Chief Minister for Sri Lanka's northern provincial government C.V. Wigneswaran. Pic: AP.

By Gibson Bateman and Rathika Innasimuttu

The joint statement by Tamil National Alliance (TNA) leader Mr. R. Sampanthan and Northern Province chief minister Justice C.V. Wigneswaran on the draft resolution that has been floated at the UN’s Human Rights Council has a few positive components, but – for reasons laid out in this piece – may be (justifiably) derided by both domestic and international observers as a missed opportunity.

For starters, the language used in the first part of the statement is better and more diplomatic than in some of TNA’s past statements. Reference to “religious minorities” and a “united Sri Lanka” are also productive, but TNA could go even further and emphasize that the fundamental rights of Sri Lankans of all stripes are being denigrated by the administration in Colombo.

Regarding the rationale that comes out clearly in the latter half of the statement, TNA is too sanguine about the draft resolution, what will come out of it and whether the resolution on Sri Lanka is likely to be strengthened.

The Government of Sri Lanka (GoSL) has disregarded two HRC resolutions. A much tougher resolution is urgently needed and it’s imperative that TNA recognize this. A Commission of Inquiry (CoI) is the minimum that communities that voted for TNA expected from the international community. These people had high hopes that TNA would at least advocate for that internationally – particularly since TNA has failed to advocate for anything domestically with the present administration.

(MORE: Sri Lanka: Weak UN resolution will endanger justice)

TNA says, “We look forward to the co-sponsors effecting revisions to the draft over the following weeks that will clarify and strengthen the scope of the forthcoming investigation.” This is a very optimistic statement, goes against the history of the HRC and is unlikely to happen. Draft resolutions usually get weaker over time – as sponsors make revisions in an attempt to achieve broader consensus. With India in the mode of “dammed if we do and dammed if we don’t” and South Africa wanting to sell their product, a Truth and Reconciliation Commission (TRC), who could expect anything else?

Further, TNA is again too optimistic that the passage of “a resolution on the lines of the draft under consideration will be a significant step by the Human Rights Council towards reconciliation and accountability in Sri Lanka.” The last sentence of the TNA statement calls for “mandating an international commission of inquiry.” Regrettably, that is exactly what the draft resolution does not do.

The unfortunate truth is that a CoI is unlikely to be a part of this resolution at the HRC. It would have been better if TNA had recognized this and (diplomatically) expressed its concern and disappointment. The reality is that two resolutions have had relatively little effect and a third “weak” resolution will likely be equally ineffectual. That’s why a CoI is needed.

In addition, TNA could have engaged in a more substantive critique of the specific contents of the resolution. For starters, this is essentially the same resolution which has gone through the Council on past occasions. In that sense, it’s a classic holding resolution and should be interpreted as such. In addition, the resolution still calls on GoSL to investigate itself, which doesn’t seem reasonable at this stage.

If TNA is going to welcome an Office of the High Commissioner for Human Rights (OHCHR) inquiry at this point in time, which seems to contradict some past TNA statements and this statement in particular, the party should have – at the very least – requested that OHCHR’s mandate for doing so be clearer and feature more prominently in the resolution.

However, TNA cannot welcome an OHCHR inquiry and then conclude its statement by calling for a CoI. While on some level a CoI and an OHCHR inquiry could both be interpreted as “international investigations,” the two processes are fundamentally different and – unfortunately – this crucial nuance has not been captured in the TNA statement. An OHCHR inquiry means that it’s possible that OHCHR representatives won’t even be allowed into the country. Yes, they could speak to the diaspora. However, would that be sufficient for those who are unable to mourn the dead? Perhaps TNA could have at least asked for a county mandate with a clear Terms of Reference (ToR).

Sri Lanka observers will invariably be wondering how an OHCHR investigation differs from the Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (PoE). Others may also be wondering if this current resolution is a way to endorse the PoE through the HRC by way of an OHCHR mandate. That remains to be seen, but the issue is an intriguing one.

More specifically, TNA should be focusing on a CoI which investigates the war’s final phase, September 2008 – May 2009, and (preferably) events that have occurred since the conclusion of war. However, it’s imperative that TNA understand that a resolution that mandates an OHCHR investigation will probably take a CoI off the table for at least a few years.

In addition to lamenting the content of the draft resolution, the heart of TNA’s argument at the end of the statement should’ve been that a lack of accountability for violations that occurred at the end of the war has done nothing except fuel ongoing violations, which remain widespread. It is this institutionalization of impunity that thwarts reconciliation efforts at every turn. TNA must also emphasize that a CoI or accountability and a political solution can be pursued simultaneously on parallel tracks. Both should be essential elements of Sri Lanka’s reconciliation strategy. And, unless both happen, a lasting peace cannot be ensured.

Lastly, to reinforce the urgent need for a CoI, it would have been helpful to underscore the fact that Sri Lanka’s domestic institutions are not able to deliver and that won’t be changing any time soon. Events that have taken place since the end of war have demonstrated that accountability and the rule of law are not even in the vocabulary of the present administration. Examples vary from the unconstitutional impeachment of the Chief Justice in January 2013 to mass graves becoming archeological interests. This is why international cooperation and assistance is paramount. TNA should emphasize that Sri Lanka’s case is somewhat exceptional in this sense and that, as time goes by, the window for reconciliation continues to shrink. One great example of this is that, during the proceedings of the HRC as we speak, a massive land grab is taking place in Pavatkulam (Vavuniya) – where the military is even celebrating the land grab by cooking Kiribath, a traditional rice-based dish served during house warming ceremonies.

In expressing its concern about the draft resolution, TNA could’ve also acknowledged that the party understands that achieving consensus in international forums like the HRC can be difficult. A broader contextualization of the inherent challenges of getting a “tough” resolution through the Council and a concurrent acknowledgement that this is a weaker draft than many had been envisioning is missing from the TNA statement. Does TNA advocate for Tamil rights? Or has the party become so diplomatic that it behaves more like an embassy, failing to raise legitimate concerns with the international community?

In conclusion, a more politically savvy critique from the TNA would have been helpful at this juncture. For reasons of principle and politics, this is not a resolution that deserves the enthusiastic endorsement of TNA or anyone seeking accountability, justice and reconciliation in Sri Lanka.

Gibson Bateman and Rathika Innasimuttu write on Sri Lankan affairs and are members of The Social Architects (TSA).