Columns

• Rejects Human Rights Chief’s Report but says in a 30-page response that will “constructively engage” with the UN system
• Charges that many of the contents are “speculative, presumptive and unsubstantiated opinions”
• UK to lead tough resolution on Sri Lanka based on Human Rights High Commissioner’s Report
• PM’s announcement in Parliament – Technical Committee to make final decision on burial of COVID-19 Muslim victims

 

The march from Pottuvil to Polykandy underway

Battle lines are drawn at the United Nations Human Rights Council (UNHRC) in Geneva. Human Rights High Commissioner Michele Bachelet’s damning report, on the one hand, and a resolution possibly reflecting the hallmarks, on the other, are heaping international conjecture and action on Sri Lanka.

This grim reality emerged in Colombo this week. Colombo-based envoys of countries that are members of the core group met Foreign Minister Dinesh Gunawardena last Monday. The group consists of countries that lent their names to the original resolution spearheaded by the United States. They are Canada, Germany, the United Kingdom, Montenegro and North Macedonia. The last two countries do not have representations in Colombo. When the US withdrew from the Human Rights Council, the UK donned the mantle of leading this core group. Those taking part were UK High Commissioner Sarah Hulton, Canadian High Commissioner David Mckinnon and German Ambassador Holger Seubert.

At the conference at the Foreign Ministry, the three envoys made clear their support for the latest report of the Human Rights High Commissioner. This could translate to having most aspects of this report being reflected in the resolution now taking shape. Julian Braithwaite, the UK’s Permanent Representative in Geneva, informed the UNHRC this week that they would be “leading resolutions for Sri Lanka, South Sudan and Syria.” A statement outlined that “The core group on Sri Lanka comprising Canada, Germany, Montenegro, North Macedonia and the United Kingdom will present a further resolution on promoting reconciliation, accountability and human rights in Sri Lanka. The resolution will be informed by the recent Report of the Office of the High Commissioner for Human Rights.”

The core group representatives in Colombo, as revealed in these columns earlier, have been continuing to pitch for a consensual resolution with the agreement of Sri Lanka on its contents. Towards this end, they have, on a couple or more occasions, had shared elements for the envisaged resolution.

Expectedly the new resolution’s draft text is being developed by the core group, with the report of the Human Rights High Commissioner being a main resource base. It would give way to strong prescriptions particularly in the area of accountability which the western countries have all along been bent on acting on Sri Lanka.

Its genesis may be founded on the fact that the Sri Lankan leadership at that time rejected the overtures of some western countries before the end of the separatist war, for a ceasefire to be instituted and the Tiger guerrilla group’s leadership to be accorded an exit to those countries. The then President, having explained that his troops had advanced extremely far suffering extensive loss of lives and limbs, stated that the internationally requested withdrawal was untenable at that juncture. Undoubtedly, if the western countries’ machinations were acceded to, the security and wellbeing of the Sri Lankan nation would have continued to be under threat of the guerrilla group.

The Government is learnt to have indicated that the acceptance of a consensual resolution depends on the reflective language of the content. Furthermore, a request has been made for the resolution to include a timeline for its closure. Hence, the Government would need to await the text to strategise and outline the way ahead. There was no invitation to the US Embassy in Colombo for the US envoy to participate at the core group discussions. Officials had pointed out that the US is not a UNHRC member.

However, the importance of the US at the Human Rights Council grew this week after the Joe Biden administration announced that it would re-join the council. The US mood is reflected by the different tweets last Tuesday from Secretary of State, Anthony Blinken. The first said, “The @UN Human Rights Council is flawed and needs reform but walking away won’t fix it. The best way to improve the Council so it can achieve its potential is through robust and principled U.S. leadership. Under @POTUS Biden we are reengaging and ready to lead.” 

“We recognize the Human Rights Council is a flawed body, in need of reform to its agenda, membership, and focus, including the disproportionate focus on Israel. However, our withdrawal in June 2018 did nothing to encourage meaningful change, but instead created a vacuum of US leadership, which countries with authoritarian agendas have used to their advantage,” said a statement from the State Department.

Blinken’s second tweet said,“ When it works well, the @ UN Human Rights Council shines the spotlight on countries with the worst human rights record and can serve as a beacon for those fighting against injustice and tyranny. That’s why the U.S. is back at the table.”  In his third tweet, also the same day, he said, “When we work closely with our allies and friends, we are able to call countries with the worst human rights record to account in the @UN Human Rights Council. U.S. leadership matters.” 

Foreign Minister Gunawardena explained to the envoys the reasons for Sri Lanka’s withdrawal from the co-sponsorship of the UNHRC resolution 30/1 –the first to be moved. The Government, he said, has appointed a Commission of Inquiry chaired by a Supreme Court judge to examine further reports on the subject in a bid to determine if indeed human rights violations had occurred.  A review of the Prevention of Terrorism Act is under way, he noted and there are also a number of other measures that are being evaluated for implementation.

Participating in the discussion were State Minister Tharaka Balasuriya, Mahinda Samarasinghe MP and Foreign Secretary Jayanath Colombage. A team which had earlier met President Gotabaya Rajapaksa to work out a response for the Human Rights High Commissioner’s Report met him again, last Wednesday. Besides Foreign Minister Gunawardena, the team comprises Minister Sarath Weerasekera, Mahinda Samarasinghe, Nimal Siripala de Silva, Udaya Gammanpila and Prof. Channa Jayasumana. Conspicuous by his absence was Minister Wimal Weerawansa, now at the centre of a controversy after proposing that President Gotabaya Rajapaksa should be made the leader of the Sri Lanka Podujana Peramuna. (SLPP).

The meeting discussed the strategy to be followed in the light of the new resolution to be presented to the Human Rights Council. Where core group countries are not represented in Sri Lanka it is expected that Sri Lankan envoys from the nearest capital will undertake lobbying visits. It was noted at the discussion that there were difficulties encountered by Sri Lanka’s UN Ambassador to the in Geneva, C.A. Chandraprema. The Covid-19 pandemic is one of the reasons adduced for his inability to meet diplomats in that capital. Such a reason does not seem convincing enough considering that bilateral and multilateral consultations and discussions have been conducted virtually, with the advent of the pandemic. Friendly countries are also being sounded out on the prospect of a resolution in favour of Sri Lanka.

UNHRC sessions and burial issue

Taking some initiative in this regard is Pakistan whose Prime Minister Imran Khan is due in Colombo on February 22. Islamabad, which had been consulting Muslim countries which are members of the Human Rights Council had encountered a serious issue — the Sri Lanka government’s policy of cremating Muslims who die of Covid 19. That saw Prime Minister Mahinda Rajapaksa announcing in Parliament that the Government would now allow burials for COVID-19 victims. Islamic countries that are HRC members from the Asian region include Bahrain, Bangladesh, Indonesia, Libya, and Pakistan.

Premier Khan tweeted on Thursday, “We welcome Sri Lankan PM Mahinda Rajapaksa’s assurance given in Sri Lanka Parliament today allowing Muslims to bury those who died from COVID-19.”  The carefully chosen words refer to an ‘assurance,’ perhaps bearing a hint of Pakistan’s role. This could be cited when lobbying for Sri Lanka.

That, according to a high-ranking government source, takes the “sting” away from an address to Parliament by Premier Khan due in nine days. He was to express his predominantly Muslim country’s displeasure over the ban on burials and urge the Government to review its policy, according to the source. Foreign Minister Dinesh Gunawardena, who is also the Leader of the House, told a party leader’s meeting chaired by Speaker Mahinda Yapa Abeywardena that the Pakistan Prime Minister had made a request to address Parliament and this has been approved by the Government. It was agreed the event should take place on February 24. In March 2015, Indian Prime Minister Narendra Modi, on a visit to Sri Lanka, also addressed Parliament. Premier Khan is expected to meet leaders of the business community and also likely sign a maritime agreement which could encompass at least two other countries.

Despite Premier Rajapaksa’s announcement, there have been no steps taken until yesterday to rescind the Gazette notification that requires the cremation of COVID-19 victims. The issue was raised in Parliament on Thursday by Samagi Jana Balavegaya (SJB) parliamentarian Mujibur Rahman. Sudarshini Fernandopulle, State Minister of Primary Health Services, Pandemics and COVID Prevention, replied that the matter would have to be determined by the official technical committee tasked by the Government. The question that begs answer is why an official committee should go into a statement made by the Prime Minister. Such a move is highly unusual and unprecedented. One would have thought such approval had already been obtained from a committee or the statement overrides what the committee has said.

When President Gotabaya Rajapaksa met three envoys of the core group – the UK, Canada, and Germany — on Thursday afternoon for a one-on-three meeting, the issue of burials was raised. He noted that the “political decision” over the matter had already been made. However, it awaits a decision by a technical committee, he pointed out. He reiterated the Government’s position earlier enunciated by Foreign Minister Gunawardena, who was conspicuous by his absence. Sections in the Foreign Ministry themselves opine that a meeting with the President should have come only as a last resort. They believe that it compromises the minister’s position and that the matter should have been handled at the official and Foreign Ministry level.

The Premier’s announcement on the lifting of the ban on the burials of Muslims succumbing to Covid-19 came in the wake of strong protests from Islamic countries over the issue and also in view of the upcoming Human Rights Council sessions.  Saudi Arabia did not accept a Sri Lankan envoy from Colombo mainly due to this reason. According to a Foreign Ministry source, it is also in view of the upcoming Human Rights Council sessions. The announced move, if implemented, would be a heavy political blow to the ruling Sri Lanka Podujana Nidahas Sandanaya (SLPNS). It is no secret that mandatory cremations alienated the Muslim community pushing them to form alliances with Tamil political parties and groups. On the other hand, the reversal of the decision to only cremate would now alienate the hard-line polity including some medical professionals and sections of the clergy who insisted that the ban on burials should not be lifted.

They claimed that burials would pollute the waterbed and quoted some ‘experts’ as saying there was evidence. Now the Government is acknowledging that burials could be carried out according to World Health Organisation (WHO) guidelines. It was only last week government officials learnt that China, which also has a Muslim minority, was now allowing burials. If this change of mind becomes a reality, would not this dramatic turnaround be a lesson that the Government could have avoided a lot of damage if burials were indeed allowed earlier, without having to give into external pressure, where Sri Lanka could have lost the much-needed friendship of the Islamic countries?

Ahead of the announcement in Parliament, Premier Rajapaksa met a group of nearly 20 members of the Buddhist clergy on Wednesday at Temple Trees to tell them that he was making the announcement. The event was also attended by ministers Dinesh Gunawardena, G.L. Peiris and Wimal Weerawansa. A day earlier, he also met alliance leaders to discuss issues before the UNHRC, including the Government’s rule of mandatory cremation. Yet, there are serious concerns over whether the Gazette notification allowing burials will see the light of day.

Tamil-Muslim march

The extent to which Tamil and Muslim groups have come together in adversity over this issue is demonstrated by the Tamil National Alliance (TNA) sponsored march from the south eastern coastal town of Pottuvil to Polykandy in the north. As they proceeded along the Muslim towns of Kalmunai and Kattankudi, Muslim hoteliers and others stopped the march and vied with each other to serve participants with free refreshments.

The march also saw Public Security Minister Sarath Weerasekera ordering the withdrawal of a Police Special Task Force detachment assigned for the personal security of TNA frontliner Abraham Sumanthiran. He said the parliamentarian had defied a court order not to have the procession. It was the Government that granted him the security after intelligence reports of an assassination threat by members of a Tiger guerrilla rump. For those who face such threats, withdrawal of personal security is a question that is highly debatable. In this case it was on the grounds that he took part in a march. The Government would become answerable for any possible harm that comes in Sumanthiran’s way. However controversial this TNA politician is, it is essential that personal security is based on threat assessments and not arbitrarily withdrawn at the whims of politicians. After all, he is an elected representative of the people and a lawyer. He could well fight the defiance of a court order in courts. On the other hand, the Government too could initiate action against him in courts for violating a court order.

Government’s response
to OHCHR report

The issue of allowing burials of Muslims who die of Covid-19 would now be a one less for the Human Rights Council. Yet, an extremely salutary feature in the Government’s 30-page response rejecting the Human Rights High Commissioner’s Report has declared that it would “constructively engage the UN system.” Therefore, there is a clear distinction that despite withdrawal from co-sponsorship resolution 30/1 and its subsequent ones, and the rejection of the contents of the Human Rights High Commissioner’s report, the government wishes to maintain a constructive dialogue with the UN system as a whole.

The essence of the Government’s response  that the “call for asset freezes, travel bans and the reference to the International Criminal Court and the exercise of universal jurisdiction by individual states, without a semblance of evidence in support, particularly in relation to a country like Sri Lanka which has consistently been compliant and engaged with the United Nations and its mechanisms, points to a distinct and eminent (sic – should read as imminent) danger which the international community as a whole need to take note of.”

The Government has noted that the report of the Human Rights High Commissioner “constitutes speculative, presumptive and unsubstantiated opinions and/or assertions on action (including administrative decisions) taken by the democratically elected President and Government of Sri Lanka since November 2019, to execute the mandate received from the people, which do not fall within the scope of resolution 30/1. Only two and half pages of the 17 pages of the report are dedicated to assess the implementation of resolution 30/1.”

Therefore, the GoSL, in the response stated that it, “maintains that the High Commissioner’s draft report is inconsistent and/or goes beyond the mandate granted by Resolution 40/1. This has implications for the autonomy of decision making by sovereign states, in matters within their purview.”

The Government has outlined “that the above is in contravention of the rules governing the conduct of the Council as stipulated in General Assembly resolution (60/251) and HRC resolutions 5/1 and 5/2. It might be well to recall the observations of the Secretary General of the UN in his Report A/59/2005, the rationale which could be used as a benchmark so as to ensure that the Council must conduct itself against the loss of credibility and professionalism.

The GoSL has observed that “the reference made that the High Commissioner is ‘deeply concerned by the trends emerging over the past year’ is unacceptable particularly in view of the fact that the public health emergency that has prevailed since March 2020 upon the declaration by the WHO of the Covid-19 as a pandemic and the worldwide lockdowns that ensued has not enabled the High Commissioner to make such an assessment in an independent and objective manner.

“As such, having acknowledged the challenges posed by the Covid-19 pandemic, the reference made that the past year has fundamentally changed the environment for advancing reconciliation, accountability and human rights in Sri Lanka, eroded democratic checks and balances and civic space, and reprise a dangerous exclusionary and majoritarian discourse is misconceived and as such reflect an unsubstantiated and arbitrary assessment based on surmise, conjectural and assumptions and is clearly in contravention of the principles upon which the work of the Council shall be guided by inter alia namely the principle of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and co-operation.”

The Government’s response, thereafter, goes on to challenge specific paragraphs in the Human Rights High Commissioner’s report. The first is related to the period of reporting (February 2020 and February 2021) “which largely overlapped with the Covid-19 pandemic. Pointing out a factual error, the Government has refuted the OHCHR of a “newly elected government” by February 2020 to have been in August 2020.

It was the then Foreign Minister, Mangala Samaraweera, under the previous yahapalana government who co-sponsored the US-backed resolution (30/1). It is relevant to note that former President Maithripala Sirisena also declared he was unaware of the co-sponsorship. The response points out that “co-sponsorship had not been obtained through a due procedure including Parliament/and or Cabinet approval. This resolution, it notes “contained commitments that are constitutionally undeliverable and the co-sponsorship as well as the resolution itself had no public endorsement.”

The Government has called upon the OHCHR to delete all references to the reports which they considered and rejected, together with the related footnotes in the report. It has pointed out that the conflict that took place in Sri Lanka “was between the government forces and a ruthless terrorist outfit which committed heinous atrocities against not only the armed forces and the Sinhala and Muslim populations, but also against the very community of which it claimed to be the sole representative.”

Refuting the allegations that have been reproduced (in paragraph 7-16 of the report), the Government has said they were from the highly contentious reports of the Panel of Experts (POE) on Accountability and the OISL (OHCHR Investigation on Sri Lanka) Report which have been rejected by Sri Lanka. It is pertinent to note that the Chairman of the POE, Marzuki Darusman (a former Indonesian Attorney General) and Yasmin Sooka, (South African human rights lawyer), a member took part in a webinar on Quest for Justice, Rule of Law and Democratic Rights in Sri Lanka  last Friday. Others included Stephen Rapp, Charles Petrie, and Pablo de Grieff. It was organised mainly by the London based Global Tamil Forum (GTF). Taking part from Sri Lanka were M.A. Sumanthiran (TNA), A.M. Faiiz (Sri Lanka Muslim Congress) and Bhavani Fonseka, Centre for Policy Alternatives. Most speakers called for a tough resolution.

The POE Report, the Government has said, “was the culmination of a private consultation that the latter (read the then UN Secretary General) sought for his own advice and is not the product or request of the UN Human Rights Council, the UN General Assembly or any other UN body. Since it has not received the endorsement of the intergovernmental process, it has neither credence nor legitimacy within the intergovernmental fora.” Moreover, it has pointed out that the POE report “was seriously flawed, that the Human Rights Council at the time had rejected to issue it with a formal number as a UN document.”

The Government has also rejected allegations that there has been militarisation of government functions by “the appointment of key government officials.” The response has noted that it, “is a domestic matter of a sovereign country, as per the Constitution and the comments made by the OHCHR are clearly outside the mandate of the Council. These appointments are based on subject matter expertise and professional qualifications, with a view to effective implementation of government policies.”

On the specific concerns raised in respect of the 20th Amendment to the Constitution, the Government has pointed out that “the amendment concerned was enacted in full compliance with the procedure set out in the Constitution with regard to enacting legislation, which contains a number of in-built safeguards relating to transparency and judicial review aimed at preventing the passage of bills that are in contravention of the Constitution including its fundamental chapter.”

The Government has “categorically rejected what it calls “unsubstantiated opinions expressed in the Report with regard to ‘use of ethno-nationalistic and majoritarian rhetoric and symbols by the President and other senior Government figures’ and ‘public policies that appear to exclusively reflect the perceived interests of the Sinhala Buddhist Majority, with minimal consideration for minority communities.”

Refuting allegations that there is an alleged “pattern of intensified surveillance and harassment of CSOs, human rights defenders and victims,” the Government has called upon 40 organisations that have complained to OHCHR to submit their complaints to the different national mechanisms. The Government has said that it has rejected the Report predicting “repeated patterns of human rights violations” and “potential conflict in the future,” and requests that these presumptive and speculative opinions be deleted from the report.”

The Government response contains its conclusions and recommendations. They include:

•           The GoSL repudiates the conclusions and recommendations that had been erroneously arrived at in the High Commissioner’s Report as they are based on incorrect and/or unsubstantiated and extraneous sources/material and contravenes the principles of universality, impartiality, objectivity, and non-selectivity, as stipulated in the GA (General Assembly) resolution 60/251 that created the HRC.

= The GoSL rejects the High Commissioner’s proposal “to advance accountability options at the international level” including, in particular, her proposal to take steps towards referring Sri Lanka to the International Criminal Court. Sri Lanka regrets that OHCHR has submitted itself to the preconceived, politicised, and prejudicial agenda which certain elements have relentlessly pursued to trigger such disproportionate and unwarranted measures against Sri Lanka, and caution that any option at the international level tantamount to an unwarranted interference in the internal affairs of a sovereign State in contravention of the UN Charter.

= The GoSL reminds that calling for targeted sanctions and travel ban against individuals, in the absence of credible findings by a competent court/body on violations committed then, itself constitutes nothing less than a political agenda against a sovereign nation, aimed at destabilising and a violation of their right and contravention of the principles of natural justice.

= Similarly, the GoSL condemns the recommendations in the Report to the UN to keep Sri Lanka’s peace keeping operations under review. As already maintained by Sri Lanka, such measures constitute unreasonable and discriminate punitive action against the armed forces of a sovereign state which has engaged in UN peace keeping for six decades in a professional manner, and several members of which have paid the ultimate sacrifice while serving under the UN flag. We urge the UN to refrain from such violation of the principle of the UN Charter on non-interference and sovereignty of states.

The Government has concluded by saying that “we look forward to continuing our engagement with the OHCHR, UN Human Rights mechanisms and procedures, and to continue to work in close co-operation with the international community through capacity building and technical assistance in mutually agreed areas, in keeping with domestic priorities and policies.”

It appears that the Government has three options of a consensual or non-consensual or floating a resolution in favour of Sri Lanka. It needs to be weighed up, especially against the backdrop of the damning and far-reaching Report of the UN High Commissioner for Human Rights.

According to a diplomatic source, “the resolution will contain 90 to 95 % of elements drawn from the Report.” This demonstrates that the position of the response furnished by Sri Lanka is being ignored to a great extent. Does not the procedure of a consensual resolution entail its tacit acceptance, that too by being directly involved in the drafting process?

In fact, by this, it is only a shade less intrusive than co-sponsorship of 30/1 as was done in 2015. Is it prudent to go down the road of supporting a consensual resolution? Of course, the proponents of the resolution would fervently work towards a consensual text, as they would be able to sell it to other members of the Council on the basis that Sri Lanka is on board. The Sri Lankan decision makers on the strategy to be adopted should also give serious thought as to the reason for the proponent to be relentlessly pursuing a consensual text. Is it a way of saving face by the proponents following Sri Lanka’s withdrawal of co-sponsorship as announced in 2020? In this manner, is Sri Lanka ready to accept the dictates of the Human Rights High Commissioner which could form the text of the resolution? Sri Lanka having expressed grave concerns on the report will end up legitimizing the report if it traverses the consensual path.

A non-consensual option would serve Sri Lanka better, as some opposition to the dictates of the resolution would get established, and thereby reduce its sting. It would further demonstrate some support for Sri Lanka against the misplaced agendas and machinations of the resolution’s proponents. Seeking a favourable resolution for Sri Lanka has no place, as its adoption needs to be ensured. Decision makers must also be mindful that there is no resolution which is favourable or otherwise.

Whichever category it may be, a resolution could be built upon in the future to suit the misplaced agendas of the proponents. Hence, a favourable text could be used for negation. Further, basically Sri Lanka should not have a direct approach to the process of negotiations. This appears to be an impossibility at this point. There is also the option of a Chair’s statement which would be pointed in content, which should be considered by the core group, if they have an appetite to be constructive with Sri Lanka.

These developments are a formidable challenge for the Foreign Affairs Ministry which is already saddled with a sagging diplomatic machinery and a failing communications strategy in reaching out to the public. The Government hopes for a closure of the UNHRC issue but given the timelines by the proponents could become conditional.