How can Sri Lanka successfully overcome the challenge of the UNHRC Resolution?

UN High Commissioner for Human Rights Michelle Bachelet

By Rohana Jayaratne

The United Nations

The United Nations was founded in 1945 after the Second World War by 51 countries for the express purpose of maintaining international peace and security in order to save succeeding generations from the repetition of the scourge of war by facilitating conflict resolution through negotiated settlement. Additionally, the UN helps nations work together to eliminate poverty and illiteracy, and to encourage respect for each other’s rights and freedoms and for the protection of nature essential for sustainable life on the planet. 

In essence, it acts as the moral compass of the world in upholding universal values, ethics and principles which are respected by all nations and critical for the progress and survival of humanity.

In the above context, can Sri Lanka question the integrity of the UNHRC, an important arm of the UN, and thereby condemn the very foundation that it was built on?

The four largest contributors to the United Nations are the USA (22%), China (12.005%), Japan (8.564%) and Germany (6.090%) who together finance some 49% of the entire UN budget. The United States contributed roughly $10 billion in 2018, slightly less than one-fifth of the body’s collective budget. Hence, they have a strong oversight in the formulation of its budget and operations.

This is the reality that weaker membership has to collectively consent to if they wish to benefit from the safeguards to international peace and security. However, the UN General Assembly’s ‘one nation one vote’ policy strives to ensure a forum for democratic governance. 

No doubt, the UN faces serious challenges which are inevitable as a consequence of the conflict arising from the policy of self-interest of individual nations versus their collective interest. It is the responsibility of nations to view the bigger picture of the UN body and all its arms in complying with its covenants and contracts of universal nature. Exiting voluntarily from UN membership or being expelled for non-compliance is not an option for a weak nation in the global context of super power competition.

The Security Council

Permanent membership in the Security Council was granted to five states based on their importance in the aftermath of World War II namely the USA, China, France, Russia and the UK also referred to as the five superpowers. The council’s 10 elected members, which serve two-year, non-consecutive terms, are not afforded veto power but wield moral authority to guide decision making on enforcement of UN resolutions.

The five super powers have earned their status through economic, military, technological, political and cultural strength as well as diplomatic and soft power influence.

It is evident that the geopolitics of the world is a function of super power competition which is the overarching reality within which weaker nations like Sri Lanka have to progress and protect their individual interests. 

In keeping with the world’s status quo, it would be in Sri Lanka’s best interest to act in a manner that is non-confrontational and co-operative with the UN and its ancillary bodies. 

The Human Rights Council (UNHRC)

The Human Rights Council (HRC) is an inter-governmental body within the United Nations system limited to 47 States responsible for the promotion and protection of all human rights around the globe. It has the ability to discuss all thematic human rights issues and situations that require its attention throughout the year. 

The HRC was established by the UN General Assembly in 2006 to replace the UN Commission on Human Rights (UNCHR) which was criticised for its ineffectiveness in addressing human rights abuses and for allowing countries with poor human rights records to be members. It reports directly to the UN General Assembly where every nation has an equal say in decision making. 

Universal Human Rights

Promoting and protecting human rights is one of the United Nation’s fundamental goals. It works actively to define, help implement, and monitor international human rights standards. The General Assembly, for example, has adopted some 80 human rights conventions and declarations since 1948.

Universal human rights are expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law which are formulated on the basis of universal principles of justice. International human rights law lays down obligations of Governments to take positive action in certain ways or to refrain from particular acts in order to promote and protect human rights and fundamental freedoms of individuals or groups.

The United Nations Office of the Commissioner for Human Rights (UNOCHR) 

The UNOCHR has the lead responsibility for the promotion and protection of human rights, and for mainstreaming human rights within the UN. It has been given a unique mandate to do so by the international community, through the General Assembly.

Hence, it is important to keep in mind that the clearly enunciated mandate is the guiding force of all HR Resolutions.

Human rights mechanisms

The UN has established a number of human rights mechanisms to monitor the implementation of human rights standards worldwide as follows:

•  Human Rights Council, an intergovernmental body of 47 member states elected the UN General Assembly
•  Ten human rights treaty bodies, which are committees of independent experts who monitor the implementation of the 10 core human rights treaties by the countries who’ve ratified them
•  Independent thematic and country experts, known as the special procedures, who are appointed by the Human Rights Council to report and advise on human rights 
•  Judicial organs in the UN family, such as the International Criminal Court, and specialised criminal tribunals established by the Security Council, work to ensure justice in cases of gross human rights violations.

Here again, it is evident that the HRC operates within strict guidelines and procedures with critical checks and balances to ensure impartiality and independence making it virtually uncontestable by individual nations.

Consequently, the allegation that the HRC is operating on a hidden agenda to discredit and censure Sri Lanka appears very unlikely. 

In this regard, it has been recently highlighted that the UK as a major contributor with super power status is about to pass legislation to exonerate the British army from war crime charges and other war related violations of human rights. The proposed bill was reviewed and totally condemned by JUSTICE, the UK section of the International Commission of Jurists on the grounds that it would dilute the UK’s commitment and adherence to international human rights laws and norms. They strongly urge parliamentarians to vote against the Bill, in its entirety.

It is heartening to note that the display of independent review and condemnation of the Bill by UK legal experts is commendable and indicative of its fate. 

Many such issues which display the self-interest of powerful member states taking precedence over international norms of conduct are rife. However, checks and balances provided through their processes of democratic governance most often ensure that such actions do not come to fruition. 

The administrative mechanism of all UN bodies, particularly the UNHRC which addresses issues of a very sensitive nature, are often subject to intimidation by powerful nations or non-compliance by authoritarian regimes. 

Consequently, it is important to understand that such issues have to be managed by them with great tact and firmness to avoid a potential collapse of its governing principles, objectives, processes and its very existence as the institution of last resort available and acceptable to the world in the face of injustice and wrong doing relating to rights and freedoms.

UNHRC Resolutions on Sri Lanka

In its first Resolution 25/1 adopted in March 2014 on “Promoting reconciliation, accountability and human rights in Sri Lanka”, the council mandated the UN Commissioner for Human Rights to “undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission (LLRC), and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedures mandate holders”.

It is important to note that the mandate of the OISL (Office of Commissioner’s Investigation on Sri Lanka) required it to undertake investigations into alleged serious violations and abuses of human rights and related crimes by both parties to the conflict. The legal framework comprises of all obligations assumed by Sri Lanka under international human rights treaties and those applicable under customary international law. 

With regard to LTTE accountability, although a non-state actor cannot formally become party to human rights treaties, it is accepted that non-state groups exercising de facto control over a part of the State’s territory are liable for human rights violations. However, no action has yet been taken by the government to indict living representatives of non-state groups who are alleged to have committed human rights violations.

The second Resolution 30/1 of October 2015 was envisaged as a kind of blueprint for action by the government of Sri Lanka. It contained a range of specific commitments designed to help improve the human rights situation and to address the legacy of Sri Lanka’s war. Unfortunately, the pace of implementation has been extremely slow. Key pledges included under the umbrella of transitional justice remain outstanding like returning all military held lands to civilian owners, setting up a mechanism to trace disappeared persons and, crucially, establishing a justice mechanism with support of international involvement to investigate alleged war crimes. 

The resolution was extended by Resolution 34/1 in March 2017 in order to grant more time to the Government to fulfil its pledges followed by a second extension via Resolution 40/1 of February 2019 to renew the commitments contained in Resolution 30/1, and to ensure that international scrutiny of Sri Lanka’s efforts to deal with the past continues.

As highlighted in the January 2021 report by Commissioner Bachelet, she states that in the absence of “concrete results,” over the past five years, the growing “mistrust among victims”, as well as the “risk of new violations” posed by the failure to deal with past ones warrant urgent action.

OISL investigation

During the period covered by the investigation by OISL, the application of international humanitarian law, in particular provisions of the Geneva Convention relevant to non-international armed conflicts, to measure the conduct in the conflict of both the Government and non-state armed groups were applied. The same was applied by the Lessons Learnt and Reconciliation Commission. Its mandate also required the OISL to apply international criminal law to the incidents and events under investigation in determining whether crimes have been perpetrated.

In order to establish the facts and circumstances of alleged violations, abuses and crimes by both parties, the OISL conducted a desk review of all existing documents and information, including government and civil society reports, collect and document victims’ testimonies and the accounts of survivors, witnesses and alleged perpetrators, as well as seeking information from other relevant sources such as satellite images, authenticated video and photographic material and official documents. In analysing the information collected, it corroborated facts and accounts to meet the agreed standard of proof. 

It is the responsibility of HRC to judge the authenticity and impartiality of the OISL in keeping with the highest standards of integrity espoused by the UN.

Sri Lanka’s response

Sri Lanka has urged the United Nations Human Rights Council to reject the forthcoming draft resolution to be presented this month voicing “serious concern” over the “deteriorating” rights situation in the country.

In her January 2021report, Bachelet called for an International Criminal Court investigation into Sri Lanka’s Tamil separatist conflict and sanctions against top generals and others accused of war crimes as Sri Lanka has not implemented, over the past five years, any of the agreed mechanisms in pursuit of transitional justice.

Consequently, The United Kingdom, Canada, Germany, Malawi, Montenegro and North Macedonia submitted a draft resolution for consideration by the 47-member Human Rights Council. 

The draft resolution “expresses serious concern over emerging trends over the past year, which represents clear early warning signs of a deteriorating human rights situation in Sri Lanka”.

They include the “accelerating militarisation of civilian government functions, erosion of the independence of the judiciary … ongoing impunity and political obstruction of accountability for crimes … surveillance and intimidation of civil society and shrinking democratic space, arbitrary detentions, allegations of torture”.

In view of the above very serious allegations and in consideration of the aforementioned conditions, constraints and accountability placed on Sri Lanka as a member of the UN, the following strategy maybe worthy of consideration:

Fast-track a safe and neutral means of non-confrontational engagement with the HRC in implementing transitional justice in the current context of high risk geopolitical and economic realities and super power competition in the region.

Display genuine commitment and credibility to reconciliation by rapidly implementing the recommendations of the LLRC and other related local commissions on transitional justice.

Counter the call for an international war crimes tribunal by setting up a credible local tribunal and invite internationally recognised legal experts as observers to counter allegations of the lack of judicial independence.

Avoid confrontation with international media and countries supporting the resolution which can further harm Sri Lanka’s image as they are too powerful force to reckon with.

Avoid using LTTE atrocities as a defence mechanism as it diminishes Sri Lanka’s status and legitimacy by continuously pointing out the obvious since the world has for long recognised the LTTE as a terrorist organisation by banning them

Strategically engage, as a matter of critical importance, with the powerful Tamil diaspora with facilitation by minority Tamil parties thereby co-opting all into the process of reconciliation.

Enhance the government’s credibility by immediately engaging with both Tamil and Muslim parties in seeking a genuine resolution to the root cause of the ethnic conflict which will help fast track the critical problem of lagging socio-economic development.

Negotiate with India on the implementation of the 13th amendment on granting devolution as non-co-operation may endanger relations which are of critical importance to the socio-economic progress of Sri Lanka.

Formulate a comprehensive action plan to display the Government’s sincerity in pursuing a good governance strategy which assures all communities of equitable allocation of resources, upholding of the rule of law and the independence of the Judiciary and most importantly by rectifying past mistakes which is a sine qua non for a successful ‘way forward’ strategy.

Inform and educate the citizens of the dangers of non-cooperation both on the international and regional front in order to counter opposition due to ignorance of geopolitical and other realities.

Build awareness among citizens that:

International laws and covenants reflect universal ethical principles of shared human values which reaffirm the commitment to help build a better world where peace, freedom, responsibility, justice, humanity, and morality prevail. Compliance with these laws will only serve to enhance Sri Lanka’s international image.

The outdated concept of state sovereignty is of little or no relevance any more in a globalised and interdependent world with porous State borders due to rapidly expanding and instant communication via ICT. 

The concept of unitary status in a geographically defined multi ethnic polity, by nature of its centralised control, is flawed because it tends to be detached from the interests of minorities in deference to the majority leading to inequitable socio-economic development.

Devolution of power for regional autonomy can better serve the interests and aspirations of minorities thereby eliminating discontent and frustration leading to renewed confrontation and conflict. Adequate evidence exists of the benefits of power devolution in the world today.

The pursuit of a credible and genuine policy of reconciliation and resolution of the ethnic conflict will ultimately yield the expected socio-economic benefits to all citizens through equity, peace and harmony.

In realising its vision of ‘Vistas of Prosperity and Splendour’ for Sri Lanka, there remains fervent hope that the Government will make a change of course, even at this late stage, to cooperate with the UNHRC in order to come to a mutually-acceptable compromise in addressing issues of transitional justice in the best interest of the nation.