Responding to the adoption today of the draft UN Human Rights Council Resolution 40/L.1, co-sponsored by Sri Lanka, Amnesty International’s South Asia Director, Biraj Patnaik, said:
“The adoption of the draft UN Human Rights Council Resolution 40/L.1 is an important step in the pursuit of justice for the victims of alleged international crimes during Sri Lanka’s decades-long internal conflict. With this resolution the international community should actively engage with Sri Lanka towards faster progress on truth, justice, reparation, including guarantees of non-recurrence.
“It is disappointing, however, that the final text of the resolution failed to address Sri Lanka’s failure to meet its commitments to date. Despite the pledges made in Resolution 30/1, there continues to be impunity for violations of international human rights and humanitarian law. The absence of accountability and the slow progress on other fronts has disillusioned many victims’ groups and eroded hopes for the transitional justice process.
“The Sri Lankan government’s backtracking on accountability was in evidence during the interactive dialogue, where the Foreign Minister pushed back against the recommendation that hybrid courts be established. Transitional justice must not become a casualty of Sri Lanka’s political situation. To ensure no further delays take place, the Sri Lankan government should work together with the Office of the High Commissioner on Human Rights to develop a time-bound implementation strategy, as recommended by the resolution.”
In 2015 the government of Sri Lanka co-sponsored UNHRC resolution 30/1 on ‘Promoting reconciliation, accountability and human rights in Sri Lanka’. In 2017 Sri Lanka received a two-year extension to implement its own commitments. At its fortieth session, the UNHRC adopted a new resolution on 21 March 2019 co- sponsored by the government of Sri Lanka, giving it a further two years to implement outstanding promises in full. UNHRC resolution 30/1 commits Sri Lanka to ‘establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators.”
Also in 2015, the then UN High Commissioner on Human Rights, Zeid Ra’ad Al Hussain called for the establishment of a hybrid special court adding, “a purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fueled by decades of violations, malpractice and broken promises.”
However, on 20 March 2019, Sri Lanka’s Foreign Minister responding to the OHCHR report on Sri Lanka’s implementation of resolution 30/1 stated, ‘The Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioners for Human Rights and other interlocutors, explained the constitutional and legal challenges that precludes it from including non-citizens in its judicial processes. It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a Referendum.’