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"History repeats itself twice, the first time as tragedy, the second time as farce" said Karl Marx (The Eighteenth Brumaire of Louis Bonaparte).

The much-awaited UN Human Rights Council Resolution No. 46/1 has at last been debated and adopted at Geneva. In order to weigh the positive and negative aspects of the historic significance of this document and its impact on the protracted struggle of the Tamil people for remedial justice, we ought both to look at the voting pattern and the effective contents of 46/1.

The final count in the voting on the Resolution was 22 for and 11 against, with 14 countries, including India abstaining. As Sri Lanka opposed the Resolution, it was called a Resolution against Sri Lanka, though the two descriptions may not mean the same thing. However, as per the voting pattern, Sri Lanka suffered a major diplomatic defeat in the international arena.

As in the past, the Sinhala state harped on the terrorist bogey but failed. In the run-up to the voting on the Resolution, the international community seemed to have finally woken up to the past and present reality of Sri Lanka and the untrustworthy nature of the successive regimes in Colombo. The current UN High Commissioner for Human Rights Michelle Bachelet, in her report, had called on the Member States for the referral of Sri Lanka to the International Criminal Court, in addition to various drastic steps to be taken by them individually and collectively. Four former High Commissioners, 13 former UN Special Rapporteurs who had visited Sri Lanka and all the 3 members of the Secretary-General's Panel of Experts on Sri Lanka also called for ICC referral.

The call for ICC referral was endorsed back at home by the Tamil political leadership, Tamil Civil Society and Tamil Religious leaders. The Tamil Diaspora, the International Commission of Jurists, and the San Francisco-based Oakland institute also lent their support to the call.

Ambikai Selvakumar's 17-day hunger strike in London helped in galvanising the Tamil world, in the homeland, in Tamilnadu, and in the Diaspora, and mobilizing the Tamils for the crucial demand for ICC referral. It was echoed in a Commons debate in the British Parliament itself. Apart from the opposition Labour Party, a cross-section of MPs echoed the voice of the Tamil community for justice.

So this time, the international community was expected to take firmer action through the UNHRC. The Core Group on Sri Lanka, especially the United Kingdom as the penholder and Canada seen as sympathetic to the Tamil cause, was expected to go for a sure and stern step to refer Sri Lanka to the UN Security Council with a recommendation to take the criminal state to The Hague.       

There was no scope for Sri Lanka to resort this time to duplicitous tactics such as demonstrated by its co-sponsorship of the HRC Resolution 30/1  in 2015, which is never implemented and hoodwinked the international community.

Sri Lanka was hoping to rope in India in its support. The pro-Tamil Eelam forces in Tamilnadu raised the demand that India should make an independent move and propose a resolution on the basis of the recommendations listed in the High Commissioner's latest report. Several political leaders not so much worried about the contents wanted India to support what they called the "Resolution against Sri Lanka," moved by the core group led by the UK.

Yet India did not commit itself beforehand. Though official spokesmen of Sri Lanka were claiming to have been assured of Indian support, the Government of India would not reveal its mind until the voting. It had not only to reckon with geopolitical considerations, primarily the China factor but also with the upcoming State Assembly elections in Tamilnadu. There were suggestions that the best way out was to keep out.

We were reminded of history when in a similar situation in 2014, India abstained from voting along with Pakistan on Resolution 25/1, which led to the very significant OISL, pregnant with great possibilities of advancing accountability. India, as the chief collaborator, politically and militarily, of the genocidal war, could not persuade itself to support the move for what was in effect likely to be an independent and international investigation. And then the Tamilnadu factor, especially when the Lok Sabha elections were round the corner. We have to keep in mind the support to this abstention given by the BJP opposition. And now P. Chidambaram's eloquent tirade against the BJP for abstention being a gross betrayal of the Tamil cause is not be taken too seriously, given the electoral backdrop.  

All said and done, the abstention of India in the voting on the UNHRC Resolution is tactically significant as it has in the past usually stood in support of Sri Lanka in international platforms on the question of punishing the country's accused war criminals. Though India's decision not to oppose the Resolution has been conveniently interpreted by Sri Lanka as tacit support to itself, the chinks in the armour cannot be hidden so easily.

Going by the contents of the Resolution and keeping in focus the status of the Tamil struggle for justice, Tamils are justified in denouncing India's 'neutrality as a historic betrayal. Just as on 25/1 in 2014.

We can safely describe Sri Lanka's defeat at the UNHRC this time and India's non-support to Sri Lanka as significant developments to be taken into account for the advancement of accountability. At the same time, the Resolution as such has almost nothing to offer the Tamils. It actually falls much short of the co-sponsored Resolution 30/1 of 2015 and its rollover versions 34/1 of 2017 and 40/1 of 2019.

While the 2015 Resolution called for the participation of the Commonwealth and foreign judges, prosecutors, lawyers, and investigators, the current Resolution leaves accountability exclusively to a domestic mechanism, an ever-elusive ghost chased by the pretenders to justice. With respect to the Prevention of Terrorism Act (PTA), the word "repeal "which was in the 2015 Resolution, has disappeared from the latest one.

Well and good, Sri Lanka is getting more and more isolated in the international arena. Yet this has not translated itself into effective steps in favour of accountability and justice. Though the international community is more and more coming to realize the gravity of the systemic war crimes and crimes against humanity committed by Sri Lankan armed forces under the ruthless direction of the Sinhala political leadership in the last stages of the civil war in 2009, it is yet to recognize the fact of Tamil genocide. Over a hundred thousand people, mostly civilians, mostly women, children and the elderly, were killed in the assault by the Sri Lankan army on the Tamil people huddled together in what was euphemistically called the No Fire Zones. We have been persistently raising the question: If this is not genocide, then what else is? 

Though the Deputy High Commissioner for Human Rights Mehr Khan Williams has already stated that they already have evidence in their possession, there is a clause in the new Resolution asking ... "the Office of the High Commissioner to collect, consolidate, analyze, preserve information and evidence...". These are empty words included apparently to placate  Tamil victims and the dissenting voices in the West. There are currently three comprehensive UN reports, namely the UN Expert Panel Report, the Internal Review Report, and the OISL Report, that clearly point to culpability in war crimes at the highest levels of government in Sri Lanka.  To cap them all, the High Commissioner's latest report!

The call-in the Resolution asking the High Commissioner ..."to develop possible strategies for future accountability process, for gross violations of international human rights or serious violations of international humanitarian law in Sri Lanka..." would only help Sri Lanka in its very obvious procrastination.  

Michelle Bachelet, the UN High Commissioner for Human Rights, has already openly urged member states to take action to refer Sri Lanka to the ICC and exercise universal jurisdiction/extra-territorial jurisdiction. What is needed for Sri Lanka's referral to the ICC and other efficacious steps is not any new action plan but political will on the part of the member states, especially the big powers, too obsessed with their geopolitics at the cost of human rights and human lives. 

How to explain this apparent anomaly between the voting pattern and the effective contents of Resolution 46/1? By understanding that the diplomatic contest was transformed from one between justice and injustice to one between the 'China bloc' and the western bloc, with India and company wanting to play between them, all playing their cards close to the chest.  

The current UNHRC Resolution, both in its voting pattern and its effective contents, brings to the fore the challenges faced by nations without states in asserting justice in such forums of states as the UN. Despite the Right to Self Determination being a fundamental principle adopted by the United Nations and the world community in the post-Second World War period, its actual application even in grave situations has been blocked routinely by existing states, claiming to be democratic and free nations.  

The Tamil people should be able to understand and grasp the lessons of 46/1 in the right earnest and plan for the future. There is no guarantee that the past tragedy and the present farce will not repeat themselves again. We have to learn the hard way how to wade through the geopolitical quagmire on the international playfield and swim both with and against the tide towards the cherished goal of justice and lasting peace.

- Thiagu

(This article was published in Fortnightly Magazine 'Abel', March 29, 2021)

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