The UN Human Rights Council’s first session of the year 2021 to be held from 22nd February to 23rd March is the most important because it opens with the participation of member states at the Ministerial level, known as the High-Level Segment. Often, Foreign Ministers, Ministers of Human Rights, Justice Ministers and others of similar rank speak at the Council on behalf of their countries and take up issues of human rights around the world.
As in the other two sessions held later in the year in June and September, the United Nations High Commissioner for Human Rights presents her own reports of the work commissioned by the Human Rights Council. In addition, experts appointed by the Council on thematic issues known as Special Procedures also present their reports on their country visits and studies of human rights situations in the countries designated for scrutiny.
The High Commissioner’s report on Sri Lanka to be presented at the ‘High Level Segment’ had been shared confidentially with Sri Lanka as is the usual practice with country reports, before being made available to the public. The report however had allegedly been leaked and it is now in the public domain.
The report of the High Commissioner contains a devastating and unprecedented critique of the handling of human rights in the country, and its recommendations have escalated the possible interventions of the Council beyond anything that has been suggested to date.
The logic of this escalation is based on the High Commissioner’s conviction of an accelerated deterioration in civic, political, minority, religious and other democratic rights under the present administration which she explicitly states needs the UN Human Rights Council’s “urgent attention”.
The High Commissioner will also be presenting her findings to the General Assembly in New York through the Economic and Social Council (ECOSOC) in furtherance of her mandate specified in General Assembly Resolution 48/141. In this context, some of her recommendations assume an added significance.
There are some recommendations that she makes to the member states that Sri Lanka should not ignore. One such option that she indicates member states may consider is the referral of the Sri Lankan case to the International Criminal Court. This is unprecedented. A reading of the report clearly suggests that this was occasioned by what she perceives as the early warning signs of a dangerous trend which is rapidly escalating militarization and the closing of democratic space by the present Sri Lankan administration, rather than as a response to the Tamil Diaspora lobbyists’ long-standing demands.
Another recommendation is the application of the principle of Universal Jurisdiction, which was first proposed by previous Human Rights High Commissioner Zeid Al Hussein.
Universal Jurisdiction enables a state to claim criminal jurisdiction over a person accused of a crime regardless of their nationality and place the crime was allegedly committed. Former President of Chile, Augusto Pinochet was arrested in London in 1998 on a Spanish warrant charging him with human rights violations in Chile during his time in office. He was extradited to Spain and was tried in a Spanish court under the principle of “universal jurisdiction”. His claims of immunity were rejected by the British Courts on the grounds that torture and crimes against humanity did not form part of the “functions” of a head of state.
No member state acted on High Commissioner Zeid Al Hussein’s urging with regard to Sri Lanka, agreeing to let Sri Lanka investigate alleged violations of human rights through local processes. The context in which it has been suggested this time is significantly different from previous years with High Commissioner Michelle Bachelet emphasizing current practices of the Sri Lankan government which she describes as “trends emerging over the past year, which represent clear early warning signs of a deteriorating human rights situation and a significantly heightened risk of future violations, and therefore calls for strong preventive action.” Such language regarding a peacetime situation is a cause for concern, all round.
The Sri Lankan Government will have to respond. If it doesn’t do so effectively, that will impact on individual officials, because the High Commissioner also recommends “possible targeted sanctions such as asset freezes and travel bans against credibly alleged perpetrators of grave human rights violations and abuses”. The current Army Commander has already had a travel ban imposed on him, and as such these should not be regarded as empty threats.
In addition, she recommends the application of “stringent vetting procedures to Sri Lankan police and military personnel identified for military exchanges and training programme”. Sri Lanka has already faced the consequences of this form of punitive action where members of the Sri Lankan military were denied opportunities for training. Furthermore, the report calls for continued review of Sri Lanka’s contribution to UN peacekeeping operations.
Even if Sri Lanka were to ignore the contents of the High Commissioner’s Report, it will still have to deal with the consequences of its recommendations, if any of the member states decides to act on them. An effective response will be essential if Sri Lanka is not to be seen by possible investors as a place likely to deteriorate into violent conflict and widespread human rights abuses. That is not an attractive climate for investment decisions.
The Secretary to the Ministry of External Affairs has claimed that Sri Lanka is a peaceful country 12 years after the end of the war and to be accused of human rights violations was “unfair”. This will not be a good enough defense in Geneva where the issues brought up in the report have little to do with peace now but with lack of progress on accountability for alleged incidents of war crimes, failure to establish credible local processes, reducing space for democracy, increasing militarization, and surveillance of civic actors and journalist, to list a few.
Asserting that no one has the right to dictate to us about democracy contradicts the logic of the UN Human Rights Council that all member states of the UN have a duty to speak on any concerns regarding human rights, including political and civil rights. Sri Lanka needs a far better strategy of engagement which takes that into account.
Three Special Procedure mandate issued a joint appeal to the government of Sri Lanka on the 25th of January 2021 urging the government to stop what they termed “forced cremations”. This issue will surely be brought up at the Council and the joint appeal indicates the form it will most likely take.
The Special Rapporteurs attribute the government’s decision to “discrimination, aggressive nationalism and ethnocentrism amounting to persecution of Muslim and other minorities in the country”. This is very strong language and the Rapporteurs were hardly detained by the peaceful nature of the country at present. A Government Minister’s protest that they will be guided by the WHO will inevitably fail to convince the Council due to the WHO recommending both burial and cremation as safe options for Covid-19 fatalities.
The Secretary/External Affairs fears that the North will hijack the agenda of the Council to target Sri Lanka. The Human Rights Council does not have any veto-wielding members and membership is based on equitable geographic distribution. This means that there are fewer member states from the global North and more from the global South.
Sri Lanka was already on the agenda from earlier sessions which requested the High Commissioner to report on progress of the earlier resolutions adopted by the Council. Her report is presented in that context at the upcoming session.
It has been revealed that the External Affairs Ministry is awaiting the draft of a resolution on Sri Lanka being proposed by UK, Canada, Macedonia, Germany and Montenegro. It is expected to be a ‘consensual resolution’. The Foreign Secretary stated in an interview with the Daily Mirror that this was “the only thing on the table”. If this is the case, it is an important fact.
Consensual Resolution requires a consensus between the parties by definition and if it fails to achieve that or is challenged, it will be presented to a vote at the Council. It is then that the 47 member states will support or oppose the resolution which will be adopted if a majority of countries vote in support. However, all 193 member states of the UN are able to present their views before the vote, to persuade the voting members either way. The Global South can have its say as much as or even more than the Global North.
While this administration withdrew from previous resolutions which were co-sponsored by the earlier regime, this resolution will need the Government’s full engagement through our diplomats in Geneva if it hopes to persuade the Council of its position on Human Rights in Sri Lanka. Given the tone and tenor, Conclusions and Recommendations of the High Commissioner’s Report on Sri Lanka and the perception of the Special Rapporteurs of Sri Lanka’s motivation in its public health decisions on Covid-19 deaths, the Government of Sri Lanka has its work cut out for it.
*Sanja de Silva Jayatilleka is the author of ‘Mission Impossible-Geneva: Sri Lanka’s Counter-hegemonic Asymmetric Diplomacy at the UN Human Rights Council’, Vijitha Yapa, Colombo, 2017.