Strategy for Sri Lanka at the Geneva Sessions
Posted on February 29th, 2012

By Neville Ladduwahetty

There is speculation that at the 2012 sessions of the United Nations Human Rights Council (UNHRC) in Geneva, a resolution would call on the Sri Lankan Government to table the Report of the Lessons Learnt and Reconciliation Commission (LLRC) together with a plan as to how the Government proposes to implement its recommendations.   There is also an expectation among those who are of the view that the LLRC report falls short in respect of accountability that the resolution would call on the Government to present to the UNHRC how it plans to address more fully, issues of accountability.

Attempts by the UN Human Rights Council to have the LLRC Report tabled at its sessions is a violation of the mandate of the Human Rights Council because its scope is limited strictly to promotion and protection of Human Rights whereas the mandate and scope of the LLRC Report relate to issues associated with an internal armed conflict that are governed by Humanitarian Law.  The Human Rights Council was set up under UN Resolution 60/251 in 2006.  All 16 paragraphs in the Resolution are devoted to mechanisms and procedures that need to be adopted to promote and protect Human Rights.  For instance paragraph (2) states: “”¦the Council shall be responsible for promoting universal respect for the protection of human rights and fundamental freedoms”.  And paragraph (4) states: ” “¦that the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and corporation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development”.  It is evident from the foregoing that the Human Rights Council has to confine its review processes only to issues relating to promotion and protection of Human Rights of member States.  This makes the Human Rights Council in Geneva the wrong venue to table the LLRC Report.     

 

HRC in GENEVA “”…” WRONG VENUE to TABLE LLRC REPORT

The time frame of the LLRC was from the commencement of the Cease Fire Agreement on February 21, 2002 up to the end of the armed conflict on May 19, 2009.  During most of this period, the conflict was categorized as an armed conflict and accepted as such by the LLRC and also unequivocally by the panel of experts appointed by the UN Secretary General.   Consequently, the mandate of LLRC Report must necessarily be confined to issues relating to an armed conflict in which the terms of reference are International Humanitarian Laws (IHL).  Therefore, the Government is not only right that the LLRC Report be not tabled at the on-going UNHRC secessions, but also, the Government should not make available to the Human Rights Council how it proposes to implement its recommendations, because the Council is meant to deal only with issues of Human Rights and NOT those relating to internal armed conflict. 

Issues pertaining to human rights in the LLRC Report are with a view to fostering reconciliation and to prevent recurrence of violence in the future.  The recommendations in the report are not intended to promote and protect human rights although it does so as a measure to foster reconciliation.  Judging from the fact that nearly one third of the report is devoted to Humanitarian Law its main thrust is on issues of accountability associated with armed conflict.  Such issues are governed by provisions of International Humanitarian Laws.  Consequently, the context in which actions should be judged is under provisions of Humanitarian Law and not under provisions of International Human Rights Laws (IHRL).  Even the human rights that civilians in the conflict zones were entitled to during an armed conflict were violated by the LTTE when they took the civilians hostage and made them an instrument of war by using them as a human shield; an act prohibited under provisions of Humanitarian Law.  

 

SEPARATION of IHL from IHRL in LLRC REPORT

Attempts by Sri Lankan representatives in Geneva to convey to the Human Rights Council the considerable strides made with regard to implementing some of the recommendations in the LLRC Report should be undertaken only with respect to Human Rights issues.  This makes it necessary to separate Human Rights related recommendations from the rest.  The Government should object to sharing with the Human Rights Council, programmes for implementing non-human rights recommendations proposed in the LLRC Report since they are outside the mandate of the Human Rights Council.    

Despite the fact that US, UK and EU claim that the LLRC Report falls short on accountability issues, the fact remains that nationally and internationally, there is overall acceptance that the Commission has dealt with conflict related issues satisfactorily.  Those who find the Report falling short on accountability for conflict related issues are misguided by a notion that the nearly 300,000 persons who emerged from the conflict zone were all civilians. They fail to realize that the LTTE exploited civilians to the maximum extent possible to render “direct participation in hostilities” during the final stages of the conflict thereby denying them the right of protection as civilians. They in fact were made to function as combatants in one way or another to obstruct the military operations of the Security Forces. The inability to ascertain who was a civilian and who was a combatant makes charges of conflict related accountability driven more by political considerations rather than on objectivity.      

THE AGENDA at the HRC

The agenda for the Government should be to share with the Human Rights Council ONLY those recommendations in the LLRC Report relating to human rights and post-conflict issues relating to Human Rights with focus on reconciliation. In addition, the Government should also share Sri Lanka’s National Action Plan for the Promotion and Protection of Human Rights (Action Plan) in Sri Lanka. Since the LLRC Report was tabled in Parliament in December 2011 while the Action Plan had already been approved by the Cabinet in September 2011, there is a need to incorporate human rights related issues in the LLRC Report into the Action Plan thereby developing a comprehensive Action Plan for promoting and protecting Human Rights. Such an Action Plan would not only address issues that are intended to foster reconciliation but also promote and protect rights of citizens by virtue of being human have a right to expect from their respective Governments; an expectation that forms the very core of Human Rights.  In view of time constraints to develop a comprehensive Plan the Government should request for time to develop a comprehensive Plan.

 

CONCLUSION

The Government should strenuously resist attempts to have the LLRC Report tabled at the 2012 Sessions of the Human Rights Council in Geneva on grounds that it is the wrong venue, because the Council was set up to address ONLY Human Rights issues and not issues arising from conflict as it was with the LLRC. The LLRC Report addresses Humanitarian and Human Rights issues relating to conflict as well as Human Rights issues intended to foster reconciliation in post-conflict Sri Lanka.  Therefore, it is necessary to separate them and incorporate the Human Rights issues into Sri Lanka’s National Action Plan for the Promotion and Protection of Human Rights.  Since the LLRC Report was tabled after the Action Plan was developed, Sri Lanka should request time to incorporate Human Rights issues in both in order to develop a comprehensive Plan.

Improving human rights is similar to improving the virtuousness of individuals.  While the aspiration is there to be more virtuous, human frailties get in the way.  This is so with human rights situations in countries too.  Consequently, human rights situations in ANY country are in a state of constant flux as demonstrated with the derogation of civil liberties following the terrorist attack in the US on 9/11, and more recently with the excessive force with which the Wall Street protesters were handled.  While there are plans and intentions to improve human rights, factors beyond control could deter the resolve needed to realize desired objectives.  Therefore, the Commissioner for Human Rights and the Human Rights Council should jointly support the efforts of member states to improve human rights situations in countries instead of using human rights as a weapon to further political compulsions of influential member states.  The tendency to use the office of the Human Rights Commissioner and the Council to selectively target member states is a violation of the provisions under which they are collectively expected to function as stated in paragraph 4 of the Resolution establishing the Human Rights Council.

11 Responses to “Strategy for Sri Lanka at the Geneva Sessions”

  1. Lorenzo Says:

    So the LLRC report has become a Frankenstien monster!

    Another disastrous decision by the govt to avoid one problem and falling into another. LLRC terms of reference should have been limited to human rights and accountability. No political solutions rubbish.

    Now SL is int deep trouble.

    1. Those who oppose LLRC (saying it lacks this and that) will vote FOR this so called resolution.

    2. Some of those who support LLRC will also vote FOR this resolution to first implement everything there and then do more.

    3. Only those who don’t support LLRC will vote for SL.

    If we had seperated human rights and accountability issues from political solutions BS WITHIN THE LLRC TERMS OF REFERRENCE, we could get #2 and #3 votes.

  2. nilwala Says:

    The conflict in Sri Lanka and especially from the time the CFA was signed comes under the Geneva Convention’s Additional Protocol II 1977, definition of an ARMED CONFLICT, i.e., LTTE had a command and control structure, uniformed personnel, control of territory, etc., thus warranting categorization under INTERNATIONAL HUMANITARIAN LAW or IHL., under criteria clearly established in 1995 by the Appeals Court of the International Tribunal for Protection of Persons (Prosecutor v.Dusko Tadic – 1991 Yugoslav war).

    Human Rights Law or IHRL applies to normal human society, and other conflict situations than those qualifying for categorization under IHL..

    The whole point of Neville Ladduwahetty’s article is that ONLY Human Rights issues comes within the mandate of the UNHRC, and therefore this venue is NOT the appropriate place for the resolution being pursued by those bringing charges against Sri Lanka and centered on the war period.

    Nor is it the venue for tabling the complete LLRC Report.

  3. Fran Diaz Says:

    Since Human Rights in Armed Conflict is not a subject allowed for vote at a UNHRC meeting, Sri Lanka should not be put on the dock there at all. Isn’t this whole process at present at the UNHRC illegal for that reason, and shouldn’t it be discarded ?
    Is a precedence being created here and accepted at the UNHRC, just to bring down Sri Lanka for defending itself from terrorism ? There is grave injustice & duress here.

    Since the process has started, in all fairness, UNHRC should also examine the numbers of illegal migrants into Lanka (especially from Tamil Nadu), the role of Colonial administrators in bringing one and half Million Tamil labor from Tamil Nadu and the consequences for Lanka. Examine also all the diverse & divisive factors affecting Sri Lanka, particularly in Lanka’s strategic location in the Indian Ocean.

    The 13-A is also null & void as it was signed in under Duress and should be discarded.

    Too many people are turning Sri Lanka into some sort of football to be kicked around !

    On our part in Sri Lanka, once more we have to make “lemon aide out of lemons”. We have to stop all illegal migration into Lanka (especially from Tamil Nadu), as well as make available birth control methods for all in Lanka. Process of Law & Order, Development & Reconciliation have to continue too.

  4. Fran Diaz Says:

    Also, make the North multi-ethnic, as it was before the ltte.

  5. aloy Says:

    Fran Diaz,
    Your last para in above,
    Stop illegals, yes. Birth control, no. This is a recipe to make sinhalese a minority in about a hundred years. Three hundred thousand abortions are taking place yearly in Sri Lanka. Already we cannot find an unskilled or skilled worker in Colombo to get a work done. I had to pay exorbitant rates to some workers last December as these people were not freely available.
    In 1975 Gadafi told some Easterners to double their growth rate which was already highest in the world at that time. We can see what is happening.

  6. Lorenzo Says:

    The bottomline is the LLRC report has become a Frankenstien monster!

    We created it and now we are running away from it.

    Replace reconciliation with integration.

  7. Fran Diaz Says:

    aloy,

    There are hundreds of unskilled ‘graduates’. All these people must be trained into some skill to enable them to get self employed, or employed by some business.
    What we need is a govt. sponsored Skills Training programs in the fields where there are no workers available. The problem is that skilled workers go the Middle East where they earn good money. The best solution is to produce more skilled workers.

    There are so many orphanages in Sri Lanka, way above what a small country ought to have. These are basically unwanted children, for one reason or another. It is the most pathetic thing that a child is unwanted. Therefore, birth control a must.
    I have personally seen a case where a woman sold her infant as the father would not marry her – such sad events can be avoided with birth control.
    We need to train our unemployed people without producing more unwanted & unemployed people.

  8. aloy Says:

    The best strategy we can adopt is to prevent TNA taking up the issue of self determination. We must tell them in clear terms in Geneva (or elsewhere) that there is no way they can achieve that. We must give some of their demands such as university entrance purely on merit. I remember at our time in sixties all their students wanted was a good education in a Sri Lankan university and the chance of getting a job in a western country. This is achievable even today if they are able to get education in English medium and get a chance to enter university on merits. Let Sinhalese too be competitive and proficient in English. I understand that there is a good demand in US for those who do special degrees in Physics and Chemistry, so much so that whole batches get absorbed there immediately after passing out. So why produce unemployable arts graduates. Make these courses available to a wider spectrum. It is a crime on the part of policy makers and politicians responsible to let this situation continue.

    As for the labour shortage in Sri Lanka, this is definitely due to birth control. The daily rate for a skilled worker in Colombo on temporary basis is not less than Rs. 2500. I had to pay that amount. It was very difficult to find these people as all of them are engaged at one place or another. The average skilled worker from Thailand, Indonesia or Bangladesh is about Singapore Dollars 22.00 in this country (Brunei). Sri Lanka rate is much higher. So why should they go out. At this rate all our products from trade zones will soon become uncompetitive.

  9. Fran Diaz Says:

    My apologies to Mr Ladduwahetty as his excellent piece of writing on the Geneva sessions has got side tracked into the mundane but important topic of birth control.

    aloy,

    It is not birth control. It is that too many young people opt for an Arts education which is of little or no value in the job market. Even an ordinary pass in GCE (O.L.) with some English (spoken & written) is more valued in the job market than an Arts Uni degree. A person with GCE (OL) Science can be taught some skills with machines and machine repair work much more easily than a person with an Arts degree.

    As things are, unemployed graduates in Lanka are now complaining that they are compelled to go to politicos for jobs. This is not a health situation.

    As for just plain laborer’s work, dignity of labor must be fostered. Higher pay, uniforms, add to dignity of labor, and also how employers treat employed manual laborers. If ordinary manners and respect are accorded to laborers, labor will be available. I suspect that manual labor is considered ‘infradig’ (socially low ranked), and that is the reason why there is not much manual labor available as people receive some education. It is the same in developed countries. However, in Lanka, the word ‘servant’ is still used, when in the west it is never used. The preference to go west is there – there are no ‘servants’ there.

    Huge populations as in India will be troublesome for a small island such as Lanka. We do not have the land mass and other resources to carry huge populations. Large rural populations lead to insurrections, as we have witnessed here.

    Birth control a must for small countries like Lanka. I close my case on birth control.

  10. Fran Diaz Says:

    Please read ‘this is not a health situation’ as ‘this is not a healthy situation’.

  11. aloy Says:

    My apologies too, to Mr. Ladduahetty. Is he the Neville who was at SEC as our boss?. If so he will remember how happy all Tamils, Muslims and the Sinhalese engineers who worked there at that time. They still consider Sri Lanka as their motherland when writing from abroad. I think this is the strategy we should adopt without allowing politicians to spoil it.

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