Sunday Times 2
UNHRC resolution: the reality check
View(s):The UN Human Rights Council adopted the now much debated resolution on Sri Lanka (the Resolution) without a vote on 1 October, albeit with the concurrence of Sri Lanka. It has given rise to considerable discussion within Sri Lanka. Internationally, the Resolution has gained the endorsement of major Western countries, inter alia, the US, UK, Canada and Australia. Given the hefty infusion of political point scoring, an undercurrent of nervous anxiety has been established among many who are uncertain about its implications.
No resolution of the UNHRCcan have direct legal consequences except for the office of the High Commissioner itself
No resolution of the UN Human Rights Council (HRC), which was created by a UN General Assembly resolution in 2006, can have direct legal consequences except for the office of the High Commissioner itself. The mandate of the HRC is stated in the GA resolution. The HRC, an entity consisting of 47 countries elected from the membership of the UN, is responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations but it can only make recommendations on them. Its mandated goal is to make the world a better place by exerting its moral authority and by providing assistance to countries, at their request.
While a resolution will focus the global spotlight on a particular country, history suggests that countries on which the HRC spotlight have fallen have reacted inconsistently to its attention. Many such resolutions have been ignored. The resolution adopted on Syria at the last session of the HRC is likely to be ignored like the numerous previous resolutions on that country.
In the instance of Sri Lanka, the HRC did just that. A highly visible resolution was adopted but Sri Lanka cosponsored it. Cosponsorship will at least create a moral obligation to give effect to the Resolution and an expectation that it would be, as emphasised by the various statements issued by its other co-sponsors. Non implementation may result in consequences which are not clear.
If a country specific resolution of the HRC incorporating recommendations is to be given legal effect, it must be implemented through a mechanism recognised in law, such as the legislative authority of a country or, rarely, through a decision of the UN Security Council.
There is no suggestion that these recommendations on Sri Lanka will be taken before the Security Council. In any event, it is likely that the promoters of the Resolution recognised early the near impossibility of success at the Security Council when they opted to go before the HRC.
Sri Lanka successfully out maneuvered the European Union and its allies at the HRC in 2009 by turning a resolution critical of Sri Lanka into a positive one. Sri Lanka continued to maintain its adversarial approach with the support of powerful countries such as Russia and China. But since the USA began to spearhead the resolution on Sri Lanka in 2012, along with many of the Europeans, the result has been one sided. Sri Lanka never had the muscle to counter the combined might of the West despite its success in 2009. Since 2012, Sri Lanka could muster only 15 or less votes in its favour in the Council of 47 against three US sponsored resolutions.
The current government has opted for a different non confrontational approach. Instead of resisting the US and its allies, it has decided to work with them. The government enjoys considerable goodwill in the West. Cosponsorship of the resolution, has also generated expectations among its Western backers that it would be implemented. It may also have given the US an adequate reason for closing the file on Sri Lanka and moving on, particularly with a pro Western government in office in Colombo.
It is clear that the implementation of some of the provisions of the Resolution will require domestic legislative measures involving parliamentary action, especially for establishing specific judicial mechanisms or creating new crimes, post facto. This will present its own difficulties given the divisive nature of the current debate.
Influencing the parliamentary process, the resolution itself and the High Commissioner’s report to the HRC have come in for severe criticism. As to why Sri Lanka should have been singled out for special treatment by the HRC for alleged incidents that occurred over six years ago in a world where incidents similar to those alleged are occurring almost daily elsewhere without provoking its wrath is a concern that irks many. Some of the sponsors of the Resolution cannot be said to have clean hands.
It has also been asked if the Resolution could have been further modified before adoption. Its Western sponsors having expressed views sympathetic of the new government elected in August were seemingly eager to slide out of the confrontational deadlock within the HRC. In fact, the delay in the presentation of the High Commissioner’s report to the HRC, from March to September, with the national elections scheduled for August, may suggest an effort to assist the government at the polls. It has been alleged that Sri Lanka in its over enthusiasm got dragged in to cosponsoring a resolution that could have been diluted further.
One could justifiably ask whether this resolution which Sri Lanka cosponsored would set a precedent for retroactive resolutions in the case of other countries. Given that the targets of HRC resolutions have been overwhelmingly non-European Third World countries, Sri Lanka’s traditional friends, the implications of the precedent would not be lost on the Third World. The HRC has directed its spotlight in the past, almost always, on countries identified selectively for political reasons. The ability to muster a majority in the HRC appears to have been the defining criterion for focusing the HRC spotlight on a country rather than an objective consideration of the facts or the application of the same yardstick to similar cases.
Many criticisms have been made of the content of the High Commissioner’s report to the HRC on which the Resolution relies. It’s emphasis on the alleged infractions of the security forces and the relatively light treatment of 30 years of LTTE terrorism, the lack of sensitivity to the emotional support that the security forces continue to enjoy among the majority of the population for ridding the country of the terrorist menace, the Report’s repeated reliance on material from the questionable Darusman Report which had consistently been described by the UN Secretary-General as advice provided for his own guidance (and then made available to the HRC in a questionable manner) and which had been rejected by the Government of Sri Lanka and the non recognition of the need for broad buy-in from both the majority and the minority for effective reconciliation.
While the Government has been busily seeking to reassure its critics with explanations, it’s challenge will be to muster adequate support for the requisite legislative action if it is to give effect to the Resolution as expected by its backers. In addition, it will also need assuage the fears of the many whose reaction could pose a problem for any implementing action.
(Dr. Kohona was Secretary Ministry of Foreign Affairs and Ambassador to the UN under the Rajapaksa Administration)