Feature Article

UN human rights system in Geneva lacks courage to make “Sri Lanka” a Permanent Agenda Item

[TamilNet, Friday, 21 February 2020, 20:04 GMT]
The UN Human Rights Council (UNHRC) Resolution 30/1 adopted in 2015 was fundamentally flawed as it was based on the “Office of the United Nations High Commissioner for Human Rights (OHCHR) Investigation on Sri Lanka” (OISL). The OISL was not mandated to investigate decades-long Tamil genocide as it was conceived as an “internationalised” extension of the Rajapaksa regime’s “Lessons Learnt and Reconciliation Commission” (LLRC), a blueprint for post-2009 genocide. Now, the LLRC-inventors are back, and they are at loggerheads with the inventors of the International-LLRC (OISL). The acid test for the High Commissioner, her office, the OHCHR and the 47-member UNHRC is the notion of SL “co-sponsorship”. If the human rights regime in Geneva wants to save its credibility, it has to make the human rights situation in “Sri Lanka” a Permanent Agenda Item to the council. But, it lacks such courage.

The lack of such courage comes to light when reading the current dialectics between the UN human rights system in Geneva and the Rajapaksa regime in Colombo.

The primary inventor of the I-LLRC was the US during the Obama Administration.

Now, the US of Trump Administration has withdrawn from the UNHRC.

The current US Administration has opted for direct carrot-and-stick diplomacy with the SL State, even though it applies the arguments of the Geneva discourse of its predecessor.

As far as the Tamils are concerned, the UN discourse has enabled the SL State and the extremist Buddhist monks as well as various departments to wage heritage, demographic and structural genocide on the ground.

Furthermore, the UN Member States have only punished former LTTE members, such as in the alleged case of Kadirgamar assassination, as being referred by UN High Commissioner for Human Rights Michelle Bachelet in her latest draft for the annual report.

Her advanced unedited draft issued on 18 February also reveals that she was concealing the heritage genocide while upholding the mechanisms such as the Office for Missing Persons, which has been rejected by the victims.

SL Govt Information Department
On Wednesday, the cabinet of Rajapaksa regime approved five decisions, which had been tabled by SL Foreign Minister, who wanted to work towards the closure of the resolution in the UN Human Rights Council [Courtesy: SL Department of Government Information]
What is more pathetic about the Bachelet update was the way she attempts to adopt Gotabaya Rajapaksa’s argument of looking at human rights under the paradigm of Sustainable Development Goals (SDGs).

The SDG is a universal call to action to end poverty, protect the planet and ensure that all people enjoy peace and prosperity by 2030.

In the meantime, the “human rights” playground for “Sri Lanka” geopolitics has just moved out of Geneva, from which the US had walked out opposing the Permanent Agenda Item on Israel.

For Eezham Tamils, it is time to stocktake the entire UN discourse, from the 2011 Panel of Experts (PoE) report to the 2015 OISL-based discourse along with the latest draft report of the High Commissioner.

While working for international justice at other international avenues, such as the International Court of Justice, the Eezham Tamils should also demand the Geneva-based system to make the decades-long rights situation on their national question in the island a Permanent Agenda Item.

“Co-sponsorship” is not going to work course-correcting the SL State. What one regime sponsors, the other can take back, as being demonstrated now.

* * *

The “Terms of Reference” of the OISL were based on the outlook of equating the “alleged serious violations and abuses of human rights and related crimes” committed by “both the parties” to the conflict.

One party was the SL State, the genocide-committer and the other was the Liberation Tigers of Tamil Eelam (LTTE), which was defending Tamils against the genocide, not only on the battlefield but also in an internationally mediated peace process.

The period under OISL investigation was also the same as the one covered by the LLRC (from 21 February 2002 until 15 November 2011 when it presented its report to Mahinda Rajapaksa).

The “both sides” argument was a fallacy in no small extent. The discourse itself made it up to look like if there was a parity of status on alleged crimes committed by both sides.

The underlying root cause, the Tamil national question, was thoroughly ignored as the resolution 30/1 was only harping on the implementation of the 13th Amendment to the SL Constitution. The 13th Amendment doesn’t have any guarantee, and it remains without full implementation. The SL State could withdraw it any time as it is pulling out of the Geneva discourse.

* * *

Full text of the statement submitted to the SL Parliament by Dinesh Gunawardena, the minister of SL Foreign Relations, informing the SL Parliament on the move for closure of SL “co-sponsorship” to the UNHRC Resolution 30/1

In May 2009, following the end of the 30 year-long internal armed conflict with the defeat of the LTTE, a terrorist organization proscribed by 32 countries, the government led by the then President Mahinda Rajapaksa, of Defence, Initiated a sustainable reconciliation process in Sri Lanka to bring about healing and peace building’, taking due cognizance of the ground realities at that time. This incremental process made considerable progress in all aspects of post-conflict restoration of civilian life and in the country’s return to normalcy. The citizens in the Northern Province were able to use their franchise after a lapse of 25 years, in 2013 strengthening democracy. In parallel, several local mechanisms/commissions were established to address the post-conflict issues of concern, including those related to accountability, rule of law and human rights. More importantly, the end of the brutal conflict restored one of the fundamental human rights – the ‘right to life’ to all Sri Lankans.

Notwithstanding the inclusive and locally designed measures/actions, a group of UNHRC members, failing to recognize the GoSL’s endeavors in defeating terrorism and bringing about stability, humanitarian relief and lasting peace through a carefully balanced reconciliation process, enforced consecutive country-specific resolutions at the UNHRC on Sri Lanka in 2012, 2013 and 2014.

The government elected in January 2015 jettisoned the home-grown reconciliation process progressing at the time, and in an unprecedented move in the Human Rights Council, and in contrary to Sri Lanka’s foreign policy stance on country specific resolutions, co-sponsored the UNHRC resolution 30/1 on the situation of the country. This was done without the approval of the Cabinet of Ministers, the Parliament and the people of Sri Lanka, overruling the reservations expressed by professional diplomats, academia, media and the general public. The then President Maithripala Sirisena also stated that he was not consulted on the matter at that time.

Resolution 30/1 conceded a false narrative of both the circumstances of the 30-year separatist conflict and also the number of casualties. This was done despite an abundance of evidence to the contrary contained in domestic reports such as of the Lessons Learnt and Reconciliation Commission (LLRC) and the Presidential Commission of Inquiry into complaints of abductions and disappearances (Paranagama Commission) and those produced in the UK Parliament by Lord Naseby, reports of other States, the UN and other international agencies, including the ICRC, as well as exposed diplomatic cables.

It undermined national interest, compromised national security including weakening national intelligence operations and related safeguards, which may be deemed to have contributed to the lapses that resulted in the Easter Sunday attacks. It also placed Sri Lanka under a host of international obligations which could not be delivered due to constitutional and institutional limitations. Sri Lanka’s co-sponsorship of Resolution 30/1 remains to date a blot on the sovereignty and dignity of the country.

The ensuing period (2015-2019) saw little progress being made on the pledges to the HRC by the previous government. The operationalization of resolution 30/1 was extended (roll-over) twice, through Resolution 34/1 in March 2017 and through Resolution 40/1 in March 2019, in order not to expose the misjudgement and low delivery of the previous Government that co-sponsored it.

Through Resolution 30/1, severe impositions were cast and the Sri Lankan State and particularly its security forces were vilified to appease the extremist sections of the Sri Lankan Tamil diaspora and certain media, INGOs/CSOs with vested interests. It also negatively affected ethnic and religious harmony, already challenged by the ravages of the divisive conflict.

However, during the UNHRC session in March 2019, belatedly, the former Government itself sought to qualify the parameters of co-sponsorship. It questioned the Resolution 30/1’s characterization of the nature of the conflict and the estimated number of deaths, pushed back on the alleged culpability of the security forces, curtailed the effect of security sector reform demanded and asserted that the Sri Lanka Constitution precludes involvement of foreign judges and prosecutors in the judicial mechanism proposed. Notwithstanding this admission, the former Government continued its co-sponsorship, which fully supported the operationalization of Resolution 30/1.

During the November 2019 election, President Gotabaya Rajapaksa received an overwhelming mandate to charter a sustainable path for the country, to follow a non-aligned, neutral foreign policy and to fund home-grown solutions to overcome contemporary challenges. Accordingly the government will forge ahead with its agenda as envisaged in the National Policy Framework ‘Vistas of Prosperity and Splendour’, ushering for the country an era of security and development in the interest of all Sri Lankans.

In view of the foregoing, the approval of the Cabinet of Ministers is sought in relation to the GOSL’s approach to the upcoming 43rd Session of the Human Rights Council and to undertake diplomatic initiatives necessary to announce Sri Lanka’s decision to withdraw from co-sponsorship of Resolution 40/1 of March 2019 on ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, which also incorporates and builds on preceding Resolutions 30/1 of October 2015 and 34/1 of March 2017.

In addition Cabinet approval is sought to continue to work with the UN and its agencies, including the regular human rights mandates/bodies and mechanisms and seek as required, capacity building and technical assistance, in keeping with domestic priorities and policies.

Cabinet approval is also sought to declare the Government’s commitment to achieve sustainable peace through an inclusive, domestically designed and executed reconciliation and accountability process, including through the appropriate adaptation of existing mechanisms, in line with the Government’s policy framework. This would comprise the appointment of a Commission of Inquiry (COI) headed by a Justice of the Supreme Court, to review the reports of previous Sri Lankan COIs which investigated alleged violations of Human Rights and International Humanitarian Law (IHL), to assess the status of implementation of their recommendations and to propose deliverable measures to implement them keeping in line with the new Government’s policy.

Cabinet approval is also sought through due democratic and legal processes, address other outstanding concerns and to introduce institutional reforms where necessary, in a manner consistent with Sri Lanka’s obligations including the 2030 Sustainable Development Agenda (SDGs). Demonstrate good faith the policies rooted in the Government’s commitment to the people of advancing individual and collective rights and protections under the law, ensuring justice and reconciliation and addressing the concerns of vulnerable sections of society.

The Cabinet approval is sought to announce the intention of the GOSL to work towards the closure of the Resolution in cooperation with the members of the UN.



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