YAHAPALANA AND THE ‘GENEVA RESOLUTIONS’ Part 4
Posted on October 28th, 2018

KAMALIKA PIERIS

Sri Lankans have been given the impression that Sri Lanka is under the HRC. That is incorrect. Sri Lanka‘s connection to the UNHRC comes through Sri Lanka‘s membership of the UN. Sri Lanka became a member state of the UN in 1955 and since then is entitled to participate in all General Assembly deliberations and exercise a vote. Sri Lanka is also supported by the UN Charter, a much forgotten document, which when invoked, ranks above all other UN utterances.

The UN Human Rights Council was created by the UN General Assembly on 15 March 2006 to address human rights violations and make recommendations.  It is therefore a subordinate body of the UN. It is not even one of the principal UN organizations. The principal organizations of the UN are General Assembly, Security Council, ECOSOC, Trusteeship, and International Court of Justice. UNHRC is not one of the UN specialized agencies either, like WHO and ILO.

When the UNHRC was created, the UN General Assembly decided that the work and functioning of the new HRC should be reviewed five years after it had come into existence, and the review should take place at the level of the General Assembly. At this review, the status of the Council would also be considered.” This shows that the UN General Assembly   has had its doubts about this new Council.

The first review of the UHRC accordingly took place in 2011. The decision is listed as Resolution 65/281 of 17.6.2011. The General Assembly decided to maintain the status of the Human Rights Council as  a subsidiary body of the General Assembly and to consider again the question of whether to maintain this status, [at another meeting] at a time  no sooner than ten years and no later than fifteen years. Therefore the HRC itself is up for periodic review! Sri Lanka   indirectly participated in the review as a member of the General Assembly.

The government of Sri Lanka under Mahinda Rajapaksa behaved as though it was scared of UNHRC. Sri Lanka has been taking a defensive strategy from the first UNHRC resolution on accountability in 2012, always explaining its actions during and after the conflict. This is a flawed strategy, observed Ladduwahetty.

Instead, Sri Lanka should consider reporting the UNHCR and its Office of the Commissioner for Human Rights to the General Assembly for exceeding its mandate.  Sri Lanka should call for a review of HRC in 2021 when the next ten year period ends.

Sri Lanka must begin by reporting UNHCR to UNGA for interference in Sri Lanka’s internal matters. UNGA Resolution A/RES/36/103 of 9 December 1981 says No State or group of States has the right to intervene or interfere in any form or for any reason whatsoever in the internal and external affairs of other States.” The   Eelam war was a secessionist civil war, which stayed within the island. It did not spill out to other countries. It was an internal matter.

Further, the responsibility of protecting Human rights and enforcing international human rights law lies with the state, not the HRC. There is currently not even an international court   for judging   international human rights law. Many human rights are problematical. There is no agreement on what they mean.

The UN General Assembly must be told of the dishonest methods used by the HRC, under the guise of Human Rights, to push the Eelam agenda.  HRC has used for this purpose, contrived, biased reports (Darusman and OISL) crackpot documentaries, (Channel Four)    extreme observations (UNHRC   Special Rapporteurs) and evaluations by the OHCHR itself. The faulty Darusman report was used as a primary source by the OCHRC. The OISL Report is ‘rather unique’ and was the first of its kind by his Office in respect of any country said the High Commissioner.  It was a new exercise, done for the first time.

Sri Lanka will have support for this in the UN. When the 2014 resolution on Sri Lanka came up for discussion, the representative for Pakistan had said that that no self respecting country would agree to the intrusive measures advocated in this resolution. He wanted to know how this resolution was to be funded and whether the funders were the same as those who had sponsored the resolution.  If so the whole process will be tainted. He got no   answer to his inquiry.  India had also warned that an intrusive approach would undermine national sovereignty.

Russian Ambassador to Sri Lanka    said in 2018, We are strongly condemning the use of human rights issues as an excuse for interfering in domestic affairs of countries as well as undermining the basic principles of International Law. We oppose the adoption of the politicized country-specific resolutions, especially taking into account the successful functioning of the Universal Periodic Review mechanisms in the Human Rights Council. The adoption of country-specific resolutions has only one goal to punish unfavorable governments. This is utterly counterproductive because the patronizing tone has never contributed to improvements in the human rights situation and labeling countries on the basis of political motives discredit the United Nations agencies” ( Daily Mirror, April 2, 2018 quoted by Ladduwahetty).

I recall seeing a newspaper headline many years ago, which said ‘Sri Lanka to be roasted at HRC”. That was intended to frighten the public. It is a fraudulent suggestion. UN HRC lacks the power to act against countries. No resolution of the UNHCR can have direct legal consequence except for the Office of the High commissioner itself. It can only make recommendations, observed Palitha Kohona.

This ‘roasting’ talk would have been with reference to Sri Lanka’s appearance at the Universal Periodic Review. The UNHRC is empowered, through its Universal Periodic Review (UPR) to examine the HR status of all 193 UN Member States. I looked at some of these UPR reports some time back and my recall is that not one member state ever admitted guilt. They had explanations, excuses, and where necessary, there was outright rejection of the charges.

Subhas Gujadhur and Toby Lamarque were asked to make an assessment of the numerous HRC Resolutions issued over the years. Their report was published as The evolution and future direction of the UN Human Rights Council’s resolution system’ (2015). They found that most of the Resolutions were on   themes, not countries.  Resolutions relating to specific countries, were a mere 7% of its total output, and confined to 12 situations, including Sri Lanka.  They were mostly about Israel. The 10 highest ranked countries for HR violations were not in this list.

When one considers the scale of human rights violations that have taken place (and continue to take place) around the world since 2007, it is clear that, by only addressing fourteen situations, the Council is guilty of  neglecting its responsibilities, said the authors.

Most of the resolutions have been brought by two actors, the USA and the European Union, said Gujadhur and Lamarque. Only these two actors   have shown the political will and the necessary political power to do so. 56% of the resolutions looked at were by the EU or leading member states of the EU and 20% by USA. The Council’s willingness to address country-specific human rights violations is therefore heavily dependent on just two Western powers, the EU and the US.

UN Watch” has commented angrily on the resolutions against Israel. UN Watch” is a NGOs affiliated to American Jewish Committee.   UN Watch” complained in 2010 that   about 27 one-sided resolutions against Israel   have been adopted by the UN Human Rights Council.’ They were one sided    and      indicated support for   Hamas and Hezbollah, said UN Watch”. HRC only examines the actions of one side and presumes those actions to be violations, ‘UN Watch’ complained. Sounds familiar does it not?

‘UN Watch’   further observed that before the USA took over,   HRC had convened no less than six special sessions on Israel. Since the United States joined the body, however, only two such sessions were called and there was a clear decrease in the number of country resolutions devoted to Israel.

In 2015, the USA brought a Resolution in the HRC, titled   Promoting reconciliation, accountability and human rights in Sri Lanka”. (UNHRC Resolution 30/1).This was a follow up to its Resolutions of 2012, 2013 and 2014. Sri Lanka’s    puppet government supported the Resolution.

Resolution 30/1 has been drafted craftily, to ease the fears of other countries who will otherwise object to a precedent that could endanger their own independence and sovereignty, said Tamara Kunanayagam. Therefore no member of the Human Rights Council felt the need to table a counter resolution to protect itself from becoming a victim of interventions of a similar nature at some future date.

The Resolution has been drafted jointly by a tripartite group, consisting of   US, Government of Sri Lanka, and the Tamil National Alliance.  This was done secretly, and we only knew of it when the TNA announced the fact, said Shamindra Ferdinando. M.A. Sumanthiran told American ‘Congressional Caucus for Ethnic and Religious Freedom in Sri Lanka’, in Washington, that the government of Sri Lanka, the TNA and the US had been involved in the negotiations leading to the Resolution.

Sumanthiran named the Government of Sri Lanka, the US and the TNA as parties to the agreement. The declaration was made in the presence of Sri Lanka’s Ambassador in Washington, Prasad Kariyawasam, reported Shamindra. The resolution itself has been drafted by Jeffrey Feltman, UN under Secretary General for Political Affairs, in Washington. He is ‘an arch neo conservative, notorious for engineering regime change in countries of strategic interest to Washington, ‘said Tamara Kunanayagam.

Tamil intellectuals see much hope for their cause, in Human Rights”. Radhika Coomaraswamy had given a lecture at ICES where she spoken glowing terms of the western enlightenment which upheld reason, universal truth and universal rights applicable to all societies and cultures.   She expressed confidence in the international human rights regime. ( Island 8.12.13 p 5)

However, there is absolutely nothing in the Resolution  which deals with Human Rights per se .it is not a Human Rights  resolution at all. This Resolution is a political statement. Its preamble  welcomes  Sri Lanka ‘s ‘historic free and fair democratic elections in January and August 2015’,praises the 19th amendment and calls for a  political settlement based on the devolution of power.

The Resolution  then goes on to incorporate the immediate concerns of the Tamil Separatist Movement ,  which are to erase the Eelam  defeat and get the Eelam movement back on track. Therefore  this Resolution is an Eelam Resolution as  well. The Resolution is  silent as to the nature of the ‘conflict’. It supports the Eelam war indirectly, by saying that terrorism must be combated only  within the limits of the laws of war. It refers to the ‘victims’ of war, but says nothing about who waged the war .

Resolution  30/1 does not mention Eelam War IV by name. The Resolution consists of cryptic utterances which  make sense only to those  who are sympathetic towards Tamil Separatist Movement.  There are references to  “conflict- affected provinces of North and East’‘, “guarantee of non recurrence”, ” dealing with the past , as well as mention of LLRC and LTTE. In the case of Israel HRC is very specific. The resolutions against Israel speak of’ ‘occupied Palestine’, ‘occupied Syrian Golan’ and ‘incursions into Gaza.’

All  the matters raised in the Resolution are  matters which any sovereign state could carry out on its own, without any nudging by the HRC.  They were latched on to the HRC in the hope that UNHRC would give these matters greater legitimacy and also in the hope that it would silence the opposition, who,  they thought were in awe of the HRC.

The Resolution had an  unprecedented 23 introductory paragraphs that set the stage for 20 operational paragraphs, filling 5 pages observed Pathfinder Foundation. The Resolution is available online and  I list below some of  the  issues contained in the Resolution .The absurdity and also the gravity of the recommendations is immediately apparent.

The clauses of Resolution 30/1 include the following:

  • the proposal by the Government to establish a  Commission  for  Truth,  Justice,  Reconciliation  and  non-recurrence,  an  Office  of Missing  persons  and  an  Office  for  Reparations    and to give each of these the freedom to obtain financial, material and technical assistance from international partners, including the Office of the High Commissioner/
  • to sign and ratify the  International  Convention  for  the  Protection  of  All  Persons  from  Enforced Disappearance, to criminalize enforced disappearances and to begin to issue certificates of absence to the families of missing /
  • to review  the Public Security Ordinance Act and to review and repeal the Prevention of Terrorism Act, and   to   replace   it   with   anti-terrorism   legislation   in   accordance   with   contemporary international best practices/
  • accelerate the return of land to its rightful civilian owners, [and assist in] the resumption of livelihoods and the restoration of normality to civilian life, [and also] ending  of  military  involvement  in  civilian activities, /
  • to fulfill its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population/
  • introduce effective security sector reforms/
  • [Remove from] the security forces, anyone [charged with] Human Rights violations and violation of IHL. [This]  included  members  of  the  security  and intelligence units/
  • to issue instructions  clearly  to  all  branches  of  the  security  forces  that  violations  of  international human  rights  law  and  international  humanitarian  law,  including  those  involving  torture, rape and sexual violence, will be investigated and that those responsible  will be punished./
  • the trial  and punishment  of  those    responsible  for  crimes [specially ] abuses of  human  rights  and  violations  of  international  humanitarian  law,  during  the period covered by the Lessons Learnt and Reconciliation Commission/
  • to establish a judicial  mechanism to investigate   allegations   of   violations   and   abuses   of   human   rights   and   violations   of international humanitarian law, [which will include] foreign judges, defence lawyers and authorized prosecutors and investigators/
  • the Office of the High Commissioner to continue to assess progress on the  implementation  of  its  recommendations  and  other  relevant  processes  related  to reconciliation, accountability and human rights, and to present an oral update to the Human Rights  Council  at  its  thirty-second  session,  and  a  comprehensive  report  followed  by discussion on the implementation of the present resolution at its thirty-fourth session ( Continued)

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