Sri Lanka at the UN Human Rights Council

By Mathias Keittle, From Statalendorf, Germany

As the dust settles following the bruising vote on Sri Lanka at the UN Human Rights Council in Geneva (HRC), a number of questions arise and one needs to take stock; how could this have happened, why Sri Lanka, and what next?

It is worth looking at the basis on which the resolution on Sri Lanka was adopted by the HRC. (The HRC replaced the Human Rights Commission in 2006). Sri Lanka is not the first country against which the HRC has adopted such country specific resolutions and it is very likely that similar actions will continue be taken in the future, now that Sri Lanka is on the HRC radar. Some countries have resolutions adopted against them, year after year. The mandate of the Human Rights Council is detailed in the General Assembly Resolution (A/RES/60/251) which established the HRC. The HRC is authorized to promote universal respect for the protection of all human rights and fundamental freedoms, to address situations of violations of human rights, including gross and systematic violations, and make recommendations and it states clearly that the Council shall be guided by the principles of universality, impartiality, objectivity and non selectivity, constructive international dialogue and cooperation with a view to enhancing the promotion and protection of all human rights, etc.

While these goals are intrinsically admirable, it is doubtful whether they have guided the actions of the members of the Council. HRC resolutions have been hardly impartial, objective and non selective. Now another question arises. It is whether accountability for historical infractions of global standards were intended to be covered by HRC resolutions. If this were allowed, one is entitled to ask as to where the historical line for accountability would be drawn – at infractions committed two years prior to a resolution, five years, ten years, ??? The possibilities are endless. These resolutions, unfortunately, have been driven mostly by narrow political motives and self righteous and essentially selective Western concepts of correct behavior. Whether the goal of promoting universal respect for the protection of all human rights and fundamental freedoms for all has been the driving force behind the actions of the Council, in the past, is highly debatable.

Paragraph 5(d) of the GA resolution elaborates on some of the specific responsibilities of the HRC. It is authorized to “promote the full implementation of human rights obligations undertaken by states and follow-up to the goals and commitments related to the promotion and protection of human rights emanating from United Nations conferences and summits”. The term “undertaken” would refer to obligations undertaken by states through their participation in a range of human rights treaties, such as the International Covenant on Civil and Political Rights and obligations considered to be part of customary international law. Much of the commitments reflected in the Geneva Conventions, is considered to be part of customary international law. There are many human rights declarations, principles, etc which states have adopted, eg, the Vienna Declaration, later endorsed by the UN General Assembly. In addition, there are obligations that states undertake unilaterally, eg: through the UPR process.

Sri Lanka is party to the core human rights treaties, the Geneva Conventions and has made pledges under the UPR process. Accordingly, the HRC could take action to promote the full implementation of obligations undertaken by Sri Lanka. The HRC is, thus, allowed to promote these undertakings in the case of, inter alia, Sri Lanka. However, one could ask whether what it does now with regard to countries, the naming and shaming approach, similar to what was done under the mandate of the Human Rights Commission, was what was intended under paragraph 5(d). The essentially judgementative mentality that pervades the Council’s actions has generated more confrontational attitudes than a desire to cooperate.

The HRC, has established thematic mandates (covering global issues) or country specific mandates. Where these mandates are established without the concurrence of the country concerned, their utility is doubtful. The Human Rights Council is further required under paragraph 5(h) of the General Assembly resolution to work in “close cooperation” regarding human rights with “governments, regional organizations, national human rights institutions and civil society”. The concept of working in cooperation with individual countries is central to the HRC mandate. Taking account of the statements and information provided by entities detailed, the council can make “recommendations with regard to the promotion and protection of human rights” (paragraph 5(i) of the General Assembly resolution). The key principle is that the Council is required to work in close cooperation with Governments, regional organizations, national rights institutions and civil society, not in conflict with them. One could question whether this has happened in many cases. In most cases the Council has taken individual countries to task, naming and shaming them, egged on by power blocs and well endowed Western NGOs promoting their own self seeking agendas. Whether this approach encourages the implementation of human rights principles or engenders blind resistance is worthy of study.

Resolutions at the HRC might be a simple prelude, a stepping stone, for further action at the UN in New York? Western countries with the encouragement of NGOs have spearheaded resolutions against countries such as North Korea, Iran, Myanmar, Libya, Cuba and more recently against Syria while the Arab group has tabled resolutions against Israel. This year was the first time that a HRC resolution against Sri Lanka was successfully adopted. Israel has been a test case for the HRC. As of 2011, Israel’s actions have been condemned in 40 resolutions by the HRC. The United States which spearheaded the resolution against Sri Lanka, has voted against these resolutions. There has been a gradual increase in attention on Israel.

In the past five years, the Council held six special sessions on Israel, adopted forty resolutions and sent all five fact finding missions to Israel. In 2011, seven resolutions were on Israeli practices. The follow up to the Gaza Flotilla raid was a key issue before the HRC at the 17th session. Whether all this adverse attention has influenced Israel’s policies is questionable. The Council adopted a resolution on Israel last month which requires a fact-finding mission to be sent to investigate Jewish settlements in the West Bank and East Jerusalem. Israel, citing its sovereignty, has stated that it will sever all ties with the HRC. Although it had been envisaged that the HRC would work towards advancing human rights around the world, this has turned out to be a naive and forlorn expectation.

Even the original champions of the HRC have, as before with the Human Rights Commission, turned it into a highly politicized platform for selectively naming and shaming individual countries. This approach has robbed the HRC of the moral authority and the influence that it was intended to wield. The High Commissioner for Human Rights has expressed her outrage on breaches of human rights standards, but very selectively. Many of those who voted for the resolution on Sri Lanka and many of those who co-sponsored it deserve much harsher condemnation at the HRC than Sri Lanka, especially if the HRC were to use the yardstick of past (alleged) infractions used against Sri Lanka but will avoid this embarrassment because they will be protected by powerful friends or will have the muscle to avoid such condemnation.

Paragraph 5(a) of the General Assembly resolution clearly states that the Council can promote “advisory services, technical assistance and capacity-building” provided that it is in “consultation with and with the consent of the Member States concerned”. The resolution on Sri Lanka calls on the Government of Sri Lanka to implement the constructive recommendations in the LLRC report. Given that the Government has already given assurances to this effect, the call would seem to be redundant and highly condescending. It requests the Government of Sri Lanka to provide a comprehensive action plan detailing the steps taken and will take to implement the LLRC report. Irrespective of the resolution Sri Lanka has identified 258 recommendations for implementation. Some are already being implemented. It also encourages the office of the High Commissioner and relevant human rights procedures to provide advice and technical assistance in consultation with and with the concurrence of Sri Lanka.

The terms “consultation and concurrence” are significant as they provide a choice for Sri Lanka, whether to accept the services of the High Commissioner or not. However, one could anticipate that the High Commissioner and the NGO critics, who depend hugely on funding provided by Western donors, will be chafing at the bit to offer such services. Any refusal by Sri Lanka will be interpreted as a sign of refusing to work with the High Commissioner to realize the objectives of the resolution. Recently, Cuba challenged the US by asking her to submit a resolution on Guantanamo if they are so deeply concerned with issues regarding accountability. Hundreds of prisoners, designated as combatants in the war against terror, remain cooped up without trial in Guantanamo.

Sri Lanka, which may have influenced the formulation of the Resolution in the first instance, has the discretion to refuse to comply with the resolution as adopted. It could take the Israeli approach and ignore the resolution but it is not protected by the muscular shield that Israel has. Sri Lanka would undoubtedly consider domestic, social, economic implications before it takes any measures consistent with the Resolution.

The fact that Sri Lanka has taken unprecedented steps to reconstruct and reconcile following the end of the conflict will not satisfy the NGO pack or the local groups now searching for every opportunity to discredit the government and baying for blood. Furthermore, that the Western concepts of accountability based on their own historical, religious and cultural experiences may not apply in our religious or cultural context and will not strike a chord with them. Sri Lanka’s has carefully and consciously developed close relations with the spectrum of the international community keeping in mind the changed nature of the international economic and power structures. This may be the time strengthen these wider relations further.

Sri Lanka, a party to the core Human Rights treaties and the Geneva Conventions, has a history of upholding human rights principles which it believes are an intrinsic element for sustainable peace and development. Human rights were a part of our culture long before they were acknowledged by many of the countries which sponsored the resolution in Geneva. The Sri Lankan armed forces undergo mandatory training in human rights and on international humanitarian law assisted by the International Committee of the Red Cross(ICRC). As a country, ravaged by war for more than 30 years, Sri Lanka was required to give precedence to rehabilitation, rebuilding and reconstruction. There were many humanitarian issues relating to the Internally Displaced Persons (IDP). The government had to address the more immediate humanitarian needs of close to 300,000 IDPs especially with the limited resources at its disposal.

Although the resolutions of the United Nations Human Rights Council are non binding, Sri Lanka has said that the recommendations of the Lessons Learnt and Reconciliation Commission will be implemented. – Asian Tribune –

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