KAMALIKA PIERIS

There are two schools of thought in Sri Lanka regarding the UNHRC Resolutions against Sri Lanka. There are those who are delighted that their country is censured by the UNHRC and there are those who are not delighted.  They are indignant.

The first group contains those who wish to see Sri Lanka lose its independence, fail as a country, and eventually become a puppet state of the USA. The second group is loyal to the country. They are fiercely proud and protective of Sri Lanka, despite its many deficiencies. The senior members of this group remember the British colonial experience and do not wish to see it repeated.  This group is contemptuous of the USA and do not wish to see Sri Lanka come under US influence.

Marwan Macan Markar saw the UNHRC voting as an indicator of Sri Lanka’s standing in the UN and therefore, in the world. In the  2009 Resolution,, Sri Lanka got 29 votes,  then in 2012, it was 15, 2013 it was 13  in 2014 it was 12 and in  2021 it was 11, a clear  downward spiral. Can the country sink any lower, he asked.

The Sri Lanka intelligentsia however, is not very concerned about what the 47 countries which constitute the UNHRC panel think. Sri Lanka is utterly contemptuous of the Resolutions and the countries that support it.

Sri Lanka‘s pro-Eelam group have tried to present the UNHRC as a fearsome body.   Many years ago a newspaper ran the headline, Sri Lanka to be roasted at the UNHRC.” That was intended to frighten Sri Lanka. UNHRC cannot roast any country.  Instead there is a good chance that UNHRC itself may get roasted by the UN General Assembly when UNHRC comes up for review. Its very existence is uncertain today.

One USA supporter stated triumphantly, that even if Sri Lanka withdrew its sponsorship from Resolution 30/1   of 2015, the resolution still remains. M.A. Sumanthiran   said that though the Government is not legally bound to implement the UNHRC 2021 Resolution the Government will have to implement it.  UN Peace Keepers might come to Sri Lanka if the Government fails to implement the UNHRC Resolution.

Another commentator observed that if Sri Lanka does not comply with UNHRC, then the European Union may withdraw its GSP concession and the Sri Lanka economy will get into difficulties. A critic observed that the values and scruples of those who support these Resolutions in this manner should be examined.

A UNP politician sneered   that in going to Geneva and opposing the UNHRC resolutions, Sri Lanka was trying to   show a ‘nethi loku kamak’.  He saw Sri Lanka as inferior to the UNHRC and wanted to see Sri Lanka humbled.   Actually it is not’ nethi’.  It is ‘ethi loku kama”.  Sri Lanka is a member state of the UN. Sri Lanka therefore ranks above UNHRC. UNHRC was set up by the UN General Assembly of which Sri Lanka is a member.

Further, UNHRC is toothless. It does not have the power to act against countries. It cannot impose economic sanctions.  UNHRC Resolutions cannot be enforced. The resolutions of other UN special agencies such as International Maritime Organization (IMO) and International Civil Aviation Organization (ICAO) are   binding on all nations, but UNHRC resolutions are not. 

By 2021, the west had realized that it was not going to crush Sri Lanka through the UNHRC. That is why the US at its fifth try, in 2021,  decided to move the action from UNHRC to the Office of the High Commissioner of Human Rights which is a department of the Secretariat of the United Nations.

The current Resolution, Resolution 46/1 of 2021 stated that  it Recognizes the importance of preserving and analyzing evidence relating to violations and abuses of human rights and related crimes in Sri Lanka with a view to advancing accountability, and decides to strengthen in this regard the capacity of the Office of the High Commissioner to collect, consolidate, analyze and preserve information and evidence and to develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka, to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction. (clause 5)

Analysts have looked at the Resolution.  There are certain gains, they said.  The Resolution recognizes the sovereignty, independence, unity and territorial integrity of Sri Lanka. The demand for setting up of a hybrid court with foreign and local judges has been removed. There is a grudging acceptance of the Lankan Government’s insistence on having its own domestic mechanism”.  Also the focus on war crimes has given way to a survey of present day violations of human rights.

The weaknesses attributed to Sri Lanka (section 7) are not unique to Sri Lanka, said Ladduwahetty. There are similar weaknesses in every country. elsewhere too there are policies that affect freedom of religion or belief; marginalization of persons or groups; restrictions on media freedom; shrinking democratic space; sexual and gender-based violence and so on. these defects could be found in all of the 22 countries that supported the Resolution Therefore, what is so special or unique about Sri Lanka for it to deserve special attention,   asked Ladduwahetty.

Don Manu saw the gravity of the Resolution. Don Manu said the United Nation’s watchdog on human rights, the UNHRC, has 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.’

Pohottu 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, concluded Don Manu.

 OHCHR is now empowered to look also at the present and ongoing situation in the country .  it is not longer limited to war time violations only. This effectively means that the government will be monitored 24/7 to collect and collate necessary evidence of possible human rights abuse, observed Don Manu.

But, UNHRC has neither the mandate nor the competence to collect evidence relating to International Humanitarian Law or to support judicial proceedings in member states, said critics. UNHRC is expected to function within the mandate stated in UN resolution 60/251. Sri Lanka should table a resolution in the UN General Assembly highlighting the issues at stake and seek redress, said critics.

There is another aspect to this. Since the war ended a long time ago, in 2009, it will not be easy to collect war crimes data. It will be interesting to see what the OHCHR comes up with. OHCHR will not find it easy to obtain evidence. They will need a bit of help.

The Tamil Separatist Movement faced this same problem when the Darusman committee was sitting. They had to launch a special project to collect evidence. They cajoled people to lodge complaints with the Darusman committee.

On Dec 08, 2010, seven days before the expiry of the first deadline to submit complaints, ‘Eelam View’ website appealed for more complaints  including ones from those who were not directly affected by the conflict. ‘Eelam View’ posted 25 sample letters for the complainants to choose from. Click the line below to access sample letters they said.  (http://www.eelamview.com/2010/12/08/un-submission-sample-letters-7-days-left-have-you-made-your-submission/). Since the number of complaints received by the Darusman committee was not sufficient, the UN extended the deadline for complaints to Dec 31, 2010

In 2019, two international NGO’s appealed for help to collect the names of the conflict dead to estimate the final death toll, says a report published by the Human Rights Data Analysis Group. The report said that the International Truth and Justice Project (ITJP) and the Human Rights Data Analysis Group (HRDAG) urge groups inside and outside Sri Lanka to share existing casualty lists and go out and record new ones.

 A decade after the war ended, nobody knows to the nearest ten thousand how many people died in Sri Lanka in 2009, let alone in the decades before. The aim of this initiative is to use a statistical approach to estimate the probability of a final death toll, the two NGOs said.

“We urge Tamils all round the world in the next few months to speak to their families, their friends, and their neighbors to collect the names of the dead. We have suggested a format to collect the information.” said Patrick Ball of HRDAG.”Several groups inside and outside the country have already started collecting lists. Recording the names of the dead is a way of collating the available information.  And we can use statistical models to estimate how many people are likely missing from the data collected. Don’t worry about duplication! We will take care of the lists.” Particularly important is to collate all existing lists so if you know of a list please contact us. (continued)