30 September, 2020

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Morality, Politics & The Farce Behind The UNHRC Resolution

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?

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Latest comments

  • 2
    1

    I think it’s a mistake to think that the clause “its [HRC’s] commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka.” means a blanket commitment by the UN to prevent the emergence of an independent Tamil Eelam. I believe this clause simply recognizes that Sri Lanka is a sovereign state and all the other members of the UN have no claim to the territory of Sri Lanka. For example, if India were to invade and occupy Jaffna, then the UN would be bound to recognize that occupation as illegal because it violates the sovereignty and territorial integrity of Sri Lanka, a UN member state.
     
    The crucial point is that Sri Lanka identifies itself as a republic, meaning that sovereignty is vested in the people. It is accepted international law that in certain exceptional circumstances, the people of a region in a state can exercise their sovereignty by separating and constituting a new state under the auspices of a UN sanctioned referendum.
     
    I would argue that the sovereignty clause above is extremely important for the Eelam project as well. The newly created Eelam state would obviously want all the states of the UN to respect its sovereignty and territorial integrity. That can only happen if the same states also respected the sovereignty of the parent country from which it separated: Sri Lanka. The fact that India also signed on to the UNHRC resolution is noteworthy. There are a couple of minor blemishes on the sovereignty of the NE. One is the Katchchathivu island issue and the other is the Trincomalee oil tanks. Because India has signed on to the UNHRC resolution and the clause above, there is simply no way that they can try to claim any rights whatsoever to Trincomalee or to the Katchchathivu islands at a future date. I predict that one of the first things the independent Eelam state will do is to end the nonsense of Indian pilgrims to Katchathivu and to evict the Indian Oil Company from Trinco.

  • 1
    0

    “Most of the HRC resolutions are politically motivated rather than based on moral principles of human rights”

    It is not only applicable to HRC resolutions but also for most of the governments including Srilanka, political parties, and of the religious organisations within Srilanka. The truth is that in Srilanka weaker communities (in numbers) are the victims of powerful political and religious leadership of the Sinhalese.The truth is that outcomes of the recociliation, accountability, investigations, and justice by Srilankan state are going to be politically, racialy, religiously motivated rather than on moral principles of humman rights. Here human refers to Sinhalese, Buddhists only rather than to all communities and religions. This is what we are also going to see with the talk of new constitutuion.

  • 4
    0

    When Dr.Laksiri Fernando moved in the matter to confer a honorary doctorate to Gotabaya Rajapakse were there Morals?

  • 1
    0

    The UNHRC resolutions may be farcical – depend on how one views it.

    This has become an annual event. Can Lankans put a stop to this? No Lankan politicians are mining gold out of this.

  • 2
    1

    What is happening to our intellectuals when they get older?? Leftist Vasu was respected man as an intellectual in his younger days, now he is one of the filthiest speaker at national parliament… Is Laksiri started going through the same path with age ???
    Why Laksiri now so much concern about wording in HRC, the world body which mostly concern about underprivileged groups, classes in the world.. Are most of our law and justice issues, and basic rights issues of underprivileged classes and minorities being resolved in SL??? Now Laksiri forgets our own problems and. he is trying to fix HRC because now older Laksiri believes HRC is mainly politically motivated.. in plain English Laksiri see the HRC , the world body, are polically motivated bunch of liars..
    Is Laksiri aiming for big job under Gota after 20220???
    Sorry Sir…I may be overreacting, but I can not neglect my instinctual drive after reading last couple of your essays in CT…

  • 2
    0

    Dr Laksiri Fernando

    BUDDHISM is not ambiguous.

    Is anything ambiguous in this?

    “During my tenure of the office as Governor-General of Ceylon I never expected that there would be such a bitter cleavage between the Sinhalese and Tamil communities – and you are quite right when you say that the cause must be laid at the door of Sir John Kotelawala and his government. But if he chastised the Tamils with the whips, the late Mr. Bandaranaike chastised them with scorpions. The Sinhalese behaviour to the Tamils has been excessively short-sighted and foolish. When as Chairman of the Commission on the reform of the Constitution of Ceylon in 1945 I studied the relations of the two communities. I was much impressed by the important contribution  that the Tamils had made and were making to the economy of Ceylon – and I was aware that the Ceylon Tamils were better educated and more industrious than the Sinhalese – in many ways they were playing the part of the Scots had played and still play in the economy of England. “
    https://www.colombotelegraph.com/index.php/sinhala-stupidity-i-feel-sorry-for-the-tamil-community/

    Is anything ambiguous in what said in http://transcurrents.com/files/Broken_Promises_TNA_03_Mar_12.pdf ?

    Is anything ambiguous here?
    ” None of Sri Lanka’s four proposed transitional justice mechanisms (a truth commission, a judicial mechanism, and offices to handle reparations and disappearances) are operational. Parliament has approved the creation of an Office of Missing Persons, but that’s it. And there’s no clear timeline for the establishment of an accountability mechanism.” http://thediplomat.com/2017/02/a-former-president-shares-a-fairy-tale-on-accountability-in-sri-lanka/

    What about this ?
    “When one reviews the track record of Sri Lanka regarding the implementation of all the recommendations after a lapse of seventeen months, one can only observe a dismal and depressing performance coupled with a defiance of UNHRC and rejection of its own commitments.”     Thambu Kanagasabai LL.M (London) – Former Lecturer in Law, University Of Colombo, Sri Lanka  http://tuckmagazine.com/2017/02/14/sri-lanka-unhrc-session-march-2017/

  • 3
    0

    Dr. Laksiri Fernando and all participants,
    It is possible to analyze what is already written for a person of your standing, but who in Sri Lanka will understand the sciences of Human relations, and Social studies? Please understand that majority of Sri Lankans learnt authoritarianism by majority on minority is democracy through decades of oppression of minority by the top politicized executives. This trend of depriving minorities gained momentum in every successive election and reached its climax with mass killings. It was the norm for the party that deprives most getting elected to power.
    The scenario faced by Sri Lanka from the UNHRC is alien to Sri Lanka as you all can see how the top executives react. They simply do not acknowledge how much the Country will benefit from the international community if they align with UN and accept the help offered. The old saying “Power is blind” is now seen in Sri Lanka because they simply refuse to come out of the superiority mind set just because knowledge of Human relations is strange to those who benefit with discrimination.

  • 2
    0

    Dr Laksiri Fernando

    What is your view on LLRC report?

    I read somewhere that only 20% is implemented.

    Is it because it too ambiguous?

  • 1
    0

    In my estimation the biggest blunder the Yahalpanaya outfit did was the Bond Scam. From there on the credibility went downhill. No stopping the rot. This was the beginning of the end
    UNHRC is a farce; created by Uncle Sam, bolstered by GTF and unwittingly committed by the Yahalpanaya foot soldiers and generals alike. Commissions on commissions to create jobs for the boys is the order of the day. It is pathetic to say the least

    The real issues facing the country are water or lack of water, I should say. Drought in an unprecedented scale, Unemployment, inflation, CORRUPTION, LAWLESSNESS AND POLITICAL MANUARING OF everything standing or moving.
    The electorate is fed up with lies and more lies from the power brokers
    The only bonus we have under this regime is a bit more freedom of expression, compared to the previous lot. How long is the question….
    Let us await until the 20th for the long awaited reshuffle or more of a swapping of name tags to positions!. Long live democracy by the ballot

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