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By Dharisha Bastians
Reporting from Geneva
The first draft of the US resolution on Sri Lanka calls on the Government to involve “international investigators, prosecutors and judges” in the judicial mechanism to probe and prosecute allegations that war crimes were committed during the last years of the war.
The recommendation for international judges and prosecutors signals that the US and other member states drafting the resolution have accepted the declaration by UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein that Sri Lanka’s criminal justice system is not capable of dealing with the seriousness of the crimes a report by his office believes were committed during the war.
The Daily FT is in possession of an initial draft entitled ‘Promoting Reconciliation, Accountability and Human Rights in Sri Lanka’ - which will be the subject of discussion at the first informal sessions on the Sri Lanka resolution on Monday (21), at the Palais des Nations in Geneva.
The draft resolution stops short of recommending the establishment of a ‘hybrid’ special court as urged by the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein, but incorporates many of the recommendations set out in the OHCHR investigation report on Sri Lanka released earlier this week.
It also calls on the Government of Sri Lanka to “implement the recommendations” contained in the UN report, which includes the establishment of the hybrid court and legal and institutional reform.
The draft resolution whose language is still under negotiation appreciates the Government’s proposal to establish a judicial mechanism with a special counsel to investigate the allegations of abuse.
The resolution attempts to set standards for the proposed Government transitional justice mechanism, affirming that “credible transitional justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality”.
The draft resolution which was delivered to the Government on Thursday (17) is a six-page document that contains 26 operational paragraphs – or clauses that call for action by Sri Lanka – and is being sponsored by a core group of member states led by the United States and including the UK, Macedonia and Montenegro.
The initial draft calls for an oral report on the progress of recommendations listed in the OHCHR Investigation report on Sri Lanka and the human rights situation in the island by High Commissioner Zeid one year from now, in September 2016, at the Human Rights Council’s 33rd Session. The resolution calls for a comprehensive report on progress “followed by discussion on the implementation of the present resolution” in March 2017, at the council’s 34th session.
The draft calls for consultative and participatory methods to be utilised to include views from all relevant stakeholders, such as victims, women, youth and representatives from various religions, ethnicities, and geographic locations as well as marginalised groups. The resolution recognises that transitional justice mechanisms work best when they are “designed and implemented based on expert advice from those with relevant international and domestic experience”.
It also “takes note of the new Government of Sri Lanka’s commitment to undertaking a comprehensive approach to transitional justice incorporating the full range of judicial and non-judicial measures, including, inter alia, criminal prosecutions, truth-seeking, reparations, institutional reforms and other guarantees of non-repetition”.
The document’s preamble hails Sri Lanka’s new Government for several measures taken on good governance and reconciliation, and welcomes what it calls “historic free and fair democratic elections in January and August 2015 and a peaceful political transition in Sri Lanka”.
The draft resolution’s preambular paragraphs also “note with interest” the passage of the nineteenth amendment to the Sri Lankan Constitution and its contributions to promoting democratic governance.
The initial draft notes the review of High Security Zones and welcomes the initial steps taken to return land previously taken by defense forces to its rightful civilian owners and welcomes the new Government’s commitments on the devolution of political authority,
It also “notes with appreciation the actions taken by the new Government of Sri Lanka to advance respect for human rights and recognising the positive changes in Sri Lanka as a result of these actions” and “welcomes the establishment of the Commission to Investigate Allegations of Bribery or Corruption and its initial investigations into major cases of corruption, fraud, and abuses of power, and stressing the importance of such investigations and the prosecution of those responsible, in ending impunity and promoting good governance”.
The resolution will be ‘consensual’, meaning that it will not be contested by the Sri Lankan Government as the country concerned and adopted without a vote at the Human Rights Council. Hectic negotiations on the draft resolution have been underway in Geneva, with human rights activists, Tamil politicians and the Government team contributing to the draft language. Rights activists feared earlier this week that the resolution would not be robust or reflect the recommendations of the OISL report.
