The 47-member Human Rights Council (HRC) has a mandate to hold no fewer than three regular sessions a year, for a total of at least 10 weeks. These sessions take place in March (four weeks), June (three weeks) and September (three weeks). Further, if one third of the Member States requests, HRC could decide to hold a special session at any time, to address human rights violations and emergencies. That was how the 11th Special Session of the HRC was convened to consider the situation in Sri Lanka in 2009, a week after the conflict came to an end.
Noteworthy is the fact that the request for convening the special session was made by the Permanent Representative of Germany to the United Nation on 19th May, the very day hostilities, which witnessed the defeat of the LTTE, and rescue of over 300,000 civilians held hostage by that organisation, came to an end.
It is a well-known fact that both the United Kingdom and France were miffed at Colombo’s decision to continue the fight against the LTTE to an end, even after a mission undertaken by the two foreign ministers during the last days of the conflict to save the LTTE leadership from annihilation. That effort to pass strictures against Colombo failed to bear results, as Sri Lanka successfully marshalled support of 29 members of HRC, in favour of resolution S-11/1 ‘Assistance to Sri Lanka in the promotion and protection of human rights’ sponsored by Sri Lanka.
Not a new phenomenon
Resolutions on the human rights situation in Sri Lanka are not a new phenomenon. Way back in 1987, while the armed conflict against the LTTE was at its infancy, Sri Lanka had to face a hostile resolution in the Commission on Human Rights (CHR), the forerunner to HRC. On that occasion, the initiative to take Sri Lanka before the CHR was made by distantly situated Argentina at the bidding of Sri Lanka’s closest neighbour, India. Why Argentina chose to act as cat’s paw was due to Sri Lanka’s vote in favour of the UK in the United Nations General Assembly on the Falklands issue.
The two experiences in 1987 and 2009 have an interesting similarity. That is, the UN human rights mechanisms were used by politically and economically powerful countries to target selected countries. Sadly, that situation continues even after the establishment of HRC in 2006. Despite allegations of human rights violations, Sri Lanka also served CHR, on more than one occasion.
Sri Lanka fought valiantly in 1987 and dragged consideration of the resolution until the last hour of the last day of the Spring session. Sri Lankan delegation spearheaded by late H.W. Jayewardene and Ambassador Jayantha Dhanapala succeeded in amending the resolution to take care of its concerns and allowed it to be adopted. However, Sri Lanka was wise enough not to cosponsor that resolution.
That was not what Sri Lanka did in September 2015. Having resisted three previous resolutions since 2012, Colombo decided to co-sponsor resolution 30/1 that had unprecedented 23 introductory paragraphs that set the stage for 20 operational paragraphs, filling five pages! By doing so, Sri Lanka became party to the resolution and committed the country to take certain measures, which now it finds difficult to deliver.
The current position taken by Colombo that foreign judges cannot sit in judgement without amending the Constitution and seeking consent of the people at a referendum is one such example. Another is the thinking that adopting a new constitution takes priority over setting up courts to probe war crimes. These two are not the only examples where Sri Lanka is forced to backtrack.
Pathfinder Foundation believes March will be reckoning time for Sri Lanka. Having become party to the resolution inspired by the West, the new administration that promised ‘good governance’ and upholding of human rights, must now decide how it should handle the forthcoming spring session.
The original sponsor of the 2012 was the United States, to the extent it was known as a US resolution on Sri Lanka. Along with that country, the United Kingdom too played a key role. So, it will be the task of these countries to shepherd Sri Lanka in the direction desired by them. Letting Colombo off the hook is not a choice for them and they would use all their persuasive skills in Colombo, Geneva, London and Washington DC to keep Sri Lanka dangling until they succeed in extracting the maximum.
In the eyes of the West that is the price Sri Lanka should be pay for its impertinence way back in 2009, when Colombo failed to lobby and prevent a ‘special session’ of HRC from being held to discuss the situation in Sri Lanka and decided to sponsor its own resolution in Geneva.
Admittedly relations between the previous administration and the West was such, lobbying at that point would have been a futile effort. Some believe that turning the tables against the West at the special session resulted in the country becoming a target at the subsequent sessions of HRC. Others express the view that the feeling of euphoria in May 2009 was such, Sri Lanka, still in a combative mood, could not have agreed to strictures by the West. It may be that the same feeling of euphoria after the election victory prompted Sri Lanka to cosponsor the resolution in 2015 without considering consequences!
As Sri Lanka’s progress in implementing the resolution has been tardy, major sponsors of resolution 30/1 could be persuaded to agree to an arrangement called ‘roll over’, thereby postponing the judgement day. If Colombo has made steady progress, but failed to fulfil some of the commitments given in Geneva – there are not less than seven of them in the resolution – a decision to ‘roll over’ would be easy.
The first question is, how long will Sri Lanka be allowed to ‘roll’? Will it be 12 months (i.e. March 2018) or 18 months in September? The next question is, will Colombo be able to satisfactorily fulfil all the commitments it voluntarily undertook to fulfil, including the proposal to establish a commission for truth, justice, reconciliation and non-recurrence; establish an office of missing persons and an office for reparations; participation in a Sri Lankan judicial mechanism of the Commonwealth and other foreign judges; trial and punishment of those responsible for crimes; undertaking a review of the Public Security Ordinance Act and to review and repeal the Prevention of Terrorism Act; release publicly, previous presidential commission reports; take constitutional measures for a political settlement including devolution of political authority, etc.?
The other question is, if a ‘roll over’ is granted for one year, which must be negotiated in advance of the March session, would Sri Lanka be able to satisfactorily fulfil all the commitments referred to above and other demands made within a space of 12 months? By this time, the Foreign Ministry should be aware what Sri Lanka has achieved since adoption of that resolution.
What the administration should carefully consider with all honesty and sincerity is, whether it could and would make good of the solemn undertakings given to the international community two years ago. The administration also should consider the consequences it must face, if it falls short of fully implementing the resolution at the end of the ‘roll over’ period.
Going by the past performance and the prevailing ground situation in the country, it is not too difficult to guess what would be Sri Lanka’s performance at the end of the negotiated period. At that time, Sri Lanka should be ready to explain why it failed to fully address the commitments given to the HRC.
Current situation and thinking
The current situation and thinking seems to be vastly different from those in 2015. That position appears to be, foreign judges can participate but not sit in judgement and adopting a new constitution is more important than commencing a probe on war crimes, etc. What would be the situation if the constitution making process currently underway suffers a setback? Even establishment of an Office for Missing Persons appears to have fallen between the cracks.
If this is the real situation on the ground, what will Sri Lanka achieve by demanding a ‘roll over’? Is it not better that we explain the ground situation clearly and succinctly and extricate ourselves from a worst situation we may have to face next year? In the circumstances, it would be advantageous for Sri Lanka to renegotiate the resolution during the March session?
Sri Lanka has gone through a ‘roll over’ in the past. That was during the 28th session of the HRC, exactly two years ago. If such an understanding is reached yet again, Sri Lankan issue will not be subject to discussion at the forthcoming session. Moreover, the High Commissioner for Human Rights will be spared of having to present a report on Sri Lanka. Consequently, developments in Sri Lanka will not be subject to discussion and all those tedious tasks could be postponed to 2018. But then, Sri Lanka must be ready to deliver when the issue comes up for discussion in 2018, whether it happens during the March or September session.
There are other options as well. Sri Lanka could negotiate a purely technical procedural resolution requesting HRC to postpone consideration of resolution 30/1 to a future session say for example to 38th or 39th session in March or September 2018. Unlike in the case of a simple ‘roll over’ decided at an organisational meeting, such a resolution would generate some discussion on the situation in the country, courtesy interested delegations and the NGO community egged by the Tamil diaspora.
While such a discussion is unavoidable, there is another danger. Delegations in Geneva have the habit of frontloading such resolutions with the intention of leaving their fingerprints to be shown to their capitals. It is a well-known fact that some delegates in Geneva make careers out of human rights situations just as much as those in foreign capitals.
If such a situation happens, there is no guarantee about limiting the contents of the so called procedural resolution would end up. If that is going to be the case, that exercise would be akin to negotiating a new resolution. Moreover, there could be attempts by eager beavers to go beyond what is reflected in resolution 30/1, such as reference to the recently released report on The Consultations Task Force (CTF) on Reconciliation Mechanisms!
‘Business as usual’
HRC was established in 2006, replacing its predecessor CHR. It was the expectation of member countries that ills afflicted the latter organisation could be addressed by the new entity. However, what has happened is exactly the opposite. HRC was quickly overwhelmed by UN members that represent the developed west known as the ‘West European and Others Group’ (WEOG). It is this group that dominates the HRC and decides which country should be hauled before it and who in their group should choreograph that exercise.
For example, in the second half of 1980s, Sri Lanka was handled by Canada. Today the USA and UK have taken over that responsibility. Likewise, other members of WEOG will be driving resolutions targeting other developing countries particularly in Asia and Africa. To counter this onslaught, those countries have established group called ‘Like-Minded Group’. It was this group that came for support of Sri Lanka during the special session in May 2009.
The Foreign Ministry should be aware how the CHR and its worthy successor HRC were progressively politicised and used as a tool by the West to subdue targeted countries. Ironically today Sri Lanka has more than one centre of gravity focusing on foreign relations. As such, there is lack of coordination resulting in confusion, which should be avoided in the interest of the country.
Role of the Geneva-based clearing house on human rights, known as the Office of High Commissioner for Human Rights (OHCHR), in manipulating human rights has been a subject of discussion for some time. Being an institution of the United Nations system, one would expect that office to be impartial in its role and function. There are allegations of manipulation by that office. It is a well-known fact that where staffing of the OHCHR is concerned, it is more of a domain of the west. A scrutiny would reveal that China and India, being the most populous countries in the world representing almost 40% of the humanity have only a handful staffers in that office. A survey conducted some time back revealed that countries such as the US, UK, France, Germany and even Italy have unusually high numbers in the staff in the OHCHR. There are also junior staff members in that office, who are being paid by some member countries. It is not a surprise that those countries would be in a better position to influence the day to day work of OHCHR through such officers.
Against this backdrop it is not a surprise that hardly any developed country in the West gets hauled up by the HRC. It is not that there are no violations of human rights in those countries or their troops do not get involved in violation of human rights. Similarly, it is rarely if at all, when oil rich gulf countries are targeted by HRC. So, to keep business going as usual, HRC must find victims elsewhere and where else could they be found other than in Asia or Africa?
Sri Lanka not lily white
This does not mean Sri Lanka has been lily white and being scrutinised unfairly by HRC. In the last four-and-a-half decades the country and its people have gone through two insurgencies in the south and faced the brunt of separatism in the north and the east. During this period, allegations of human rights violations have been rampant. In the 1980s disappearances in Sri Lanka were second only to Iraq.
Similarly, over the years there have been reports of extra-judicial killings including large scale massacres, torture, attacks against journalists and countless number of other allegations resulting in the word ‘impunity’ been widely used to describe the situation in the country. Hence the demand for accountability and prosecution of offenders. Whether there could be genuine reconciliation without bringing individual violators to justice is something that need to be addressed. Crime without justice is an invitation for repetition in the future.
Against this backdrop, administration in Colombo has an unenviable responsibility to fulfil in the human rights field. The international scenario has undergone new developments with leadership changes in the US and UK. This may present an opportunity for Sri Lanka to present its case to the international community.
Based on the above Pathfinder Foundation recommends:
nRather than seeking a postponement of consideration of the situation and facing the eventuality next year, Sri Lanka should explain the prevailing ground situation e.g. foreign judges, constitutional measures etc. to the main sponsors of the resolution and undertake renegotiation of the resolution based on ground realities in Sri Lanka.
nWhether opting for a ‘roll over’ or seek purely technical, procedural resolution, Sri Lanka should bear in mind that the breathing space allowed would be for a limited time. As such, the Government should make urgent arrangements to put in place mechanisms to implement the re-negotiated commitments bearing in mind its credibility will be at stake.
nGovernment has a responsibility towards its citizens first. Crime without punishment is not the way for reconciliation. Prosecution of offenders in relation to cases, where threshold of evidence has been established, should be given priority. Members of the armed forces, police, etc. should be informed at high political level that they will be held individually accountable for violation of human rights.
Government should continue its cooperation with mandate holders appointed by HRC.
(This is the Economic Flash published by the Pathfinder Foundation. Readers’ comments are welcome at www.pathfinderfoundation.org – readers can also find Pathfinder on Facebook and follow it on Twitter.)