By Laksiri Fernando –

Dr. Laksiri Fernando

The West has employed overtly a soft approach towards Sri Lanka, or rather the Rajapaksa regime, nevertheless tightening its grip firmly around its neck where the barren diplomatic efforts to shake off that grip will take the country towards an abysmal future both nationally and internationally. It is not merely or mainly the sterile nature of the diplomatic efforts that is reprehensible, but its duplicity and dishonesty. Accountability is not only a requirement of international law or relations, but also a national imperative of any democratic system of government.

In Sri Lanka, accountability is required for reconciliation with the Tamil community. It is required to prevent a possible re-emergence of an outfit like the LTTE, by punishing the perpetrators on both dies. It is required to halt impunity, create disciplined security forces and to break the cycles of violence that has been gripping the country for many decades. It is also an imperative of the rule of law.

The above does not mean that some ‘perpetrators’ cannot be pardoned if they genuinely confess and repent. But that has to be done in a systematic manner and the government also should be responsible for the chain of command during the last stages of the war where the lives of thousands of civilians were involved. Even according to the most conservative estimates, the magnitude of the death toll of civilians requires a full and impartial investigation. This is where the international participation and/or monitoring are necessary. The regime is no longer reliable.

Geneva Resolution

Coming back to what is happening in Geneva, the proposed resolution – if the leak draft is any indication – does not propose a separate international investigation on war crimes which can call alleged perpetrators as respondents. Obviously, that is beyond UNHRC’s mandate. It can be done only by the Security Council (SC) or the International Criminal Court (ICC). The UNHRC nevertheless can recommend or propose the SC or the ICC to do so. Even that is not there in the draft resolution, perhaps believing that either it is premature or would not carry the majority support. For that step to be taken by the UNHRC, it should have its own evidence or preliminary investigation to convince the member states. Although there is the Darusman Report it is not of its own and it is rather old.

What is proposed in the draft resolution is not even what the UNHRC proposed in the case of North Korea last year (A/HRC/RES/22/13) to appoint a Commission of Inquiry. One may think that what is proposed for Sri Lanka this year is weaker than what was proposed for South Korea, but that is also not the case. What is central is the section 8 of the draft resolution as follows.

“Welcomes the High Commissioner’s recommendations and conclusions on the need for an independent and credible international investigation in the absence of a credible national process with tangible results, and requests the Office of the High Commissioner to assess progress toward accountability and reconciliation, to monitor relevant national processes, and to investigate alleged violations and abuses of human rights and related crimes by both parties in Sri Lanka, with input from relevant special procedures mandate holders as appropriate and to present an oral update to the Human Rights Council at its twenty-seventh session, and a comprehensive report followed by a discussion on the implementation of the present resolution at its twenty-eighth session.” (My emphasis).

The draft resolution may appear convoluted as it is also a cut and paste job from the last resolution. However, the central intent and the principle recommendations are crystal clear as could be seen from the above quoted section. It “welcomes the High Commissioner’s recommendations and conclusions on the need for an independent and credible international investigation.”  Then it requests the Office of the High Commissioner “to investigate alleged violations and abuses of human rights and related crimes by both parties in Sri Lanka.”

The process suggested is mainly to conduct the investigation by the High Commissioner and her staff “with input from relevant special procedures mandate holders as appropriate.” This is why I say that Sri Lanka is badly cornered and in a tight grip because of the short sighted and dishonourable polices of the Rajapaksa regime.

The UNP is absolutely correct in its recent statement that “We must understand that this militaristic regime that continues to curtail our democratic freedoms in their attempts to establish a dynasty while making Sri Lanka the drug capital of Asia is solely responsible for our current plight.” I am quoting only one sentence.

Why the UNP is correct in this statement? The reason is clear. If not for the present nature of the regime, largely militaristic, and its continuous curtailment of the people’s democratic rights and the attempts to establish a family dynasty, there is no reason why the government couldn’t investigated the alleged violations and crimes that the UN and others are talking about.

Can there be an Escape?

No, there is no escape now. This is not only due to the pathetic diplomacy that the Ministry of Foreign Affairs conducts now, but also due to the policy guidelines that the Presidential Secretariat or perhaps the Defence Ministry issues. The heart of the matter is the steady deviation from Sri Lanka’s non-aligned policy and the erosion of good relations with its closest neighbour India.

With Russia’s invasion of Ukraine or Crimea, the Rajapaksa regime’s traditional supporters are in a greater shamble at the UNHRC meeting. How can you claim the proposed UNHRC investigation on human rights violations as an interference in sovereignty, if the regime or its supporters do not condemned the Russian invasion? The Ukraine issue would figure most prominently in the UNHRC debates in the coming days.

What is reflected in the Rajapaksa regime’s policy at the UNHRC is the lack of commitment to or even a basic understating of human rights and humanitarian concerns not in other countries but in Sri Lanka itself. Prof G. L. Peiris’ statement to the High Level Segment of the Session was rather hilarious.

After some formal preliminaries, he uttered quite an archaic argument to emphasise the importance of the Right to Development and Economic, Social and Cultural rights. Then this is what he said immediately thereafter.

“At the same time, we remain deeply concerned that the lack of financial independence of the OHCHR leads to the erosion of independence in its overall functioning. For example, the disproportionate attention being paid to country-specific action in the Council which selectively targets some countries, while situations, human rights violations and restrictive practices in other parts of the world that warrant more urgent and immediate attention and action remain conveniently ignored, is a matter of serious concern. The stark reality is that the continuation and proliferation of the practice of the selective adoption of country-specific resolutions in the Council is a tool that exploits human rights for political purposes. Regrettably, a similar pattern is evident in the case of continued action on Sri Lanka in this Council. We reiterate that such politicized action is contrary to the high purposes and principles of the Council and must be arrested. We believe that additional budgetary allocations from regular funding would lessen the OHCHR’s dependence on voluntary contributions and earmarked funding and thus would allow it to function in an independent manner.”      

He tried to picture, perhaps naively believing so, that lack of funds for or financial independence of the Office of the High Commissioner for Human Rights might be the reason for what he termed as the “disproportionate attention being paid to country-specific action in the Council which selectively targets some countries” and not others. But he didn’t have the spine to name the other countries. This is perhaps how he sees the connection between economic and political matters, or economic rights and political rights. How hilarious?

Of course he repeated the regime’s usual lamentation that “the selective adoption of country-specific resolutions in the Council is a tool that exploits human rights for political purposes.” For what political purposes, he didn’t explain. It is also interesting to note that he didn’t object to ‘country specific’ resolutions as such which was the old argument. The objection was for “selective targeting.” Does this mean that if not for the “disproportionate attention” or the ‘selection of Sri Lanka’ rather than the others, the accusations or allegations are true and correct? That is the impression given throughout his lamentation.

Most comical was the conclusion that proposed to increase “budgetary allocations from regular funding” to OHCHR and lessen the “dependence on voluntary contributions and earmarked funding” to avoid selective political targeting of countries like Sri Lanka.

Repercussions

It may be correct that if the proposed resolution goes through the Council, and it certainly would, and an investigation proceeds through the OHCHR as proposed, then some countries would make ‘voluntary and earmarked funding’ available for that purpose. It is not healthy, but that cannot be avoided given the way that the regime has antagonised some of the important countries or even as a practical requirement. There is no point in trying to close the stable after the horse has bolted.

It should be recollected that even for the ‘peace process’ that G. L. Peiris handled (2002-2005), the Co-Chairs (US, EU, Japan and Norway) pledged US $ 4.5 billion on which he didn’t have any qualms. All those were voluntary and earmarked funding from the same sources. Now to talk about ‘undue influence’ through ‘voluntary and earmarked funding’ for the UNHRC by the same person would appear utter hypocrisy to any perceptible person or country.

The draft resolution has not closed all doors to Sri Lanka. Out of 10 specific recommendations for the Council, even before the recommendation for the investigations by the OHCHR (no. 8), the following is the specific call for Sri Lanka in section 2.

Call upon the Government of Sri Lanka: to conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law, as applicable; to hold accountable those responsible for such violations; to end continuing incidents of human rights violations and abuses in Sri Lanka; and to implement the recommendations made in the reports of the Office of the High Commissioner;

This should mean that if the Sri Lankan government even now initiates ‘independent and credible investigations into alleged violations,’ there is still a possibility of avoiding separate investigations by the OHCHR; however on the premise that other integral recommendations are also followed up and technical assistance and cooperation are sought from the OHCHR.

As still a citizen of Sri Lanka, also with an academic expertise or background on human rights, I have no disagreement or objection for the draft resolution on Sri Lanka and wish to call upon the government to pledge particularly its agreement with section 2 of the draft resolution and cooperate with the OHCHR in implementing its recommendations as applicable.