By Sanja De Silva Jayatilleka –

Sanja De Silva Jayatilleka

The new Foreign Minister has assured us, according to the Daily News, that Resolution 30/1 which was co-sponsored by the Unity Government of Sri Lanka “was in no way harmful to the country…” The Island of 19^th August 2017 reports that the new Minister had said that he had “examined” this resolution as a member of the cabinet, and that it “was certainly not inimical to Sri Lanka’s interests…” Since he was also the former Attorney General, he must know what he is talking about.

In this context, one would expect that he would have no concerns in facing either the written update at the 37^th (March 2018) session of the UNHRC by the UN High Commissioner for Human Rights, Zaid al Hussein, as per the Human Rights Council Resolution 34/L.1,  in which it “Requests the Office of the High Commissioner to assess progress on the implementation of its recommendations and other relevant processes related to reconciliation, accountability and human rights in Sri Lanka…”, nor the written report to be followed by a discussion on the implementation of 30/1 at the 40^th session.

Before the new Foreign Minister examines the High Commissioner’s oral update however, one hopes he resolves certain contradictions between his statement after taking over as Foreign Minister that the Sri Lankan Constitution does not permit foreign judges and the provisions actually contained in the resolution that he describes as “harmless”.

Before going any further, it must be pointed out that the “harmless” Resolution 30/1 was not co-sponsored by a single Asian country (other than Sri Lanka). Not even India. Since no vote was taken due to the new practice of co-sponsoring all resolutions on Sri Lanka by the Unity Government, this is the only indication one can glean of the actual support of the Council. The 12 co-sponsors however paint a picture: only 7 voting members of the Human Rights Council (Albania, Germany, Latvia, Montenegro, Macedonia, UK, and USA), while the other 5 were only observers (Australia, Greece, Poland, Romania, and of course Sri Lanka).

Why is this important? When a country co-sponsors a resolution, it is assumed that it is satisfied with the content. And the new Foreign Minister has confirmed that indeed the Govt was. We can assume that he considers it “harmless” then, the operative paragraph 18 of the resolution which requests the High Commissioner to assess progress on his recommendations, which includes his call to all 193 members of the United Nations to use the concept of Universal Jurisdiction to prosecute those whom he has declared with certainty have committed War Crimes. While the Sri Lankan Constitution may not allow foreign judges, Universal Jurisdiction by definition certainly comes under the purview of foreign judges—certainly “foreign” to Sri Lanka 

Another example is Operative Paragraph 1 in which it welcomes the OHCHR investigation on Sri Lanka and encourages the GoSL to implement its recommendations. Paragraph 88 of the OHCHR investigation report says:

“The High Commissioner remains convinced that, for accountability to be achieved in Sri Lanka, it will require more than a domestic mechanism. Sri Lanka should draw on the lessons learned and good practices of other States that have succeeded with hybrid special courts, integrating international judges, prosecutors, lawyers and investigators.”

They are, for sure, honorable men (and women), in the Unity Government. But would you co-sponsor a resolution on your country which had these paragraphs? And what of the paragraph 6 that welcomes the proposal of the Government of Sri Lanka to “establish a judicial mechanism with a special counsel” and “affirms…the importance of participation of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators” ?

Usually, country specific resolutions are not co-sponsored by the country concerned. The Unity Government set a new trend. If they wanted to do so, why would they not negotiate the text? We can only assume that as declared by the new Foreign Minister, that they were perfectly satisfied with it or at least viewed it as “harmless”.

Consider the alternative scenario in which this was contested by the Sri Lankan government. Since our Constitution bars foreign judges etc., it would be perfectly within the bounds of reason to oppose paragraph 6 and to introduce amendments keeping it in line with our Constitution, since we were planning to co-sponsor it. In doing so, it is possible that the other co-sponsors wouldn’t agree to our amendments. If we felt strongly enough, we could try to garner support from the rest of the 39 voting members who did not co-sponsor the resolution to support our amendments. If there was a stand-off, this would go to a vote. If enough voting members supported us, we could get the amendments in.

There was a seriously good chance we could do this. The very next resolution taken at the same session of the UNHRC was called “Human rights and unilateral coercive measures”, moved by Iran on behalf of the Non-Aligned Movement. A preambular paragraph states:

“Expressing its grave concern that the laws and regulations imposing unilateral coercive measures have, in some instances, an extraterritorial effect not only on targeted countries but also on third countries, in contravention of basic principles of international law, in a manner that will coerce the latter also to apply the unilateral coercive measures.”

The operative paragraph 3 states: “Condemns the continued unilateral application and enforcement by certain powers of such measures as tools of political or economic pressure against any country, particularly against developing countries, with a view to preventing these countries from exercising their right to decide, of their own free will, their own political, economic and social systems.”

This resolution, moved by Iran on behalf of the Nonaligned Movement, won with a record 33 votes ‘for’, zero abstentions, and 14 ‘against’ –being the countries of the EU, Japan, South Korea and the USA.

The point I am making is that the Western movers of Resolution 30/1 had no moral hegemony at the Human Rights Council to guarantee a winning vote. It was a chance Sri Lanka could and should have taken, at least to keep it in line with our Constitution as it stands.

But we didn’t even try. The co-sponsoring started as soon as the Unity government assumed power. The texts were not negotiated adequately. Why? Was the Govt. worried that the people of Sri Lanka would see that it didn’t quite have the support of the “international community” that they boasted about, in case it lost a vote? Or was the new government of one mind with the countries that moved the resolution?

One is inclined to think it’s either both or the latter because of the indignity contained in the preambular paragraph in Resolution 30/1 which says “Welcoming the historic free and fair democratic elections in January and August 2015 and the peaceful political transition in Sri Lanka”. Historic? Anyone sitting in the Council who wasn’t familiar with Sri Lanka, would not imagine that we had democratic free and fair elections since 1947! And never were they other than peaceful transitions!

Of course one can’t predict if the restrictions on foreign judges would apply in a new or amended Constitution (endorsed by a new Minister of Justice).

The latest academic work to appear on Sri Lanka, titled ‘Push Back: Sri Lanka’s Dance with Global Governance’ by Judith Large (Zed Press, London Dec 2016), which is scathing in its criticism of the country, refers repeatedly to the Darusman and Petrie Report. At the time the Darusman Report appeared (2011), the then Sri Lankan government decided not to contest its findings, in a convoluted logic which sought to prevent ”giving it legitimacy”. The result of course is that those two reports are invoked by scholars and resolutions alike. With no immediate refutation by the GoSL, its weak responses later seem to have had no effect. The Marga Institute carried out an excellent study and published a reasoned criticism which the government of the day did not use!  Resolution 30/1 refers to all the previous resolutions that were lost by the previous regime, not because it did not oppose them but because it didn’t have the faintest idea how to do so successfully.

That government’s entire strategy and conduct of diplomacy was woefully inadequate to convince the voting members of their case. It however has the dubious distinction of having tried, succeeding spectacularly once, then changing the team’s captaincy and losing 3 times after that. Were the selectors to blame? I would think so.

When the previous government lost Resolution 25/1, no Asian country voted for that Resolution either. Russia, China, Pakistan, Cuba, Vietnam, Maldives were among the countries that voted against it.  India abstained, with South Africa, Japan, Indonesia and the Philippines among the 12 abstentions. The resolution was won by 23 votes, mostly Western. We fielded the wrong team.

The last resolution on Sri Lanka at the UNHRC recalls the resolutions of March 2012 to March 2014 that Sri Lanka lost, and requests the High Commissioner to assess progress on their recommendations as well as resolution 30/1. This too was co-sponsored by Sri Lanka with Australia, Canada, Germany, Israel, Japan, Montenegro, Norway, Macedonia, UK and USA. Again, only 4 of the sponsors of the resolution were voting members of the Council.

Wasn’t there a better way? We await a closer (re)examination of the conduct of diplomacy at the UN Human Rights Council by the new Foreign Minister and the State Minister, in the national interest of Sri Lanka and its citizens.

*The writer is author of ‘MISSION IMPOSSIBLE-GENEVA: Sri Lanka’s Counter-Hegemonic Asymmetric Diplomacy at the UN Human Rights Council’, to be released by Vijitha Yapa late this month.