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A Major Battle at the Human Rights Council Results in a Qualified Victory

UN civil society representatives won a significant victory in obtaining an international commission of inquiry into the genocide of the Tamils in Sri Lanka

The United Nations Human Rights Council held its 25th Session March 3-28, 2014. (Photo: Eric Bridiers / US Mission Geneva)

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While there are often subjects that generate heated debate at the United Nations’ human rights bodies, March saw another round of one of the fiercest and longest fights since the effort to bring the violations of the Argentine military junta before the Commission on Human Rights. Starting in 1977, that fight raged for years, pitting the Argentine regime, backed unwaveringly by the United States, against civil society nongovernmental organizations (NGOs), which finally succeeded in getting the matter discussed openly by the commission.

This recent fight had similarly been going on for years. It had burst full force upon the scene during the summer 2009 session of the Commission’s successor body, the Human Rights Council, before being relegated to the back burner. Now, while the fight is far from over, the March session marked a high point.

The subject is the Sri Lankan government’s repression of the Tamil minority, a story going back generations that has, over the years, been repeatedly condemned by human rights defenders. The hesitancy – refusal? – of first the Commission on Human Rights, then the Human Rights Council, to give the matter the treatment it deserves, under pressure primarily from a certain superpower, recalls the earlier resistance to publishing to the world the atrocities of the United States-backed Argentine military during the “Dirty War” of 1976 to 1983.

The end of the armed conflict in May 2009, with the physical elimination of the Tamil resistance, brought the subject before the Council that summer. However, faced with the insistence of the Sri Lanka government and its allies that it had been fighting terrorists and would undertake to punish any abuses that the military had committed, the Council let the matter slide. Subsequent Council sessions with resolutions addressed to the government amounted to little more than window dressing in spite of major, intense and persistent campaigning by human rights NGOs.

The Permanent Peoples’ Tribunal Takes Up the Case

That the subject was finally given a serious airing before the Human Rights Council is in no small part due to the efforts of the Permanent Peoples’ Tribunal (PPT). This organization was founded in 1979 in Bologna to continue the work of the first and second Bertrand Russell Tribunals on Vietnam (1966-67) and on the Latin American dictatorships (1974-1976). It is underwritten by the International Section of the Lelio Basso Foundation, which describes it as “an opinion tribunal whose activities include identifying and publicizing cases of systematic violation of fundamental rights, especially cases in which national and international legislation fails to defend the rights of the people.”

Drawing on some of the world’s greatest international legal experts, writers and other cultural community leaders (including five Nobel Prize laureates), the PPT, guided by the highest international judicial standards, has repeatedly ventured into areas no other instance would touch. The Sri Lanka conflict, dismissed when not ignored outright, was one such case in which national and international instances failed to defend the rights of the people.

After a first session held in Dublin in January 2010, the Tribunal held a second one in December of last year in Bremen, Germany.

The judgment of the second session, presented in a 64-page judgment made public in January at the Geneva Press Club, was of a gravity that surprised even many of the NGOs closely tracking the matter for years. Genocide was the main indictment. However, already at the Dublin session: “it was established that War Crimes and Crimes against Humanity had been committed by the Government of Sri Lanka and were continuing up to the moment of the judgment.” Indeed, according to the Tribunal, “The Sri Lankan government’s own figures indicate that out of the 429,059 Tamils living in the Vanni [the mainland area of the northern, Tamil province] at the start of the offensive in October 2008 only 282,380 remained by the time the government military operations concluded on May 19, 2009.”

More disturbing for the Geneva diplomatic community, however, was the charge of complicity leveled at the United States, the United Kingdom, Israel and India; for in the case of such crimes, those guilty of complicity are on an equal footing with the actual perpetrators.

The Charge of Complicity

The British colonial regime, by co-opting the Sinhalese majority to rule the island and creating a unitary state structure while encouraging Buddhist chauvinism, “laid the basis for the genocidal process against the Tamil people in the North and East of the island.”[p.11] Later, even before the Liberation Tigers of Tamil Eelam (LTTE) was established in 1976, her Britannic Majesty’s government was guilty of “complicity by procuring means,” and “complicity by knowingly aiding or abetting a perpetrator of a genocide in the planning or enabling acts thereof.” [p.28]

According to a British Foreign and Commonwealth Office document cited by the tribunal, Sri Lankan police officers were sent to Northern Ireland to witness firsthand the activities of the police and army in quelling popular unrest. “Their visit, during which they observed Royal Ulster Constabulary operations against the Irish Republican Army, came one month before the Black July pogrom against Tamils, the episode widely regarded as a key turning point in the escalation of the conflict.” Former British SAS officers trained the Sri Lanka Police Special Task Force, teaching tactics adopted by riot squads, weapon training (including use of the United States M16 rifle), firing practices, counter-terrorism search, handling of explosives, mapping and use of compass equipment. [p.29]

The United States’ interest in the island was the same as that of the British: the superb deep-water port at Trincomalee, one of the best in the world and close enough to the Asian mainland to allow flights to such destinations as Iraq, Afghanistan and Syria without the dangerous and expensive in-flight refueling required for flights out of Diego Garcia.

“In 1982, General Vernon A. Walters, Ambassador at large and former deputy director of the CIA, visited Sri Lanka in order to establish an Israeli interests section within the US embassy in Colombo, to facilitate Israeli military involvement, including training the Sri Lankan Special Task Force, at a time when Sri Lanka and Israel had broken off diplomatic relations.” The endeavor was justified by all parties as deriving from “a strong interest in the suppression of international terrorism.” [pp. 31-32]

This support failed to change the situation on the ground, and the government was forced to accept negotiations and a cease-fire in 2001. “Yet, even during the period of the peace process, US military involvement with the government only deepened further.” [p.33]

If Trincomalee was to be made safe for US military bases, the land area around the bay had to be free of Tamils, who wanted an autonomous – if not independent – state, free of outside interference.

If Trincomalee was to be made safe for US military bases, the land area around the bay had to be free of Tamils, who wanted an autonomous – if not independent – state, free of outside interference. When the government resumed the war in July 2006, it was precisely there that it began its operations, as recommended by the United States. In 2006 and 2007 alone, at a cost of $2,528,389, 387 Sri Lankan security force officers were trained at such places as the American War School in Fort Benning, Georgia, and the Kennedy Special Warfare School in Fort Bragg, North Carolina. [p. 34]

The European Union does not escape condemnation: “The EU decision to ban the LTTE, taken on 29 May 2006, was the most devastating blow to the peace process, destroying the ‘parity of status’ and paving the path to a full scale war.”

Regarding the United States, the judgment speaks of complicity arising from “sustained efforts to increase the power and effectiveness of the Sri Lankan military… but perhaps even more significantly from its role in blocking and even reversing political and diplomatic initiatives to implement the peace process and in blacking out information on the unfolding critical situation and the unprecedented worldwide protests by Tamil communities in the diaspora.” [p. 36-37]

India merits condemnation “in the role of junior partner in a strategic alliance with the United States, and has continued to subordinate its strategic policy approach towards Sri Lanka under the US war paradigm.” [p. 37]

Among its primary recommendations, the Tribunal called for “the establishment of a strategy aimed primarily at stopping the ongoing genocide” as well as “the creation of an international commission of inquiry – which excludes the states which have been directly and/or indirectly linked to the genocidal process.” [p. 38]

Back to the Human Rights Council

And it was the setting up of such a commission of inquiry that gave rise to the wrangle within the Human Rights Council that lasted for almost the full four weeks of its session.

Human Rights Council resolutions, like those of the Economic and Social Council or the General Assembly, are not binding. They express the “sense” (position) of the body in question. However, a resolution requiring the Office of the United Nations High Commissioner for Human Rights to proceed with a thorough investigation will have practical results.

After the Israeli assault on Gaza in December 2008 and January 2009, the Council, the following September, set up just such an investigative commission, under the direction of Justice Richard Goldstone of South Africa. The result was an impressive report of 452 pages that was praised for its impartiality and dispassion – except by the United States and Israel, which attacked it virulently. Although the two have managed to make sure that the report’s recommendations have remained a dead letter, the groundwork is done, impeccably, and the length and breadth of the crime is spelled out, on the record, in detail.

Since it was impossible to keep the subject of Sri Lanka off the agenda of the Council, it was imperative to produce a resolution that avoided any inquiry.

Since it was impossible to keep the subject of Sri Lanka off the agenda of the Council, it was imperative to produce a resolution that avoided any inquiry or, at the most, if inquiry there must be, that entrusted it to the Sri Lankan government.

After the final battle in May 2009, the Sri Lankan Ministry of Defense set up a “Lessons Learnt and Reconciliation” commission inquiry, whose report was published in November 2011. The government and its allies claim the report is exhaustive, requiring no further investigation. There is no mention in it of the crimes committed, much less of the tens of thousands of Tamils still languishing in prison camps and subjected to abuse, including lack of medical care, malnutrition and outright starvation. The Tamil dead, primarily civilian, from the decades of pogroms then outright war are simply written off as “terrorists.”

The United States and the United Kingdom immediately announced that they, in the interests of human rights, would undertake the arduous task of drafting an appropriate resolution. To make sure that no undue influence or bias entered into the endeavor, it was to be done behind closed doors, in complete secrecy until the last minute, when the final, pure draft would be presented to the council for a vote.

The NGOs cried “Foul!” and enlisted sympathetic delegations to find out what was going on. The Press Club played host to a series of civil society meetings roundly condemned by Sri Lankan government officials, who warned NGO members not to attend.

Navanethem “Navi” Pillay, the United Nations High Commissioner for Human Rights, in her report to the Human Rights Council on the day before the vote on the resolution, deplored the lack of progress by the Sri Lankan government, subsequent to the “Leasons Learnt and Reconciliation” report, “notably the need to ensure independent and credible investigations into past violations of international human rights and humanitarian law.”

The resolution, dated 11 March, but brought to the floor for the vote on 27 March, was released to the media by Rolando Gomez, a veteran council spokesperson. The pdf version he made available was full of crossings out and rewritings, tracing the wrangle that had gone into every line and, in some places, the choice of every word.

The preamble runs a full 25 paragraphs, more formality than substance, after which come ten operational paragraphs, all but one of which bear marks of the US/UK drafting sessions as well as of the opposition. Thus, one finds, “The Human Rights Council … welcomes the decision of the Sri Lankan government to facilitate the visit of the Special Rapporteur on the human rights of internally displaced persons in December…” which became in the end simply, “… welcomes the visit of the special rapporteur…” – a tacit recognition that attributing to the Sri Lankan government a decision to facilitate the visit of any human rights special rapporteur is going further than even the stalwart allies of the government would dare do. The other paragraphs started out as equally favorable to the Sri Lankan government or at least neutral, except for paragraph eight, which stands out for its different tone.

There, the council, alluding the previous day’s report, “takes note of the recommendations and conclusions of the High Commissioner regarding ongoing human rights violations and the need for an international inquiry mechanism in the absence of a credible national process with tangible results and requests the Office of the High Commissioner… to undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission and establish the facts and circumstances of such alleged violations and of the crimes perpetuated with a view to avoiding impunity and insuring accountability with assistance from relevant experts and special procedures mandate-holders.”

Paragraph nine is back to “in consultation with and with the concurrence of the Government of Sri Lanka,” and paragraph ten “calls upon the Government of Sri Lanka to cooperate with the Office of the High Commissioner in the implementation of the present resolution.”

The period to be covered is 21 February 2002 to 19 May 2009, thus leaving out over 30 years of pogroms, summary executions and systematic violent discrimination that saw the peaceful Gandhi-inspired Tamil resistance finally transformed into an armed resistance.

In the end, both the United States and the United Kingdom voted for the resolution. The cohort of NGOs, however, who had fought for paragraph eight, were loathe to proclaim a victory when they saw the final wording. The period to be covered is 21 February 2002 to 19 May 2009, thus leaving out over 30 years of pogroms, summary executions and systematic violent discrimination that saw the peaceful Gandhi-inspired Tamil resistance finally transformed into an armed resistance, as the message came home that nothing that the Tamils could do would save them as a community, save their identity as a people, indeed save their lives, except, possibly, violent resistance.

“Resistance to genocide is NOT terrorism.”

Instead of a protracted genocidal process, as described by the Peoples’ Tribunal, the inquiry will be investigating what the government of Sri Lanka insists was – and out of context, looks like – an outright war between two armed camps, one of which has been branded as an international terrorist organization, with no reference to what preceded and produced the armed conflict. Yet, Denis Halliday, a co-chair of the Tribunal and former Assistant Secretary-General of the United Nations, in presenting the report in Geneva, insisted, “Resistance to genocide is NOT terrorism.”

Also, while the wording makes possible a broad interpretation that could result in a thorough investigation, there is yet the matter of who will conduct it, and what cooperation, if any, the government of Sri Lanka will provide. (One is reminded of the repeated attempts of the government of Israel to thwart the work of the Goldstone Commission, even refusing its members entry to Gaza.) Finally, even if the report rivals the Goldstone report in quality, will its recommendations, too, remain just one more dead letter?

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