UN Human Rights Council:mere formality, get over with it

• SL will come under the scrutiny of member states during the ongoing 40th Session of the Human Rights Council (HRC) this week

19 March 2019

For years, foreign policy mandarins and their political bosses in this country lived and re-lived a lie that Sri Lanka’s destiny would be decided in Geneva. They were joined by the acolytes of the Tamil Tiger terrorists, their financers and paid and otherwise propagandists, who made the gullible in the diaspora part ways with their hard currencies, thinking that they were winning the war that the Tigers lost in May 2009. 

That debate had lost its intensity since then, but, still there are those both in the South, and  Toronto who prefer to live the old lie. In the meantime, UNHRC sessions have become a mere formality, though an unwanted and uneasy one for Sri Lanka.  

As another session of the UN Human Rights Council on Sri Lanka is underway this week, the debate has shifted too. Opposition Leader Mahinda Rajapaksa who had demanded that the government withdraw its co-sponsorship of the resolution.  

Sri Lanka will come under the scrutiny of member states during the ongoing 40th Session of the Human Rights Council (HRC) this week. First, the Report of the Office of the High Commissioner for Human Rights on ‘Promoting reconciliation, accountability and human rights in Sri Lanka’ will be taken up for discussion on March 20th..  
 On the following day, a draft resolution on Sri Lanka on the same theme, which Sri Lanka would co-sponsor, is scheduled to be taken up.  

The report by the UN Human rights Commissioner is a rather unglamorous one; probably her office had outsourced the compiling of the report to Yasmin Zooka’s Tiger front group, Truth and Justice Project. When those folks write, they often leave finger prints.

 It goes on to allege that ‘ there is virtually no progress on the investigation of war crimes,’ ‘reports of harassment or surveillance of human rights defenders and of victims of human rights violations have continued, OHCHR has continued to receive credible information about cases of abduction, unlawful detention, torture and sexual violence by Sri Lanka security forces, which allegedly took place in 2016 to 2018’ and raises concerns about the approach and lack of results of the office of missing persons.  

It recommends that the Government:  

(a) Accede to the additional protocols to the Geneva Conventions and to the Rome Statute of the International Criminal Court; 

(b) Enact legislation to criminalize war crimes, crimes against humanity, genocide and enforced disappearances without statutes of limitation, and enact internationally recognized modes of criminal liability, in particular with regard to command or superior responsibility;  

(c) Adopt legislation establishing a hybrid court to investigate allegations of violations and abuses of international human rights law and violations of international humanitarian law” and   
The High Commissioner recommends that Member States:(a) Urge the Human Rights Council to continue its close engagement with the Government of Sri Lanka and to monitor developments in the country;  

(b) Investigate and prosecute, wherever possible, in particular in accordance with universal jurisdiction principles, those allegedly responsible for such violations as torture, enforced disappearance, war crimes or crimes against humanity; and explore other options to advance accountability in the absence of credible domestic processes.  

(c) Continue to accompany the people of Sri Lanka in their efforts to address past human rights violations by supporting the establishment of adequate systems of accountability, justice and reconciliation  

This report is worth its salt only to the extent as to how seriously it is taken by the member states- and particularly, Sri Lanka. The government of Sri Lanka has a responsibility to put the partisan nature of the report in the perspective, and perhaps to ensure that its future cooperation with the office of the High Commissioner of human rights is conditional upon an objective approach on the part of the latter.   

The government should make clear that as much as it is willing to address legitimate concerns, it would defend its national interests determinedly and unapologetically.   

The threat of universal jurisdiction is more academic than real. Few countries would dare exploring it. Such actions should trigger reciprocation through appropriate means. Some countries, for instance Canada and the UK may succumb to constitutional pressure. However, in the vast array of foreign policy opportunities that are available for Sri Lanka, relations with Canada, or even the post Brexit UK are not the most consequential.  

And the resolution  (A/HRC/40/L.1) that Sri Lanka would cosponsor is proof of this evolving international approach.   

Unlike the report by the UN High Commissioner for Human Rights, the new resolution is innocuous. It would be moved by a core group of Canada, Germany, Montenegro, North Macedonia and the United Kingdom and Northern Ireland.

It requests Office of the High Commissioner to continue to assess the progress on the implementation of its recommendations and to present a written update to the Human Rights Council at its forty-third session, and a comprehensive report, followed by a discussion on the implementation of Council resolution 30/1, at its forty-sixth session.  

It “takes note with appreciation of the comprehensive report presented by the United Nations High Commissioner for Human Rights to the Human Rights Council at its fortieth session, as requested by the Council in its resolution 34/1, and requests the Government of Sri Lanka to implement fully the measures identified by the Council in its resolution 30/1 that are outstanding;”  

“Welcomes the positive engagement of the Government of Sri Lanka with the High Commissioner and the Office of the High Commissioner since October 2015, and with relevant special procedure mandate holders, and encourages the continuation of that engagement in the promotion and protection of human rights and truth, justice, reconciliation and accountability in Sri Lanka;”  

“Requests the Office of the High Commissioner and relevant special procedure mandate holders, in consultation with and with the concurrence of the Government of Sri Lanka, to continue to strengthen their advice and technical assistance on the promotion and protection of human rights and truth, justice, reconciliation and accountability in Sri Lanka;”  

“Requests the Office of the High Commissioner to continue to assess progress on the implementation of its recommendations and other relevant processes related to reconciliation, accountability and human rights in Sri Lanka, and to present a written update to the Human Rights Council at its forty-third session, and a comprehensive report, followed by a discussion on the implementation of Council resolution 30/1, at its forty-sixth session.” 

After the election of the new administration of Messrs. Sirisena and Wickremesinghe, Sri Lanka, encouraged by the United States, offered to cooperate with the UNHRC and cosponsored a resolution, a decision which was criticized by the political opposition back home.   

Cooperation with the UNHRC might not have dissipated the anti-Sri Lanka propaganda, and ideological prejudice of the stakeholders within the office of the High Commissioner of Human Rights. However, it has not done a major harm either. Sri Lanka has managed to ride the adverse global scrutiny of the past, and is now in a position to charter its own course vis-a-vis the UN Human Rights Council.  

However, our domestic contention over the UNHRC has not given away. 

The Rajapaksa regime’s inability to address global concerns was due to its domestic political calculations. 

The Rajapaksas perpetuated a fallacy of a zero civilian casualty, and wanted the sycophant foreign policy makers to advance a position which no one in the world believed. That egoistic buffoonery led to two adverse resolutions.   

The new government’s U turn, gave it time and scope. Now, when the country revisits the resolution, much of the international interest in it has died away.  

Also, Sri Lanka, partly thanks to the ongoing power shift in the international politics, and the US retreat, is in a better position to advance its interests.  

However, none of that did help Sri Lanka to address the malfunction in its domestic policies. It has failed to reach a domestic consensus on its position on the UNHRC resolution and the existing challenges in addressing legitimate grievances of Tamils.   The failure was due to the vested interests that had always overshadowed the national interest.   

Last week, Mahinda Rajapaksa, the ex- president issued a media statement, asking Sr Lanka to withdraw its co-sponsorship of the resolution.   

Mr Rajapaksa asked:  

 a) That Sri Lanka would no longer co-sponsor resolutions against itself in the UNHRC. 

b) That Sri Lanka does not accept the allegations made in OHCHR Report No: 30/61 of 28 September 2015.

c) That hybrid war crimes courts with foreign judges and prosecutors would never be set up in Sri Lanka.  

d) That Acts No: 14 of 2016, No: 5 of 2018 and No: 24 of 2018 which are highly detrimental to Sri Lanka’s sovereignty and the fundamental rights of its citizens, will be repealed and replaced with legislation more in keeping with our national interest.  

But, why on earth should Sri Lanka withdraw from the UNHRC resolution? The previous co-sponsorship had served Sri Lanka’s interests and diluted international interest. Now what we are taking part is a mere formality. Similarly, what benefits that Sri Lanka would accrue by withdrawing its co-sponsorship is not clear. In other words, there is no major harm by being part of it. In the same vein, the current conditions give Sri Lanka enough leeway to demand an objective assessment by the office of the high commissioner. If Sri Lanka chooses to walk back on its commitments, it should have a good enough reason to do so. None exists at the moment. And we will have to reach out traditional partners such as China, before we kick the can down.  

However, at the moment, no such exigency exists. Why should Sri Lanka rock the boat, when it has the opportunity for smooth sailing? Only a cavemen advising foreign policy to Mr Rajapaksa can argue otherwise. : Follow @RangaJayasuriya on Twitter