IMPACT of US withdrawal from UNHRC on SRI LANKA

By Neville Ladduwahetty

There is considerable speculation within Sri Lanka as regards the impact of US withdrawal from the UNHRC. While some hope for a certain degree of letting up as a consequence of the US action, others are of the view that the US would continue to maintain its pressure regardless of whether it is in or out of the UNHRC.

One compelling reason for maintaining the pressure is that a weak and defensive Sri Lanka would be more pliable and accommodating when it comes to serving US geopolitical interests in and around the Indian Ocean; a region that is fast attracting the attention of major global powers in the form of a grand coalition in order to contain China, with each of the partners attempting to establish its footprint in Sri Lanka.

Another reason is that the present regime is obligated to the US and some of its allies such as the U.K. for initiating the regime change that brought this government into power. It was this obligation that made Sri Lanka resort to the treacherous act of co-sponsoring the UNHRC resolution 30/1 under pressure from the US. By becoming a willing co-sponsor Sri Lanka became an enabler for the resolution to be passed without a vote, thereby preventing any member in the Human Rights Council from expressing objections to such an intrusive and country specific resolution. If other nations do not watch out, this strategy would set in place a precedent for major powers to bring nations that serve their geopolitical interests within their spheres of influence.

INTERVENTION in INTERNAL AFFAIRES

It is natural and in fact expected of any country to pursue its national interests. However, it is the degree to which it pursues its national interests that matters. For instance, China is earnestly pursuing its national policy of One Belt One Road that it officially launched in 2013. As far as Sri Lanka is concerned, its strategic location in the Indian Ocean is what compels China to establish a significant footprint in Sri Lanka. However, the general policy of China has been to resort to other techniques to gain influence in the pursuit of its national interests in countries such as Sri Lanka, without intervening in its internal affairs.

This however is not the case with the US and its allies. They not only engineer and install regimes that favour them, albeit ostensibly democratically, but also go to the extreme of recasting and reshaping the structure and nature of sovereign States such as Sri Lanka as evidenced by the extent of intervention reflected in UNHRC Resolution 30/1; a tendency that is driven by their zeal for civilizing nations under the rubric of the Manifest Destiny of the US. Although the scope of this resolution is on accountability and reconciliation, the resolution calls for a degree of intervention that violates UN General Assembly Resolution A/RES/36/103 of 9 December 1981.

The very first paragraph of the Resolution titled “Declaration on the inadmissibility of intervention and interference in the Internal Affairs of States” states:

“Reaffirming, in accordance with the Charter of the United Nations, that no State has the right to intervent directly or indirectly for any reason whatsoever in the internal or external affairs of any other State…”. This restriction is interpreted to apply only to States and not to agencies such as the UN. If this is the case, States could use Agencies such as the UNHRC to overcome impediments to intervene in internal affairs of States. Therefore, the concept of nonintervention should apply to agencies that are representative of States as well. In this regard, the influence of the US in the workings of the UNHRC is starkly evident from the change in the scope of resolutions from 2012 to 2014, into one that intervenes in the internal affairs of Sri Lanka in 2015, following the regime change. This is the real world we live in.

The degree to which the UNHRC Resolution 30/1 on Sri Lanka intervenes in the internal affairs is evident from the material presented below.

(a) “…establish a commission for truth, justice, reconciliation and non-recurrence, an office of missing persons, an office for reparations …”

(b) “…Sri Lanka to establish a judicial mechanism with special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable…”

(c) “…Sri Lanka to introduce effective security sector reforms…”

(d) “…Sri Lanka to `accelerate the return of land…in particular the ending of military involvement in civilian activities…”

(e) “…Sri Lanka to review the Public Security Ordinance and repeal Prevention of Terrorism Act…”

(f) “…Sri Lanka to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearances…”

(g) “…Sri Lanka to release all previous presidential commission reports”.

(h) ‘…to fulfill its commitment on the devolution of political authority and to ensure that all Provincial Councils are able to operate effectively…”.

What is evident from this degree of intervention in the internal affairs of Sri Lanka or any other State is that no topic is beyond the pale of the mandate to protect and promote human rights. If such a degree of unrestricted intervention is unacceptable for any State, it also should apply to the agencies that are instruments of States. It is despite this degree of intervention in the internal affairs of Sri Lanka, that Sri Lanka co-sponsored the Resolution for some dubious reasons best known to this government.

What is also surprising is that no member of the Human Rights Council deemed it necessary to table a counter resolution to protect itself from becoming a victim of interventions of a similar nature at some future date, despite strong opinions on the matter as reported during the course of an interview with the Russian Ambassador to Sri Lanka, Yury B. Materi, who stated: ” We are strongly condemning the use of human rights issues as an excuse for interfering in domestic affairs of countries as well as undermining the basic principles of International Law. We oppose the adoption of the politicized country-specific resolutions, especially taking into account the successful functioning of the Universal Periodic Review mechanisms in the Human Rights Council. The adoption of country-specific resolutions has only one goal to punish unfavourable governments. This is utterly counterproductive because the patronizing tone has never contributed to improvements in the human rights situation and labeling countries on the basis of political motives discredit the United Nations agencies” The Daily Mirror, April 2, 2018).

UNHRC RESOLUTION 30/1

The two key components of the resolution are accountability and reconciliation. While accountability is a single issue, reconciliation consists of several related components under the umbrella of transitional justice. The key components are a truth commission, an office of missing persons, reparations, and the criminalization of enforced disappearances.

1. Accountability: Paragraph 6 of the resolution states”…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”.

Since “participate” means “take part in”, the Constitution of Sri Lanka as currently formulated cannot permit the “participation” of foreign judges, defence lawyers and authorized prosecutors and investigators; a position repeated in previous articles, and also acknowledged by the Prime Minister. Therefore, either paragraph 6 in the resolution has to be revised, or the Constitution has to be amended.

Until such revisions are made, issues of accountability have to be put on hold because to proceed with a totally national judicial mechanism unilaterally, would violate the intent of the very resolution the government co-sponsored. Under these circumstances, the government is not in a position to move on the issue of accountability. Consequently, this has compelled the government to focus on issues relating to reconciliation.

The reasons for failure/disappointment in these mechanisms are evident from the comment in paragraph 10 of Vol. 2 of the Sierra Leone Truth and Reconciliation Commission. Paragraph 10 states: “…Additionally, many perpetrators are nameless and unidentifiable. The evidentiary burden for the state and victims is impossible and so prosecutions remain an empty elusive reality, real in name only and not possible. Transitional states are compelled to find alternatives as well as other mechanisms to deal with accountability and to provide justice for victims. This is certainly true for Sierra Leone”.

2. Reconciliation:

(a) Truth commissions:

The gold standard for truth commissions is the Truth and Reconciliation Commission (TRC) of South Africa. The objective of the South African TRC was the promotion of National Unity and Reconciliation in accordance with Act 34 of 1995.

A report in the Mail & Guardian of South Africa dated 25 April, 2014 titled “TuTu: ‘Unfinished business’ of the TRC’s healing” by Rev. Desmond Tutu states: ” The structure of South Africa’s truth commission and the principles that underpinned its work, were feted and copied in many other countries around the world. Indeed the commission was regarded by many as among the most glittering jewels in the irenic crown of our founding father, Nelson Mandela. But, today, as we reflect on the commission’s contribution to re-weaving the fabric of our society, we do so against a backdrop of appalling violence being perpetrated, especially against women and children across our country. We do so against a backdrop of hopelessly inequitable country in which most of the rich have hung on to their wealth, while the ‘freedom dividend’ for most of the poor has been to continue surviving on scraps”.

A report in the US Institute of Peace states: “The TRC took the testimony of approximately 21,000 victims; and 2,000 of them appeared at public hearings. The commission received 7,112 amnesty applications. Amnesty was granted in 849 cases and refused in 5,392 cases, while other applications were withdrawn. Records were systematically destroyed in massive quantities between 1990 and 1994. The commission reported that the National Intelligence Agency was still destroying records as late as 1996 and that ‘swathes of official documentary memory, particularly around the inner workings of the apartheid state’s security apparatus, have been obliterated’.”

If the proposed truth commission for Sri Lanka is to be modeled on the TRC of South Africa as advocated by some, it is starkly evident that it is bound to be as disappointing as was admitted by its Chairman Rev. Desmond Tutu. Furthermore, if as reported by the US Institute of Peace only 849 cases were granted amnesty for admitting to violations committed out of 21,000 victims, attempting to find the elusive “truth” in Sri Lanka is not likely to be any different. Since such an outcome would only lead to bitterness and frustration, it is imperative that the call for a truth commission is seriously reconsidered since it has not served such truth commissions in other countries.

(b) Office of Missing Persons:

The truth is supposed to be established by creating a mechanism for perpetrators and victims to present their respective narratives. Consequently, missing persons do not come into the picture to establish the truth. According to the ICRC in the case of an armed conflict the responsibility for accounting for missing persons is left to the parties to the conflict.

The States parties to the 1949 Geneva Conventions have entrusted the ICRC, through the Statutes of the International Red Cross and Red Crescent Movement, “to work for the understanding and dissemination of knowledge of international humanitarian law applicable to armed conflicts and to prepare any development thereof ” ICRC Opinion Paper March 2008).

Under sub-heading- Missing Persons – Rule 117 of ICRCs’ Customary Law states: “Each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate”.

In keeping with this responsibility the Sri Lanka Army has stated: “… 877 officers and 19,597 other rankers have sacrificed their lives …A further 125 officers are reported missing in action while 3,363 other rankers are also reported missing…The war has also rendered 1,298 officers disabled, while another 36,659 other rankers were also rendered disabled” (Daily News, May 18, 2018). Similar information relating to other services would be available.

Similarly, since it is an accepted fact that the conflict in Sri Lanka was an armed conflict and therefore International humanitarian Law applies, the LTTE or those representing the LTTE as a party to the conflict should be held equally responsible for accounting for the missing persons under their charge in keeping with ICRC Rule 117. Now that the government has set up an office to account for Missing Persons, the process could continue with the clear understanding that the responsibility for its effectiveness is with the Tamil community. It is by basing such findings on accepted international law, and not on arbitrary notions that issues could be brought to a closure.

If any Sri Lankan government accepts responsibility for developing information relating to Missing Persons, it would be committing the same mistake it made in supplying humanitarian relief during the conflict, for which the government is now being charged as having been intentionally inadequate. According to International Humanitarian Law (IHL) parties to an armed conflict are NOT expected to supply humanitarian relief. The supply of humanitarian relief is governed by ICRC Rules 55 and 56.

ICRC Rule 55 states: “The parties to the conflict must allow and facilitate rapid and uninterrupted passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control”.

Rule 56 states: “The parties to the conflict must ensure the freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions. Only in case of imperative military necessity may their movements be temporarily restricted”.

The reason for Sri Lanka to be held responsible for actions beyond its sphere of responsibility is because of the reluctance of successive governments to accept the applicability of IHL to address issues relating the armed conflict. This is due to the ignorance of the provisions of IHL This perspective has caused them to treat conflict related issues from a political perspective, the consequence of which has been to treat issues from the position of a State fulfilling its obligations to its citizens forgetting the true meaning of the obligations of what it is to be a party to an armed conflict that the Tamil community wholeheartedly supported.

CONCLUSIONS

Regardless of the action taken by the US in respect of the UNHRC, Sri Lanka has to charter its own course based on its Constitution ad well as accepted UN General Assembly Resolutions and international law, such as IHL. These UN Resolutions do not permit States to intervene in internal affairs of other States. This restriction should apply equally to agencies such as the UNHRC that are representative of States. Otherwise, powerful States such as the US can use such agencies to intervene in internal affairs of other States to the detriment of their sovereignties as has occurred in the case of Sri Lanka

Since Sri Lanka’s government has co-sponsored UNHRC Resolution 30/1, it is obligated to implement its provisions regardless of the consequences to the country and its People. This obligation is based on a premise that a government is expected fulfill its responsibility to all its citizens, ignoring the fact that the conflict was an armed conflict in which the applicable law is IHL wherein parties to the conflict have equally responsibilities. The only hope for Sri Lanka is for a future government to sit with the Office of the Human Rights Council and renegotiate the resolution based on the guidelines given above, so that Sri Lanka’s obligations are fulfilled within the context of its own Constitution as well as within the internationally recognized laws.