By Laksiri Fernando –

Dr. Laksiri Fernando

There was nothing fundamentally wrong in Sri Lanka endorsing the UN Human Rights Council (HRC) resolution in October 2015. That was the best the country could achieve politically in that forum, under the circumstances, after 2009 resolution. This does not mean that it is the best for ‘reconciliation, accountability or human rights’ in the country. Many of the recommendations of the resolution are ambiguous, legalistic or lack realistic perspectives. Some of them could even be undesirable or intrusive. Otherwise, the wording was milder, accommodative and quite the reversal of the previous three resolutions in 2014, 2013 and 2012. It is somewhat like ‘carrot and stick.’

Given the scope and extent of the ‘recommendations,’ it is almost natural for Sri Lanka to ask for another two-year extension. This is under favourable consideration at present at the HRC sessions (27 February-24 March), but what Sri Lanka may have to be careful about is the wording of the new resolution, without hastening to endorse it.     

Most of the HRC resolutions are politically motivated rather than based on moral principles of human rights. There is no need to repeat this accusation only against the West, because most of the non-western countries also jump on the bandwagon easily or do the same for one reason or the other. When they find a weaker or a vulnerable country, all are delighted to hammer and hammer hard. What operates there largely is power politics, some of the international NGOs also involved. 

Background

Then how come the 2009 resolution was possible in favour of Sri Lanka? Immediately after the end of the war, there was some excitement about Sri Lanka’s achievement in defeating the LTTE as a terrorist organization. It was still the height of anti-terrorism after the 9/11. Apart from the rhetorical and organizational skills of our good Ambassador in Geneva, the circumstances favoured the country. The resolution also gave some concessions on human rights concerns and particularly on reconciliation. This was also after the then President’s joint statement with the UN Secretary-General also covering accountability. Although we may criticise the largely politically motivated behaviour of the HCR, there are of course constituencies genuinely concerned about human rights and related issues.

Then what went wrong politically after the 2009 resolution was largely the ‘adventurist diplomacy,’ antagonizing the West unnecessarily in a context where the war victory euphoria was over. Sri Lanka tried something bigger than its capacity, as if to lead an anti-colonial struggle. This was in a context where China or even Cuba was expecting some rapprochement with the West. Distancing from India also added to the predicament.

This is not to deny that the origins of the three resolutions (2012, 2013 and 2014) also had roots in what I would call ‘neo-liberal interventionism’ particularly of the USA of that time. If the Diaspora had any influence on the situation, it was only marginal. Compared to that situation, the present conditions are much more favourable to the country which should not be abused in any manner when it comes to ‘human rights, accountability or reconciliation.’ Sri Lanka’s commitment to those three concepts should be based on moral and ethical considerations and not politics – national or international.

Contents of the Resolution

The 2015 resolution contains 23 preambular paragraphs and 20 supposed to be ‘recommendations’ in numerical order. But in terms of language, all are more or less the same, ambiguities dominating. One would wonder why an UN outfit could not do better without confusing the public or the countries? Preambular paragraphs are supposed to express the general principles and acclaim or subtly criticise the country as necessary. That is done.

For example, after affirming to the UN Charter, the Universal Declaration and the International Covenants and also recalling the previous resolutions, it reaffirms “its [HRC’s] commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka.” This is not only an assurance, but also the premise that all efforts of ‘reconciliation, accountability and human rights’ should be based. There are more commendations on the ‘historic free and fair democratic elections in January and August 2015, the peaceful transition’ and more particularly the ‘nineteenth amendment to the Constitution.’ There are many other ‘kudos,’ hardly any need to repeat.

As of general principles, it affirms that “all Sri Lankans are entitled to the full enjoyment of their human rights regardless of religion, belief or ethnicity, in a peaceful and unified land.” It also states, in general terms, “that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable.” All these are well and good.

However, among the preambular paragraphs, the following is also there and one could wonder whether it is an expression of a general principle, or a recommendation? So much to the resolution’s ambiguities.

“Emphasizing the importance of a comprehensive approach to dealing with the past, incorporating the full range of judicial and non-judicial measures, including, inter alia, individual prosecutions, reparations, truth-seeking, institutional reform, the vetting of public employees and officials, or an appropriately conceived combination thereof, in order to, inter alia, ensure accountability, serve justice, provide victims with remedies, promote healing and reconciliation, establish independent oversight of the security system, restore confidence in the institutions of the State and promote the rule of law in accordance with international human rights law with a view to preventing the recurrence of violations and abuses, and welcoming in this regard the expressed commitment of the Government to ensure dialogue and wide consultations with all stakeholders.” 

A comprehensive approach, apparently is what is recommended in dealing with the past. Then it should incorporate the full range of judicial and non-judicial measures. They include, (1) individual prosecutions (2) reparations (3) truth-seeking (4) institutional reform and (5) the vetting of public employees and officials. That is rather clear.

Then it gives a leeway for an alternative: “an appropriately conceived combination thereof.” What the hell this ‘combination,’ one could wonder! But at least the purpose is given rather rhetorically. That is “in order to, inter alia, ensure accountability, serve justice, provide victims with remedies, promote healing and reconciliation, establish independent oversight of the security system…” bla bla bla! All the ‘good’ things in the world are there without much meaning.    

It also recommends the establishment of an “independent oversight of the security system.” It is possible that some of these paragraphs are taken from some NGO document or an academic discourse. But whatever the circumstances, this phrase of ‘independent oversight of the security system’ should have been explained or questioned by our delegates who negotiated the resolution.

Recommendations

It appears that the HRC relies heavily on the High Commissioner, the Office and the bureaucracy. That was the purpose when the previous Human Rights Commission was converted into a Council. This is somewhat parallel to what is happening in Brussels in respect of the European Union. The bureaucracy often overrides the European Parliament. In the case of the HRC, there is nothing much wrong if the bureaucracy is well represented and concerned about the practicalities of especially the developing countries. To fully implement what they recommend or demand sometimes, the poor countries may have to give up all the other activities of development, security of the country or welfare of the people. But in comparison, 2015 resolution on Sri Lanka is lenient. 

The recommendation one “encourages the Government of Sri Lanka to implement the recommendations contained in various reports of the High Commissioner and the Office when implementing measures for truth-seeking, justice, reparations and guarantees of non-recurrence. If you emphasise the word ‘encourages,’ then the recommendation is not that imperative.

The recommendation two is also similar and “welcomes the positive engagement between the Government of Sri Lanka and the High Commissioner and the Office” and “encourages the continuation of that engagement.” However, it also recommends “exploring appropriate forms of international support for and participation in Sri Lankan processes for seeking truth and justice.” Here there is a new element through which international support and participation is encouraged. This is like FDI (foreign direct investment) in the globalization process. In these ventures, as I have observed in many countries, some of the not so qualified personnel could be employed as ‘human rights experts.’

The recommendation three also quite harmless. That “supports the commitment of the Government of Sri Lanka to strengthen and safeguard the credibility of the processes of truth-seeking, justice, reparations and guarantees of non-recurrence.” Therefore, the commitment is applauded whether these are actually in operation or not! The politically sympathetic nature of the resolution is clear. But it again encourages not only the engagement of “civil society, including non-governmental organizations” but also ask to draw on “international expertise, assistance and best practices.” 

The recommendation four is quite similar to what I have quoted previously in full as an apparent recommendation appearing under preambular paragraphs. It is almost word to word, and only difference is that it talks concretely about “the proposal by the Government to establish a commission for truth, justice, reconciliation and non-recurrence, an office of missing persons and an office for reparations.” Well, this is something very concrete and something our exceptionally diplomatic Foreign Minister must have promised. Therefore, on his part, it is logical to ask for an extension of two more years for the implementation of the resolution.

Again, the ‘FDI’ is recommended in this process. It is not clear whether there is an understanding or agreement between the countries who fund the HRC and the Office to send some number of their nationals as ‘human rights experts’ to the countries under HRC scrutiny. If that is the case, this human rights business is actually a farce.     

There is some ‘kudos’ to the Sri Lankan state in the recommendation five which is worth quoting fully as below. 

“Recognizes the need for a process of accountability and reconciliation for the violations and abuses committed by the Liberation Tigers of Tamil Eelam, as highlighted in the report of the Office of the High Commissioner on its investigation on Sri Lanka.”

However, it is doubtful whether a process of accountability could now be installed in respect of the LTTE, as the recommendation says, since many of the responsible leaders were killed in battle or executed after capture.

War Crimes Controversy

The above ‘kudos’ perhaps is a preface to what is suggested in the recommendation number six. This is the current controversy in the country as ‘war crime investigations.’ First it “welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system.”

Then it “notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable.” One can argue or wonder, whether there was such a proposal from the government to establish a judicial mechanism with a Special Counsel? A Special Counsel also could be read as a Special Prosecutor. However, as Sri Lanka has already endorsed the resolution, this question does not arise. 

Only excuse or escape could be that the endorsement in general terms does not mean the agreement on every word, dot and comma. The recommendation also does not talk about ‘war crimes’ as such, but “allegations of violations and abuses of human rights and violations of international humanitarian law.” Of course, the violation of international humanitarian law could amount to war crimes. The allegations are also considerable and at least one previously coming from the former Army Commander himself (white van massacre). However, the recommendation has given much leeway to the government. The investigations to be conducted “AS APPLICABLE.”

There is no direct recommendation in the resolution to involve “Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators.” The resolution only “affirms in this regard the importance of their participation.” The full recommendation is as follows.

“6. Welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system, notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators.”

Conclusion

This article did not review all 20 recommendations for the reasons of brevity. Even if we review all of them, we may come to the same conclusion that the resolution is ambiguous, overtly giving much leeway to the government. But this could be illusory depending on the political circumstances. There are however tricky points within the resolution itself when it comes to the involvement of the High Commissioner and the High Commissioner’s Office. Those are at the end of the list. This is where the ‘neo-liberal human rights interventionism’ is apparent. That is one reason why the government of Sri Lanka, or its delegation in Geneva, should be extremely careful in working on a new resolution, or endorsing such a resolution again.

Most unfortunate is the delay in the implementation of reconciliation, accountability as applicable and, most importantly, the promotion and protection of human rights of all communities. The reasons are due to the ambiguities of the HRC processes, political horse-trading and much hyped controversies locally on ‘war crime investigations.’ There is no reason to be alarmed, unless to keep or resurrect authoritarianism, neglecting reconciliation and human rights. Most important is to rely on the internal efforts, capacities and resources without unnecessarily depending on the external sources. Why not give more importance to human rights education, internal dialogues for reconciliation and implementation of rule of law and human rights?