By Sanja De Silva Jayatilleka –

Sanja De Silva Jayatilleka

It’s been 8 years since the war, and Sri Lanka just signed off in Geneva on a resolution that said Zaid al Hussain, the UN High Commissioner for Human Rights should play a strengthened role in Sri Lanka. He might as well sit in Cabinet! 

The new resolution, having praised Sri Lanka for its ‘positive engagement’ with the Office of the High Commissioner, which then should sit back with a sigh of relief and let this cooperative government do its obedient thing, actually adds a paragraph, specifically for the purpose of instructing Zaid to strengthen his advice and technical assistance.

Usually when a country is ‘in compliance’ as they say, no further strengthening is included in subsequent resolutions. All assistance is covered in a general statement of obtaining technical assistance from the Office of the High Commissioner. So what exactly does ‘strengthening’ imply?

The final paragraph offers a clue. It is a reiteration of the last fabulous resolution (30/1 of 2015) which “Requests the Office of the High Commissioner to continue to assess progress on the implementation of its recommendations”.

Notice that it says ‘its recommendations’. It’s not the operative clauses of the resolution that he is meant to monitor but the recommendations of the Office of the High Commissioner!

Just to update anyone who is confused about the difference between the UN Human Rights Council and the Office of the High Commissioner, the former is “an inter-governmental body within the United Nations system made up of 47 States responsible for the promotion and protection of all human rights around the globe.” We are bound by what it recommends as a member of the United Nations.

The High Commissioner, on the other hand is an official appointed by the UN Secretary General. He can make recommendations but we are only bound to be grateful for his efforts, and to consider them favorably.

In considering them however, countries like ours, developing countries, have to bear an important factor in mind. The Office of the High Commissioner is “funded from the United Nations regular budget and from voluntary contributions from Member States, intergovernmental organizations, foundations and individuals.”

Voluntary Contributions are additional funds given by rich countries, which pay for staffers and projects of their choosing. It is inevitable that this introduces a certain lack of impartiality to their work. There have been many suggestions that voluntary contributions should stop and the UN should only use the regular budget.

In making his recommendations, the High Commissioner is bound by the General Assembly Resolution 48/141 that appointed him to:

“…Function within the framework of the Charter of the United Nations, the Universal Declaration of Human Rights, 1/ other international instruments of human rights and international law, including the obligations, within this framework, to respect the sovereignty, territorial integrity and domestic jurisdiction of States…”

The High Commissioner is bound by Resolution 48/141 to act:

“…under the direction and authority of the Secretary-General; within the framework of the overall competence, authority and decisions of the General Assembly, the Economic and Social Council and the Commission on Human Rights.”

The resolutions further state that his responsibility is:

“To carry out the tasks assigned to him/her by the competent bodies of the United Nations system in the field of human rights and to make recommendations to them with a view to improving the promotion and protection of all human rights.”

So, we are not bound by the High Commissioner’s recommendations unless we voluntarily co-sign a resolution of the Council, which includes the recommendations of the High Commissioner. Which is exactly what Sri Lanka, under this Government, has done, twice over—in 2015 and 2017!

The recommendations of this High Commissioner, at the latest session of the Council, includes the following:

• “Embrace the report of the Consultation Task Force on Reconciliation Mechanisms”. This, for the readers’ information, is the committee appointed by the Prime Minister, of which the Secretary and spokesperson is Dr. Paikiyasothi Saravanamuttu, and the report of which recommends Special courts with foreign judges.

• “Invite OHCHR to establish a full-fledged country presence to monitor the situation of human rights, to advise on the implementation of the recommendations made by the High Commissioner and the Human Rights Council in its resolutions, and to provide technical assistance”

What ‘country presence’ means is to establish here, in this country, probably somewhere along Galle Road, a branch of Zaid’s Office, filled with his officials, to monitor human rights here. In an amusing episode, in 2007, when this was suggested by the then High Commissioner at an on-going session of the Council, after repeated rejections, she was famously asked by the Sri Lankan Ambassador/PR, “Madam High Commissioner, which part of ‘No’ don’t you get?”

What are they going to be doing here, when we have a Human Rights Commission already? Is this what the word ‘strengthening’ in the latest resolution means?

The Office of the UN High Commissioner has a habit of attempting to establish its offices in as many places as it can. In its annual reports, it reports with pride the number of its offices that has been established around the globe as a key performance indicator. Unless it is absolutely necessary, I never understood why the Office thought that this was the best way forward in promoting human rights. The majority of the Council was of the view that local mechanisms were the only sustainable guarantee of protecting human rights and technical assistance to establish those was preferable to the Office planting itself in their countries.

Another recommendation of the High Commissioner with regard to Sri Lanka was

• “Accede to the additional protocols to the Geneva Conventions, and to the Rome Statute of the International Criminal Court…” This is self-explanatory. We have so far resisted this, as has the US of A.

• “Enact legislation to criminalize war crimes, crimes against humanity, genocide and enforced disappearances without statutes of limitation, and enact modes of criminal liability, in particular command or superior responsibility.” Aha! “Command or Superior Responsibility”. Now this is where the Rajapaksas come in. In one fell swoop, those who are so inclined can eliminate their electoral and political rivals. Lovely.

The UN High Commissioner also recommends that we:

• “Adopt legislation establishing a hybrid court, which should include international judges, defence lawyers, prosecutors and investigators.” Of course the Government’s leaders and ministers say there will not be any hybrid courts. But why then co-sponsor a resolution which specifically asks Zaid to monitor and report on the progress of these very recommendations which include hybrid courts and international judges?

There are other gems. But I shall quote just one more of his recommendations to the members of the United Nations:

• “Wherever possible, in particular under universal jurisdiction, investigate and prosecute those allegedly responsible for such violations as torture, enforced disappearance, war crimes and crimes against humanity.”

The doctrine of Universal Jurisdiction enables any country to take into custody a national of any other country for an alleged crime, even if they are in the transit lounge of an airport.

There have been very good articles informing the public on the latest Geneva resolution as well as the previous one that the Government of Sri Lanka thought was in its best interest to co-sponsor. I just wanted to highlight a few more of their hidden delights.

The 2017 resolution requests the High Commissioner to assess our progress on his recommendations and to report to the Council at its 37^th session. That would be next March (2018) at the high level segment of the Human Rights Council.

I seriously think that it’s time that the highest level segment of this “Unity government” takes another look at these resolutions and do what can be done to reverse the damage and contain the fall out.