Impact of UNHRC Resolution on Sri Lanka

•  The claimed justification of insurrectional violence and the proportionality of  the State Reaction is a conundrum that faces all Member States in the UN.
• Identification of transgressions based on reliable evidence and remedial action through credible judicial mechanisms is the need of the hour.
• By nominating the need for an ad hoc hybrid court, the UN High Commissioner has pre-judged that offences of the nature of “war crimes, genocide and crimes against humanity” have taken place during the thirty year period of the conflict.
• The High Commissioner has chosen to ignore that many Sri Lankans have served with distinction as judges, prosecutor and investigators in international courts. 

 

Two public statements on 6th June 2017, one by the current United States Ambassador to the United Nations, Nikki Hayley at the UN HRC and other by the British Prime Minister, Theresa May impel me to write this article.

Ambassador Hayley spoke after ZeidRa’adai-Hussein criticized Israel for the 50-year occupation of Palestine, and said that the United States was “looking very carefully” at the HRC and US participation in the Council. The Ambassador continued “It is very hard to accept that this Council has never considered a Resolution on Venezuela, and it adopted five biased Resolutions in March against a single country, Israel” and that “It is essential that this Council address its chronic anti-Israel bias if it is to have any credibility”.

The British Prime Minister speaking outside 10 Downing Street, declared that “enough is enough” and that “there was far too much tolerance of extremism” in response to a terror attack in London and promised a strengthening of counter terrorism strategy. This statement follows a pledge last year [quote] “every effort must be made to stop British soldiers from falling victim to “abuse of the legal system” by lawyers representing Iraqis who allege they were victims of war crimes during the occupation of their country”.

While I do not endorse either stance, it is pertinent to observe that the major planks of the UNHRC Resolution on Sri Lanka, supported by the US and Britain, namely,

i. Requesting the GOSL to fully implement the recommendations based on the report of the UN High Commissioner,

ii. Encouraging continued engagement with the High Commissioner and the relevant procedure mandate holders in the promotion and protection of human rights and truth justice, reconciliation and accountability in Sri Lanka,

iii. Requesting High Commissioner and the relevant mandate holders [in consultation with the concurrence with the GOSL] to strengthen their advice and technical assistance,

iv. Requesting the High Commissioner to continue assessing progress on the implementation of its recommendations and to present an updated report to the UNHCR at the fortieth Session.

It is probable their strong support, may have been underpinned by political pressure brought on the two HRC Members by local pressure groups in their own countries rather than an unbiased assessment of the situation in Sri Lanka.

Having participated in the process of Resolution drafting, moving amendments and canvassing support for Sri Lanka as a delegate to the Human Rights fora during the 1983 to 1991 period, I am aware of the interaction of the multi faced interest groups that pressurise member states in one direction or another.

On March 23, 2017 the UNHRC adopted a consensus resolution HRC 43/1 on Sri Lanka giving time until 2019 to achieve reconciliation and transitional justice, by “Promoting reconciliation, accountability and human rights in Sri Lanka”.

Before we commence an examination of the text of the UN Resolution, it would, in my opinion, useful to recall that unlike the judgement of a judicial tribunal, which determines factual issues relevant to a dispute and directs remedial action in specific terms, a UNHRC Resolution only ‘recommends’ mechanisms to redress breaches of human rights.

It should be borne in mind that the UNHRC, which in 2006 replaced the Commission on Human Rights maintained the basic framework of the Commission, was a UN body mandated to monitor the protection of human rights on a global review and to halt an ongoing transgression or to avert a looming catastrophe by emergency action or to examine serious violations in a period preceding a report with a view to recommending measures to prevent recurrence. These measures could include mechanisms of restorative and retributory justice.

The UNHRC consists of 47 member states elected by the UN General Assembly for three year terms and shared by regional groups. While it is understood that a Member State which engages in gross and systematic violation of Human Rights could be denied membership of the UNHRC, such action has only occurred once and that too was a suspension of membership for about nine months.

It would also be useful to keep in mind that the Council consists of Member States and not of independent experts and that the contribution to the text of a Resolution is a reflection of political reality prevailing in each of the Member States and catering to the varied interest groups results in the ‘on the one hand this but on the other hand that’ found in the text of a Resolution.

The High Commissioner’s Report [par 1273] recognizes that “Likewise, there must be recognition within the Tamil community, for example, of the destruction and harm inflicted on civilians and communities by the LTTE. While the LTTE no longer exists nor controls territory, the legacy of the abuses, committed by and large with total impunity, remains and must be addressed. Even now, in some parts of Sri Lanka, those who were the victims of abuses by the LTTE are still afraid to talk about what happened in the presence of former LTTE cadres.” It is a moot question whether this exercise would produce any worthwhile results.

The GOSL should be vary that UNHRC Resolutions often use the velvet glove to recognize that the implementation of the measures recommended should be as far as the domestic legislation permits, with the concealed iron fist that a State is obliged to bring its domestic laws within the parameters of the UN Declaration of Human Rights, and customary International Law.

The sponsors of the Resolution have stated that the Resolution was to support the GOSL to adopt such measures as would achieve reconciliation and justice in Sri Lanka as a means of ensuring a non-recurrence of conflict and strengthening democratic governance and freedoms for all Sri Lankans.

It would be clear that the UN, representing the international polity requests the GOSL to obtain evidence of any ‘war crimes’ committed during the relevant period and to place any evidence that prima facie appears credible before a competent judicial tribunal, identifying persons responsible for such transgressions and significantly denying such persons immunity for their actions and deal with them according to law.

The Resolution underscores the words, ‘reconciliation’ and ‘transitional justice’. We need then to identify what the resolution contemplated by those words.

The concept of transitional justice has evolved from the judicial processes required to remedy gross human rights violation committed by dictatorial regimes and war crimes and large scale abuses of human rights, to the current processes of establishment of judicial processes for reparation of war torn societies.

Coupling ‘transitional justice’ with ‘reconciliation’ indicates that the primary focus of the community of nations is on the creation and establishment of credible initiatives of fact finding as a means of promoting reunification of a society disrupted by a period of violent armed conflict, with the concomitant loss of human life.

The text of Resolution HRC 34/1

The purported objective of the resolution is forward focussed. As stated in its caption the recommendation contained in the Resolution is are base for the establishment of a framework within which all the people in Sri Lanka could enjoy the full exercise of their fundamental rights and freedoms.

The Resolution recalls previous Resolutions on the subject, reaffirms that “… it is the responsibility of each State to ensure the full enjoyment of all human rights and fundamental freedoms of its entire population, and reiterates the commitment of the UNHRC “… to the sovereignty, independence, unity and territorial integrity of Sri Lanka”, recognizing that it is primarily a task to be performed by the GOSL.

UN Resolutions usually commence with Preambular paragraphs which state the reasons for which the HRC is addressing a particular issue and highlight past international action on the topic.

The preambular paragraphs of the instant Resolution, first signal appreciation of the GOSL permitting visits by delegations representing the several UN Organisations, and welcoming the steps taken by the GOSL to implement the ‘recommendations’ contained in the Resolution of 2015. The tone tightens slightly on the need for further progress on issues that remain unimplemented.

Balancing the concern, Clauses 1 to 8, acknowledge the peaceful transition of power both at the Presidential Election of 2015 and the Parliamentary Elections later that year and the consequent steps of advancing respect for human rights, good governance and the establishment of democratic institutions.

Clause 9 commences a possible inroad into the affairs of a sovereign State, it commences with congratulatory phrases about the mechanisms set up to ‘… Investigate allegations of bribery, corruption, fraud, and abuses of power, the language strengthens to … and stressing the importance of such investigations and the prosecution of those responsible in ending impunity and promoting good governance, to foreshadow the subsequent stress on the importance of such investigations and the prosecution of those responsible in ending impunity’ that is found in the text of the later Clauses 15 to 18.

A slightly less positive tone is found in Clauses 10 and 11, where praise for restoration of the civilian administration in the North and the East, the demining and resettling of persons displaced by the years of conflict resulting in the improvement of the environment which defenders of human rights and promoters of civil society now enjoy, is somewhat soured by the reference to reports of ongoing violations and abuses of human rights.

In Clause 12 the UNHRC declares …Reaffirming that all Sri Lankans are entitled to the full enjoyment of their human rights regardless of religion, belief or ethnicity, in a peaceful and unified land. The last two words, ‘unified land’ reflect the recognition that separation of the State is not the solution to the problems faced by the Sri Lankan people.

While recognizing the right of a State to protect itself from terrorism, the text in Clause [13] continues…“States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable”.

This appears to be the toe-hold for the call to repeal the Prevention of Terrorism Act. The UNHRC recognizes that a sovereign State has the jurisdiction to draw the line between legitimate protest and resort to violence to pressurise the State to redress the alleged grievances, but cautions that State action to quell the threats must remain within the parameters prescribed in the UN Instruments relating to preservation, promotion and protection of the Human Rights of individuals or groups.

This reference targets the Prevention of Terrorism Act [1978] and the subsequent modifications of that Act. Examinations of the provisions of this Act and amendment, repeal or replacement of the Act is recognized as being within the domestic jurisdiction. Perhaps with the unstated caveat that in the context of a State being obliged to bring its laws within the restrictions of Human Rights as are permitted by International Humanitarian Law.

This perhaps is the conundrum that faces any State.

Repression (or the perceived repression) of fundamental rights and freedoms of the people, whether as groups or as individuals, by the State in which they reside, needs be rectified by resort to democratic processes of recourse to free elections or firm judicial remedy.

The failure of either results in action that the aggrieved refer to as ‘fights for freedom’ and the State refers to as acts of ‘Terrorism, or insurrection’.

The distinction is in the eye of the beholder.

The extent to which a State could restrict human rights in anti-terrorism action appears to be echoed by the British Prime Minister when she said “enough is enough:”

Recasting the content of the 2015 Resolution

Three mechanisms have been devised to reinforce the content of the 2015 Resolution to the operative content of the 2017 Resolution, one, to recall the measures recommended in that Resolution, two, to welcome the positive engagement of the GOSL with the High Commissioner since October 2015, and third, to request the High Commissioner to continue with the engagement.

Accordingly the Operative Clauses need be read with the recommendations in the 2015 Resolution.

The purpose of the request for co-operation between the GOSL and the UN High Commissioner is set out as the “… promotion and protection of human rights and truth, justice, reconciliation and accountability in Sri Lanka…” and to provide technical assistance in the areas of the promotion of Human Rights, truth, justice, reconciliation and accountability in Sri Lanka, is diluted by the words “… in consultation and with the concurrence of the GOSL…”

The words “ in consultation and with the concurrence of the GOSL…” would be of significance in the interpretation of the terms of the operative paragraphs that follow.

Placing the GOSL under scrutiny

The Resolution also places the GOSL under the ‘supervision’ of the UN High Commissioner by the indirect pressure of the High Commissioner being mandated to scrutinize compliance by the GOSL and to provide a “comprehensive report” with the discussion of the report being placed on the agenda for the fortieth session of the HRC.

As stated at the beginning of this presentation, as recently as June 6, 2017, United States, one of the principal movers of the Resolution, openly accused the UN Commissioner for Human Rights, Zeid Ra’ad al-Hussein as being partisan and anti-Israeli. Whether the statement has merit or not it must impact on the issue of impartiality at least in the eyes of a major sponsor of the Resolution on Sri Lanka. It would wrong for a Member State which has concerns for the impartiality of a UN High Commissioner to ‘persuade’ another Member State to accept a finding by the High Commissioner without due caution.

What reasons are given in the Resolution for the measures recommended?

The arguments for and against maintaining, amending, repealing and or replacement of the Prevention of Terrorism Act 1978 (and the subsequent modifications) are too complex to be presented herein and are best left for another day.

To be continued