Sunday Times 2
Geneva resolution: Has the mighty US laboured and delivered a toothless mouse?
For weeks if not months, the United States and Britain threatened that they would move a resolution before the UNHRC to establish a ‘robust mechanism’ leading to a possible hauling of the Government of Sri Lanka (GOSL) before an international war crimes tribunal.
The vaunted threat only provided the GOSL leaders the opportunity of proclaiming ‘I would even face the electric chair’ rather than face an international court as a vote gathering posture for the local elections that were current.
Both the movers of the resolution and the GOSL were well aware that UNHRC resolutions were non-binding in international law.Articles 10 and 14 of the UN Charter refer even to General Assembly resolutions [other than those dealing with 'housekeeping'] as … “recommendations”. This view has been endorsed by rulings of the International Court of Justice. This is in stark contrast with ‘decisions’ of the Security Council.
Knowing that that the UNHRC could not have placed the GOSL under a legal obligation to comply with the resolution, the movers could have used a resolution in balanced and non-intrusive terms to place the GOSL under a moral obligation to comply with the ‘recommendations’.
But what was the reality?
The scope and purpose of the resolution reflect the norms set out in the UN documents quoted and accept ‘… its commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka…’, The concept of territorial integrity over the whole of Sri Lanka is repeated in another preambular paragraph … in a peaceful and unified land…’
Both statements clearly and possibly cleverly recognises that the armed conflict under review was between a lawfully constituted Government with full legal sovereignty over the whole of Sri Lanka and an organised group which sought to wrest control of a substantial part of the North and the East of Sri Lanka.
The text in the preambular paragraph ‘…. must ensure that any measure taken to combat terrorism …’ [emphasis by the author] by necessary implication, classifies the armed group in the conflict as ‘terrorists.’
The rules applicable to the conflict prohibits ‘… making the civilian population as such, as well as individual civilians, the object of attack…’ wording that identifies the conflict under review as a non-international armed conflict between the military and armed groups consisting of combatants and non-combatants who serve ancillary roles in support of the combatants.
Those who do not fall into either of these classifications would be civilians and are prohibited from being made objects of attack. This gives rise to the oft repeated US-UK ‘formula’ that injury and damage to civilians and civilian institutions are ‘collateral damage’.
The rest of the preambular paragraphs cover two basic areas of concern, one being reconciliation and other the promotion and protection of the human rights and freedoms of the whole population of Sri Lanka.
The combination of objectives is reflected in the preambular paragraphs of the resolution which covers the ‘.. full range of judicial and non-judicial measures…’ required in the aftermath of a non-international armed conflict to ‘… promote the rule of law in accordance with international human rights law, with a view to preventing the recurrence of violations and abuses…’ as a platform for healing the trauma and restoring confidence in the State institutions that promote and protect the human rights of the population as a whole.
Among the specifics identified are ‘…truth-seeking processes, such as truth and reconciliation commissions, that investigate patterns of past human rights violations and their causes and consequences are important tools that can complement judicial processes…designed within a specific societal context and be founded on broad national consultations with the inclusion of victims and civil society, including non-governmental organizations…’
The procedures for promotion and protection of human rights of the population include the standard rules prescribed in the UN Charter, The ECOSOC and the Covenant on Civil and Political Rights. In effect a ‘motherhood statement’ which can hardly be gainsaid, but do the operational clauses provide or prescribe the necessary mechanisms?
The preambular paragraphs also:-
a) welcome and acknowledge that the steps taken by the GOSL in ‘…rebuilding infrastructure, demining and resettling the majority of internally displaced persons…’ but notes that more needs be done in the restoration of full civilian life, including free and fair elections, freedom of expression, freedom form torture, freedom of religious expression and judicial independence.
b) appreciate the assistance to and co-operation with the UN High Commissioner for Human Rights, but note concern with ‘reported’ harassment of those who provided the High Commissioner with information.
It is obvious and axiomatic that the freedoms and rights recognised in para (a) need be promoted and protected, but equally true that full enjoyment of these rights and freedoms are hard to find even in the countries that participated in the voting. Perhaps the permitted derogation of some of these rights is a recognition of the impracticality of reaching the noble objectives.
The preambular clauses and the LLRC
The LLRC receives a pat on its back ‘… its findings and recommendations, and acknowledging its possible contribution to the process of meaningful national reconciliation in Sri Lanka …the constructive recommendations contained in the Commission’s report…’
However the GOSL national plan of action to implement the recommendations of the LLRC is faulted for ‘… not adequately address[ing] all of the findings and constructive recommendations of the Commission…’
This preambe is then coupled with a recommendation that the GOSL ‘… broaden the scope of the plan to adequately address all elements of the Commission’s report…’
Is the opinion that the national plan of action is inadequate supported by evidence? What measures are recommended to make it more effective?
Even if these conclusions are valid, the next paragraph that ‘… recalling the High Commissioner’s conclusion that national mechanisms have consistently failed to establish the truth and to achieve justice…’, appears to create an issue.
What is the basis of the High Commissioner’s conclusion that ‘… national mechanisms have consistently failed to establish the truth and to achieve justice…’,? Is it a general observation or is it specific to Sri Lanka?
Is the conclusion an opening to create an opportunity for ‘intrusive’ incursions without lawful authority?
Is the recommendation that the UNHRC ‘…monitor any accountability process..’ as a mechanism to ensure that the GOSL does not adopt a procedure to ‘white wash’ the evidence in support of the allegations, a legally flawed excuse for an ‘intrusive’ parallel’ ‘… an international inquiry mechanism to further investigate the alleged violations of international human rights law and international humanitarian law …’?
The wording ‘further investigate’ inferentially implies that the LLRC findings were ‘incomplete’ and appears to sit uncomfortably with praise for findings of the LLRC.
As for the proposed investigation by the High Commissioner, will witnesses who have provided statements to the High Commissioner be available for examination by the GOSL investigation? In effect will the accused be confronted with the accuser? Has the witness been cross-examined on by or on behalf of the accused? Surely these are basic norms of natural justice.
Is the faulting of the GOSL plan of action a ploy for unlawful incursion?
International inquiry into a domestic investigation should in law be preceded by the finding that the domestic procedure has proved inadequate to promote or protect human rights. If what is faulted is the GOSL plan of action to implement the recommendations of the LLRC, one would expect an impartial comment on the areas of inadequacy of the plan and a recommendation as to how the national plan of action should be widened in its scope.
Do the operational clauses achieve their purported objective?
Calling on the GOSL to promote and protect the Human Rights of all the people in Sri Lanka by investigating and punishing those responsible for violating the protected rights and freedoms is no more than the normal exhortation to any government. This is essentially a domestic procedure and the basis of good government and plainly within the jurisdiction of the GOSL.
The second objective of promoting reconciliation is sought to be achieved by requiring the GOSL to hold an independent and credible domestic inquiry into ‘… allegations of violations of international human rights law and international humanitarian law and to hold accountable those responsible for such violations…’
Again a valid and undeniable demand of the GOSL. However the next clause ‘… to end continuing incidents of human rights violations and abuses…’ contains a presumption that such incidents had occurred as reported by the High Commissioner. This paragraph would have been strengthened by using language that avoids ‘report’ being confused with an established allegation.
The next is again a valid demand, that the GOSL ‘… implement effectively the constructive recommendations made in the report of the Lessons Learnt and Reconciliation Commission… and to … take all necessary additional steps to fulfil its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans;
Controversial and intrusive Clause 10
As noted in the Indian stance, this clause has several defects.
One that it fails to take cognizance of the acknowledged progress made to date by the GOSL in achieving even a ‘modicum’ of normalcy. It must be noted that this is a value judgment but recognizes that the GOSL is proceeding, albeit too slowly, in the correct direction.
The Indian response [I quote] ‘In asking the OHCHR to investigate, assess and monitor the human rights situation in Sri Lanka, the resolution ignores the progress already made by the country in this field and places in jeopardy the cooperation currently taking place between the Government of Sri Lanka and the OHCHR and the Council’s Special Procedures. Besides, the resolution is inconsistent and impractical in asking both the Government of Sri Lanka and the OHCHR to simultaneously conduct investigations…’ indentifies and expands on how the provisions of this clause prove counterproductive.
Life in Northern Sri Lanka (File Pic): The Sri Lankan Tamils who wish for reconciliation and the resumption of a peaceful life have been taken for a ride
The response further states ‘…that the resolution has the potential to hinder the efforts of the country rather than contribute constructively to its efforts, and hence inadvertently complicate the situation…’
The comment by the Indian diplomat needs be supported by the author’s view that the Clause has the even more damaging effect that it provides the GOSL with a legally valid and morally justified position to reject the whole proposal.
Some of the wording in Clause 10 ‘… and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, [emphasis by the author] with assistance from relevant experts and special procedures mandate holders.. ‘ appear at first blush to be intended to prevent the GOSL from conducting the facade of an investigation and relying on ‘fake experts’ to reach a pre-determined conclusion.
The resolution need not have placed the ogre of a UNHRC High Commissioner ‘monitoring’ and ‘investigating’ in a legally flawed mandate. The accuser has been mandated to ‘monitor’ the domestic investigation. So far possibly a conflict of interest.
The accuser is further mandated to investigate and ‘…establish facts and circumstances…’ and to present an ‘…oral update to the Human Rights Council at its twenty-seventh session, and a comprehensive report…’ What precisely does ‘establish’ mean?
A police investigator could find relevant evidence and circumstances but only a valid judicial tribunal could determine whether the material found has established any facts.
Mandating the ‘policeman’ to ‘establish’ facts could amount to the policeman being a ‘judex in sua causa’ – a judge in his own case- Would any civilized legal system authorise the ‘police investigator’ to establish facts and circumstances and report the conclusions to a Court?
But on closer examination it raises the issue whether witnesses called before and the expert reports submitted to the GOSL investigation are to be recalled and re-examined by the High Commissioner?
A denial of that right would be a violation of one the basic rules of natural justice.
To mandate the High Commissioner to conduct ‘…a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission…’ also raises the question: are the alleged ‘abuses’ those identified in the LLRC report?
If not, what are the additional allegations? Who has made them? When were the allegations made?
If this information is withheld from the GOSL, that would again provide a valid and morally justified reason for the GOSL to reject the allegations.
The excellence of the Indian diplomacy
The stance on Sri Lanka by our giant neighbour is always carefully scrutinised by the international community. It is often said that India is accepted as ‘the Policeman’ for our region.
India appears to have carefully steered the movers of the resolution to place a ‘cut off point’ that excludes the investigation of any allegations against the IPKF while they were in control of operations in the north of Sri Lanka.
The Indian concern
It appears to the author that the Indian concern that the suggested investigation is ‘open ended’ is based on the possibility that the ‘cut off’ period could be varied to include allegations against the IPKF.
Have our Tamil brethren been taken for a ride?
Yes, they have.
Those who only wish for reconciliation and the resumption of a peaceful life in Sri Lanka, strengthened by enhanced and enforceable rights and freedoms would have been assisted by a resolution that would have placed a moral obligation on the GOSL to take all necessary steps to achieve that objective.
But they have been denied that opportunity by a resolution that contains elements which could be highlighted in a valid and morally justified rejection by the GOSL.
Those who wished for the establishment of a separate state and recognition that the LTTE were freedom fighters would be devastated by the text in the heading that refers to the ‘.. to the sovereignty, independence, unity and territorial integrity of Sri Lanka…’, and the reference to the conflict as ‘… any measure taken to combat terrorism …’
Conclusion
The US and the UK and probably the EU were under pressure from the die hard Eelam supporters in their countries to use the UN institutions to accuse the GOSL of having committed war crimes as a step in hauling the GOSL before a war crimes tribunal.
The author has searched the text of the resolution but failed to locate the phrase ‘war crimes’ anywhere in the text. Why? Is it because the legal experts realised the consequences of alleging ‘war crimes?
The US and the UK needed to get the vociferous Tamil groups off their backs but they faced the pragmatics of vote gathering at the UNHRC by having to compromise with amendments to the text of the resolution. The ‘cutting and pasting’ resulted in a ‘toothless mouse’ and wasted a golden opportunity to place the GOSL under a moral obligation to implement the recommendations of the LLRC.
The motivators of the resolution may consider whether the considerable amount of time and money devoted in pursuit of a resolution that would ‘bite the GOSL’ has turned out to be relatively devoid of ‘biting implements’
Our Tamil brethren living in Sri Lanka wished to resume peaceful life in Sri Lanka where reconciliation and a reasonable guarantee that the GOSL provide the climate for recognition and protection of their rights and freedoms. Inbuilt into this expectation was a degree of autonomy that would enable the Tamils in Sri Lanka to lead their lives according to the traditional cultural values established over several centuries.
The moderate elements of the Tamil Diaspora echoed this expectation for a Sri Lanka which they were free to visit and enjoy without fear of mistreatment. The UN resolution was expected to ensure that the GOSL neither violated the rights and freedoms of the Tamils nor permitted any groups or individuals to do so with immunity. Will they not feel let down?
Even a briefless lawyer, let alone the mighty US-UK-EU combine that host the best legal brains and expertise in international law, would have been unaware of the limits of the UN institutions. In fact, both the US and the UK have regularly ‘blocked’ attempts to question violations of Human Rights by them using the very arguments that the GOSL would have been able to muster.
Have not the US and the UK attempted to shake half of the world to deliver a legally flawed, contradictory and inconsistent document so full of holes which the GOSL is likely to spotlight with glee?
Why then this lopsided and unhelpful resolution?
Did the US-UK-EU axis wish to dictate the political allegiance that the GOSL was required to support? Has not the resolution had exactly the opposite result?
The author is a former NSW Crown Prosecutor and had been the Attorney General in Sri Lanka prior to migrating to Australia in 1992. He was a visiting lecturer in Human Rights and International Law and had from 1983 to 1988 been a member and later Leader, of the Sri Lanka delegation to the Commission on Human Rights. [Geneva, Switzerland]. He also led the Sri Lanka delegation to the UN Sub-Commission on Human Rights. [Geneva, Switzerland]