A ‘Compromised’ Resolution might be the best for Sri Lanka

It is unlikely that the US proposed resolution at the UN Human Rights Council (UNHRC) would carry the majority support, as it stands, especially after a US soldier’s killing spree in Afghanistan. Sixteen civilians were brutally killed on Sunday the 11th March and nine among them were children (Asian Tribune, 12 March 2012). Otherwise, on the face of it, there is nothing much that Sri Lanka could grumble about the proposed resolution.

The harbinger for the resolution appears to be a promise that the US State Department representatives had given to the Tamil National Alliance (TNA) after listening to their ‘grievances’ in a series of meetings since October last year. The last meeting was held when Stephen Rapp, the Ambassador-at-large on war crime issues visited the country in early February.

All hypocrisy and ‘imperialism’ apart, the US undoubtedly is credited for championing ‘minority rights’ since the time of Woodrow Wilson at the turn of the last century. Vladimir Lenin in Russia did the same for different reasons at the same time.

From a pure liberal or a socialist point of view, ‘minority rights’ may be of paramount importance for social progress and democracy, but in complex and sensitive ethno-national relations, particularly in Asian countries, minority rights are not something that wets the appetite of ruling parties or governments.

India perhaps is an exceptional country that has struck an uneasy balance in a complex situation between the recognition of some minority rights through its quasi federal structures and the rejection of some others through direct rule and military interventions. Jammu-Kashmir and Assam are examples for the latter.

This is one reason why the Janata Party President, Dr Subramanian Swamy, does not want India to support the US led resolution against Sri Lanka. In his opinion, the support might boomerang on India.

The US is also well known for using ‘minority rights’ as a weapon of political manipulation initially in the Balkans and later in the larger ‘socialist’ Eastern Europe. Many of the former colonial masters, including Great Britain, now in the European Union are also infamous for their ‘divide and rule’ policies during their colonial hegemony over many of the present Asian and African countries.

The above is not the only background why Sri Lanka is vehemently opposing the US initiated resolution, so far backed mainly by the EU countries. Sri Lanka is extremely sensitive to the raising of any ‘accountability’ issue given the conclusions or recommendations of the UN initiated Darusman Report and for other reasons.

It is also natural for any country to resist a ‘country specific’ resolution which could ignite the local opposition on the issues of human rights and democracy. It is not only the local opposition that the government of Sri Lanka is worried about but mainly the LTTE linked Diaspora in the Western countries.

More particularly, the record of Sri Lanka on issues of human rights in general or minority rights in particular cannot be considered satisfactory to say the least. Some reasons for the resolution also appear to be the reasons for the opposition.

Draft Resolution

Titled as “Reconciliation and Accountability in Sri Lanka,” the draft resolution contains five preambular paragraphs and three proposals (Rajasingham, Asian Tribune, 12 March 2012). It is not so much the ‘reconciliation’ aspect that the government is opposing, but the ‘accountability’ dimension.

The first paragraph can be considered common to any resolution on human rights at UNHRC which refers to the UN Charter and other human rights and humanitarian instruments of the UN. The second paragraph is more substantive and specific which cannot be ignored or opposed easily in principle which says the following.

“Reaffirming that States must ensure that any measures taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law, as applicable…”

While there can be arguments whether the US or other supporting countries of the resolution ‘comply with their obligations under international law in combating terrorism,’ that cannot be a valid reason to oppose the stated principle by Sri Lanka or any other country. Otherwise, ‘combating terrorism’ would be left to the ‘law of the jungle’ and general political suppression can result in the name of ‘combating terrorism.’

The very fact that Sri Lanka ‘code named’ the operation against terrorism a ‘humanitarian operation,’ and pronounced a policy of ‘zero civilian casualties,’ reveal Sri Lanka’s overall acceptance of the general principle stated in the resolution.

There are good things and bad things about Sri Lanka stated in the resolution. By and large it is positive about Sri Lanka and its reconciliation efforts. The paragraph three notes the ‘report of the Lessons Learnt and Reconciliation Commission, its findings and recommendations’ and ‘acknowledges its possible contribution to Sri Lanka’s national reconciliation process.’

One may argue that the wording can be more positive or reassuring and that instead of the word ‘noting,’ the UNHRC should ‘recognize’ or ‘endorse’ the LLRC report and without merely acknowledging a ‘possible contribution,’ it should either delete that imprecise phrase or use something like ‘definitive contribution.’

After all, the resolution has ‘welcomed several of the constructive recommendations contained in the LLRC report.’ However, their recording highlights sensitive accountability issues in the first instance and obliterates others and more profound reconciliation recommendations.

This is where the resolution appears to be ‘politically cheeky’ or impertinent. They include ‘the need to credibly investigate widespread allegations of extrajudicial killings and enforced disappearances.’ It should however be noted that these issues are quoted from the LLRC report itself and appear in the paragraphs of the preamble and not in the three proposals directly.

What might be more disagreeable or unnecessary is the paragraph five which ‘notes with concern that the LLRC report does not adequately address serious allegations of violations of international law.’

While the adjective ‘adequately’ gives the impression that the LLRC has ‘inadequately’ addressed the allegations of violations of international law,’ to be fair by the LLRC, to my knowledge, the mandate or the provisions did not allow the LLRC to go into these matters in any substantive manner.

The LLRC was a ‘commission on lessons learnt and reconciliation’ and not on ‘accountability’ or ‘international law.’ It is as a result of the submissions produced before the commission that the LLRC has made recommendations on further investigating the issues of ‘extrajudicial killings and disappearances.’

What the draft resolution has terribly failed to specifically state is the observations and recommendations that the LLRC has made in respect of the LTTE atrocities as they were brought before the commission through various submissions. In this sense, the resolution appears to be grossly partial, advertently or inadvertently.

Three Proposals

The first proposal of the resolution ‘calls upon the government of Sri Lanka to implement the constructive recommendations of the LLRC.’ This may appear strange as the LLRC itself was an appointed commission by the government. Nevertheless, it is a well-known fact that many of the recommendations of commissions in Sri Lanka in the past by default had not been implemented.

There are valid complaints particularly from the moderate Tamil community that the government is dragging its feet on the question of implementation of the LLRC recommendations. Therefore, there is nothing wrong on the part of the UNHRC to put some weight behind the LLRC recommendations, without interfering in ‘internal affairs’ of the country, to ensure their speedy implementation.

However, there is more to the proposal generating some reasonable anger from the government. It calls upon the government ‘to take all necessary additional steps to fulfill its relevant legal obligations.’ While the ‘necessary additional steps’ are not clear, the ‘legal obligations’ are clearly defined in the previous paragraphs of the preamble as the ‘international human rights and humanitarian law as applicable to the combat of terrorism.’

There can be suspicion that these ‘additional steps’ could even mean ‘war crime tribunals’ in addition to what the LLRC has recommended as independent investigations on ‘extra-judicial killings and disappearances.’ If the above section is removed and the proposal is restricted to the investigations on ‘extra-judicial killings and disappearances,’ then the government of Sri Lanka is in safe grounds. Otherwise, it will be in serious trouble if the resolution is adopted by the Human Rights Council.

The remaining section of the first proposal may be quite acceptable which calls upon the ‘commitment of the government to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans.’

The second proposal of the resolution is mainly a request. It is a request “to present, as expeditiously as possible, a comprehensive action plan detailing the steps that the Government has taken and will take to implement the recommendations made in the Commission’s report.”

But it also has a catch. It requests simultaneously a comprehensive action plan detailing the steps that the Government has taken and will take “also to address alleged violations of international law.” If a ‘war crime tribunal’ is anathema to the government, then this request is also anathema for the same reason. Any compromise on the part of the government, if any, also would request the exclusion of this section.

The third proposal of the resolution ‘quite innocently’ (it may appear) “encourages the office of the UN High Commissioner for Human Rights and the relevant special procedures mandate holders to provide and the Government of Sri Lanka to accept, advice and technical assistance on implementing the above mentioned steps.”

The advice and technical assistance may mean the stationing of a representative of the High Commissioner or an office of the High Commissioner in Colombo. The relevant ‘special procedure mandate holders’ mean the various committees and rapporteurs on specific subjects like ‘extra-judicial killings,’ ‘disappearances,’ ‘torture’ etc. They may tour on and off in the country.

The proposal also ‘encourages’ the Office of the High Commissioner to present a report on the provision of such assistance to the Human Rights Council at its twenty-second session.
There would be no need to ‘encourage,’ but a report will be there with all interesting details if the resolution is carried as it is.

Conclusion

Writing from far away, ‘down under,’ it does not appear that the government or the relevant officials have understood the gravity of the situation as outlined in the resolution presented to the Human Rights Council. It is reported that over forty member entourage sojourned Geneva in late February, having fun and recreation, well before even the resolution was presented.

As far as the draft resolution is concerned, the content is mild but subtle. It pinches where it meant to be pinched. Yet it leaves room open for a compromise if need be.

There is a possibility that Russia and China and even India might come to the rescue of Sri Lanka at the last moment, but the question will remain whether the country is now going in the right direction in respect of human rights, democracy or reconciliation.

It is not so much the past that concerns the human rights community inside and outside the country, but primarily the present and the future. To correct the present and the future, what happened in the past is only a guide or a barometer.

The best option for Sri Lanka is to strike a compromise perhaps through the assistance of India to limit the resolution to the recommendations of the LLRC, including the independent investigations on all extra-judicial killings and disappearances. Disregarding who has authored it, the present resolution allows ample room for such changes.

If Sri Lanka is willing to compromise, it will also indicate that the country is ready to go in the right direction of reconciliation, human rights and democracy. Otherwise it again will dip into conflict, repression, chaos and anti-democratic deviations. The credibility of the country as a democracy will be at stake.

Laksiri Fernando, former Senior Professor of Political Science at the University of Colombo, is now a Visiting Scholar at the University of Sydney, after retirement.

- Asian Tribune –

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