Evolution of Sri Lanka’s Engagement with the United Nations Human Rights Commission

V.  The United Nations charter-based bodies and their engagement with Sri Lanka

The aim of this chapter is to investigate the evolution of Sri Lanka’s engagement with the United Nations Human Rights Commission and later with its successor, the United Nations Human Rights Council. Mindful of the ambit of this work, the examination will focus on the engagement of the country with the charter -based bodies considering its participation in the formulation of international human rights law in its early postcolonial history, moving to its engagement during the period of ethnic disturbance and the examination of its human rights record during the civil war. Did this human rights engagement with the charter-based bodies alter the government’s behavior and steer its reaction in line with its international human rights commitments? Were, and are, there operational or even ideological deficiencies of the charter-based bodies that have complicated the human rights engagement with Sri Lanka?  Did those deficiencies even contribute to the exacerbation of the conflict? Moreover, did the engagement with the human rights treaty bodies, as it was discussed in the previous chapter, provide any support to the charter-based bodies for their engagement with Sri Lanka?

Sri Lanka’s membership of the United Nations Human Rights Commission and the United Human Rights Council can be considered, just as the country’s ratification of human rights treaties, as an indication of the country’s willingness to discuss human rights matters of own and global concern in the international forum. Reflecting upon the membership more precisely, however, was and is it rather a technique to avoid international human rights condemnation?[1]

For these reasons the chapter will closely examine the human rights motivations of Sri Lanka, the manner and nature of communication of the various state delegation to the charter-based bodies, study the impact of human rights engagement and the translation into outcomes on the ground. An exploration is also required to understand the antecedents of the charter-based bodies, the reasons for the replacement of the United Nations Human Rights Commission by the United Nations Human Rights Council, their respective mandates, modus operandi and history of procedural, as well as substantial deficiencies and strengths, before they will be applied and positioned in the case of Sri Lanka.

1. From the United Nations Human Rights Commission to the United Nations Human Rights Council

Human rights have always been, as outlined in the previous chapter, at the root of the United Nations’ creation.[2] The United Nations grounds its approach to human rights protection and promotion on two pillars, the treaty-based bodies, as discussed in the fourth chapter, and the charter-based bodies. The founding document of the United Nations, the Charter of the United Nations, provided the legal basis for the establishment of the Commission on Human Rights, one of the bodies carefully engineered into the initial architecture of the United Nations. Initially, it was not intended to include any article in the Charter that established a body to intrude into domestic affairs.[3]  Owing to the constant pressure exerted by non-governmental organizations[4] the United Nations Charter set out in art. 68:

[T]he Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions.[5]

As a binding international document, the UN Charter comprises international law.[6]   It is exactly for this reason it was an innovation to include and give effect to compelling moral principles and political ideas of human rights.[7] With the adoption of Resolution 5 (I) on the 16^th of February 1946, the Economic and Social Council decided to pave the way for the conception of the Commission on Human Rights, which benefited from the privilege of birth, being the only technical commission and possessing the quality of an organ with statuary character.[8] On the 21^st of May 1946, the so-called nuclear session under chairwomanship of Eleanor Roosevelt, embraced the idea of an expansive and progressive approach.[9]  The Commission saw its future role as one with a wide mandate to comprehensively promote human rights and formulated specific recommendations that were intended to create a basis for a body more receptive to addressing human rights violations. To this end, the majority of the members on the Preparatory Commission had envisaged, firstly, an independent membership on the Commission and, secondly, a Commission that deals with issues of threatening nature to the world.[10] But the Commission’s parent body, the Economic and Social Council, deemed these proposals as too far-reaching.[11] Instead, the Council foresaw the governmental membership of the Commission. The Commission, eventually, became a politicised organ. Any actions that were undertaken by the Commission were the inevitable consequences of the political agenda of the respective members of the Commission. Moreover, in accordance with the Resolution 9 (II) of 1946, the Commission was simply reduced to the role of submitting and assisting the Council to ensure respect for human rights.[12] The Commission’s role, hence, was confined to draft an international human rights declaration, an international human rights convention and identify implementation measures.[13] With the resolution E/259 the Commission clipped its own wings by deciding on the 10^th of February 1947:

[T]he Commission recognizes that it has no power to take any action in regard to any complaints concerning human rights.[14]

And then, in the next paragraph:

[H]owever, the Commission decided that, in the future, the Chairman or Vice-Chairman should meet shortly before each session of the Commission, with one or two co-opted members, for the purpose of receiving communications concerning human rights and bringing to the attention of the Commission such communications as might assist it in its work.[15]

Eleanor Roosevelt, confined the work of the Commission purely to educational activities, a trend that prevailed up to 1967.[16] John Humphrey, former Director of the Human Rights Division, came to the defence of the Commission when he said:

[I]n adopting the conservative course which it did during the first two decades of its history the Commission followed the path of wisdom having regard to its terms of reference, the overriding constitutional authority of the Council and, above all, the great importance of the legislative work on which it was engaged.[17]

The following decades saw a gradual emergence in human rights thinking at the United Nations Human Rights Commission. Four particular developments need to be stressed:

1. The creation of the Sub-Commission

2. The beginning of the compilation of confidential communications concerning human rights violations in 1959

3. The authorisation to examine gross human rights violations in 1967

4. The creation of a confidential communication procedure.[18]

Jean-Bernard Marie recognizes two phases that characterized the working method of the Commission, namely the phase of abstention from the day of its inception up to 1967, and then the phase of interventionism from 1967 until its dissolution in 2005.[19] The phase of abstention was then again compartmentalised into two periods, namely drafting and (1947-1954) and promotion (1955-1966). The Commission was keen to establish standards by drafting numerous treaties, but politically contentious issues were referred to the General Assembly. While it was important to draft the respective Covenants, it came at the cost of the non-involvement in relation to the Genocide Convention or some other human rights instruments.[20]  In any event, the Commission’s proceedings were initially designed to protect state prerogatives. Governments were simply uninterested in opening their doors to external scrutiny fearing the eroding effect on their sovereignty and domestic interference.[21]

The Charter of the United Nations already echoed and integrated the concepts of sovereignty and equality of states, while giving effect to the maxim par in parem non habet imperium.[22] And yet, the Commission played a vital role in the elaboration of human rights norms, it established the aforementioned Sub-Commission on the Prevention of Discrimination and Protection that drafted a number of conventions on numerous topics including enforced disappearances.[23] In 1959 the Economic and Social Council adopted a resolution that requested the United Nations Secretary General to gather a list of human rights violations, the first time information was collated regarding specific human rights situations in members states.[24] While the human rights programme of the United Nations was struggling, the new composition of the Commission in the 1960s changed the narrative on state sovereignty with the rapid expansion of the United Nations with many countries from Africa and Asia into the United Nations. The new members pushed for additional powers to denounce and combat the vestiges of colonialism that lingered in Africa and the Middle East.[25] It was clear by this time that the mobilizing force for human rights was coming from the global South. Stephen Jensen postulates:

[T]he global South engagement during this period has been described as essentially focused with promoting the right to self-determination.  Human rights scholarship was generally speaking content with this profoundly reductionist view. It was forgotten that neither the global South nor UN human rights diplomacy was monolithic. It was always multi-tonal. The effect has been a distorted view of the global South’s role in the emergence of human rights diplomacy (…).[26]

Noteworthy to distinguish between treaty-based bodies and charter-based bodies is, in antithesis to the monitoring procedures under the human rights treaties, that the Commission does not need any prior ratification or any other form of consent by member states.[27] The Economic Social Council Resolution 9 (II) provided the legal groundwork for the Commission’s work.  The era of interventionism as second focal point of the Commission’s work commenced with the adoption of landmark resolutions, namely 1235 (XLII) in 1967 and 1503 in 1970 (XLVIII). had a considerable impact and built the normative framework of the Commission.^[28] Resolution 1235, for example, provided the necessary authorization to initiate the examination of and response to human rights violations, as it spells out.[29]

At its height, the 1235-procedure entailed an annual debate regarding country situations, in which non-governmental organizations and governments participated and individual cases were investigated.[30] Resolution 1503 established a system of monitoring mechanisms, which were open to victims of human rights violations and others representing them. The 1503-procedure, as it was commonly referred to, did not provide the authority for prosecution of human rights violations, but it provided the means to highlight the violations in the forum of the Commission. Moreover, violating countries needn’t be ratifying states to the Resolution 1503 or signatory to any specific human rights treaty. The 1503- procedure is still in existence today, yet in a modified form and is confidential. The discussions were held in closed sessions and entailed a different procedure by several working groups for admissibility determination and the decisions on merits.[31] The conclusion of the sessions ushered in the publication of the country situations considered, but concrete recommendations were never disclosed. Both resolutions reflected the growing international concern for human rights issues and the Commission became the most important institution within the United Nations for the human rights discussion.[32] The United Nations Human Rights Commission relied on a variety of tools to meet its ideals, namely diplomacy, legislative policy making, quasi-judicial inquiry.[33]   But the most important contribution the United Nations Human Rights Commission made was the generation of impartial and independent information: heated discussions between nongovernmental organizations and governments have nevertheless contributed to a very sophisticated and elaborated discourse based on international norms.[34]

The creation of the first special procedure under the Commission’s auspices was the Working Group on Enforced or Involuntary Disappearances in 1980. This creation amplified efforts by the Commission to investigate particular human rights violations and penetrate state sovereignty, becoming a common thread of this body to examine what Cassese called “[a] major phenomenon of human rights violations world-wide.”[35] The Commission gradually expanded its monitoring capacities in the years to come, as it created a number of other special procedures, inter alia, with the creation of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution and Special Rapporteur on Torture. The conception of the special procedure system was summed up in the Selebi report as follows:

[D]uring the review, it was widely observed that the special procedures have been one of the Commission’s major achievements and constitute an essential cornerstone of United Nations efforts to promote and protect internationally recognized human rights and contribute to the prevention of their violation. The review process thus occasioned a strong reaffirmation of the conclusion (…) that the system of special procedures should be preserved and strengthened, that they should have the necessary human and financial resources and that States should cooperate fully with them.[36]

While it is evident that a politicized organ can never deal with human rights issues in an impartial and independent manner, it is true that countries with a progressive human rights policy used that Commission as a forum to advance human rights and bring matters to international attention.[37] Eventually, the United Nations Human Rights Commission provided the catalyst for the internationalization of international human rights law. And yet, politicization was, partially, defused through the introduction of the system of special procedures. Manfred Nowak, the then-Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, recalls in his study on the phenomena of torture, cruel, inhuman or degrading treatment or punishment in the world, including an assessment of conditions of detention from 2010:

[I]ndependent experts have played an increasingly active role within the human rights system of the United Nations since the late 1960s. On the basis of ECOSOC Res. 1235 (XLII) of 1967, the former Commission on Human Rights entrusted working groups and later individual experts to investigate the overall human rights situation in those States which were particularly criticized for gross and systematic violations of human rights (country-specific mandates).[38]

The Special Procedure is, as Buergenthal explains, a serious effort from the United Nations to “[p]ierce the veil of the national sovereignty of states.”[39] Subedi asserts that

[T]heir appointment has frequently reflected the concern of the international community about the situation of human rights in a given country or territory and holds particular significance as a means of exerting international pressure on governments whose human rights practices are considered seriously out of line with international standards.[40]

Special rapporteurs had largely contributed to the proliferation of human rights, through monitoring and fact-finding, but also standard-setting. These experts have contributed to the elaboration, interpretation, and implementation of international human rights law and “[h]ave brought the human rights work of the United Nations to ordinary men and women around the globe.”[41]  The special procedures provide a very flexible and more independent mechanism that aims to deliver short-term and feasible benefits for the victims of human rights violations, while achieving not only international, but also national attention.[42]   Harsh criticism, however, was levelled against the Commission. The United Nations Secretary General’s High-level Panel on Threats, Challenges and Change presented a publication titled ‘A more secure world: Our shared responsibility’.[43] Here, the Panel stipulated:

[I]n recent years, the Commission’s capacity to perform these tasks has been undermined by eroding credibility and professionalism. Standard-setting to reinforce human rights cannot be performed by States that lack a demonstrated commitment to their promotion and protection. We are concerned that in recent years States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. The Commission cannot be credible if it is seen to be maintaining double standards in addressing human rights concerns.[44]

Echoing this very sharp and clearly articulated desire to reform the charter-based human rights machinery of the United Nations, the then-United Nations Secretary-General Kofi Annan presented a five-year progress report in 2005 with regards to the implementation of the Millennium Declaration of 2000. This report was requested by the UN General Assembly.  In this report, he points out:

[F]or this reason, I strongly support the proposal that country scrutiny be exercised through a system of peer review, whether in a new Human Rights Council or a reformed Commission on Human Rights. This system should be built on the principle of universal scrutiny, whereby all States submit to a review of law and practice concerning their human rights obligations. For such a system to be credible and gain the confidence of all, it will be essential that a fair and transparent method be developed to compile information upon which to base the peer review. As the Secretary-General has emphasized, a new Human Rights Council should also continue the practice of the Commission regarding access for non-governmental organizations and preserve the independent role of the special procedures.[45]

Surely, as outlined, the Commission had its shortcomings. But as Scannella and Splinter write:

[O]f course it had its shortcomings and was criticised accordingly, but no one can doubt that over its 60 years it made a very important contribution to human rights standard setting, to the development of the UN institutional capacity to promote and protect human rights and, in many national situations, to significant improvements in the protection of human rights.[46]

The Commission had, despite all the opposition it faced, evolved from a standard setting entity to an innovative human rights mechanism designed to effectively respond to violations. Four major achievements need to be acknowledged:

1. The creation of Advisory Services Programmes that led to the proliferation of standard-setting mechanisms

2. Adoption of 1235 and 1503 procedures to examine effects of racism and colonialism

3. Political emergence of Third World actors and the shift to examine economic grievances

4. Expansion of the Human Rights Commission in 1989 through the inclusion of the members of the Non-aligned movement.

These results ushered in significant innovations considering major political confrontations. The Commission provided a forum for different human rights activities, an active and adamant actor to manage, proliferate, generate and protect human rights norms.[47] The United Nations Human Rights Council was established with the General Assembly Resolution 60/251. This ground-breaking document spells out:

Decides further that the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development;[48]

The creation of the United Nations Human Rights Council must be considered as one of the far-reaching reforms at the United Nations in general, more specifically it was a reform at the very heart of the United Nations human rights machinery.[49] In the end, the replacement of the Commission by the Council has to be seen as a careful compromise to the prevailing problematic dichotomy between an effective human rights monitoring system and the national sovereignty of member states.[50]

Rosa Freedman stresses that politicization within an international body mirrors certain trends in the international system. The United Nations Human Rights Council, she argues, was politicized through alliances (defined by geographic circumstances, social and cultural homogeneity, similar attitudes, external behaviour, political interdependence et. al.)[51], while the Council’s composition contributes to this politicization, as the majority of states represented in it come from developing states.[52]  Rosa Freedman criticizes further that, despite the creation of the Human Rights Council in a reformist atmosphere, renewed politicization of this body obstructed effective execution of the mandate laid out in Resolution 60/251.[53] She substantiates her argument by pointing out to repetitive and selective discussion in relation to Israel, predominantly prioritized by an alliance of Arab states.[54]

2. Sri Lanka and the United Nations Human Rights Commission

Soon after its independence, Sri Lanka signalled to the world its commitment to the international human rights values by becoming a member to the United Nations Human Rights Commission not only in 1957, but also on three other terms, namely 1985-1990, 1992-2000, 2003-05.[55] In these years, Sri Lanka provided not only some, but substantive contribution to the development of international human rights law. Stephen Jensen asserts that Sri Lanka was prominently engaged in the drafting of the Covenant on Civil and Political Rights, in the field of freedom of thought and conscience. He points out that “[t]he outspoken defenders of adequate human rights standards in this field were in fact Liberia, Pakistan, Sri Lanka, Venezuela and others from the Global South.”[56]

Sri Lanka also took a prominent role in drafting and adopting resolutions that condemned racial and apartheid policies in Rhodesia and South Africa, moreover contributed to discussions to the situation in the Middle East, while advocating for the Palestinians.[57]  Moreover, Sri Lanka was actively engaged in human rights fact-finding missions (among them the first fact-finding mission ever under the auspices of the United Nations to South Vietnam).[58] Also noteworthy is a seminar on National, Local and Regional Arrangements for the Promotion and Protection of Human Rights in the Asian Region, organised by the United Nations, a seminar that was held in Sri Lanka, in 1982. The seminar resulted in a United Nations General Assembly Resolution.[59]  Moreover, at the 41^st Session of the Commission, Sri Lanka presented draft resolution S/CN.4/1985/L.65 on the regional arrangement for the protection and promotion for human rights, which was adopted by consensus.[60] Against this background it is also of interest to refer to the draft resolution by a number of co-sponsoring countries, among them Sri Lanka, before the Third Committee of the General Assembly. In this resolution, the supporting member states affirmed the indivisible nature of the civil, political, economic, social and cultural rights, moreover the need for states to bring national human rights standards in line with international human rights standards.[61] Conspicuously, Sri Lanka was an active member state within the Commission, advocating for the protection and promotion of human rights. Jayantha Dhanapala, Sri Lankan veteran diplomat holds the view that:

I think it is important to know that prior to 1983 Sri Lanka was never featured in any human right forums. It was my task in 1984, when I assumed duties as Permanent Representative of Sri Lanka to the UN in Geneva, to have to face the reaction to the 1983 riots in Sri Lanka when mobs were responsible for violence which caused the deaths, suffering and burning of a number of Sri Lankan Tamils and other citizens of our country. We had to endure the criticism not only of nongovernment organizations but also of a number of friendly member countries including countries in our own region such as India. Our approach to this task was to engage constructively with our critics and to try to show that what happened in August 1983 was an aberration from the normal practice of human rights by a democratically elected government and the breakdown of government machinery on that occasion was not an indication that that was going to be a permanent feature of Sri Lankan governance. With the co-operation of the members of the Commission on Human Rights and the Sub Commissions on Human Rights, and indeed the UN Human Rights Secretariat we were able, over a period of time, to engage in a dialogue.[62]

For this purpose, the examination will now turn to the concrete human rights engagement of the Commission with Sri Lanka after the outbreak of violence in 1983, an event that is commonly referred to as “Black July” by Sri Lankans. As it was discussed in the second chapter, this historical event is widely seen as the starting point of the civil war that followed and lasted for 26 years.

2.1. Sri Lanka’s interaction with the United Nations Human Rights Commission during the ethnic clashes of 1983

The United Nations Commission for Human Rights scrutinized the government’s human rights record after the events of Black July in 1983. In accordance with Resolution 8 (XXIII), the Commission requested the Sub-Commission on Prevention of Discrimination and Protection of Minorities to discuss, report and provide information on the violations of human rights and fundamental freedoms considering the ethnic clashes in 1983. The discussion ushered in the resolution 1983/16. [63] This resolution was very mild, as it only requested the government to provide information and subsequent discussion, without any further detailed action envisaged.[64]  In their response, the Sri Lankan state delegation, while underscoring the voluntary engagement with the Commission, reiterated its consistent policy to engage with the United Nations bodies.[65] Throughout the note verbale, however, the Sri Lankan state delegation refuted the claims of discrimination, by stating:

[T]he Sub-Commission considered the disturbances of July 198З in isolation and failed to consider all the circumstances relating to the ethnic situation in Sri Lanka (…) A great majority of the Tamil people are happy with these measures. As in many countries, however, there remains a small group that is dissatisfied. This group, though small in number, has in recent years agitated for a separate state called “Eelam”. It is against this background that, groups of extremists started their campaign of violence.[66]

The statements echoed a certain parochial approach to international human rights monitoring, underpinned by a very vague and unsubstantiated assessment of the situation of Tamil populace in the country. The rhetoric resembles that which was apparent before the Committee on the Elimination of Racial Discrimination (examined in the previous chapter).[67]  Moreover, the state delegation tried to deflect international criticism by pointing out to material safeguards, an established human rights practice in the country and revered Sri Lankan state officials of Tamil ethnicity.[68] Finally, the delegation was eager to suggest an international conspiracy against its country, shielded itself against criticism by suggesting

[A] well-orchestrated, mischievous and devious propaganda campaign was set in motion in many countries both to justify the terrorist activities in the north of Sri Lanka and to seek international support for the state of Eelam on the same plea of discrimination.[69]

After the delegation elaborated on the Prevention of Terrorism Act and the prison violence in Welikade, it concluded

[T]he events of July 1983 were caused by a minority of lawless elements in particular circumstances. The guilty have been or are being punished and the Government has initiated a complex and sensitive political process to deal with the fundamental issues which led to the events of July 1983. In this context, the constructive approach of the international community is to resist from any action or comment on the situation in Sri Lanka.[70]

This statement was supposed to become an established norm of engagement in Sri Lanka’s communication with the international community. Sri Lanka, a state that actively contributed to the formulation of human rights standards and engaged in human rights monitoring missions, morphed into the position of a reluctant, if not persistent human rights objector.  Soon after, in 1984, the Sri Lankan human rights situation was again on the agenda of the Commission.[71]  The opening statement of the Sri Lankan state delegate and permanent representative, veteran diplomat Jayantha Dhanapala indicated again a reluctance for the international criticism in interior matters:

[i]t was a strange irony that the Commission should be requested to consider the situation in Sri Lanka, particularly when a democratically elected Government had done everything within its power not only to quell the disturbances that had taken place in July 1985 but also to set in motion a delicate political process at several levels, with a view to achieving a permanent political solution acceptable to all the people of Sri Lanka.[72]

After a lengthy discussion and argumentation patterns that resembled the engagement before the treaty bodies, Jayantha Dhanapala asserted:

[H]is delegation had voluntarily made available to the Commission a memorandum (E/CN.4/1984/IO) on the human rights situation in Sri Lanka, with particular regard to the Tamil minority. There had been no gross violations of human rights, nor anything to suggest a consistent pattern of such violations. The situation, therefore, did not come within the Sub-Commission’s mandate under Commission resolution 8 (XXIII). It arose from political problems, which the country was trying to solve by itself, including assassinations and acts of violence against police and other public servants, carried out by terrorists in an effort to destabilize the lawfully elected Government. To plead the cause of a few terrorists in disregard of the human rights, including the right to life, of the vast majority of citizens was dangerously misleading and prompted the question whether the Commission should investigate the impact of terrorism on the protection of human rights in democratic societies.[73]

The focus shifted away from malpractice in the human rights promotion and protection of the government to the human rights violations committed by the Liberation Tigers of Tamil Eelam. From now on, Sri Lanka became a regular subject of discussion at sessions of the Commission for Human Rights. Interestingly, Sri Lanka did engage and discuss its internal matters before the international community. In 1985, the leader of the state delegation, H.W. Jaywardene enunciated:

[H]owever, in consonance with our support for the UN and in a spirit of co-operation with UN activities in the important field of human rights, we have voluntarily made available information on the situation in Sri Lanka both before the Commission on Human Rights and before the Sub Commission on Prevention of Discrimination and Protection of Minorities. This spirit of co-operation is undiminished by serious misgivings which we share with other delegations about the selectivity of approach to country situations, the overlapping of procedures within the UN bodies on human rights and the blatant political use made of these bodies by interested parties who seek to pursue their political aims in any forum and at any time.[74]

The statement revealed the consistent pattern used in future engagement with the UN Commission for Human Rights. The government tried to deflect attention by referring to human rights violations committed by the Liberation Tigers of Tamil Eelam:

[T]he prime cause for incidence of violence in Sri Lanka has been the acts of terrorists which the security forces of Sri Lanka are endeavouring to control in order to protect the human rights including the right to life of all citizens of Sri Lanka wherever they may live in our island home.[75]

In 1987, the United Nations Commission for Human Rights adopted a resolution to address the on-going civil war by declaring an urgent need to find a political solution to the conflict and underscored the urgency to respect human rights and fundamental freedoms.[76] The 1992 engagement with the Commission demonstrated a less ideologically charged atmosphere. In addition, members of the Commission, non-member observer representatives, and representatives of nongovernmental organizations reported that the new members were relatively open-minded regarding new ideas and initiatives to enhance the effectiveness of the Commission.[77] There was also an emphasis of the Commission to take Asian human rights situations more into consideration, such as Cambodia, East Timor, Myanmar, and Sri Lanka.[78] Various human rights violations and in particular the problem of impunity were discussed at the Commission in 1992, resulting in various statements by present nongovernmental organizations.[79]  Facing this pressure from civil society actors and the calls for the creation of a Special Rapporteur on the human rights situation, the Sri Lankan state delegation expressed its genuine concern when confronted with international attention regarding the human rights violations in its territory. Impressed by such concerns, the Commission wanted to encourage the Sri Lankan government to take steps to prevent recurrences which resulted in an isolated statement of the chairperson of the Commission, without the possibility for a special procedure or investigator to follow-up on the situation.[80]

The 1992 session of the Commission for Human Rights would have been the strategic moment to establish a special procedure equipped with a country mandate. In hindsight, the Commission had moved away from its static engagement and solely standard-setting up to 1967, but failed to take a more decisive and probably more intrusive approach to the civil unrest that eventually morphed into the fully-fledged civil war that lasted until 2009. During a discussion on the issue of enforced disappearances, the state delegation, while acknowledging the grave human rights violation, subtly shifted the focus and the responsibility to terrorist activities.[81] The same method of deflection was used in a 1996 and 1998 statement by the head of the Sri Lankan state delegation.[82]  The civil society played a crucial role when different nongovernmental organizations raised again the need for the establishment of a special rapporteur with a country mandate.[83] Contrary to the statement made by the Sri Lankan government, non-governmental organizations also underscored that impunity of armed forces remains a matter of serious concern[84], indicating the growing self-confidence of non-governmental organizations in their statements that provided a vital mechanism to question and double-check the accounts provided by the Sri Lankan state delegations.

2.2. Sri Lanka and the Special Procedures under the United Nations Commission for Human Rights

Sri Lanka was subject to several special procedures under the Commission for Human Rights. In the following section, the discussion will turn to three crucial special procedures established to consider the human rights situations in certain areas of concern regarding Sri Lanka: enforced disappearances, torture and arbitrary and summary execution. The reason for the choice for these three human rights violations is guided by their specific prevalence during the Marxist uprising in 1971, during and after the end of the civil war. For this reason, it is necessary to examine and identify any impact of the human rights engagement to deter and control human rights violations in these areas.

2.2.1. Working Group on Enforced or Involuntary Disappearances

Sri Lanka’s human rights record regarding enforced or involuntary disappearances is very troublesome. As outlined under the human rights engagement with treaty-based bodies, enforced disappearances became a common phenomenon in the country. Many countries with internal troubles, disturbances or war invoke national security to encounter violence in their countries. To this end, disappearances became the preferred

[w]eapon used to suppress opposition. The term disappearance is a euphemism to disguise the use of extrajudicial detentions and killings by state-sanctioned agents. Agents arrest individuals without charge and hold them indefinitely while officials deny knowledge of their detention.[85]

In light of the growing number of disappearances, the United Nations established the Working Group on Enforced or Involuntary Disappearances in 1980, the first of the thematic mechanisms created by the Commission on Human Rights. It was hoped that the Commission would serve as a means of communication between victims, families, and non-governmental organizations and governments. The body was also mandated to examine questions relevant to enforced or involuntary disappearances of persons by collating information from Governments, intergovernmental organizations, humanitarian organizations and other reliable sources.[86] Finally, the body was also obliged to submit annual reports to the Commission on Human Rights.

On the 18^th of March 1981, the Sub-Commission on Prevention of Discrimination and Protection of Minorities under the Commission for Human Rights issued an examination of the country situation in relation to enforced disappearances in Sri Lanka.[87] The Sub-Commission merely examined that the legal infrastructure and material safeguards to encounter detention and disappearances in particular and on the 31^st of October 1981, the Working Group expressed its wish, for the first time since its inception, to conduct a country visit and examine the reported cases of disappearances.[88] The Sri Lankan Government’s response was swift, but they referred to on-going domestic investigations into the matter and expressed its intention to revert to the Working Group upon conclusion of the domestic investigations.[89]

In 1986 the state delegation of the Federal Republic of Germany highlighted the issue of disappearances in countries that were unable to extend their control in certain territories.[90] The state delegation called upon the Commission to act in these cases to intervene and address these human rights violations, in particular in cases where enforced disappearances were carried out by forces in opposition to the government.[91] This statement was quickly endorsed by the Sri Lankan state delegation that answered “[t]he Working Group should establish means of obtaining information on disappeared persons from insurgent groups over whose activities Governments had no control.”[92] The Sri Lankan government was very adamant in this regard to quickly emphasize acts of violence committed by irregular armed groups, while deflecting from own failures to encounter disappearances perpetrated by own authorities or its proxies. By way of example, the Sri Lankan government was heavily involved in lobbying efforts to adopt measures to condemn acts committed by terrorist groups. These efforts succeeded in 1990, with the adoption of Resolution 1990/75.[93]

And as a matter of fact, Sri Lanka maintained this line of engagement with the Commission, as they continuously referred to the human rights violations committed by the Liberation Tigers of Tamil Eelam and by doing so, they tried to divert the international attention from their own violations. This is reflected in the Annual Report from 1991.[94] The constant pressure exerted by the Working Group has yielded some laudable results: the common effort of the government, the Working Group, families of disappeared and civil society actors have helped to usher in the reduction and clarification of outstanding cases. More precisely, the Working Group could clarify 4.390 cases of disappearances in 2001, followed by another 1.234 cases in 2002.[95]  By way of comparison, in 1998, 12.144 were still outstanding.[96] This was the result of the sophistication, self-assurance and international legitimacy of the Working Group that had deepened and intensified its engagement with the Sri Lankan government. When the Working Group visited the country in 1991 and 1992, the special procedure had moved away from formulaic to more precise and reprimanding recommendations. Exemplary is the Working Group’s recommendation regarding outstanding clarification of cases and civil defence:

[T]he Government should pursue the clarification of disappearances even more vigorously. The setting up of various bodies has been an important step in this direction, but is not sufficient (see recommendations (j) and (k)). Human rights groups should be brought more closely into the search for missing persons, specifically as regards the identification of bodies discovered. In such identification, assistance might also be requested from an international team of forensic experts under United Nations auspices. (…) Civil defence units should only be formed on a purely voluntary basis, under the control of civil authorities. They should come under stricter control in terms of command structure, operations and supply of arms and ammunition. Care should be taken that only properly trained personnel in uniform are allowed to carry officially issued arms and use official vehicles in carrying out operations. This may prevent the present practice of civilian defence units in plain clothes arresting people at will, a practice about which the Working Group has received many complaints as having led to abuse.[97]

Moreover, the engagement was of vital nature: thanks to the Commission’s heavy lobbying efforts and pressure exerted upon Sri Lanka, the Working Group was able to make a another on-site visit in 1992.[98] Also, in the larger context of this human rights engagement, it needs to be taken into account that Sri Lanka had voted in a new president in 1988, Ranasingha Premadasa.[99]  When confronted with the possibility to adopt a country-specific resolution, the Sri Lanka government felt compelled to allow another on-site visit, as a resolution was considered to be more politically harmful to the country’s reputation than a visit by this special procedure.[100]

Given this progressive interaction with the government of Sri Lanka and its active engagement with the Commission and this procedure, Sri Lanka’s attitude towards the commission changed, by engaging openly with the Working Group and human rights reassurances submitted (with regards to the creation of a task force to monitor detainees, presidential commissions et al.), the Commission decided to adopt a consensus statement in 1992 after the conclusion of the special procedure.[101] The statement appeared in the record of the proceedings, but disappeared in the descriptive and procedural sections of the Commission’s Annual Report. This particular statement encouraged the Sri Lankan government to continue to implement human rights reforms and the recommendations of the Working Group. This decision did not find the support of members in the community of nongovernmental organizations, as they had urged for the appointment of a Special Rapporteur, and viewed this outcome as a failure.[102] Despite this setback, nongovernmental organizations continued their lobbying efforts at the Commission for the establishment of a Special Rapporteur, resulting in 1998 in a joint statement by numerous nongovernmental organizations.[103]  In the larger context, it can be concluded that the Working Group on Disappearances has managed to establish a working relationship with the Sri Lankan government, maintaining, however, its modest stance on its contribution to the clarification of disappearances.[104]

2.2.2. Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

The late Sir Nigel Rodley reported on torture in Sri Lanka based largely on communications he received from individuals. He expressed the view that the emergency regulations aggravated and facilitated the wide practice of torture in the country.[105] He detailed the components that provide a fertile ground for the torture practices to strike roots, inter alia, admission of confessions which were obtained under torture, the maintenance of dark sites. Meanwhile, the Sri Lankan government had, under pressure from the international human rights machinery, enacted the Convention against Torture Act in 1994, which was discussed in the third chapter. In his report, Sir Nigel Rodley held that “it remains evident that more prosecutions and convictions will be required in order significantly to affect the problem of impunity.”[106] Substantiating this observation, Eric Sottas, the Director of the World Organisation Against Torture argued that:

[M]any resolutions and recommendations expressed by both conventional and constitutional mechanisms remain widely ignored and are of little practical use. At the national level, the recognised universal judicial competence to sanction torture, is seldom used. (…) Nevertheless, in the course of the past year, cases of torture, violation, summary executions and forced disappearances have continued to be denounced by the human rights organisations. Some months ago, we planned to have one of the many victims present a testimony of the atrocities before this body. The fear, unfortunately justified, of reprisals against their family has meant that his submission cannot be made. This lack of confidence that the people that we are supposed to be defending have in the single most important international body with responsibility for the protection and promotion of human rights, speaks volumes.[107]

In the response to a report by the South Asian Human Rights Recording Centre, the Sri Lankan government submitted in 2004 a note verbale, in which it refuted the claims made of widespread application of torture.[108]

2.2.3. Special Rapporteur on extrajudicial, summary or arbitrary executions

In light of communications that received, the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Bacre Waly Ndiaye, submitted his report on Sri Lanka.[109]  The cases of more than hundred people who were killed were communicated to the Sri Lankan government.[110] By way of example, the Special Rapporteur pointed out to the case of Tharmalingam Selvakumar[111], a person who filed a fundamental human rights case in the Supreme Court not only against the police, but also the Attorney General and the leader of the Eelam People’s Democratic Party, Douglas Devananda. Selvakumar claimed he was abducted and tortured by the latter in collusion with the country’s police and claimed to fear for his life. The heightened attention and increased visibility contributed to the international exposure through the mechanisms such as the special procedure and secured the life of Selvakumar.[112]

In this report the Special Rapporteur also expressed his wish for an on-site visit. This request was realized in 1997, which led to the 1998 country report. In this report, the Special Rapporteur stressed the complicating nature of anti-terrorism legislation on the full enjoyment of human rights in the country.[113]  The report, overall, described the severity of the situation, along with the blatant and widespread human rights violations. He pointed to the prevailing culture of impunity in the country, a recurring theme in the Sri Lankan context as was illustrated.[114]  The conclusion in the report was a clear and frank prediction on the future of Sri Lanka:

[I]mpunity enjoyed by human rights violators in Sri Lanka is very pervasive. (…)  it has proved itself equally effective in guaranteeing impunity for violations of the ordinary criminal law in respect of acts (murder, torture, kidnapping) committed in the line of duty. Thus, Sri Lanka fails to fulfil its obligations under international law to carry out exhaustive and impartial investigations with a view to identifying those responsible, bringing them to justice and punishing them.  (…) This strongly suggests the lack of institutional willingness to hold the authors of human rights violations responsible. (…)  Neither the Sri Lankan population, the main victims, nor the international community, a powerless witness to the frequent killings and disappearances, seem capable of halting the violence. The failure by the Sri Lankan authorities to take concrete measures which would have immediate effect and put an end to this violence and further prevent its degeneration into a civil war has also contributed to shaping the present situation.[115]

In response to his visit to Sri Lanka, the state delegation of Sri Lanka took certain observation into account, but refuted certain comments made:

[W]hile acknowledging some of the forthright comments the Special Rapporteur had made in his presentation of the report, we find certain generalisations and sweeping statements made in his report as not reflecting the fullest appreciation of the complex issues involved, particularly the implications such simplified comments will have for the principles of the United Nations Charter such as the territorial integrity of States. The Government will undertake a careful study of the report and will continue the dialogue with the Rapporteur.[116]

The successor of Mr. Bacre Waly Ndiaye, Mr. Phillip Alston, visited the country, as part of one of the last country visits mandated by the Commission, between the 28^th of November and 6^th of December 2005. He arrived in the country during the resurgence of the conflict, as the then-foreign minister of the country, Lakshman Kadirgamar, was assassinated by the Liberation Tigers of Tamil Eelam.[117] Despite a carefully brokered ceasefire in 2002 by the Norwegian government, both, Sri Lankan government as well as the Liberation Tigers of Tamil Eelam had repeatedly violated this cease-fire agreement.[118] In this very hostile environment, the Special Rapporteur wrote his Report from his Mission to Sri Lanka.[119]  He noted:

[T]he last days of my visit witnessed what were then the deadliest attacks on Government forces since the ceasefire and even more deadly attacks have followed. As the Sri Lanka Monitoring Mission (SLMM), established to monitor the ceasefire, has warned, the ceasefire is “in jeopardy” and “war may not be far away”. I deplore this turn of events, and reiterate that peace is necessary to fully ensure the right to life in Sri Lanka. I would emphasize, however, that the findings below remain relevant despite these developments: extrajudicial killings were not halted by the ceasefire and appear set to continue regardless of how the conflict develops.[120]

Moreover, he asserted:

[D]uring my visit to the east, I received complaints of Tamil youths being picked up by white vans (allegedly with involvement by the security forces), and of two Tamil men from the east abducted from a trishaw shortly after being released by the police in Colombo and later turning up dead. During the month of December, the Human Rights Commission of Sri Lanka received 16 complaints of disappearances from the north of the country. I am seeking further information on these cases and will pursue them with the relevant authorities, but I flag them here as an alarming warning that the escalating security situation could trigger a reversion to abusive practices of the past. I urge the Government to respond to these cases promptly and effectively and ensure that all the necessary safeguards with respect to detention are fully observed.[121]

His report surely served as an early-warning mechanism to draw the attention of the international community to the languishing peace process in the country. Commentators aligned with the government, however, alleged him of lobbying for an external intervention by the United Nations, while scorning him as one of the “[m]ore passionate human rights campaigners for external intervention against human rights violations in Sri Lanka.”[122]  Nonetheless, Phillip Alston’s report not only scrutinized the actions by the government, but also held actions of the Liberation Tigers of Tamil Eelam rebels to account, as well as of a faction of Liberation Tigers of Tamil Tigers defectors. Phillip Alston’s report is a strong document providing robust legal and political analysis. His report highlights in one instance that “[A]s a non-State actor, the LTTE does not have legal obligations under ICCPR, but it remains subject to the demand of the international community, first expressed in the Universal Declaration of Human Rights, that every organ of society respect and promote human rights.”[123] This report provided a comprehensive and impartial guideline to encounter the erupting violence and deter the threat of the outbreak of civil war.[124] Given the events that followed, however, the report failed to be a basis for collective and preventive action.

3. Sri Lanka and the United Nations Human Rights Council

3.1. Sri Lanka’s interaction with the United Nations Human Rights Council during the final phase of the war from 2006-2009

In the relatively short history of the Human Rights Council, it seems that the body prefers to adopt country-specific resolutions by consensus rather than by a recorded vote.[125] The value of conciliatory and consensus-based decision making over non-consensual cannot be appreciated enough.
Certain voting patterns are difficult to give enough reflection on the differences in nations’ importance. The approach to consensus facilitates an egalitarian procedure which, once applied, assures in multilateral negotiations real geopolitical power of the countries that are participating.[126] This trend seemed to continue in the years between 2006 and 2015 when resolutions were adopted by consensus, indicating that member states tend to prefer less controversial resolutions. The overall number of resolutions adopted by a vote has grown, an indicator that member states are moving to consider more controversial cases. Sri Lanka’s internal human rights situation, coming along with the lack of accountability and impunity, is such a case.[127]

In 2006, Finland, on behalf of the European Union, submitted a draft resolution with regards to the Sri Lankan human rights situation. This resolution underscored the international concern regarding the deteriorating human rights situation, while demanding for a field presence of the Office of the High Commissioner in the country.[128]  In the same year, the then-president of the country, Mahinda Rajapaske, addressed the General Assembly at the sixty-firstsession with following words

[G]iven my personal commitment to the promotion of human rights at both local and international level, the establishment of the Human Rights Council with enhanced status and capacity to promote and protect human rights worldwide, is a cause for delight. I am happy that Sri Lanka was elected to the Council in May this year. In honouring a pledge made at the Presidential election last year, we have already started work on crafting a Human Rights Charter in Sri Lanka. Consistent with our goal of safeguarding human rights, my government will establish an international panel to observe investigations into certain alleged human rights violations which my Government has already condemned.[129]

The human rights charter, was never fulfilled, like many other pledges. Meanwhile, Sri Lanka became member to the Human Rights Council in 2008.[130] As Sri Lanka sought election to the Human Rights Council, the state delegation of Sri Lanka submitted a voluntary pledge. Here the state delegation enunciated:

[S]ri Lanka has opened itself to scrutiny of multiple international mechanisms on the belief that openness and accountability, through international means, can strengthen national efforts at promoting and protecting all human rights. (…) Sri Lanka is a firm supporter of the United Nations human rights system, and has been active in deliberations on human rights in international fora including the negotiations that led to the establishment of the Human Rights Council as well as the adoption of the institution building package of the Council.[131]

While this is a notable affirmation to the international human rights machinery, it needs to be investigated if the words met with action in the forum of the Human Rights Council. In the next subsection, the examination will closely investigate the charter body’s engagement with Sri Lanka in light of its efforts to highlight the war crimes allegations after the end of the war in 2009.

[1] Martin S. Edwards, Kevin M. Scott, Susan Hannah Allen and Kate Irvin: Sins of Commission? Understanding Membership Patterns on the United Nations Human Rights Commission, Political Research Quarterly, Vol. 61, No. 3 (Sep., 2008), p. 390.

[2] Humberto Cantu Rivera: The United Nations Human Rights Council: Remarks on its History, Procedures, p. 1 Challenges and Perspectives, The Special Procedures of the Human Rights Council, First published 2015, Intersentia, Utrecht, p. 1.

[3] Jean-Bernard Marie, La Pratique de la Commission des Droits de l’Homme de L’ONU en matiere de violation des droits de l’homme, La Revue belge de droit international, 1980-2, p. 355.

[4] Jan Herman Burgers: The Road to San Francisco. The Revival of the Human Rights Idea in the 20^th Century, Human Rights Quarterly, Vol. 14, No. 4, 1992, pp. 468-474.

[5] United Nations Charter, art. 68.

[6] Jeroen Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community, First published 2006, Intersentia, Utrecht, p. 35.

[7] Ibid, p. 36.

[8] Supra note 3, Marie, p. 355.

[9] Phillip Alston, The Commission for Human Rights, United Nations and Human Rights, First published 1992, Oxford, p. 128.

[10] E/RES/9 (II).

[11] Supra note 9, Alston, p. 128.

[12] Supra note 3, Marie, p. 357.

[13] Steven L.B. Jensen, The Making of International Human Rights, Firstpublished 2016, Cambridge University Press, Cambridge, p. 310.

[14] UN/E/259, para. 22.

[15] Ibid, para. 23.

[16] Supra note 9, Alston, p. 129.

[17] Supra note 9, cited in Alston, p. 130.

[18] Constance De la Vega and Tamara Lewis, Peer Review in the Mix: How the UPR Transforms Human Rights Discourse, in: New Challenges for the UN Human Rights Machinery, Cherif Bassiouni and William Schabas (eds.), First published, Cambridge, 2011, p. 354.

[19] Supra note 3, Marie, p. 357 – 375.

[20] Supra note 9, Alston, p. 132.

[21] Supra note 6, Gutter, p. 1.

[22] See also art. 2.1., 2.4 and 2.7 of the United Nations Charter.

[23] Supra note 18, De la Vega and Lewis, p. 355.

[24] Supra note 18, De la Vega and Lewis, p. 355.

[25] Supra note 13, Jensen, p. 7.

[26] Steven L.B. Jensen, Decolonization—not western liberals—established human rights on the global agenda, accessed:  https://www.opendemocracy.net/openglobalrights/steven-l-b-jensen/decolonization-not-western-liberals-established-human-rights-on-g, last visited 9^th of February 2017.

[27] Supra note 5, Gutter, p. 2.

[28] Tom J. Farer and Felice Gaer: The UN and Human Rights: At the End of the Beginning, in: Adam Roberts, and Benedict Kingsbury (eds.), United Nations, Divided World: The UN’s Roles in International Relations, First published 1993, Oxford University Press, Oxford, p. 274.

[29] ECOSOC Resolution 1235 (XLII).

[30] Supra note 18, De la Vega and Lewis, p. 355.

[31] Office of the High Commissioner, Human Rights Council Complaint Procedure, accessed: http://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/HRCComplaintProcedureIndex.aspx, last visited 14^th of March 2017.

[32] Maximillian Spohr, United Nations Human Rights Council Between Institution-Building Phase and Review of Status, in: Max Planck Yearbook of United Nations Law, A. von Bogdandy and R. Wolfrum, (eds.),  Volume 14, 2010, p. 172.

[33] Howard Tolley Jr., Decision-Making at the United Nations Commission on Human Rights, 1972 -1982, 5 Human Rights Quarterly 27 1983, p. 27.

[34] Supra note 9, Alston, p. 206.

[35] Antonio Cassese: International Law, First published 2001, Oxford University Press, Oxford, p. 364.

[36] E/CN.4/1999/104, para. 17.

[37] Philip Alston: Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council, accessed:  http://www5.austlii.edu.au/au/journals/MelbJIL/2006/9.html, last visited 14^th of March 2017.

[38] A/HRC/13/39/Add.5, para. 4.

[39] Thomas Buergenthal, Remarks at the 87th Annual Meeting of the American Society of International Law (2 Apr.1993), in New Customary Law: Taking Human Rights Seriously?, 87 Am. Soc’y Int’l L. Proc. 229, 231 (1993).

[40] Surya P. Subedi: Protection of Human Rights through the Mechanism of UN Special Rapporteurs Human Rights Quarterly, Volume 33, Number 1, February 2011, p. 203.

[41] Ibid, p.204

[42] Supra note 40, Subedi, p. 204.

[43] A/59/565.

[44] A/59/565, paras. 282-283, 291

[45] A/59/2005/Add.3, paras. 90-92.

[46] Patrizia Scannella and Peter Splinter: The United Nations Human Rights Council: A Promise to be Fulfilled, Human Rights Law Review 7:1, p.41-42.

[47] Supra note 9, Alston, p. 204.

[48] A/RES/60/251, para.4.

[49] Supra note 32, Spohr, p. 171.

[50] Supra note 9, Alston, p. 197.

[51] Rosa Freedman, The United Nations Human Rights Council, A Critique and Early Assessment, 1^st edition, 2013, Routledge, Abingdon, p. 122.

[52] Ibid, p. 126.

[53] Rosa Freedman: The United Nations Human Rights Council: More of the same? In: Wisconsin International Law Journal, Vol. 31 No.2, p. 248.

[54] Supra note 51 Freedman, pp. 128-133

[55] See: OHCHR, United Nations Commission for Human Rights, Members from 1947 to 2006, accessed: http://www.ohchr.org/EN/HRBodies/CHR/Pages/Membership.aspx, last visited 28^th of February 2017.

[56] Supra note 13, Jensen, p. 142.

[57] See also, inter alia: Question of slavery and the slave trade in all their practices and manifestations, including the slavery-like practices of apartheid and colonialism: reports prepared in accordance with paragraph 6 of resolution 1982/20 of the Commission on Human Rights: note by the Secretary-General, E/CN.4/Sub.2/AC.2/1982/12, 6^th of July 1982;  Question of Palestine: draft resolution, A/ES-7/L.5/Add.1, 19^th of August 1982; The situation in the Middle East: draft resolution, A/37/L.48, 9^th of December 1982.

[58] Sri Lankan governmental representatives were appointed to different fact-finding missions, i.e. South Vietnam in 1983 and to the Occupied Territories in 1968, see also: A/5630, Report Of the United Nations Fact-Finding Mission To South Viet-Nam and 2546 (XXIV), Respect for and implementation of human rights in occupied territories; furthermore: Ton J.M. Zuidwijk, Petitioning the United Nations, A Study in Human Rights, First published 1982, St. Martin’s Press, New York, p. 232, 281.

[59] Resolution 37/171

[60] E/CN.4/1985/SR.57, para. 34.

[61] Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms, A/C.3/34/L.15/Rev.2, p. 3.

[62] Seminar Hosted by the International Centre for Ethnic Studies (ICES – Colombo), the United Nations Country Office in Sri Lanka and the United Nations Development Programme Regional Office for Asia Colombo, November 15th 2007, p. 8,  accessed: http://www.jayanthadhanapala.com/content/UN_Address_15_November_2007.pdf, last visited 1^st of March 2017.

[63]E/CN.4/Sub.2/1983/43, p. 83:

The Sub-Commission on the Prevention of Discrimination and Protection of Minorities,

Deeply concerned about the recent communal violence in Sri Lanka, which cost severe loss of lives and property,

Recalling that Sri Lanka has ratified both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights,

Recognising that the Government of Sri Lanka has sought to reduce ethnic tension and to foster national harmony,

Noting with concern that despite these efforts the relationship between the ethnic communities seems to have deteriorated,

1.Requests the Secretary General to invite the Government of Sri Lanka to submit information on the recent communal violence in Sri Lanka, including its efforts to investigate the incidents and to promote national harmony, and to submit any information received from the Government of Sri Lanka to the Commission on Human Rights at its fortieth session;

2.Recommends to the Commission on Human rights that it should examine the situation in Sri Lanka in the light of all available information.

[64] Ibid.

[65] Note verbale, dated 1^st of February 1984 from the Permanent Mission of the Democratic Socialist Republic of Sri Lanka to the Secretary-General, E/CN.4/1984/10.

[66] Ibid, paras. 4 (b), 13.

[67] See also discussions under No. 4 of Chapter IV.

[68] Supra note 65, note verbale, paras. 15-18.

[69] Supra note 65, note verbale, paras. 14.

[70] Supra note 65, note verbale, para. 44.

[71] E/CN.4/1984/SR.46

[72] E/CN.4/1984/SR.46, para. 14.

[73] E/CN.4/1984/SR.46, para. 24.

[74] UN Commission on Human Rights in Sri Lanka, February 1985, Statement by H.W.Jayawardene. Q.C. Leader of Sri Lanka Delegation 8^th March 1985, accessed: http://tamilnation.co/unitednations/uncom85.htm#Statement%20by%20Sri%20Lanka, last visited 2^nd of March 2017.

[75] Ibid.

[76] E/CN.4/RES/1987/61.

[77] Joe W. (Chip) Pitts III and David Weissbrodt, Major Developments at the UN Commission on Human Rights in 1992, 15 Hum. Rts. Q., 1993, p. 128.

[78] Ibid.

[79] One daunting oral statement is that of nongovernmental organization ARTICLE 19:

“(…) While a number of criminal cases were pending against members of the security forces, there was no evidence of any convictions for grave human rights violations committed in the course of counter insurgency operations… it is clear that these violations are only the tip of the iceberg and that various domestic procedures by which Sri Lankans may seek redress are virtually useless. (..)”, U.N. Press Release HR/3038, 20^th of February 1992.

[80] Statement by Chairman of Human Rights Commission mon behalf of all the member countries of the Commission, on the Human Rights Situation in Sri Lanka , 27 February 1992, accessed: http://tamilnation.co/unitednations/uncom92.htm#a1, last visited 14^th of March 2017.

[81] Statement by Mr.Tilak Marapone, Leader of Sri Lanka Delegation, 23 February, 1993 under Agenda Item No. 10(C): Question of enforced or involuntary disappearances, 49^th Session, February 1993:

“ (…) Mr. Chairman, the phenomenon of disappearances did not arise from any deliberate policy of the government either through action or inaction. It was the by-product of an extraordinary situation created by terrorist violence. The implementation of the recommendations of the Working Group will undoubtedly assist us in strengthening structural, and operational deficiencies. This process however cannot be realistically reviewed in too brief a time frame. It has to be related to the exigencies of the prevailing political and security situation.”

[82] Statement by the leader of Sri Lanka Delegation, Ambassador A.B.Goonetilleke, 17 April 1996

“(…) It is encouraging to note that the subject of terrorism has begun to engage the serious attention of the international community including the human rights fora. In this regard, the contribution made by the Sub Commission on Prevention of Discrimination and protection of Minorities is commendable. The Vienna Declaration and Programme of Action of 1993 and the Declaration on Measures to Eliminate International Terrorism contained in GA Resolution 49/60 constituted an important milestone in a debate previously hampered by political and definitional problems. In a remarkable display of unity, in the declaration made on the Special Commemorative Session of the 50th Anniversary of the United Stations, Heads of State and Government agreed to act together to defeat terrorism. (…)”; Statement by Sri Lanka Ambassador S. Palihakkara, Permanent Representative and Leader of the Delegation of Sri Lanka, Agenda Item 10 on the ” Question of the violations of human rights and fundamental freedoms with particular reference to colonial and other dependent countries and territories”, 15^th of April 1998.

[83] E/CN.4/1998/NGO/120, para. 2c.

[84] Written Statement by Pax Christi International, International Catholic Peace Movement, a non-governmental organization in special consultative status [E/CN.4/2000/NGO/45 1 February 2000 Original: ENGLISH] under Agenda Item 11 on Civil and Political Rights, paras. 11-13.

[85] Wasana Punyasena, The Façade of Accountability: Disappearances in Sri Lanka, Boston College Third World Law Journal, Vol. 23, p. 116.

[86] Ibid, p. 125.

[87] E/CN.4/1434/Add.4

[88] E/CN.4/1492, paras.138-139.

[89] Ibid.

[90] E/CN.4/1986/SR.52, para. 103.

[91] Ibid.

[92] E/CN.4/1986/SR.54, para. 74.

[93] UN Commission on Human Rights, Consequences of acts of violence committed by irregular armed groups and drug traffickers for the enjoyment of human rights., 7 March 1990, E/CN.4/RES/1990/75, available at: http://www.refworld.org/docid/3b00f01610.html [accessed 27 February 2017]

[94] E/CN.4/1991/20, para. 359 ff.

[95] E/CN.4/2002/79, para. 287; E/CN.4/2003/70, para. 252.

[96] Supra note 5, Gutter, p. 239, Table: Clarification rates of nine states with the highest numbers of reported cases of disappearances in 1998.

[97] E/CN.4/1992/18/Add.1, paras. 204 c) and m).

[98] Supra note 5, Gutter, p. 281.

[99] Barbara Crossette: Ranasinghe Premadasa; Sri Lankan At the Top, accessed: http://www.nytimes.com/1988/12/21/world/man-in-the-news-ranasinghe-premadasa-sri-lankan-at-the-top.html,  last visited 14th of March 2017.

[100] Supra note 6, Gutter, p. 281.

[101] U.N. Press Rel. HR/3048 (27 Feb. 1992).

[102] Adrien Zoller, After the Cold War: Analytical Report on the 48th Session of the Commission on Human Rights, in The International Service for Human Rights, Human Rights Monitor, No. 16 (April 1992).

[103] E/CN.4/1998/NGO/120.

[104] Supra note 6, Gutter, p.351.

[105] E/CN.4/1994/31, paras. 501-503.

[106] UN Doc. E/CN.4/2001/66/Add.1, paras. 956, 1001.

[107] Statement World Organisation Against Torture, Agenda Item on “Question of human rights of all persons subjected to any form of detention or imprisonment, in particular, torture and other cruel, inhuman or degrading treatment or punishment” – 26 March 1997.

[108] E/CN.4/2004/G/40, p. 2 (Annex).

[109] E/CN.4/1994/7.

[110] Ibid, para. 552.

[111] Supra note 110, E/CN.4/1994/7, paras. 551, 554.

[112] Patrick Coy, Cooperative Accompaniment and Peace Brigades International in Sri Lanka, in: Transitional Social Movements and Global Politics: Solidarity Beyond the State, Jackie Smith, Charles Chatfield and Ron Pagnucco (eds.), First published 1997 Syracuse University Press, Syracuse, p. 93, accessed: https://du1ux2871uqvu.cloudfront.net/sites/default/files/file/cooperative-accompaniment-and-peace-brigades-international-in-sri-lanka.pdf, last visited 14^th of March 2017.

[113] Supra note 110, E/CN.4/1994/7, paras. 74-90.

[114] Report of the Special Rapporteur, Mr. Bacre Waly Ndiaye submitted pursuant to Commission on Human Rights resolution 1997/61 – Visit to Sri Lanka, 12 March 1998 E/CN.4/1998/68/Add.2

“(…) Impunity enjoyed by human rights violators in Sri Lanka is very pervasive. The judiciary is competent to deal with cases involving security forces personnel accused of human rights violations. The justice system can be tough uand effective in prosecuting and punishing disciplinary offences involving manifest disobedience of orders. However, it has proved itself equally effective in guaranteeing impunity for violations of the ordinary criminal law in respect of acts (murder, torture, kidnapping) committed in the line of duty. Thus, Sri Lanka fails to fulfil its obligations under international law to carry out exhaustive and impartial investigations with a view to identifying those responsible, bringing them to justice and punishing them. (…)”

[115] Report of the Special Rapporteur, Mr. Bacre Waly Ndiaye submitted pursuant to Commission on Human Rights resolution 1997/61 – Visit to Sri Lanka, 12 March 1998 E/CN.4/1998/68/Add.2, paras.159-161.

[116]  Statement by Sri Lanka Ambassador S. Palihakkara, Permanent Representative and Leader of the Delegation of Sri Lanka, Agenda Item 10 on the ” Question of the violations of human rights and fundamental freedoms with particular reference to colonial and other dependent countries and territories”, 15 April 1998, accessed: http://tamilnation.co/unitednations/uncom98.htm#Sri%20Lanka%20Ambassador, last visited 14^th of March 2017.

[117] BBC News: Senior Sri Lanka minister killed, accessed  http://news.bbc.co.uk/2/hi/south_asia/4147196.stm, last visited 9^th of February 2017.

[118] The Guardian: Violence kills of Sri Lanka ceasefire, accessed https://www.theguardian.com/world/2008/jan/03/1, last visited 10^th of February 2017.

[119] E/CN.4/2006/53/Add.5.

[120] E/CN.4/2006/53/Add.5, para. 6.

[121] Ibid, para.68.

[122] G.H. Peiris, Twilight of the Tigers, First published 2009, Oxford University Press, Oxford, p. 258.

[123] E/CN.4/2006/53/Add.5, paras. 22, 25-27.

[124] E/CN.4/2006/53/Add.5, p.2-3.

[125] UN Human Rights Resolutions Portal, accessed: http://www.universal-rights.org/human-rights/human-rights-resolutions-portal/, last visited 14th of March 2017.

[126] Suren Movsisyan: ‘Decision Making by Consensus in International Organizations as a Forum of Negotiation’, 21st Century, 1(3), 2008, p. 78.

[127] Ted Piccone and Naomi McMillen: Country Specific Scrutiny at the United Nations Human Rights Council, Project on International Order and Strategy, Brookings Institute, May 2016, p.3, accessed: https://www.brookings.edu/wp-content/uploads/2016/07/UNHRC_Country_Specific_v1.pdf, last visited 3^rd of August 2017.

[128]  A/HRC/8/NGO/29.

[129] Address by His Excellency Mahinda Rajapaksa President of the Democratic Socialist Republic of Sri Lanka At the Sixty First Session of the United Nations General Assembly, p.5. accessed: http://www.un.org/webcast/ga/61/pdfs/sri_lanka-e.pdf, last visited 3^rd of August 2017.

[130] Office of the High Commissioner, Membership of the Human Rights Council 19 June 2006 – 18 June 2007 by year when term expires, accessed: http://www.ohchr.org/EN/HRBodies/HRC/Pages/Year20062007.aspx , last visited 22^nd of February 2017.

[131] Ibid.