A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Thursday, August 24, 2017
New hope with a new Foreign Minister?
By SANJA DE SILVA
The new Foreign Minister has assured us, according to the Daily News,
thatResolution 30/1 which was co-sponsored by the Unity Government of
Sri Lanka "was in no way harmful to the country…" The Island of 19th
August 2017 reports that the new Minister had said that he had
"examined" this resolution as member of the cabinet, and that it "was
certainly not inimical to Sri Lanka’s interests..."Since he was also the
former Attorney General, he must know what he is talking about.
In this context, one would expect that he would have no concerns in
facing either the written update at the 37th (March 2018) session of the
UNHRCby the UN High Commissioner for Human Rights, Zaid al Hussein, as
per the Human Rights Council Resolution 34/L.1,in which it "Requests the
Office of the High Commissioner to assess progress on the
implementation of its recommendations and other relevant processes
related to reconciliation, accountability and human rights in Sri
Lanka…", nor the written report to be followed by a discussion on the
implementation of 30/1 at the 40th session.
Before the new Foreign Minister examines the High Commissioner’s oral
update however, one hopes he resolves certain contradictions between his
statement after taking over as Foreign Minister that the Sri Lankan
Constitution does not permit foreign judges and the provisions actually
contained in the resolution that he describes as "harmless".
Before going any further, it must be pointed out that the "harmless"
Resolution 30/1 was not co-sponsored by a single Asian country (other
than Sri Lanka).Not even India. Since no vote was taken due to the new
practice of co-sponsoring all resolutions on Sri Lanka by the Unity
Government, this is the only indication one can glean of the actual
support of the Council. The 13 co-sponsors however paint a picture: only
8 voting members of the Human Rights council (Albania, Germany, Latvia,
Montenegro, Macedonia, UK, Northern Ireland and USA), while the other 5
were only observers (Australia, Greece, Poland, Romania, and of course
Sri Lanka).
Why is this important? When a country co-sponsors a resolution, it is
assumed that it is satisfied with the content. And the new Foreign
Minister has confirmed that indeed the Govt was. We can assume that he
considers it "harmless" then, the operative paragraph 18 of the
resolution which requests the High Commissioner to assess progress on
his recommendations, which includes his call to all 193 members of the
United Nations to use the concept of Universal Jurisdiction to prosecute
those whom he has declared with certainty have committed War Crimes.
While the Sri Lankan Constitution may not allow foreign judges,
Universal Jurisdiction by definition certainly comes under the purview
of foreign judges—certainly "foreign" to Sri Lanka
Another example is Operative Paragraph 1 in which it welcomes the OHCHR
investigation on Sri Lanka and encourages the GoSL to implement its
recommendations. Paragraph 88 of theOHCHR investigation report says:
"The High Commissioner remains convinced that, for accountability to be
achieved in Sri Lanka, it will require more than a domestic mechanism.
Sri Lanka should draw on the lessons learned and good practices of other
States that have succeeded with hybrid special courts, integrating
international judges, prosecutors, lawyers and investigators."
They are, for sure,honorable men (and women), in the Unity Government.
But would you co-sponsor a resolution on your country which had these
paragraphs? And what of the paragraph 6 that welcomes the proposal of
the Government of Sri Lanka to "establish a judicial mechanism with a
special counsel" and "affirms...the importance of participation of
Commonwealth and other foreign judges, defence lawyers and authorized
prosecutors and investigators" ?
Usually, country specific resolutions are not co-sponsored by the
country concerned. The Unity Government set a new trend. If they wanted
to do so, why would they not negotiate the text? We can only assume that
as declared by the new Foreign Minister, that they were perfectly
satisfied with it or at least viewed it as "harmless".
Consider the alternative scenario in which this was contested by the Sri
Lankan government. Since our Constitution bars foreign judges etc., it
would be perfectly within the bounds of reason to oppose paragraph 6 and
to introduce amendments keeping it in line with our Constitution, since
we were planning to co-sponsor it. In doing so, it is possible that the
other co-sponsors wouldn’t agree to our amendments. If we felt strongly
enough, we could try to garner support from the rest of the 39 voting
members who did not co-sponsor the resolution to support our amendments.
If there was a stand-off, this would go to a vote. If enough voting
members supported us, we could get the amendments in.
There was a seriously good chance we could do this. The very next
resolution taken at the same sessionof the UNHRC was called "Human
rights and unilateral coercive measures", moved by Iran on behalf of the
Non-Aligned Movement. A preambular paragraph states:
"Expressing its grave concern that the laws and regulations imposing
unilateral coercive measures have, in some instances, an
extraterritorial effect not only on targeted countries but also on third
countries, in contravention of basic principles of international law,
in a manner that will coerce the latter also to apply the unilateral
coercive measures."
The operative paragraph 3 states: "Condemns the continued unilateral
application and enforcement by certain powers of such measures as tools
of political or economic pressure against any country, particularly
against developing countries, with a view to preventing these countries
from exercising their right to decide, of their own free will, their own
political, economic and social systems."
This resolution, moved by Iran on behalf of the Nonaligned Movement, won
with a record 33 votes‘for’, zero abstentions, and 14 ‘against’--being
the countries of the EU, Japan, South Korea and the USA.
The point I am making is that the Western movers of Resolution 30/1 had
no moral hegemony at the Human Rights Council to guarantee a winning
vote. It was a chance Sri Lanka could and should have taken, at least to
keep it in line with our Constitution as it stands.
But we didn’t even try. The co-sponsoring started as soon as the Unity
government assumed power. The texts were not negotiated adequately. Why?
Was the Govt. worried that the people of Sri Lanka would see that it
didn’t quite have the support of the "international community" that they
boasted about, in case it lost a vote? Or was the new government of one
mind with the countries that moved the resolution?
One is inclined to think it’s either both or the latter because of the
indignity contained in the preambular paragraph in Resolution 30/1 which
says "Welcoming the historic free and fair democratic elections in
January and August 2015 and the peaceful political transition in Sri
Lanka". Historic? Anyone sitting in the Council who wasn’t familiar with
Sri Lanka, would not imagine that we had democratic free and fair
elections since 1947! And never were they other than peaceful
transitions!
Of course one can’t predict if the restrictions on foreign judges would
apply in a new or amended Constitution (endorsed by a new Minister of
Justice).
The latest academic work to appear on Sri Lanka, titled ‘Push Back: Sri
Lanka’s Dance with Global Governance’ by Judith Large (Zed Press, London
Dec 2016), which is scathing in its criticism of the Sri Lanka, refers
repeatedly to the Darusman and Petrie Report. At the time the Darusman
Report appeared (2011), the then Sri Lankan government decided not to
contest its findings, in a convoluted logic which sought to prevent
"giving it legitimacy". The result of course is that those two reports
are invoked by scholars and resolutions alike. With no immediate
refutation by the GoSL, its weak responses later seems to have had no
effect. The Marga Institute carried out an excellent study and published
a reasoned criticism which the government of the day did not use!
Resolution 30/1 refers to all the previous resolutions that were lost by
the previous regime, not because it did not oppose them but because it
didn’t have the faintest idea how to do so successfully.
That government’s entire strategy and conduct of diplomacy was woefully
inadequate to convince the voting members of their case. It however
hasthe dubious distinction of having tried, succeeding spectacularly
once, then changing the team’s captaincy and losing 3 times after that.
Were the selectors to blame? I would think so.
When the previous government lost Resolution 25/1, no Asian country
voted for that Resolution either. Russia, China, Pakistan, Cuba,
Vietnam, Maldives were among the countries that voted against it. India
abstained, with South Africa, Japan, Indonesia and the Philippines among
the 12 abstentions. The resolution was won by 23 votes, mostly Western.
We fielded the wrong team.
The last resolution on Sri Lanka at the UNHRC recalls the resolutions of
March 2012 to March 2014 that Sri Lanka lost, and requests the High
Commissioner to assess progress on their recommendations as well as
resolution 30/1. This too was co-sponsored by Sri Lanka with Australia,
Canada, Germany, Israel, Japan, Montenegro, Norway, Sri Lanka,Macedonia,
and United Kingdom of Great Britain and Northern Ireland, United States
of America. Again, only 5of the sponsors of the resolution were voting
members of the Council.
Wasn’t there a better way? We await a closer (re)examination of the
conduct of diplomacy at the UN Human Rights Council by the new Foreign
Minister and the State Minister, in the national interest of Sri Lanka
and its citizens.
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[The writer is author of ‘MISSION IMPOSSIBLE-GENEVA: Sri Lanka’s
Counter-Hegemonic Asymmetric Diplomacy at the UN Human Rights Council’,
to be released by Vijitha Yapa late this month.]