KAMALIKA PIERIS

When Pohottu came to power in 2019 it informed the Human Rights Council of its decision to withdraw Sri Lanka’s  co-sponsorship of  UNHRC  resolution 30/1 and related resolutions 34/1 and 30/1.   A responsible government is obliged to withdraw from such a Resolution, said Pohottu.

The previous government, a puppet government, in a manner unprecedented in Human Rights fora, joined as co-sponsors of Resolution 30/1 which was against our own country. It carried a host of commitments that were not deliverable and were not in conformity with the Constitution of Sri Lanka.

For instance, the Resolution called for hybrid courts with foreign judges. . Foreign judges can be appointed only after an amendment to the Constitution and a referendum”. Further, the government had not obtained Parliament approval before co sponsoring the Resolution.

Pohottu was supported by two clauses in Vienna Convention on the Law of Treaties (1969). Article 45 warned that a state could not back out of an agreement if it had supported it initially.  So Pohottu had to withdraw from the Resolution as soon as possible.

Article 46 provided the justification for withdrawing. Article 46 states: A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”.

The Core Group on Sri Lanka at the UN Human Rights Council , comprising Canada, Germany, North Macedonia, Montenegro and the UK, said they were deeply disappointed and concerned” that the Government of Sri Lanka has changed its approach to UNHRC Resolution 30/1.  They decided to go for a fresh Resolution in 2021. The Sri Lanka government was invited to join, but turned down the invitation to co-sponsor the resolution.

At the UNHRC meeting of March 2021, this Core group put forward Resolution A/HRC/46/L.1/Rev.1  It was titled Promoting reconciliation, accountability and human rights in Sri Lanka.” This Resolution can be found at https://undocs.org/A/HRC/46/L.1/Rev.1

The Resolution made it clear that it was the latest in a long line of UNHCR Resolutions against Sri Lanka. The Resolution said it followed on the earlier resolutions, 19/2 of 2012, 22/1 of 2013, 25/1of 2014, 30/1of 2015, 34/1 of 2017 and 40/1 of 2019.  The Resolution also remembered the joint communiqué of 26 May 2009 by the President of Sri Lanka and the UN Secretary-General.

The Resolution asked the Office of the Commission of Human Rights  (OHCHR) to collect evidence on violation of human rights and related crimes in Sri Lanka, with a view to advancing accountability .This is the most important item in the Resolution. Thereafter,  the OHCHR was  to present an oral update to the Human Rights Council, at its sessions  in September 2021. at its forty-eighth session, a written update at its forty-ninth session of March 2022  and a comprehensive report at its fifty-first session in September 2022. 

The Office of the High commissioner said that it was prepared   to do so. ‘My Office stands ready to continue monitoring the human rights situation, including progress towards accountability and reconciliation’,  Bachelet responded.  The High Commissioner’s office was  given the authority to set up a special unit to gather this information and a budget of USD 2.8 million to do so.

A new Secretariat will function under Human Rights High Commissioner Bachelet, Sunday Times reported. The Office of the High Commissioner has already advertised calling for applications for the identified new positions.

This includes One Senior Legal Advisor with experience in criminal justice and or criminal investigations and prosecutions to co-ordinate the team. He or she will be responsible for collection strategy; the development of a central repository to consolidate, preserve and analyse information and evidence; co-ordinate the processes of reviewing and sharing of information with national authorities for universal jurisdiction and extra territorial jurisdiction cases and other accountability purposes in line with relevant United Nations guidelines; develop accountability strategy and engage with accountability mechanisms including specialized investigators, prosecutors, judges, and other legal practitioners both for information sharing purposes, to promote accountability and advice on the development of accountability strategies; and liaise with other Office of the High Commissioner for Human Rights (OHCHR), other independent mechanisms and other UN systems to ensure co-ordinated approach.

”There will be two investigators or Human Rights Officers with a background of criminal law to research, collect and analyse information and documentation pertaining to serious human rights violations, and international criminal law matters. Others include two Legal Officers, two Analysts, Information and Evidence Officer, two Jurists – Linguists, a Victim Support Officer, and a programme Assistant.

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Funding amounting to US$ 2,800,900 is required for the remaining part of this year for this new team. Thereafter for 2022, a sum of US$ 2,064, 400 is estimated. This fund requirement is to be brought to the attention of the UN General Assembly when it meets for its 76th sessions in New York in September2021. It would have to be approved by the Fifth Committee which is charged with financial administration of the UN system.

Diplomatic sources said that Australia and Norway were ready to offer the funds should there be opposition. But they were very confident” such a situation would not arise.  In any case, the move for a new Secretariat under the Human Rights High Commissioner will not be dropped.

The United Kingdom together with  the core group  are examining ways and means of pursuing issues related to future human rights violations,  said the media. Reports emerging from diplomatic consultations among the sponsor and core group of countries show that many options were being discussed.

 What happens if members of the new Secretariat under the UN Human Rights Commissioner are not allowed to visit Sri Lanka? There have been suggestions for those concerned to visit as tourists. There will also be references to trophy footage and evidence on the violation of humanitarian law. In the coming weeks, there will be especially important measures adopted by some core group members to take forward the resolution,” said a western diplomatic source.

The government of Sri Lanka   is also adopting measures to counter information gathering on future violations of human rights” by this new Secretariat at the OHCHR , continued the media..

Seven Foreign Tamil organizations have been proscribed through a Gazette notification. They are  based in the United Kingdom, Canada, Australia, Germany, and France. The main group proscribed is the UK-based Global Tamil Forum (GTF) which, together with the Tamil National Alliance (TNA), has been at the helm of pushing through the Resolution on Sri Lanka. This is the second time such a proscription has been re-imposed after the withdrawal by the previous   Yahapalana government in 2016.

Also named are 339 individuals who will not be allowed entry into Sri Lanka. Efforts are being made by Tamil groups to appeal to western governments  to counter this. This proscription means that any person who has any dealings with those named in the Gazette notification would be treated as an offender. Such a person will be liable for arrest. The idea is to prevent them from transmitting any complaint or in helping in many other ways.

The government is also closely monitoring Non-Governmental Organisations (NGOs) and International Non-Governmental Organisations (INGOs) which are  funded in US dollars. Remittances from different sources are being identified. This again is to prevent, among other matters, funds being used to gather information on alleged victims of human rights violations and fees for lawyers who produce affidavits. ( Continued)