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US Resolution on Sri Lanka at UNHRC in Geneva Envisages Establishment of International Investigation Mechanism to Monitor an Internal Process

By
Tamara Kunanayakam

(Tamara Kunanayakam is a Former Sri Lankan Ambassador to the UN in Geneva)

These past few weeks, the Sri Lankan media and Indian officials have echoed US claims that its latest draft resolution is only procedural and, hence, will not harm Sri Lanka’s national interests and sovereignty. According to other media reports, “there is no call for an international investigation.” A closer examination of the latest draft text will show, however, that such claims are incorrect and misleading.

An international investigation mechanism in its embryonic form

Despite certain changes made to earlier drafts, some of which reflect concessions to neutralise or win over hesitant developing countries or to satisfy India, and others essentially cosmetic, to placate Sri Lanka or provide it with a face-saving device to acquiesce, the bottom line as far as bringing Sri Lanka under international scrutiny is concerned, remains unchanged and negotiations have produced a harsher rather than a softer text.

The bottom line is the maintenance of operative paragraphs 3 and 6, which have to do with the establishment of an international mechanism to monitor an internal process. The mechanism envisaged is, in fact, the international investigation mechanism initially foreseen in the Darusman Report and reproduced in the Navi Pillay Report, albeit in its embryonic form.

By adopting the US draft, the Council will mandate the Office of the High Commissioner for Human Rights (OHCHR) to monitor the domestic process. The Office is requested to report to the Council, at two consecutive sessions, on the implementation by the Government of the various steps expected of it, particularly in relation to accountability. The steps are outlined in considerable detail in the draft, but the most important ones are to be found in operative paragraph 3, which reiterates its call on the Government to implement the LLRC’s recommendations, but more importantly, ‘to take all additional steps to fulfil its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity and accountability, including alleged violations of international human rights law and international humanitarian law…’

Although, a number of media reports dismiss the present US draft arguing that it is simply a repetition of the request in the March 2012 US-sponsored resolution, the monitoring role given to an external entity to report to the Council on Sri Lanka’s actions is dangerously new. Unlike the March 2012 resolution, the present draft does not count on information provided by the Government on the steps taken domestically. That task is now given to an external mechanism. The Council will now rely on OHCHR to provide the information.

More importantly, it should be noted that in both the Darusman and the Navi Pillay reports, monitoring is an aspect of the mandate envisaged for the international investigation mechanism.

The Navi Pillay Report calls for “an independent and credible international investigation into alleged violations of international human rights and humanitarian law,” which, she says, “could also monitor any domestic accountability process.”

In the Darusman Report, monitoring of the domestic accountability process is one of three “concurrent functions” envisaged for the “independent International mechanism” (Recommendation 1 (B)). It recommends that the mechanism “(monitor and assess the extent to which the Government of Sri Lanka is carrying out an effective domestic accountability process, including genuine investigations of the alleged 
violations …” Other functions include conduct of independent investigations and “collection and safeguard for appropriate future use” of information provided to it, including that gathered by the Panel and the UN System.

The message that the latest US draft seeks to convey is clear: the international community has lost, or is rapidly losing, confidence in the Government’s willingness and ability to carry out its domestic accountability process effectively and to protect its own citizens, and Sri Lanka is failing in its duty to cooperate with UN mechanisms in resolving problems of a humanitarian character and in promoting and encouraging respect for human rights, and, hence, acting contrary to the UN Charter. This is reflected in its operative paragraph, which calls upon the Government to cooperate with the special procedures mechanisms and formally respond to their outstanding requests to visit the country.

Gradually, the stage is being set for resort to the so-called “Responsibility to Protect” (R2P) and an international war crimes investigation, with the attendant consequences for people and country of possible unilateral economic, trade, financial, political sanctions, embargoes, etc., including military intervention.

Ominously, the very first operative paragraph of the US draft alerts the Government to the likely next step envisaged. It places on record the High Commissioner’s call for “an independent and credible international investigation into alleged violations of international human rights law and international humanitarian law,” in other words “war crimes” if proven to exist. It is of significance that the paragraph in question was moved from the preamble to the operative section of the latest draft, significantly strengthening the text.

A step-by-step process

A few days from its very likely adoption, it is appropriate to take stock of where we are on the road to the infamous R2P and an international war crimes investigation.

According to their logic, it must be demonstrated that: (1) there are credible allegations of violations of international humanitarian and human rights law; (2) domestic efforts at accountability have failed and violations continue; and, (3) the State is unwilling or incapable of protecting its own citizens by preventing continued violations and by conducting “genuine” investigations into or prosecuting the alleged “war crimes.”

The text of the US draft anticipates these requirements. It also provides the manner in which the case would be brought, how the parties would be informed, and evidence presented. It imposes specific time limitations that would hasten the pace of the proceedings that would counter the meanwhile threadbare “time and space” plea, bereft of vision, strategy and reasoning.

Sri Lanka internationalises Sri Lanka – down the slippery slope!

The opportunity to tie Sri Lanka down internationally was provided by Sri Lanka itself. In 2009, in an informal meeting at the United Nations in New York, before the May 19 victory over the LTTE, Sri Lanka committed itself internationally to a domestic accountability mechanism. It is an open secret in UN circles that if you give a finger to the US, it would take your whole arm and down the slippery slope!

In May 2009, soon after the “voluntary commitment,” the UN Secretary-General Ban-Ki moon visited Sri Lanka and formalised the commitment in a Joint Statement with the Government of Sri Lanka. Simultaneously, the Europeans initiated the May 2009 Special Session of the Human Rights Council, but failed to place Sri Lanka on the agenda. In June 2010, the UN Secretary-General established the Darusman Panel, composed of individuals close to Washington and Brussels, “to advise him on the implementation of the joint commitment,” setting the stage for an international war crimes investigation.

A catalogue of “credible allegations”

US actions to place Sri Lanka on the UN agenda have been accompanied by moves to establish the existence of “credible” allegations of violations of international human rights and humanitarian law, and a road map to create the conditions for unilateral intervention with, to the extent possible, multilateral legitimacy.

The Panel claimed it had found “credible allegations … of serious violations of international humanitarian law and international human rights law,” language that also appears in the latest US draft.

It recommended the immediate commencement by the Government of genuine investigations into the allegations (Recommendation 1 (A)); and, the immediate establishment by the Secretary-General of an independent mechanism with the mandate to (a) monitor the domestic process; (b) conduct independent investigations; and, (c) gather and safeguard “for appropriate future use” information relevant to accountability, including that gathered by the Panel and other UN bodies. (Recommendation 1 (B))

The process resembles a road-map

Recommendation 1 (A) of the Darusman Panel was set in motion by the March 2012 resolution, which gave a clear indication of the next steps and tied Sri Lanka to a 1-year timeline in which to initiate “credible and independent” actions on accountability and reconciliation. By pointing to gaps in the LLRC, it signalled that its future focus would be on accountability. It also permitted the High Commissioner to give official status to the Darusman Report, and submit to the Council at its current session a political report, rather than the requested technical report, a fait accompli.

The latest US draft reflects Recommendation 1(B) (i) of the Darusman Panel, referred to above, with an even shorter timeline to initiate a credible and independent domestic process.

Once adopted, the US resolution would provide ex post facto legitimacy to both the Darusman Report and the Navi Pillay Report, and, thereby, also to the allegations contained therein. Unchallenged, the High Commissioner’s conclusions and recommendations seem to have found their way into the US draft, which, in its first and second operative paragraphs, welcomes her report and urges the Government to implement the recommendations.

“Failure of domestic accountability efforts and continuing violations”

The Darusman Report, the Stephen Rapp Report, the US-initiated March 2012 Council resolution, and the latest Navi Pillay Report all concluded that the LLRC had failed to address accountability issues. Hence, they called upon the Government to establish an independent, credible, and effective domestic process or mechanism to investigate into the alleged violations of international humanitarian and human rights law.

Navi Pillay’s conclusions could have been foreseen a year ago, long before her team visited Sri Lanka. In March 2012, she told the Council that the LLRC had fallen short of the accountability process recommended by the Darusman Panel. In her latest report, she is categorical that the steps taken by the Government have been “inconclusive, and lack the independence and impartiality required to inspire confidence.”

The latest US draft resolution goes further and expresses concern that neither the National Plan of Action nor the LLRC report adequately address serious allegations of violations of international human rights law and international humanitarian law.

Furthermore, the concern expressed in the US draft for “continuing reports of violations of human rights in Sri Lanka” is another way of saying that the Government is incapable or unwilling to protect its own citizens even in peace time. It also serves to legitimise the Council’s action, given that it is mandated to respond to ongoing violations, not historic cases.

OHCHR to play US proxy

One of the first steps that the High Commissioner is likely to take is to establish a team to undertake the monitoring operation, including through reinforcement of the human rights advisor currently attached to the UN Office in Colombo. Let us recall that establishing a field office for monitoring purposes was the aim of our detractors ever since 2006, when the then High Commissioner Louise Arbour visited Sri Lanka! It is likely that the funds to pay towards staff and programmes would come from voluntary funds, which are generally tied, and whose origins are likely to be the main sponsors of the resolution. Whatever the name given to the human rights advisor’s entity in Colombo, once the resolution is adopted, it would function as a “field office” with a monitoring mission!

The resolution would effectively assign the role of US proxy to OHCHR, a familiar role, given its dependence on voluntary funds from rich countries for some 90% of its staff and programmes. The Office would thus be providing the desired multilateral legitimacy to what would effectively amount to unilateral intervention.

We could anticipate that the High Commissioner’s next reports would seek to demonstrate that Sri Lanka has not complied with the Council’s request, has failed to cooperate with the UN, and is unwilling or unable to protect its own citizens, a conclusion that may lead to the establishment of the full-fledged international investigation mechanism envisaged in the Darusman and Navi Pillay reports.

In a move that must be closely watched, the High Commissioner could request the Security Council to report to it on the results of her monitoring of Sri Lanka’s domestic process. Although, it would be up to the Security Council to decide whether or not to accede to the request, the support that Sri Lanka would receive within the Council from China and Russia cannot be taken for granted. In international politics there are only interests. If Sri Lanka is seen to be drifting towards the US, away from its traditional friends and allies, making concessions and compromising on principles at their cost, then these same countries would exercise their influence to bring Sri Lanka back. It is also certain that they would not intervene in a conflict between India and Sri Lanka, between neighbours, who are not within their natural zone of influence.

A pawn on the Grand Asian Chessboard!

For the United States, Sri Lanka is a pawn on the Grand Asian Chessboard.

Its objectives are to gain a foothold on a strategic maritime corridor, a historical platform linking West and East and East and West, and to simultaneously use the Sri Lanka case to establish international jurisprudence to obtain multilateral legitimacy for unilateral interventions based on concepts such as R2P and “Failed States.” It must be recalled that Sri Lanka figures on the Failed States Index produced by a research institution linked to the US State Department.

The US vision of the world does not hold a place for a multilateral system, based on sovereign equality, which it considers to be an anachronism that must be changed. Sovereignty, independence, non-interference, territorial integrity, the right of peoples to self-determination and permanent sovereignty over national wealth and resources are all principles that it considers out-of-date.

For Sri Lanka, a consensus resolution, which would necessarily be associated with compromise and concessions, would imply a reduction in the space available to the defence of its sovereignty and independence and the exercise by its people of their sovereign right to choose their own political, economic, social and cultural system!

Internationally, the creation of a precedent would contribute to weakening the position of our natural allies in the developing world at a time when our collective independence and sovereignty is under attack. It would also undermine regional cohesion in Asia, to which Sri Lanka belongs, and its capacity to resolve its own problems and differences and achieve greater regional integration and solidarity.

An alternative is possible!

If there is the political will, Sri Lanka could unite with its natural allies and partners on the basis of common interests, solidarity and genuine cooperation, as has been demonstrated by a country like Cuba, which, despite being subject to a criminal blockade for more than half a century, has succeeded in isolating the United States of America within the UN General Assembly.

Sri Lanka can also take pride in the historical role it played as promoter of the Non-Aligned Movement, for which it has gained the respect and admiration of countries in Africa, Asia, Latin America and the Caribbean, and for which it is still remembered.

Even in our recent history, whenever we turned toward our friends in a spirit of solidarity, we have succeeded in defeating US ad Western manoeuvres, beginning with the 2009 Special Session, where our then Permanent Representative in Geneva, Dr. Dayan Jayatilleke, mobilised support for a precedent-setting resolution in favour of the domestic process and respect for national sovereignty. And, again in September 2011, we succeeded in obtaining a US retreat and blocking manoeuvres to place Sri Lanka on the Council’s agenda and to obtain UN recognition for the Darusman Report. How can we forget, even in March 2012, the various expressions of solidarity and support received from our allies in the developing world who said, simply, “Thank you, for fighting on our behalf!”

Yes, an alternative is possible!
COURTESY:DAILY MIRROR