A FOLLY COMPOUNDED! -Dr. Palitha Kohona
Posted on April 2nd, 2017

 By Ravi Ladduwahetty – Courtesy Ceylon Today

Veteran Sri Lankan diplomat, Sri Lanka’s former Permanent Representative to the United Nations and Secretary to the Ministry of External Affairs Dr. Palitha Kohona said the UN Human Rights Resolution which Sri Lanka cosponsored in March 2017, was a folly compounded. “The onerous nature of Resolution 30/1 and the likely negative reaction to it by the majority of the population, and the need for constitutional amendment to implement some of its provisions so enthusiastically endorsed by us, would have been pretty obvious in 2015, he told Ceylon Today in an interview.

?: Sri Lanka had agreed to a new resolution which would grant further two years to implement Resolution 30/1. Do you believe we have made progress in the past 18 months to warrant an extension?

A. Let me turn your question around as I do not believe that the premise on which it is founded is sustainable. The simple issue is whether, as a sovereign nation, we should have cosponsored the Human Rights Council Resolution adopted on 1 October 2015.

Was that a responsible act by those in charge of managing the international affairs of a sovereign state? Sri Lanka’s co- sponsorship of Resolution 30/1 has been the subject of constant criticism. Then, compounding the initial apparent lack of judgment, we went on to cosponsor the resolution of March 2017 committing ourselves to implement the first resolution within two years. Resolution A/HRC/34/L.1 requests the High Commissioner for Human Rights and his special procedure mandate holders to strengthen their technical assistance to Sri Lanka on the promotion and protection of human rights, truth, justice, reconciliation and accountability. More importantly, the resolution calls for a written update on the implementation of resolution 30/1 (of 2015) at the 37th session of the UNHRC, and a comprehensive report at its 40th session. While the domestic political disquiet this will engender can be readily guessed, it will also damage Sri Lanka’s international image as the country struggles to implement its voluntary commitments.

There are many who do not believe that Sri Lanka should have cosponsored Res 30/1.

Despite the confrontational attitude of the previous government of Sri Lanka, the HRC resolutions adopted in the years 2012, 2013 and 2014, were nowhere near as onerous or intrusive as the resolution cosponsored by us in 2015. In 2009, the Human Rights Council had actually adopted a resolution praising Sri Lanka for eliminating a dreaded terrorist menace. If the government thought it necessary to cosponsor 30/1 in order to recover the favour of the West, the content could have been modified through a more astute negotiation process. This was eminently feasible as, in March 2015, the newly elected President commanded considerable goodwill in the West and this sentiment could have been leveraged in our favour. The key promoters of the resolution would not have done anything to destabilize or cause inconvenience to the government of President Maithripala Sirisena whose accession to power was received with scarcely disguised relief in the West. Top Sri Lankan leaders from the new regime were feted lavishly in Western capitals. This was not an environment in which Sri Lanka ran the risk of being discomfited by the West.

The onerous nature of the resolution and the likely negative reaction to it by the majority of the population, and the need for constitutional amendment to implement some of its provisions so enthusiastically adopted, would have been pretty obvious in 2015. The lack of sensitivity to the country’s constitutional requirements borders on abject naivety. The damage that such international undertakings, which are difficult or impossible to implement, can do to the national credibility is incalculable.

The obvious was also ignored. UNHRC resolutions are not binding and there is no direct mechanism for their implementation. The High Commissioner and the Council have no powers of implementation. But co-sponsorship would create at least a moral obligation to give effect to the content of the Resolution. In international relations, moral commitments carry considerable weight.

The government has in the process created a commitment not only for itself, but for future governments as well. As has been commented recently by Sanja de Silva, there should be a legitimate question asked as to who should be accountable for agreeing so readily to the resolution, including such external intrusions into our domestic affairs.

Sri Lanka’s enthusiasm for cosponsoring this resolution is further intriguing given that internal US cables published by Wikileaks make it abundantly clear that the US judged that any effort to take Sri Lanka before the UN Security Council would have failed.

Implicitly admitting that success against Sri Lanka was feasible only in the smaller forum of the HRC. Any disappointment of the West with the progress in Geneva would not have caused consequences in NY. In fact, no effort was undertaken by any of the countries sponsoring Resolution 30/1 to produce Sri Lanka’s case before the UN in New York. Not being a party to the ICC, the possibility of taking Sri Lankan security personnel before that Tribunal was also non- existent.

Already there is considerable seething opposition to the resolution that Sri Lanka cosponsored to keep career oriented and ambitious human rights functionaries of foreign governments, NGOs dependent on foreign funding, extreme minority elements, et al, satisfied. The wave of opposition is only likely to be exacerbated in the coming months compounding the problems connected with constitutional amendment. We, being a democracy, popular sentiments deserve sensitivity and respect unless we wish to precipitate a situation like that in the Ukraine. In the circumstances, it is no surprise that important parts of the resolution remain unimplemented. The overwhelming problems will continue to hamper future implementation efforts.

There is no doubt in the minds of most people that any breaches of the legal rules of the country should be firmly dealt with in accordance with the law. This is the sacred responsibility of any government. Similarly, any minority concerns must be addressed to ensure justice and equity, both for the minorities and the majority. But accepting onerous prescriptions of foreign governments, some of which are based on conjecture and superficial assumptions, are an unwarranted offence to the national dignity.

The co-sponsorship of the resolution has given the High Commissioner a continuing role to intrusively intervene in Sri Lanka on issues within his mandate and, more importantly, outside his defined powers. The Human Rights Council and the High Commissioner’s office were established to assist all countries of the world to improve their human rights performance and not to intervene selectively in countries which fall into disfavour with the West. We have, through our own actions, created an opportunity for the Council and the High Commissioner to intrude into our domestic affairs. In addition, elements within the country have begun to use the resolution to exert pressure on the government, in the process, aggravating already sensitive ethnic relations.

In the circumstances our primary concern should be not whether we could deliver the commitments undertaken in the resolution, but whether we should have agreed to those undeliverable commitments in the first place.

?: What can we expect over the next two years?

A. The resolution would likely strengthen the extremist elements in our society, both among the Sinhalese and the Tamils. It would contribute in no small measure to deepening the existing divisions amongst us, and aggravating the suspicions that separatism is back rearing its ugly head. Already demands, based on the resolutions that we voluntarily cosponsored, are being made by extremist Tamil elements that military installations be removed from the North and the East. The same elements were meekly quiescent when the LTTE built vast military complexes in the same locales. In any event, the national security forces should be based wherever there is a need for them. This is the case with any sovereign State. The determination of the locations where the security forces should be deployed should be left essentially to the policymakers and security experts and not to ill informed external entities, including the High Commissioner.

I might venture to suggest that the national economy, given its current perilous state, should be the prime concern of the government, rather than deploying its resources to give effect to the resolutions, including by amending the Constitution, which constitutes a diversion from today’s pressing realities. The government must concentrate its attention on the economy and give it priority. It would be a delusion to think that implementing the provisions of an HRC resolution, so unpopular within the country, will contribute to solving the myriad of other problems. It would seem that the government would only be inviting more unpopularity by focusing so single mindedly on implementing Res 30/1.

Any ethnic disturbance would only aggravate the difficult economic circumstances already confronting the country. One of the few areas of the economy that is continuing to be robust is tourism. This sector will quickly disintegrate, if underlying ethnic tensions result in disturbances.

?: Although we now have the Constitutional Council, Independent Police Commission and other independent commissions, there appears to be a lot of tampering of investigations at the hands of politicians. What is your call on this?

A. The country expects these institutions to remain independent and their integrity to be respected. If there are cases of illegal or improper interference in their functions, whether by politicians or not, the law should be enforced vigorously. No politician should be above the law. After almost 70 years of Independence we should not need the Human Rights Council or any other outside entity to give us lessons on these basic principles.

?: Resolution 30/1 talks of setting up a hybrid court among other things, and Sri Lanka has cosponsored this resolution. Could you tell us how this hybrid Court system will be set up?

A. I have already discussed above the deep divisions, the ethnic tensions and the opportunities for outside intrusions into our domestic affairs facilitated by resolution 30/1. Any effort to introduce hybrid courts would involve amendments to the Constitution with all the attendant divisions that it would create. The legal profession and the judiciary should feel incensed with the suggestion that they lack the impartiality and integrity to conduct the investigations into alleged war crimes and violations of the principle of crimes against humanity. While there may be some bad apples in the judicial basket, like in every other country including those that initiated resolution 30/1, the judiciary commands high regard in this country. It is mystifying that Sri Lanka voluntarily agreed to a resolution that unfairly casts a pall on the entire judiciary.

In this context, quite rightly, the President and the Prime Minister have both firmly refused to countenance the inclusion of foreign judges in the envisaged tribunals.

Transparency should not be an issue. It is always possible for the media and others to observe the proceedings in our Courts. It happens now as court proceedings are conducted with ample public access.

In any event, in Sri Lanka criminal investigations are not carried out by the judiciary. That is the responsibility of the Police. What is needed is firm policy guidance and technical support for the Police to do their job impartially and professionally.

Curiously, the current discourse seems to be focused on alleged infractions of the military that lost over 21,000 personnel while defeating a ruthless terrorist group. It is important to bring a balance to the discussion by refocusing also on the LTTE which massacred thousands of villagers, worshippers at religious sites, monks, and people praying, engaged in widespread ethnic cleansing, bombed civilians going about their daily affairs, recruited thousands of children for combat purposes. The discourse, in its current form, will only result in further acrimony unless the need for balance is emphasized. The High Commissioner’s report also lacks a sense of impartiality. If he had produced a similar report on any Western country against whom there are allegations, for example Israel or the US, they would have played hell.

It is also interesting that the UK and the US have refused to countenance prosecutions of their soldiers in Afghanistan and Iraq.

Prime Minister, Teresa May, has categorically stated that UK soldiers who served in those theatres will not be allowed to be brought before the Courts. A public litigation firm pursuing claims on behalf of Iraqi nationals has had its funding withdrawn.

?: Do you truly and honestly believe these recommendations in Resolution 30/1 will achieve their purpose in Sri Lanka?

A. The short answer is an emphatic “NO”. On the other hand, existing divisions are likely to be exacerbated and ethnic tensions aggravated and a drift towards another disastrous confrontation becomes a possibility with serious damage to the economy.

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