By Rajan Philips –
Human Rights are among what has been called the “seven pillars” of President Biden’s foreign policy. The new President, who is really a very old hand “in the sausage-making process of foreign policy” through his long involvement in the Senate Foreign Relations Committee, delivered his first major policy statement on February 4, at the State Department. “America is back,” Biden declared, in clear repudiation of Trump’s ‘America First’ unilateralism. The choice of venue also signaled the return to institutional governance after four years of egotistical aberrations. Every American institution suffered under Trump, but none more than the State Department, traditionally the highest ranked in the Executive Branch.
Trumps’ foreign policy agents, from the Secretary of State George Mike Pompeo to UN Ambassador Nicky Hayley, had little background or even literacy in international affairs. Hayley’s “cesspool” comment about the UNHRC was typical of Trump staffers making speeches not to persuade the audiences they were addressing but to please the boss watching them on Fox News at the White House. Now, as part of the Biden Administration’s emphasis on Human Rights, America is back at the United Nations Human Rights Commission, even though the US is not among the current 47 Member states of its Council.
America’s exit from UNHRC under Trump and its return to the agency under Biden have been having political echo-effects in Sri Lanka. America’s position at the UNHRC looms very much larger in Sri Lankan politics than Sri Lanka would ever figure in American foreign policy calculations. That is part of the natural order of things in a world of grossly unequal power relationships. As well, speculating about the motives of the US or other ‘core countries’ is not going to help Sri Lanka in its dealings with the UNHRC. Regardless of what the US says or does, Sri Lanka is stuck with the UNHRC for the foreseeable future unless and until Sri Lanka gets a government that would enlighten itself to find an internal solution to its external problem, which in itself is the externalization of a much older internal problem.
The reason why Sri Lanka is stuck in Geneva is not only because of its postwar hangovers but also because – as the UN Secretary General Antonio Guterres reminded Sri Lanka’s Ambassador Mohan Pieris: “it is important to recognize that in today’s world there is a growing concern and interest including international institutes from the human rights and legal dimensions on post conflict situations, mainly reconciliation and accountability.” The reminder was a rejoinder to Mr. Pieris’s needless intervention during a special session of the General Assembly for the presentation of the Secretary General’s Annual Report on January 28.
Mr. Pieris’s pique was that his government was not being “made to feel that we are in it together” with the rest of the world because “the global temperature for Sri Lanka, particularly in the Human Rights Council has been maintained at an all time high.” The Secretary General assured the Ambassador that outside involvement in Sri Lanka will disappear when the Sri Lankan government starts responding substantially to questions of reconciliation and justice in Sri Lanka. It is now 12 years since the war ended and the first UNHRC resolution on Sri Lanka was passed. More than anyone else in the world, the people of Sri Lanka deserve a substantial response from their government.
The fault of the previous government was in co-sponsoring the 2015 UNHRC resolution on Sri Lanka while utterly failing to do anything substantially within the country either to win support for it among the Sinhalese, or to do anything significant to address the postwar difficulties in the northern and eastern provinces. The present government, for all the expectations that were invested on it, appears to be totally at sixes and sevens not only in Geneva but in every department of governance in Colombo. I am not imagining anything ridiculous to lampoon the government. The government’s key supporters, its protective commentators and even government ministers are getting frustrated with the ways the government is misfiring on all fronts and on all cylinders. And they are venting their frustrations, albeit for different reasons and for different purposes.
The global context
Specific to Geneva and the UNHRC, it is difficult to imagine that the government has anything smart up its sleeve or can find a way to extricate itself from the quasi-legal tangles that it has gotten itself into. More seriously, and tragically, it is difficult to expect this government to find an internal solution to our national problem, or its external manifestation at the UNHRC forum. In a way, Sri Lanka has lurched from the inept globalism of the previous government to the autarkic incompetence of the present. But there is no running away from the global context which insofar as Sri Lanka is concerned is heavily loaded with human rights imperatives given the country’s postwar hangovers.
There is no question that the global context of human rights is not a level playing field. And President Biden is already showing that America will not engage with all countries equally. Saudi Arabia is more equal than others. Biden acted swiftly to end support to military operations in Yemen which has been devastated for seven years by the Saudi led war. The US will now shift to humanitarian operations. He informed the Saudis that he will only be dealing with King Salman and not the notorious Crown Prince Mohammed bin Salman (MBS). He made public the American intelligence report, that Trump had suppressed, implicating MBS in the killing of Saudi dissident and journalist Jamal Khashoggi.
The Washington Post journalist was killed and dismembered like in medieval times but with modern electrical knives in the Saudi Embassy in Ankara, Turkey, in October 2018. But President Biden will not move to sanction the culpable prince. Saudi Arabia is too important an ally in the Middle East power game. So, thus far and no further, insofar as ‘recalibrating’ the US relationship with Saudi Arabia goes. Many of Biden’s supporters including White House staffers are not happy. Welcome to old school realpolitik.
But in a sign of the times, Reporters Without Borders (RSF) has filed a compliant of over 300 pages with the German office of the Federal Prosecutor accusing the Saudi Prince and his associates of crimes against humanity. Such global indictments have been made possible by Germany’s Code of Crimes Against International Law (VStGB), which became law in 2002, allowing prosecution of crimes outside Germany and not involving Germans. Last month, a German court convicted a former Syrian secret service member of crimes against humanity. These are baby steps in transnational justice and universal jurisdiction.
The appropriate venue for trying the Saudi Prince is the International Criminal Court (ICC) in The Hague. But as a “treaty-based court” created after the 1998 Rome Conference, it cannot try a Saudi as Saudi Arabia is not a signatory or ratifier of the ICC, unless the case is referred to it by the Security Council. That is hardly possible because three permanent members of the Security Council, with veto powers, have not ratified the ICC. Of the 12 investigation initiated by the ICC only three are outside Africa (Myanmar, Georgia and Libya). All the others involve African countries, many of them on self-referral in what is known as “out-sourcing” justice by African countries to resolve internal disputes.
In her January 2021 report on Sri Lanka, High Commissioner Michelle Bachelet outlines the options available to Member states for taking action against Sri Lanka, including referral (by another state) to the International Criminal Court, taking actions in their own national courts under universal jurisdiction, and applying targeted sanctions against state officials. But only targeted sanctions are included in the recommendations. Neither ICC referral nor action under universal jurisdiction is carried into the recommendations. The choices are indicative of the need for consensus even among the core countries. And universal jurisdiction is easier suggested than achieved. Already courts in the UK (2010), Australia (2011) and the US (2012) have rejected lawsuits and arrest warrant requests against then President Mahinda Rajapaksa.
The problem for the government in the Commissioner’s 2021 report stems from its own actions and inactions during the last fifteen months. These actions are seen by the Commissioner as “Emerging threats to reconciliation, accountability, and human rights.” The government protests too much that the Commissioner has no business in the country’s ongoing domestic matters, but it cannot pretend that the ongoing militarization, constitutional aberrations, setting up presidential commissions, and the alienation of religious minorities are all meant for the wellbeing of the people and the protection of their rights and interests.
The government considers the draft resolution based on the Commissioner’s report to be too much or too strong. On the other hand, the more ardent Tamil groups consider it to be too weak or too little, and a dilution of the Commissioners report. We do not know what the final resolution might turn out to be, but we can be sure that it is not going to be the end of it all.
In a way, what is being contested in Geneva can be seen as a continuation of the contest that began at least over seventy years ago in the twilight years of colonial rule. That was when the island’s political leaders communally jostled for post-independence power and position by submitting petitions and making special pleadings before the departing rulers. Perhaps the most dramatic forum where these contests played out before independence was the Soulbury Commission. And the most dramatic persona who stole everyone’s thunder, but actually accomplished little with his fifty-fifty cry, was GG Ponnambalam.
Ponnambalam’s appearance before the Commission was all drama and eloquence and has for long been the stuff of Tamil political lore. As EFC Ludowyk, then Professor of English, would later critically record it for history, Ponnambalam “was responsible for a virtuoso performance of several hours of impassioned oratory that enthused his supporters, but failed to persuade the tribunal which he exhorted.” Behind the stage while Ponnambalam performed, the Soulbury Commission was quietly persuaded by the Board of Ministers to accept the constitutional proposals that Sir Ivor Jennings had prepared for them.
The Board of Ministers proposals became the essence of the Soulbury Constitution. Perhaps the least contentious and the most benign of the three constitutions that Sri Lanka has had, not counting the new one that is now cooking to soon boil over. Ponnambalam would eventually become a powerful minister in the first Senanayake government after independence. Then everything fell apart. Seventy years later, there is little drama in Geneva and the roles are somewhat reversed. The same contest continues, however, but with different and unglamorous actors, in the new global language of human rights .