Columns

The United Nation’s watchdog on human rights, the UNHRC, this week put the Government of Lanka in the dog house and warned: ‘From henceforth, everything you say, every move you make will be monitored and held against you in any future legal proceedings. We will be watching you.’

This was the blunt message delivered to Lanka by the United Nation’s Human Rights Council (UNHRC) which received its mandate to tag the Government after the resolution on Sri Lanka, brought by Britain and a core group of members was adopted at its 46th Session held in Geneva on Tuesday.

The resolution “Promoting reconciliation, accountability and human rights in Sri Lanka” was comfortably passed with 22 members of the council voting in favour of the resolution, namely, Britain, France, Germany, Denmark, the Netherlands, Italy, Ukraine, Argentina, Armenia, Austria, Bahamas, Brazil, Bulgaria, Côte D’ivoire, Czechoslovakia, Fiji, Malawi, Marshall Islands, Mexico, Poland, Korea and Uruguay.

The resolution was opposed by 11 countries, namely, Bangladesh, Bolivia, China, Cuba, Eritrea, Pakistan, Philippines, Russia, Somalia, Uzbekistan and Venezuela.

Of the 47 strong membership of the UNHRC, 14 member states abstained, namely, Bahrain, Burkina Faso, Cameroon, Gabon, India, Indonesia, Japan, Libya, Mauritania, Namibia, Nepal, Senegal, Sudan and Togo.

But for Lanka’s Foreign Minister Dinesh Gunawardena, this was no crippling defeat but a euphoric victory. Shortly after receiving the result, his upbeat reaction to the shock news was to exclaim to reporters: ‘It’s a victory for Sri Lanka because 14 members had abstained so only 22 out of the 47 members supported the resolution.”

Perhaps, a striking example to clearly demonstrate that abstention from voting is not equivalent to opposition to the resolution, is the enlightening case of India.

Shortly before abstaining from voting, India made no secret as to where she exactly stood on the resolution  when she expressly declared that, first, it believes in the primary responsibility of States for the promotion and protection of human rights; secondly it supports the international community’s call and, thirdly, it urges the Sri Lankan Government to carry forward the process of reconciliation, address the aspirations of the Tamil community and continue to engage constructively with the international community to ensure that the fundamental freedoms and human rights of all its citizens are fully protected.

But the good Minister should not have descended to the very depths of profound despair when sober scrutiny would have revealed the resolution was not totally bereft of some good cheer for the people of Sri Lanka to find temporary solace. The threatened trade sanctions that had dangled over their heads, like a Damocles’ Sword arrayed to fall, had been mercifully lifted; and, to the masses’ great relief, not even a whisper of it sounded in the tedious text to bedevil their troubled minds further.

And that wasn’t all. Gone, too, with unwritten flourish, was the incessant call made in the past for the setting up of an international mechanism, a hybrid court with foreign and local judges on the bench, presiding over legal proceedings brought against those charged with war crimes. This demand, which has been not so much a persistent thorn but more a perpetual poisoned dart embedded deep in the flesh of all governments, has been removed from the present resolution; and its welcome absence from the Geneva stage would have greatly relieved the government of its torment.

RED FLAGGED: UN Rights body authorised to place tracking collar on the Lankan Lion

In its stead, seems to be the first hazy outline of grudging acceptance of the Lankan Government’s insistence on having its own domestic mechanism to deliver “comprehensive reconciliation”.

On February 26, last year, the Government formally announced its decision to withdraw from Resolution 30/1 and others it had adopted after 2015. Foreign Relations Minister Dinesh Gunawardena addressing the Geneva sessions said: ‘Firstly, the Government of Sri Lanka declares its 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.”

Towards the beginning of the Session in March, the UNHRC High Commissioner Bachelet’s update on the Sri Lankan Government’s decision to withdraw came under scathing attack. The update ‘highlighted ongoing impunity for past grave human rights abuses in the country. The new Sri Lankan government, which came into power in 2019, has said that it intends to renege on Human Rights Council resolution 30/1 which provided commitments to accountability, truth and reconciliation.’

But Britain and the core group that sponsored the present resolution seem to have realised that though a horse could be led to water, it couldn’t be forced to drink. Accordingly, they have changed their tactics, adopted a new strategy and hence they have extended dim recognition to the Government’s domestic mechanism as spelt out by Foreign Minister Gunawardena last year at the Geneva sessions, namely the Commission of Inquiry headed by a Supreme Court Justice.

FOREIGN MINISTER DINESH: We won

Clause 5 of the adopted resolution: Notes the persistent lack of accountability of domestic mechanisms, and that the domestic commission of inquiry announced on 22 January 2021 lacks independence and that its mandate is to review reports of previous Commissions and Committees and does not include a mandate to pursue accountability for past gross violations of human rights, or for serious violations of international humanitarian law.

This clause thus recognises in principle the Government’s right to have its own domestic mechanism which no other resolution brought before the Council has ever advanced or accepted. But the tacit recognition is attended with two qualifications.

Firstly: The grouse it has is that the domestic Commission of Inquiry lacks the halo of independence and thus is devoid of credibility.

Secondly: While it tacitly and grudgingly acknowledges the government is on the right track, its complaint is that the government has not gone far enough in extending the Commission’s mandate ‘to pursue accountability for past gross violations of human rights, or for serious violations of international humanitarian law’, without merely confining the commission to review past reports.

This, of course, presents a new opportunity to make a new beginning with a clean slate; a fresh starting point for the government to clean its act and cleanse Lanka of its marked taint which has so aroused the world’s ire and earned its scorn. It may, indeed, be the last chance offered to the Lankan Government to walk the straight and narrow before consequences of a more dire nature start to ensue, forcing even the few friends left in the free world to abandon Lanka and leave her to her self-damned fate.

UN HUMAN RIGHTS COMMISSIONER BACHELET: Armed with extra powers

Especially, when the Council’s powerful core group led by Great Britain seem to have given up the ghost on its long pursued aim to establish mechanisms, domestic or otherwise, in Lanka; and, instead, has shifted its prime focus on arming the UNHRC with additional powers and financial facilities with a view to bringing the culpable to justice, before the bar of international courts.

The newly adopted resolution has already paved the path for the long-term strategy to take effect. While Clause 5 languidly muses on the desirability of the Government’s own domestic Commission of Inquiry to be visibly cloaked with the aura of independence and empowered with the mandate to pursue accountability for gross human rights violations, the subsequent Clause 6 sets the resolution’s ambitious sights on higher ground; and carves the Council’s path to the uplands to support any arraignment for human rights abuse.

Consider the resolution’s damning Clause 6. And the trap it intends to set to snare the unwary Lankan human rights abuser.

n FIRST: It places importance on preserving and analysing evidence relating to violations and abuses of human rights and related crimes in Sri Lanka with a view to advancing accountability.

n SECOND: It strengthens in this regard the capacity of the Office of the High Commissioner for Human Rights (OHCHR) to collect, consolidate, analyse and preserve information and evidence. This effectively means that the Lankan Government itself will be monitored 24/7 to collect and collate necessary evidence of possible human rights abuse.

n THIRD: It tasks the High Commissioner Bachelet‘s Office with developing  possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka.

n FOURTH: It calls for the OHCHR to advocate for victims and survivors. Will the OHCHR henceforth play a more activist role in supporting, safeguarding and promoting victims’ interest, akin, perhaps, to Amnesty International?

FIFTH: It tasks the OHCHR with supporting relevant judicial and other proceedings including in Member States with competent jurisdiction.

Certainly, Clause 6 will, no doubt, leave Human Rights Commissioner Michelle Bachelet with her hands full with work and the Lankan Government with its mind filled with worry.

The resolution also expresses serious concerns over the trends emerging during the past year and concludes that ‘it represents a clear early warning sign of a deteriorating situation of human rights in Sri Lanka. Among the trends identified are the accelerating militarisation of civilian government functions; the erosion of the independence of the judiciary and key institutions responsible for the promotion and protection of human rights.

By Clause 9, the Lankan Government is called upon ‘to ensure the prompt, thorough and impartial investigation and, if warranted, prosecution of all alleged crimes relating to human rights violations and serious violations of international humanitarian law. The words ‘if warranted’ gives the Government the discretion to pick and choose whom to prosecute and whom not to, but if the Government fails to use its discretion bona fide, no doubt, such instances will be collated and preserved to be used against the Lankan Government at some future proceeding in a foreign court.

The resolution whilst ignoring the US demand for the right to extradite Lankan personnel, has not attempted to rock the Lankan boat presently. In fact it has spared the people of any trade sanctions which would have served only to aggravate their present woes. It has striven, not to torpedo the government boat but, to urge the Government, in clause after clause, to strengthen the democratic pillars, prevent abuses of power and arrest the emerging tide towards the deterioration of human rights.

But whether the resolution’s undertones suggest it’s patiently laying the ground work in accordance with some sinister stratagem, is another matter. Evidently the resolution which binds its members, including Lanka, has granted the Government a reprieve, a stay of execution for 18 months or three more sessions during which time the Council will hear an oral update, a written update and a comprehensive report on the progress of reconciliation and accountability with further options presenting on advancing accountability.

Thus the Government cannot wish it away but will have to run the Geneva gauntlet and survive its spikes for a considerable time in the future. After going through the wringer in what crumpled wretched state Lanka will emerge is anyone’s guess.

As the representatives of the voiceless masses, the Government should not miss the granted grace to redeem Lanka of past aberrations; and work towards achieving an impressive track record on human rights to showcase Sri Lanka in reformed light.

Else, like the sins of the parents visiting the children, the transgressions of the Government will visit the citizens.