The upcoming visit to Sri Lanka of the UN Working Group on Enforced or Involuntary Disappearances could be ‘the thin end of a large wedge,’ leading critics of Sri Lanka’s domestic mechanisms to demand more international interventions, a former diplomat has warned. While adherence to international human rights standards is a must, respect for our [...]


Human Rights Council – precedents set could come back to haunt us, says Kohona


The upcoming visit to Sri Lanka of the UN Working Group on Enforced or Involuntary Disappearances could be ‘the thin end of a large wedge,’ leading critics of Sri Lanka’s domestic mechanisms to demand more international interventions, a former diplomat has warned. While adherence to international human rights standards is a must, respect for our own ability as a mature state to deal with issues of this nature must not be compromised, says Palitha Kohona, Sri Lanka’s Permanent Representative to the UN in New York from 2009 to 2015.

Dr Kohona was among several ‘non-career diplomats’ recalled after the recent change of government. He was Sri Lanka’s Foreign Secretary from 2007 to 2009. His experience with the UN pre-dates his posting to New York. He was the Chief of the UN’s Treaty Section from 1995 to 2005, during which he introduced seminal changes to the work of the Section. Having started his career as an Australian diplomat, he led trade delegations to the UNCTAD Trade and Development Board meetings, negotiated bilateral trade and investment agreements and was posted to Australia’s Permanent Mission to the UN in Geneva in 1989. In 2006 at the invitation of President Rajapaksa he assumed duties as Secretary General of the Government Peace Secretariat.

In an exclusive email interview with the Sunday Times, Dr. Kohona shared his views on some issues relating to the war crimes investigation on Sri Lanka by the UN Office of the High Commissioner for Human Rights, and the difference in approach, of the UNP-led government of Maithripala Sirisena and that of former president Mahinda Rajapaksa. Excerpts appear below.

n The present government has adopted a different approach in its relationship with the Western powers that brought resolutions against Sri Lanka in the Human Rights Council, and in the way it engages with the UN over the HRC’s Resolution 25/1 which called for an international investigation into allegations of war crimes. That resolution and the international investigation were rejected by the previous government. But the new government is ‘working with’ the Office of the High Commissioner for Human Rights (OHCHR) in developing a ‘domestic mechanism’ to probe the allegations. The Foreign Ministry says it is already in discussion with the High Commissioner for Human Rights. Is sovereignty compromised? Was this the only path available to Sri Lanka?

Palitha Kohona

The previous government refused to cooperate with the Office of the High Commissioner in the implementation of the resolution citing a number of cogent reasons. It argued that the resolution constituted an infringement on the sovereignty of Sri Lanka, that it was replete with internal contradictions, unusually, it dealt with situations which allegedly occurred very much in the past and that Sri Lanka needed the time and space to deal with the allegations raised through its own domestic mechanisms. All legitimate grounds for rejecting the resolution, but unconvincing to the powerful countries that engineered it at the HRC and the influential lobby groups that furiously promoted it.

The previous government had also offered to address the allegations through an internal mechanism, consistent with the requirements of international law. Unfortunately, these offers were not taken seriously enough by the powers concerned and they continued to apply political pressure. Perhaps the previous government’s offer to address the allegations through a domestic mechanism should have been made firmly and much earlier. It is also possible that whatever offer was made may not have satisfied the promoters of the resolution because their goal was different.

The current government has agreed to work with the Office of the High Commissioner in developing the proposed domestic mechanism. The previous government also had said that it would work with the High Commissioner’s office. The then High Commissioner, Navi Pillai, and a number of special rapporteurs visited Sri Lanka at the invitation of the previous government. There were also regular consultations with the office of the High Commissioner and with the UN in New York. The extent to which the present government could further accommodate the demands to collaborate with the High Commissioner’s office without compromising its right under international law to address the allegations on its own through a domestic mechanism, remains to be seen.

You have asked whether the country’s sovereignty has been compromised by the current approach. While some may correctly argue that the concept of sovereignty has undergone change over the years, especially due to the network of treaties concluded by states and the international standards of behaviour commonly accepted, it still remains a powerful factor in international relations. …. As a small country we should be cautious when making concessions that affect our sovereignty. Concessions made now could haunt us long into the future. The extent to which we seek to accommodate the High Commissioner could set a precedent, not only for us, but for others as well.”

 At the conclusion of his visit in April, the UN Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence, Pablo de Greiff, said in his statement: “If handled well, the case of Sri Lanka has the potential to constitute an example for the region and for the world of how a sustainable peace ought to be achieved.” Is Sri Lanka being used as a ‘test case’ — in the manner of a guinea-pig, to illustrate ‘Responsibility to Protect’ (R2P)?

Pablo de Greiff may be thinking of a situation where Sri Lanka would set a precedent for other similar cases rather than being a guinea pig. In fact, many members of the international community had aired the view in private, and sometimes in public, that it would be Sri Lanka today but others tomorrow. Sri Lanka, is by far, not the only country which is accused of violating global human rights standards. The consequences of our actions or non action will have an impact on a wider spectrum of countries. What concessions we make, will have to be carefully calibrated. Unfortunately, the full force of accountability is never deployed to deal with the alleged infractions of the big and the powerful or their protégés. The meek and the weak invariably are held to account and pay the price for real and perceived infractions.”

The Government has invited the UN Working Group on enforced or involuntary disappearances to visit Sri Lanka from 3rd-12th August this year. The previous government said it would not allow this working group to visit until the Presidential Commission on Missing Persons (Paranagama Commission) concludes its work. The Commission in April submitted its Interim Report. Was it a mistake to invite this UN working group at this point? Can the existence of two processes – that of the (domestic) Presidential Commission and of the (international) UN working group — cause confusion owing to overlapping mandates?

The infusion of the UN Working Group on Enforced or Involuntary Disappearances to the domestic arena simply complicates an already difficult situation. While this may tend to lend credence to the suggestion that the domestic process was flawed, it may also lead the critics of Sri Lanka’s domestic mechanisms to demand more international interventions. This could be the thin edge of a large wedge. It is no secret that those who are demanding international interventions in the case of Sri Lanka are not all motivated by a pious concern to protect human rights or the rule of law. One has not witnessed a similar messianic fervour in the case of infractions of human rights standards elsewhere in the world. It is important to ensure that the credibility of the Paranagama Commission is maintained and its work not made redundant. While adherence to the basic human rights standards, as agreed by the international community, is a must, respect for our own ability as a mature state to deal with issues of this nature must also not be compromised.”

Sri Lanka has been accused of not fulfilling its international obligations in terms of human rights agreements and conventions to which it is a signatory. (Apparently referring to the change of government, UN Special Rapporteur de Grieff said “Sri Lankans have of late taken decisions that open the possibility of important progress in the protection of rights of all citizens. … Those decisions manifest the end of the country’s temporary leave from an international rights architecture that it contributed to construct.”) Is Sri Lanka being singled out for an extraordinary degree of scrutiny compared to other states that have come out of civil wars – especially in a case of asymmetric warfare involving a non-state actor who is not bound by International Humanitarian/ Human Rights Law?

It would be grossly inaccurate and unfair to assert that Sri Lanka had taken “temporary leave from an international rights architecture …” The basis for making this statement is unclear, to say the least. While Sri Lanka did not deploy 200,000 armed saints to counter the brutal LTTE, the most sophisticated terrorist organisation in the world according to the FBI, the number of infractions allegedly committed by its security personnel remains very low and isolated compared with those of other security forces elsewhere engaged in combating terrorist threats. There clearly was no state sanctioned policy that condoned infractions.
Today it has been suggested that Sri Lanka was being held to a higher standard of accountability than other countries emerging from similar circumstances. Allegations of human rights violations by the security forces began to escalate only when it became clear that the LTTE would be routed, perhaps with a view to marshalling the international community for a different type of post war assault on Sri Lanka. Since there were two sides to the conflict which ended in 2009, focusing only on the pain of one side may not necessarily help with the healing and reconciliation process. …

Statements made by Sri Lanka’s Foreign Minister suggest there is a departure from the longstanding policy of Non-Alignment in Sri Lanka’s foreign relations. The government is making an effort to befriend the West, especially the US – the world’s sole superpower, while there is a markedly less-friendly attitude towards China. What will be the fallout of this shift?

Of course, governments are entitled to chart their own foreign policies. The people will decide whether they approve of the policy adopted by a particular government.

Sri Lanka was a key player in the Non Aligned Movement from its early days, having been one of the five sponsors of the Bandung Conference in 1955. Our non-aligned posture has served us well in the past, economically and politically. The Non-Aligned Movement itself has undergone significant modification over the years with the changes in the global architecture. It is no longer a grouping placing itself between two major global protagonists bound by alliances and confronting each other militarily. Today the movement consists of countries which share common values, sometimes born out of convenience, without being dogmatic. It remains a significant force in the international arena.

While developing friendly relations with the West is important, very important, we do not need to sacrifice the tried and tested friendship with China — a country that has stood by Sri Lanka during some very difficult times and, importantly, whose friendship is keenly courted by the West. It is a mistake to assume that there is an essential contradiction between strengthening relations with the West and fostering good relations with the East. Just check out the list of Western heads of state and government, big and small, who have joined the parade to Beijing in recent times. Prime Minister Modi recently emphatically underlined the importance of building a strong relationship with China. China’s burgeoning economic muscle alone has forced former critics to become buddies. Sri Lanka stands to benefit immensely by maintaining and further developing its age old ties with China and it could be the bridge for others seeking closer relations with China ….

Has multilateralism been eroded in the UN Human Rights Council? Is it the US and its allies that actually ‘call the shots?’ Is there support for reform?

The UN Human Rights Council was established to help all countries to improve their compliance with global human rights standards. But the common complaint today is that it has, like its predecessor, become a political tool used to name and shame selected countries. The multilateral dream of improving global human rights standards has suffered in the process. As a consequence, many countries who have been the targets of HRC resolutions simply tend to ignore them. However the Council’s UPR process is considered to have produced much more positive results.

Definitely, there is support for reform in the HRC. The world would be a better place with a less politicized and more technical HRC. Assistance with the implementation of human rights standards rather than the naming and shaming process derived from a Euro-centric world view and which ignores the cultural sensitivities of a major part of humanity would be more appreciated. Funding for HRC activities should come from the regular budget rather than from earmarked special contributions which tend to serve the specific needs of the donors. The new High Commissioner, Prince Raad bin Zeid, a highly regarded former Permanent Representative to the UN in New York and an eminent international lawyer, has an important role to play in enhancing the credibility and effectiveness of the office.”

Leave a Reply

Your email address will not be published. Required fields are marked *


Post Comment

Advertising Rates

Please contact the advertising office on 011 - 2479521 for the advertising rates.