Sunday Times 2
Weaponising human rights: The dilemma for Sri Lanka at UNHRC
Beginning February 28, the UN Human Rights Council (HRC) will consider a written report on Sri Lanka by the Human Rights High Commissioner at its 49th Session, in Geneva. This prospective written Report was required by the UNHRC through a Resolution passed at its 46th Session in March 2021 (46/1).
Concerns about Human Rights in Sri Lanka began soon after the 30-year terrorist war ended in May 2009. At the HRC’s 19th Session in 2012, a core group of countries tabled a Resolution (A/HRC/RES/19/2) on Sri Lanka that was followed by six other resolutions at various sessions of the HRC. The Resolutions varied in content, with the Office of the High Commissioner for Human Rights (OHCHR) obligated to present at regular intervals oral and written reports on Human Rights in Sri Lanka.
Given the escalating requirements and the trajectories of successive HRC Resolutions on Sri Lanka, the anticipated written report does not bode well for the nation. It is evident that increasingly, human rights are being weaponised to push States into conformity with political agendas and moral platitudes that at times exceed human rights concerns. The intent has been to punish sovereign governments than to advise. Successive HRC Resolutions and OHCHR Reports on Sri Lanka have become increasingly adversarial and accusatory, losing sight of the original intent for the creation of the HRC and the OHCHR.
The mandates of HRC and OHCHR
The mandates of the UNHRC and OHCHR are derived from two key UN General Assembly resolutions. UNGA Resolution 48/141 provides the mandate for the OHCHR. UNGA Resolution 60/251 provides the mandate for the HRC. Key prefatory clauses (PCs) and operative clauses (OC’s) direct the activities of both entities.
Both 48/141 and 60/251 recognise that upholding human rights is the sole and exclusive responsibility of each State.
PC.9 of 60/251 recognises that in the work undertaken by the HRC it should ensure “universality, objectivity and non-selectivity in the consideration of human rights issues, and the elimination of double standards and politicisation”.
OC.3 of 60/251 delineates the responsibilities of the HRC to “address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon.” In engaging on such work, the HRC is directed to: “be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation.” (OC.4)
OHCHR mandate 48/141, similarly, has key PCs and OCs, the most important ones being that the OHCHR should be “guided by the principles of impartiality, objectivity and non-selectivity”, and that it should function within the framework of the UN Charter and international law including the obligations, within this framework, to respect the sovereignty, territorial integrity and domestic jurisdictions of States…..” (OC 3(a)).
The above are, in turn, derived from the UN Charter, in particular, Article 2(7) that prohibits the United Nations from intervening “in matters which are essentially within the domestic jurisdiction of any State or…. require the Members to submit such matters to the United Nations;….”.
It is clear that both entities were set-up to provide advisory and consultative services. There is nothing in both mandates that anoints an investigative function on or that permits the HRC or OHCHR to recommend sanctions or penalties to be imposed on any member country.
The force of Resolutions
HRC Resolution 19/2 of 2012 was really a critique of the Lessons Learnt and Reconciliation Commission (LLRC) report. It concluded that the LLRC Recommendations were “constructive” but did not adequately “address serious allegations of violations of international law.” It recommended that Sri Lanka implement the recommendations. Sri Lanka is not a party to 19/2.
The succeeding HRC Resolutions 22/1, 25/1, 30/1, 34/1, 40/1, culminating in 46/1 of March 2021 are characteristic of the escalating calls on Sri Lanka on Human Rights issues, requiring accountability due to lack of reliability or objectivity in the LLRC, the Paranagama Report and the present Commission of Inquiry. There are increasing calls for independent international commissions and for the application of universal jurisdiction in member States. Calls, for the full implementation of the 13th Amendment; the establishment of an independent judicial mechanism with foreign judges and prosecutors to conduct hearings; and the repeal and replacement of the Prevention of Terrorism Act, all matters, within the domestic jurisdiction of Sri Lanka, would have had profoundly serious, political, social and constitutional repercussions, if implemented without caution.
The relentless pursuit of Sri Lanka through the above resolutions resulted, under 25/1 of March 2014, in the OHCHR establishing an unprecedent Office of Investigation on Sri Lanka (OISL). Consequently, a Panel of Experts under OISL wrote a devastating report in which the Panel recommended, among others, imposition of sanctions, and trying of individuals in States exercising universal jurisdiction. Subsequently, 46/1, and yet again unprecedented, the HRC, decided to strengthen the capacity of the OHCHR among other things “for future accountability processes for gross violations of … international humanitarian law in Sri Lanka, to advocate for victims and survivors, and to support relevant judicial and other proceedings including in Member States, with competent jurisdiction;”.
The OHCHR then institutionalised this decision by creating the “Sri Lanka Accountability Project” in complete disregard of the HRC and the OHCHR mandates. These actions have created dangerous precedents not only for Sri Lanka, but for all member States.
The effects of resolutions:
As a matter of international law, HRC and OHCHR Resolutions on Sri Lanka are generally not binding (except, perhaps for 30/1, 34/1 and 40/1 that Sri Lanka co-sponsored and have since withdrawn from). In any event all the previous Resolutions have been superseded by 46/1 which is also not binding on Sri Lanka since it is not party to it. Yet, Resolutions can have serious consequences for a member state selected for “review”. First, there is the reputational risk, where a State can be considered as a country in which there is systemic and systematic violation and abuse of human rights.
Resolutions and reports supporting such Resolutions that are not objective and take an anti-state stance, emboldens actors and NGOs which have vocally agitated against the State to boldly renew their agitation. Emboldened by 46/1, LTTE fronts (the LTTE is proscribed in over 30 countries) and their representatives have influenced national legislatures such as influencing Resolution 413 in the US House of Congress. They have brazenly filed law suits, for instance in November 2021 against the Council of Europe in the General Court of the European Union for the removal of restrictions placed on the LTTE.
Finally, and of most concern is that Resolutions of this nature create platforms for the imposition of sanctions on States, both economic and personal and provide justifications for them.
Resolutions, however, can have positive effects if, in conformity with the mandates, they are objective advisories about the present status of human rights in member states; and identify the areas where the OHCHR and HRC can provide technical assistance at the request of member states with their full cooperation and consultation.
Weaponisation
It is quite clear from the statements made by many responsible state representatives that human rights are being used to pursue a broader political agenda. In the House of Commons during a “Written questions and answers” session on 20 January, 2022, the Secretary of State for Foreign, Commonwealth and Development Affairs, Amanda Milling, responding to a question about considering sanctions on one of the most senior Generals of the Sri Lankan army responded: “Sanctions are one response among a number of diplomatic tools we can deploy around the world as part of a broader political strategy in order to change or send a political signal regarding particular behaviours. The Global Human Rights Sanctions regime gives the UK a powerful tool to hold to account those involved in serious human rights violations…”.
Former US/UN Ambassador Nikki Haley citing the treatment of Israel by the HRC stated: “this disproportionate focus and unending hostility towards Israel is clear proof that the Council is motivated by political bias, not by human rights.”
The present US Secretary of State Tony Blinken also stated with reference to the HRC:
“We recognise that the Human Rights Council is a flawed body, in need of reform to its agenda, membership and focus.”
Facing the dilemma
This summary review of the mandates and resolutions of OHCHR and HCR should not be read to conclude that successive Governments of Sri Lanka be fully absolved of each and every alleged or purported human rights violation reported by the HCR and OHCHR. Rather, it is a narrative about the lack of objectivity, of a tone of aggression and an adversarial approach towards Sri Lanka in the Resolutions, that is its focus. It seeks to demonstrate that the HCR and OHCHR have been increasingly politicised, at times, beyond human rights concerns.
Sri Lanka needs to address, some current and past issues on Human Rights as expressed in the Resolutions. Addressing issues of reparations, amendments to the Prevention of Terrorism Act and international legal aspects of accountability are some. To be fair, Sri Lanka has already addressed many of the reconciliation and accountability issues, as iterated by the Foreign Minister of Sri Lanka on 14th September 2021 at the HRC’s 48th Session.
In its current mood it is, however, unlikely that anything that Sri Lanka does will be considered adequate by the core members and their supporters in the HRC. Nonetheless, the strategy to cooperate with the UN and UN bodies to the extent of addressing issues raised by them that are clearly within the mandates of those bodies, is the right approach. Even more important,
Sri Lanka must now embark on improving its bilateral relations with all members of the HRC.
The UN itself recognises that upholding of Human Rights is the exclusive responsibility of each State. Sri Lanka must, therefore, squarely meet the challenges before it, not because of external pressures of the HRC or OHCHR to do so, but because ultimately that is the high responsibility every State owes to all its citizens. That is the moral imperative.
(Prof Srilal M Perera,
is Adjunct Professor of Law at the University of Miami Law School,
Coral Gables, Florida.)
The longer version of this article will be uploaded to our website
timesonline.lk next week.