ROLLING OVER OF UNHRC

RESOLUTION IS NOT A GOOD OPTION

FOR SRI LANKA

File photo: Poster against High Commissioner Zeid in Colombo.

09/02/2017

Should Sri Lanka Roll Over in Geneva?

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 ten 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 Colombos 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.

UN human rights mechanisms

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 Lankas closest neighbour, India. Why
Argentina chose to act as cats paw was due to Sri Lankas vote in
favour of the UK in the United Nations General Assembly on the
Falklands issue.

The two experiences in1987 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.
US resolution on Sri Lanka

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 Lankas 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 twelve 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.?

Office for Missing Persons

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 Lankas 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.

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 front loading
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!

UN members

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 politicized 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 get 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?

This does not mean Sri Lanka has been lily white and
being scrutinized unfairly by HRC.
In the last four and 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
needs to be addressed. Crime without justice is an invitation for
repetition in the future.

Leadership changes in US and UK

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:

Rather 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. Whether 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.

Government 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.

by Pathfinder Foundation/ Sri Lanka. This article has been

republished by state owned Daily News.
Posted by Thavam