope. The Tamil diaspora organisation Global Tamil Forum and the population in Colombo welcomed the resolution as a step in the right direction and as a diplomatic victory. Indeed, the new text acknowledges that the victims are facing enormous obstacles in having access to justice due to the inability and unwillingness of the national government to hold trials for crimes of international law.
However, decisive measures outside of the UN Human Rights Council are still necessary. For the time being, the resolution is unlikely to achieve much, due to the fact it requires cooperation with the government. Moreover, a trustworthy domestic process of accountability is unlikely given the largely Sinhala Buddhist ethnocratic nature of the state, particularly as the election in 2019 brought Rajapaksa brothers back to the political leadership, each of whom having some linkages with the crimes during the civil war.