Geneva resolution: A diplomatic challenge | Daily News

Geneva resolution: A diplomatic challenge

Sri Lanka will face its next major diplomatic hurdle in the coming weeks when it confronts a resolution against it at the United Nations Human Rights Council (UNHRC) sessions in Geneva, a practise which has now become almost an annual ritual for successive governments in Colombo.

These resolutions arose in the aftermath of the conclusion of the Eelam war in May 2009. Following the end of the conflict, there were allegations that human rights were violated by both Sri Lankan troops and members of the Liberation Tigers of Tamil Eelam (LTTE) terrorist group.

In the ensuing years, when Mahinda Rajapaksa was President, Sri Lanka vigorously contested the resolutions moved in the Geneva sessions that were hostile to the country. Colombo has steadfastly maintained that Sri Lankan troops did not intentionally harm civilians in the final stages of the war.

LLRC

This was also in the context of then President Mahinda Rajapaksa appointing the Lessons Learnt and Reconciliation Commission (LLRC) in May 2010. The findings of the LLRC, submitted to President Rajapaksa in November 2011 and made public a month later, vindicated Colombo’s stance.

The LLRC concluded that “the military strategy of the Sri Lanka Armed Forces during the last Eelam war was satisfactory” and that “it gave the highest priority to the protection of the civilian population”. It also noted the government did its utmost to get food and medical supplies to civilians.

The LLRC also found that the LTTE engaged in grave violations human rights by using civilians as human shields, placing and using military equipment in civilian centres, shooting at civilians trying to escape into safe areas and conscripting young children to engage in combat during the conflict.

There was however an about turn in the Sri Lankan government’s policy with the election of President Maithripala Sirisena in January 2015 and the United National Front (UNF) assuming power. The new political leadership opted for a more reconciliatory and appeasing relationship with the UNHRC.

As a result, in 2015, the government of Sri Lanka co-sponsored UNHRC resolution 30/1 on ‘promoting reconciliation, accountability and human rights in Sri Lanka’. The focus of this resolution was on investigating alleged human rights violations that were said to have occurred during the war.

Taking the lead for Sri Lanka at the time was the newly appointed Foreign Minister Mangala Samaraweera who believed in engaging with the UNHRC with a consensual, rather than confrontational, approach. Spearheading the resolution at the Council was the United States.

Human rights

This resolution committed Sri Lanka to ‘establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law’. More importantly, it also called for international judges to be part of this process.

Specifically, it noted that a “credible justice process” should include “independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality” and mentioned “Commonwealth and other foreign judges” as possible participants in this process.

At the time, the then United Nations High Commissioner on Human Rights, Zeid Ra’ad Al Hussain also called for the establishment of a hybrid special court saying “a purely domestic procedure has no chance of overcoming suspicions fuelled by decades of violations, malpractice and broken promises.”

The then government, having co-sponsored this resolution in 2015, found it challenging to make headway in implementing it. As a result, in 2017, Sri Lanka received a further two-year extension to implement its own commitments but domestic opposition to an international probe remained.

With the UNF-led government itself becoming unstable in late 2018 due to the constitutional crisis triggered by then President Maithripala Sirisena sacking then Prime Minister Ranil Wickremesinghe, it was in no position to fully implement the UNHRC resolution by the March 2019 deadline.

Thereafter, the UNF-led government took up a different stance in March 2019. Then Foreign Minister Tilak Marapana told the UNHRC session that there would be legal impediments in appointing foreigners as judges in a Sri Lankan-led judicial process making it virtually impossible to do so.

“If non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by two-thirds of members of the Parliament voting in favour and also the approval of the people at a Referendum,” Minister Marapana told the UNHRC sessions.

Notwithstanding these submissions, at its fortieth session, the UNHRC adopted a new resolution in March 2019, again co-sponsored by the government of Sri Lanka, giving it a further two years to implement outstanding commitments in full. It is this two-year deadline that looms next month.

With President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa returning to power in late 2019, the new government is keen to assert itself. It has clearly signalled its intentions that it will no longer be subscribing to a position of acquiescing to an inquiry with international participation.

In the lead up to the upcoming sessions however, the current United Nations High Commissioner for Human Rights, Michele Bachelet has released a report which was highly critical of Sri Lanka, called for international interventions and also suggested sanctions as a means of compelling compliance.

“Given the demonstrated inability and unwillingness of Sri Lanka to advance accountability at the national level, it is time for international action to ensure justice for international crimes,” Bachelet said and suggested “targeted sanctions, such as asset freezes and travel bans” as possible measures.

High Commissioner’s report

Colombo has been swift to reject these observations. In its response, it has categorically dismissed the High Commissioner’s report and recommendations. Colombo has also denounced the High Commissioner’s report as being “nothing less than a political agenda against a sovereign nation”.

It has to be noted that while the Sri Lankan government and its troops who fought the final Eelam war have been severely censured in the report and have been called upon to be accountable for their purported actions, the atrocities committed by the LTTE have hardly been mentioned.

It is acknowledged the world over that the LTTE was one of the most ruthless terrorist organisations in the world and was listed as such. It can be argued that even if the LTTE was held accountable for its acts, its leadership has been eliminated and therefore this would be of little practical consequence.

Nevertheless, UNHRC resolutions have singularly targeted alleged shortcomings and actions attributed to the Sri Lankan government, almost completely ignoring the gross atrocities committed by the LTTE during its nearly thirty-year reign of terror in Sri Lanka that cost thousands of lives.

Colombo has also pointed out that the High Commissioner’s conclusions and recommendations have been “erroneously arrived at, as they are based on incorrect or unsubstantiated and extraneous sources and material and contravenes the principles of universality, impartiality, objectivity”.

Despite this diplomatic war of words between the government and the United Nations Office of the High Commissioner for Human Rights (OHCHR), the government has been having discussions with the Colombo based envoys of the countries who are listed to sponsor the resolution against Sri Lanka.

Although the initial resolution regarding Sri Lanka was sponsored by the United States, the US withdrew from the UNHRC under former President Donald Trump. The resolution is now being led by the United Kingdom. It is also sponsored by Canada, Germany, Montenegro and North Macedonia.

As the last two countries are not diplomatically represented in Sri Lanka, the government has been having discussions with the envoys of Britain, Canada and Germany. They have recently met President Gotabaya Rajapaksa, Foreign Minister Dinesh Gunewardena and other key officials.

During these discussions, there was evidence of an impasse. The envoys reported to Colombo that their governments were supportive of the report released by the OHCHR and would endorse its recommendations at the UNHRC. Colombo had maintained its stance of rejecting these observations.

The government has pointed out that President Rajapaksa has appointed a Commission of Inquiry to investigate into alleged human rights violations headed by Supreme Court Justice A. H. M. D. Nawaz recently. It has also noted the legal difficulties involved in invoking international jurisdiction.

There has been some exploration of the possibility of a consensual resolution which would have Sri Lanka’s support but with the main proponents of the resolution- Britain, Germany and Canada- indicating that they would abide by the OHCHR report, this prospect looks increasingly unlikely.

Officials in Colombo have noted that were Sri Lanka to agree to a consensual resolution, that would amount to virtually confirming the allegations made in the report of the OHCHR. This is not a tenable position for Sri Lanka to adopt now, having strongly rejected the report in its response, officials say.

Sri Lanka is also therefore lobbying other nations to support it at the UNHRC. This is to contend with the possibility that the resolution could be put to a vote by the Council. It is understood that the support of countries such as India, China and Russia was being actively solicited by the government.

The battlelines between Colombo and Geneva are again being drawn in what is now a diplomatic tussle. The coming weeks will determine not only the outcome of this resolution- but also, the direction in which the Sri Lankan government hopes to progress on the key issue of human rights.