10 December, 2018

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A Resolution Authorizing The Human Rights Commissioner To Conduct An Investigation?

By Ted Orlin and Paul Newman

Dr. Paul Newman

Dr. Paul Newman

The second draft of the resolution, ’Promoting reconciliation, accountability and human rights in Sri Lanka, was taken up for discussion on the 18th March. The US Deputy Secretary of State, who is also the head of delegation at the 25th UNHRC as well as chair of the resolutions drafting committee, led the informal consultation. The resolution, co-sponsored by Macedonia, Montenegro, Mauritius and the United Kingdom was discussed at length with State Parties suggesting alterations to the text.

In the earlier draft the Russian Federation requested that that ‘demilitarization’ is removed from the Preamble Para (PP) 9 that much work lies ahead in resolving this condition. This draft eliminated the term and inserted ‘land use and ownership’. Russia continued to request the deletion of both these terms as areas that need to be addressed.

Pakistan suggested that after Para 6 there needs to be an additional para inserting, “Reaffirming the sovereignty, territorial integrity and right to combat terrorism”.  Further, Pakistan sought a change in PP 8; suggesting the term ‘unified land’ should replaced by ‘Unitary state’ arguing that the Sri Lankan constitution uses the later term. Clearly the intent was to strengthen the claims of the right to protect sovereignty.

In contrast, Switzerland argued that the use of ‘demilitarization’ was necessary, especially in the Northern Province, as the report of the High Commissioner specifically mentioned the presence of the military as an issue that needed to be addressed. It is apparent that the discussion reflected a concern on how the militarization of the North should be addressed by the Council in its attempt to bring human rights to all people in Sri Lanka including those who live in the former war zones.

Norway complemented the drafting committee for preparing a strong resolution, one that it would support.

The discussions continued with certain states attempting to alter the intent of the drafters by making alterations that would weaken the language of the text. For example, in PP 11 in the first line, Vietnam wanted the insertion of the word ‘cooperation’ to describe Sri Lanka’s support of the UN effort.  China objected to the term ‘open access’ wanting it to be replaced with ‘unfettered access’ (line three of PP11). Indonesia and Thailand, in the same spirit, supported both Vietnam and China’s suggestions.

Similarly, Indonesia wanted the replacement of the term ‘reported intimidation’, to ‘alleged intimidation’. Pakistan made several recommendations, reiterating that the national efforts to address the post war issue in Sri Lanka should be acknowledged. Russia, China and Pakistan objected to the use of ‘sexual and gender based violence’ and argued for its deletion, but Canada, Italy, Denmark and Switzerland insisted on the retention of the terms as they reflected the factual events.

The discussion surrounding the Operational Paras (OP) was in the similar vein.  Cuba pointed out in OP 6 there should not be singling out a single province and wanted the para to be deleted. They argued that no country had a right to suggest how another country should manage their provinces and the resolution should respect the right to govern without interference.  Pakistan followed  by saying it was inappropriate to point to one province and instead of Northern Provincial Council, they should be using all Provincial Councils.

Egypt stepped in and did not want specific incidents mentioned in OP 5 to be pointed out. On OP 6 they did not want the 13th amendment to be referenced and suggested that the whole constitution of Sri Lanka be referenced. Chile wanted the word ‘encourage’ to replace ‘calls upon’.

To the contrary, Canada wanted the retention of the reference to the 13th amendment as it had been challenged. It was pertinent to point out that the 13th amendment was the only reference to the devolution of power in the Sri Lankan constitution and was also highlighted in the LLRC report and urged maximum devolution of power to the Provincial Councils.

Vietnam objected to OP 6 and sought its deletion.

On OP 8, Egypt spoke of the visible results based on the national processes which need to be recognized. They further elaborated that the UN High Commissioner of Human Rights has the mandate to investigate and not the Office of the High Commissioner.

Macedonia, one of the Cosponsors, pointed out that as early as 1994 the General Assembly by resolution, Sub Para B empowered the High Commissioner to carry out an investigation, thus permitting a call for such a investigation.

France welcomed the text of the resolution and told it was a very balanced text which was in line with the report of the High Commissioner for Human Rights. Ireland wanted a time frame to be fixed for the investigation.

UK, another Cosponsor, stepped in by presenting a detailed input as to the past precedence’s of the investigations carried out by the Office of the High Commissioner for Human Rights (OCHCHR) starting with 1993 when the Secretary General requested the OCHCHR to investigate cases of extra judicial killings in Abkhazia, a disputed territory that Georgia claims as part of its state.

In 1998 Afghanistan was investigated. In 2002 there was a general mandate to investigate the killings of civilians in Colombia. In 2004, Cote d’ivoire was to be investigated for the atrocities in its civil war.  Again in 2004, Darfur was investigated, in 2005 Togo was investigated. In the recent past in 2009 Honduras was investigated for its violation of human rights. In 2011 Syria was investigated for the deterioration of the humanitarian laws and in 2012 Nepal was investigated over allegations of disappearances.

The list demonstrated to many in the room that the High Commissioner of Human Rights possesses such a mandate and that those who dispute it are acting contrary to the history of UN investigations.

Montenegro, another cosponsor, intervened and highlighted that the High Commissioner had made an assessment and had called for an Independent International Investigations and had pointed out that the lack of political will on the part of Sri Lanka supported such an investigation. The Secretary General had pointed out that witnesses were willing to speak out at International Inquiry where there had been reluctance to speak before national bodies. The argument progressed with the understanding that up till now there was a total absence of national inquiry and there is a need to create opportunities for justice in Sri Lanka.

Sweden intervened and suggested that the draft was well balanced and thoroughly explained. The European Union stressed that the national mechanism in Sri Lanka had failed and there is a need for a International investigation. Myanmar questioned how the High Commissioner would get the resources and the impartiality of the inquiry. Russia wanted to know who the relevant experts were, and who actually would investigate Sri Lanka. The USA intervened and said that it was for the OCHCHR to decide.

Denmark wanted a stand-alone investigation; at the same time Austria supported an investigation led by the High Commissioner who was fully equipped to lead the investigations. Canada intervened and suggested that though there were processes in Sri Lanka that the situation was going backward.

There were multiple testimonies, including the Channel 4 revelations, all supporting the need for an international investigation. Canada equated the situation in Sri Lanka to an earth quake and told that it would take time to make assessments. On the question of timelines, they wondered whether it should start from 1983 when the war started or at another time.

The USA responded by suggesting that that appropriate time might be from 2002-2009, as this was the period covered by the LLRC. Switzerland wanted the expansion of the time limit as they wanted the inclusion of the ongoing violations to be taken into account.

Chile and Argentina wanted the special mandate holders to investigate rather than ‘relevant experts’. The USA intervened and stressed that in this situation a variety of experts were necessary and gave the example of possible use of forensic experts, at the same time stressing that experts would include special mandate holders.

Canada did not want a time frame to be set up for the investigations and specified that a commission of Inquiry should take into account gender and geography.

At the end of the session when the civil society was asked to respond, Mr.Sumanthiran referred to PP9 and the deletion of the term ‘demilitarization’. He pointed out to the arrest of Mr.Ruki Fernando and Fr.Praveen as reflective of the problem. Ms. Nimalka Fernando spoke of the need to highlight the 13th amendment and the mention of the Northern Provence, which had suffered the most during the course of the civil war. With this the informal consultation came to an end with the hope that the resolution would not be diluted further.

*Prof. Ted Orlin and Paul Newman from the 25th UNHRC, Geneva

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Latest comments

  • 2
    1

    All fart no shit. That is the UN.

    So many conflicts all over the world because of the pathetic lack of willpower of the UN. The UN packed up and ran when the Tutsi were being massacred by the Hutus. The UN were powerless to stop the destruction of Iraq or the ethnic cleansing of Palestinians by the Israelis.

    With regards to Sri Lanka, the upshot of all such foot dragging by the international community and by such inaction giving further empowerment to the present retrograde Sri Lankan Government is that the Tamils will have no option but to rise and fight again. Sad really.

    • 3
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      Any action to take place the US will never do it without India and most probably it will be carried out by India alone.

      The majority want to piggyback their freedom just like they did their independence.they are smart/buruva! (ignorance and fraud go hand in glove)

      It’s never mentioned that corporal Silva paved the way for India’s dear PM to be assassinated by Pong on the orders of Premadasa.

      So you say – “that the Tamils will have no option but to rise and fight again.”
      You better take two large steps back-

      Like Vajpayee India can stay attached but detached.

      Tamil Nadu alone is not India and has never held sway so tell me why India should help you at all??

      Every so called freedom fighter for 1948 independence hid in Tamil Nadu lungi. Even JVP Somawanse hid there before finding his way to a better life down under.

    • 0
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      BBS Rep,
      What you are saying is true. However, UN was founded in 1945 in NY, USA. It was tiny and powerless baby for a quite along time after its’ birth. It is getting bigger and lead by leading personalities from smaller countries now.
      Anyway,world with UN is much better place than before 1945.
      How strong a centralized body like UN should be is still a big unknown and new experience..

  • 3
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    Thanks Prof. Ted Orlin and Paul Newman for bringing the insight of the complexities of the issue.

    • 1
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      Srilal@,

      so, it seems the UN resolution allowing them an unfettered access will be a reality ? As it goes on, more in to get that passed than being defeated.
      just little more than a week to go with the election, lanken regime is now in a higly critical state ?

      And given that this would have been imposed, when the investigation of alleged war crimes are supposed to beginn ? who would do that ? Regime´s denial bring nothing. These are just like zero efforts. Anyway, Rajapakshe should pack his bag now.

      • 1
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        Samson ,

        passing the resolution against the junta regime is foregone conclusion , even the junta knows it , there is absolutely nothing they can do to stop this inevitable , however there are some rogue states (usual suspects)which have dubious human right records coming in and joining forces to defeat the resolution , only 24 out of 47 votes are needed to pass the resolution , i’ve listed the names of those countries some where else , pl check if you are interested.
        having passed a resolution one thing ,but getting to implement is entirely different ball game , i’ve my doubts about US and INDIA’s intentions , neither USA nor India ever wants a genuine war crime investigation in SL , so it will be a distant possibility.

        • 0
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          Yes, you are right.
          But how would that affect on lankens after that ?

          Unfettered access will be given to UN means what ? My wish is to see Rajapakshe will get caught soon or not, to have Kiribath on that day as they did it many atimes. I wish him to be treated with same brutal manner Sadam had been. Nothing else. I as sinhalaya really hate to read news these days, not having any further patience to see things turning its way even worst.

          I know those states would not support srilanka this time.
          DJ and many others who stood by govt have u turned to this day.

          Hope this resolution would not influence on the results of PC on the 29th. If nevertheless would do so, our stupid people will have no other choice than let Rajapaskse to abuse them as it is the case today.

          • 1
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            Samson ,

            its bit premature to forecast the actual out come of the resolution , nevertheless , with great certainty i can tell that Junta will reject the resolution and will hide behind the women folks for cover…….

            • 0
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              what is the option/consequences in case JUNTA regime would reject it ?

              • 0
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                Samson ,

                “what is the option/consequences in case JUNTA regime would reject it ? “

                given the nature and its “game Chandia” attitude i’m convinced that Junta will reject this resolution outright , as for the consequences, Geneva is a mere talk shop , it does not have necessary powers to do any thing tangible , hence for any action to be taken against the junta ,UNSC(security council) approval is mandatory , as you know there are two great obstacles(China & Russia )standing ready to protect any rogue state in the world , naturally they will come and block any resolution against the junta !
                having said that ,there is a window of opportunity exist some where else , that is any individual country is free to take their own actions against the junta , Samson for all this to happen , at least we will have to wait another long bloody year !

        • 0
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          You know srilal, that Mahinda Samarasinghe had a swollen head before travelling to Geneva this time. I am not a fan of GLP or anyone, but Mahinda Samarasinghe is no means appropriate to that position. He just repeated what Wambotta -MR has been adding to the interviews. All in all, these men have become a laughing stock to the world today. If they were interested in saving the nation, they had enough time to react, not at the tail end shortly before the commencement of UNHRC sessions they ought to hold discussions with member countries. Anyway, all these efforts wasting billions thorugh maliganancy of management, nothing will be achieved either. Poor, GLP will have to face all the blames on his return. Now it is reality, as you say this forgone resolution is inevitable.

          • 1
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            Samson ,

            GLP and Mahinda S(MS) are the two sides of the same coin , MS got caught red handed betraying MR with the then US Ambassador to SL , it was exclusively revealed in Wikileaks , adding salt to the injury he had been blamed for losing that vital indian vote in the earlier occasion , according to Tamara K , India had promised to vote for SL but compelled/forced to reverse the decision at the last minute due to TN factor.

            • 0
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              one another very important question, Srilal:)

              Under the current MR admin, many (growing significant masses) (at least on CT)are not atall satisfied with the security situation prevailing in the country, though CIVIL WAR is no longer there.
              How had been the security situation for average people during the times of CBK (second term)? I ask this because I am living abraod for the last 30years.
              Why is that the rulers fail to reestablish rule of law asto the manner for example function in S´pore, Germany or the like countries.
              Those culprits that have free use of weapons can easily be taken to custody, why the govt seems to be NOT making efforts on that ?
              Why the very same men, self proclaimed to have won the war, fail to restore law order where no war is the case in today´s context ?

              • 0
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                Samson ,

                as far as security is concern , no body is having the LTTE or any other militia threat , but Junta continues to live in constant mortal fear and going through the nightmares of having a sudden uprising from south , hence they have systematically turned SL in to a military state , STF camps have been mushroomed through out the country and continues to do so , Army has been assigned to do the police’s role of riot control duties , there is a great sudden thirst for voluntary army recruitment , stock piling and host of other preparations are under way , one could naively ask why ? answer is very simple , Junta can’t let go the power which they stolen from RW (2005) & SF(2010) , they are prisoners themselves , they know what is waiting for them at the store !

                CBK is the root cause and she is directly responsible what we witness in SL , she is the one who nurtured and groomed underworld (presidential security division)to do all sort of unethical/illegal actions at every body who opposes her , its quite ironic to see the same bandit queen seeking forgiveness from her junior minister today.

  • 4
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    It is a good to know what is happening inside.

  • 3
    1

    It is very clear form the discussion that these countries immersed in west vs anti-west thoughts than addressing the real issues. Shame on communists countries!

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