Morality, politics and the farce behind

the UNHRC resolution

By Laksiri Fernando-March 14, 2017, 8:13 pm

There was nothing fundamentally wrong in Sri Lanka endorsing

the UN Human Rights Council (HRC) resolution in October 2015.
That was the best the country could achieve politically in that
forum, under the circumstances, after 2009 resolution. This does
not mean that it is the best for reconciliation, accountability or
human rights in the country. Many of the recommendations of the
resolution are ambiguous, legalistic or lack realistic perspectives.
Some of them could even be undesirable or intrusive. Otherwise,
the wording was milder, accommodative and quite the reversal of
the previous three resolutions in 2014, 2013 and 2012. It is
somewhat like carrot and stick.

Given the scope and extent of the recommendations, it is almost

natural for Sri Lanka to ask for another two-year extension. This is
under favourable consideration at present at the HRC sessions (27
February-24 March), but what Sri Lanka may have to be careful
about is the wording of the new resolution, without hastening to
endorse it.
Most of the HRC resolutions are politically motivated rather than
based on moral principles of human rights. There is no need to
repeat this accusation only against the West, because most of the
non-western countries also jump on the bandwagon easily or do
the same for one reason or the other. When they find a weaker or
a vulnerable country, all are delighted to hammer, and hammer
hard. What operates there largely is power politics, some of the
international NGOs also involved.

Background

Then how come the 2009 resolution was possible in favour of Sri
Lanka? Immediately after the end of the war, there was some
excitement about Sri Lankas achievement in defeating the LTTE
as a terrorist organization. It was still the height of anti-terrorism
after the 9/11. Apart from the rhetorical and organizational skills
of our good Ambassador in Geneva, the circumstances favoured
the country. The resolution also gave some concessions on human
rights concerns and particularly on reconciliation. This was also
after the then Presidents joint statement with the UN Secretary-
General also covering accountability. Although we may criticise
the largely politically motivated behaviour of the HCR, there are
of course constituencies genuinely concerned about human rights
and related issues.

Then what went wrong politically after the 2009 resolution was
largely the adventurist diplomacy, antagonizing the West
unnecessarily in a context where the war victory euphoria was
over. Sri Lanka tried something bigger than its capacity, as if to
lead an anti-colonial struggle. This was in a context where China
or even Cuba was expecting some rapprochement with the West.
Distancing itself from India also added to Sri Lankas predicament.
This is not to deny that the origins of the three resolutions (2012,
2013 and 2014) also had roots in what I would call neo-liberal
interventionism particularly of the USA of that time. If the
Diaspora had any influence on the situation, it was only marginal.
Compared to that situation, the present conditions are much more
favourable to the country which should not be abused in any
manner when it comes to human rights, accountability or
reconciliation. Sri Lankas commitment to those three concepts
should be based on moral and ethical considerations and not
politics - national or international.

Contents of the Resolution

The 2015 resolution contains 23 preambular paragraphs and 20

supposed to be recommendations in numerical order. But in
terms of language, all are more or less the same, ambiguities
dominating. One would wonder why an UN outfit could not do
better without confusing the public or the countries? Preambular
paragraphs are supposed to express the general principles and
acclaim or subtly criticise the country as necessary. That is done.

For example, after affirming to the UN Charter, the Universal

Declaration and the International Covenants and also recalling the
previous resolutions, it reaffirms "its [HRCs] commitment to the
sovereignty, independence, unity and territorial integrity of Sri
Lanka." This is not only an assurance, but also premise that all
efforts of reconciliation, accountability and human rights should
be based. There are more commendations on the historic free
and fair democratic elections in January and August 2015, the
peaceful transition and more particularly the nineteenth
amendment to the Constitution. There are many other kudos,
hardly any need to repeat.
As of general principles, it affirms 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." It also states, in
general terms, "that 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." All these are well and good.

However, among the preambular paragraphs, the following is also

there and one could wonder whether it is an expression of a
general principle, or a recommendation?So much to the
resolutions ambiguities.

"Emphasizing the importance of a comprehensive approach to

dealing with the past, incorporating the full range of judicial and
non-judicial measures, including, inter alia, individual
prosecutions, reparations, truth-seeking, institutional reform, the
vetting of public employees and officials, or an appropriately
conceived combination thereof, in order to, inter alia, ensure
accountability, serve justice, provide victims with remedies,
promote healing and reconciliation, establish independent
oversight of the security system, restore confidence in the
institutions of the State and promote the rule of law in accordance
with international human rights law with a view to preventing the
recurrence of violations and abuses, and welcoming in this regard
the expressed commitment of the Government to ensure dialogue
and wide consultations with all stakeholders."

A comprehensive approach, apparently is what is recommended

in dealing with the past. Then it should incorporate the full range
of judicial and non-judicial measures. They include, (1) individual
prosecutions (2) reparations (3) truth-seeking (4) institutional
reform and (5) the vetting of public employees and officials. That
is rather clear.

Then it gives a leeway for an alternative: "an appropriately

conceived combination thereof." What the hell this combination,
one could wonder! But at least the purpose is given rather
rhetorically. That is "in order to, inter alia, ensure accountability,
serve justice, provide victims with remedies, promote healing and
reconciliation, establish independent oversight of the security
system" All the good things in the world are there without
much meaning.

It also recommends the establishment of an "independent

oversight of the security system." It is possible that some of these
paragraphs are taken from some NGO document or an academic
discourse. But whatever the circumstances, this phrase of
independent oversight of the security system should have been
explained or questioned by our delegates who negotiated the
resolution.

Recommendations

It appears that the HRC relies heavily on the High Commissioner,

the Office and the bureaucracy. That was the purpose when the
previous Human Rights Commission was converted into a Council.
This is somewhat parallel to what is happening in Brussels in
respect of the European Union. The bureaucracy often overrides
the European Parliament. In the case of the HRC, there is nothing
much wrongif the bureaucracy is well represented and concerned
about the practicalities of especially the developing countries. To
fully implement what they recommend or demand sometimes, the
poor countries may have to give up all the other activities of
development, security of the country or welfare of the people. But
in comparison, 2015 resolution on Sri Lanka is lenient.

The recommendation one "encourages the Government of Sri

Lanka to implement the recommendations contained in various
reports of the High Commissioner and the Office when
implementing measures for truth-seeking, justice, reparations and
guarantees of non-recurrence. If you emphasise the word
encourages,then the recommendation is not that imperative.

The recommendation two is also similar and "welcomes the

positive engagement between the Government of Sri Lanka and
the High Commissioner and the Office" and "encourages the
continuation of that engagement." However, it also recommends
"exploring appropriate forms of international support for and
participation in Sri Lankan processes for seeking truth and
justice." Here there is a new element through which international
support and participation is encouraged. This is like FDI (foreign
direct investment) in the globalization process. In these ventures,
as I have observed in many countries, some of the not so
qualified personnel could be employed as human rights experts.

The recommendation three is also quite harmless. That "supports

the commitment of the Government of Sri Lanka to strengthen
and safeguard the credibility of the processes of truth-seeking,
justice, reparations and guarantees of non-recurrence." Therefore,
the commitment is applauded whether these are actually in
operation or not! The politically sympathetic nature of the
resolution is clear. But it again encourages not only the
engagement of "civil society, including non-governmental
organizations" but also ask to draw on "international expertise,
assistance and best practices."
The recommendation four is quite similar to what I have quoted
previously in full as an apparent recommendation appearing
under preambular paragraphs. It is almost word to word, and only
difference is that it talks concretely about "the proposal by the
government to establish a commission for truth, justice,
reconciliation and non-recurrence, an office of missing persons
and an office for reparations." Well, this is something very
concrete and something our exceptionally diplomatic Foreign
Minister must have promised. Therefore, on his part, it is logical to
ask for an extension of two more years for the implementation of
the resolution.

Again, the FDI is recommended in this process. It is not clear

whether there is an understanding or agreement between the
countries who fund the HRC and the Office to send some number
of their nationals as human rights experts to the countries under
HRC scrutiny. If that is the case, this human rights business is
actually a farce.

There is some kudos to the Sri Lankan state in the

recommendation five which is worth quoting fully as below.

"Recognizes the need for a process of accountability and

reconciliation for the violations and abuses committed by the
Liberation Tigers of Tamil Eelam, as highlighted in the report of
the Office of the High Commissioner on its investigation on Sri
Lanka."

However, it is doubtful whether a process of accountability could

now be installed in respect of the LTTE, as the recommendation
says, since many of the responsible leaders were killed in battle
or executed after capture.
War Crimes Controversy

The above kudos perhaps is a preface to what is suggested in

the recommendation number six. This is the current controversy
in the country as war crime investigations. First it "welcomes the
recognition by the Government of Sri Lanka that accountability is
essential to uphold the rule of law and to build confidence in the
people of all communities of Sri Lanka in the justice system."

Then it "notes with appreciation the proposal of the Government

of 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, as
applicable." One can argue or wonder, whether there was such a
proposal from the government to establish a judicial mechanism
with a Special Counsel? A Special Counsel also could be read as a
Special Prosecutor. However, as Sri Lanka has already endorsed
the resolution, this question does not arise.

Only excuse or escape could be that the endorsement in general

terms does not mean the agreement on every word, dot and
comma. The recommendation also does not talk about war
crimes as such, but "allegations of violations and abuses of
human rights and violations of international humanitarian law." Of
course, the violation of international humanitarian law could
amount to war crimes. The allegations are also considerable and
at least one previously coming from the former Army Commander
himself (white van massacre). However, the recommendation has
given much leeway to the government. The investigations to be
conducted "AS APPLICABLE."

There is no direct recommendation in the resolution to involve

"Commonwealth and other foreign judges, defence lawyers and
authorized prosecutors and investigators." The resolution only
"affirms in this regard the importance of their participation." The
full recommendation is as follows.

"6. Welcomes the recognition by the Government of Sri Lanka that

accountability is essential to uphold the rule of law and to build
confidence in the people of all communities of Sri Lanka in the
justice system, notes with appreciation the proposal of the
Government of 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,
as applicable; affirms that a credible justice process should
include independent judicial and prosecutorial institutions led by
individuals known for their integrity and impartiality; and also
affirms in this regard the importance of participation in a Sri
Lankan judicial mechanism, including the special counsels office,
of Commonwealth and other foreign judges, defence lawyers and
authorized prosecutors and investigators."

Conclusion

This article has not reviewed all 20 recommendations for reasons

of brevity. Even if we review all of them, we may come to the
same conclusion that the resolution is ambiguous, overtly giving
much leeway to the government. But this could be illusory
depending on the political circumstances. There are however
tricky points within the resolution itself when it comes to the
involvement of the High Commissioner and the High
Commissioners Office. Those are at the end of the list. This is
where the neo-liberal human rights interventionism is apparent.
That is one reason why the government of Sri Lanka, or its
delegation in Geneva, should be extremely careful in working on a
new resolution, or endorsing such a resolution again.
Most unfortunate is the delay in the implementation of
reconciliation, accountability as applicable and, most importantly,
the promotion and protection of human rights of all communities.
The reasons are due to the ambiguities of the HRC processes,
political horse-trading and much hyped controversies locally on
war crime investigations.There is no reason to be alarmed,
unless to keep or resurrect authoritarianism, neglecting
reconciliation and human rights. Most important is to rely on the
internal efforts, capacities and resources without unnecessarily
depending on the external sources. Why not give more
importance to human rights education, internal dialogues for
reconciliation and implementation of rule of law and human
rights?
Posted by Thavam