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Pillay’s visit: Setting the R2P machinery in motion?
In the past week the Government of Sri Lanka laid out the red carpet for UN High Commissioner for Human Rights Navanethem Pillay, with the customary hospitality accorded to visiting foreign dignitaries. She could go wherever she wanted and meet whoever she wished, according to the President’s Human Rights Envoy, Minister Mahinda Samarasingha, who said “we have nothing to hide.” It remains to be seen if the minister’s expectations of an ‘impartial’ report from her will be met, when she addresses the 24th session of the UN Human Rights Council scheduled to start September 9.
In the aftermath of the war, visiting foreign delegations that came to criticise often ended their tours observing that what they saw was not as bad as they had been led to believe. Pillay herself said on arrival last Sunday that she ‘did not come to criticise, but to raise human rights concerns.’ She said she ‘did not write her own statute.’ But it’s useful to remember her remarks shortly after the May 2009 Special Session of the UN Human Rights Council, where Sri Lanka successfully defeated a Swiss-EU resolution calling for an investigation into possible war crimes, and the Council instead adopted by a wide margin of votes a counter resolution proposed by Sri Lanka and Non Aligned states that stressed the country’s right to act without outside interference.
Pillay at that time continued to insist on an independent international probe into the conduct of the war, seemingly in defiance of the verdict of her own Council.
Earlier, a UN deputy spokesperson Marie Okabe was quoted saying that “The Office of the High Commissioner for Human Rights, while noting that the Human Rights Council will not agree to set up an inquiry at this point, says that …… an international inquiry could still happen further down the line.”
Under pressure from the same groups that initiated the attempt to pass a hostile resolution in 2009, UN Secretary General Ban Ki Moon next year appointed a Panel of Experts who advised him that an international investigation mechanism was required for Sri Lanka. Ban said such a move would require either the host country’s consent or a decision from member states through an intergovernmental forum. This referred to the UN Security Council, the General Assembly of the Human Rights Council. Those pressing for this move could not hope to garner the required votes through either the Security Council or the General Assembly, and so the push to put Sri Lanka in the dock over alleged war crimes remains in the more politicised forum of the HRC. Two US-led resolutions against Sri Lanka were adopted by the Council in 2012 and 2013.
The texts of these resolutions while calling upon Sri Lanka to implement the recommendations of its own Lessons Learnt and Reconciliation Commission (LLRC) nevertheless attached only limited value to that report and its recommendations. At their core they seemed to be about ‘accountability,’ and their anticipated end, a war crimes inquiry. Complying with the 2013 resolution’s requirement, High Commissioner Pillay reported on Sri Lanka to the 22nd session of the Human Rights Council in February. She concluded her address by repeating the call for “an independent and credible international investigation into alleged violations of international human rights and humanitarian law, which could also monitor any domestic accountability process.”
The question arises as to whether that ‘monitoring’ activity has already been set in motion with her visit. In a withering critique of the 2013 Human Rights Council resolution (Daily Mirror, 17.04.13) Tamara Kunanayakam who was Sri Lanka’s UN Ambassador in Geneva in 2012 claimed that it advanced “the implacable logic of the ‘responsibility to protect.’ ”
‘R2P’ as it is known is applicable to four specified crimes: genocide, war crimes, ethnic cleansing and crimes against humanity. Pointing to the dangers of treating the resolution as harmless, Kunanayakam argued that “accountability is only a pretext for Washington to advance its geopolitical interests in the region.”
“This focus on accountability is not motivated by a genuine belief that there can be no reconciliation without it, but because accountability is the pillar upon which the Responsibility to Protect stands….” she said. “….The resolution sets in motion the monitoring component of the international investigation mechanism, the mandate is assigned to OHCHR.” She demonstrates how all three elements of this still debated concept are contained in the latest resolution:
“1) The primary responsibility of the state to protect its populations; 2) the responsibility of the “international community” to encourage and assist States in fulfilling this responsibility; and 3) the responsibility of the “international community” to protect in a “timely and decisive” manner when the State is unable or unwilling to do so, through “appropriate” diplomatic, humanitarian and other means, including coercive military intervention.”
Kunanayakam says “… The logic pursued is that if there is no accountability for past crimes, impunity for present crimes will continue and give rise to similar crimes in the future, which, in turn, justifies external intervention to ensure that the population is protected from future crimes.”
In relation to the implementation of LLRC recommendations Pillay told President Mahinda Rajapaksa that she was “very pleased about the establishment of a commission to look into war-time disappearances and the decision to recognise disappearances as a crime,” according to a statement from the President’s Media Unit. But her apparent support of the war crimes lobby whose outcry rests largely on the dubious ‘evidence’ and unnamed sources of the Channel 4 documentaries and the UNSG’s Panel of Experts report, is still a cause for concern. Whether her visit has altered her perceptions on this issue is not known.
Kunanayakam exposes how the two US-led resolutions are meticulously structured to build up a ‘case’ for R2P. If her analysis is accurate – and there is good reason to believe so – then there is further cause for concern that the OHCHR’s action is sharply focused on “alleged violations of international human rights and humanitarian law.”
There appears to be a lack of clarity about the applicability of these laws in situations of armed conflict. Some studies say ‘non-state parties’ are not bound by international human rights law, and have no obligation to apply it themselves. If that is the case, how balanced can an investigation into alleged violations of those laws be, in a case such as Sri Lanka’s? The LTTE was not only a ‘non-state party’ but one of the world’s deadliest terrorist organisations. Would the ‘international investigation’ that Washington and its allies seek, be one where the LTTE remains beyond the pale, making the inquiry an entirely one sided affair? Is this as ridiculous as it gets?
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