Opinion
UNHRC’s 49th Session:
A brief recap and suggestions of a way forward
by Dharshan Weerasekera
The United Nations Human Rights Commission’s (UNHRC) 49th Session ended on 1st April and the question is whether it was a success or failure for Sri Lanka. In my opinion, the session was a success because at the interactive dialogue, following the tabling of the High Commissioner’s report on Sri Lanka, 31 nations spoke in support of this country while 12 spoke against. It shows that Sri Lanka is not isolated on the world stage with regard to human rights, as some critics claim.
This is an opportune time to assess the strengths and weaknesses of the government’s position and reflect on a way forward. I argue that,
a) Sri Lanka’s strength at the moment is that the principled stance taken by the government in rejecting resolution 46/1 last year which, among other things, authorised an evidence-gathering mechanism on Sri Lanka was appreciated by the majority of nations,
b) the weakness is that the High Commissioner has called for “alternative strategies’ including universal jurisdiction to pursue allegations of war crimes and other crimes against Sri Lanka and the government will have to deal with these efforts regardless of the domestic mechanisms it has established to address the concerns raised by the Council in resolution 46/1.
In this article, I shall briefly discuss these issues and make some recommendations on a way forward.
The GOSL’s stance and
expressions of support by various nations
At the commencement of the interactive dialogue, Minister of Foreign Affairs Prof. G.L. Peiris eloquently set out the government’s objections to the High Commissioner’s report (A/HRC/49/9) along with resolution 46/1. He says,
“The Resolution 46/1 was adopted by a divided vote in this Council. Sri Lanka and other Member States opposed this resolution in fundamental disagreement with its deeply flawed procedure and unacceptable content, in particular its operative paragraph 6 regarding a so-called evidence-gathering mechanism. The resolution was directly contrary to the Council’s founding principles of impartiality, objectivity and non-selectivity. It went beyond the mandate that Member States conferred on it by UNGA resolution 60/251.” (www.lankamission,org, 4 March 2022).
As pointed out earlier, 31 nations then spoke in support of Sri Lanka. The following are some of the things they said. The head of the Philippine delegation said,
“The Philippines voted against HRC resolution 46/1 as we disagree with the role being set for the OHCHR in collecting evidence and developing strategies for future accountability processes. The decision of the OHCHR to establish an “accountability project” is a breach of the text of the mandate and in effect a usurpation of the role of the State as duty bearer. We are not convinced that OHCHR has the mandate and capacity to carry out this so-called project with the highest standards of objectivity and professional rigor.” (Statement at the interactive dialogue, 4 March 2022)
The head of delegation for Cuba said, “The Human Rights Council must privilege cooperation and constructive dialogue as well as universal mechanisms such as the UPR as the only guarantee to address human rights issues in a fair and non-selective manner. The resolution that gives rise to this dialogue does not have the support of the country concerned. At this point, there should be awareness that any action or mandate that derives from it will only contribute to politicisation, selectivity and double standards that have been imposed on this body and will not make any contribution to the promotion of human rights.” (Statement at the interactive dialogue, 4 March 2022)
The head of delegation for Ethiopia said, “Ethiopia has always stressed the importance of abiding by the principles of universality, impartiality and neutrality. The primary responsibility to promote and protect human rights rests with the individual country. As a subsidiary organ of the General Assembly of the United Nations the Council must live up to the values and fundamental principles enshrined in the Charter and resolution 60/251 which calls for the sovereign equality and respect for agreed international rules—fundamentals which must work for all.” (Statement at the interactive dialogue, 4 March 2022)
Meanwhile, the head of the delegation for Venezuela pointed out, “The Council resolution that gave rise to the submitted written update does not have the consent of Sri Lanka. That resolution set a dangerous precedent by requiring the Office to collect criminal evidence for future prosecutions, a mandate that was never conferred on it by General Assembly resolution 48/141 that created the mandate.” (Statement at the interactive dialogue, 4 March 2022)
Finally, Ambassador Hamid Ahmadi speaking for the Islamic Republic of Iran, said, “The Resolution 60/251 upholds the need for genuine dialogue and cooperation; the UN Human Rights bodies and mechanisms should support Governments, upon their consent, in implementing their obligations under applicable international human rights law and should not assume roles that go beyond their mandates as stated in resolutions 48/141 and 60/251.” (Statement at the interactive dialogue, 4 March 2022)
The above quotes, and there are many others, indicate that the GOSL is on solid legal ground when it insists that in adopting resolution 46/1 the Council has exceeded its mandate. This point should therefore play a central role in any strategy of the GOSL going forward.
The weakness in the GOSL’s position
The weakness in the government’s position is that, in spite of the domestic mechanisms—these include the Office on Missing Persons, Office of Reparations, the Presidential Commission of Inquiry reviewing the conclusions of previous Presidential Commissions including the LLRC and the Paranagama Commission and so on—the High Commissioner has called on the Council to pursue “alternate strategies” including universal jurisdiction to advance accountability. She says,
“The current government has not only demonstrated its unwillingness to pursue accountability, it has incorporated military officials implicated in alleged war crimes into the highest levels of government reinforcing a narrative of impunity. For these reasons, I have called on the Council to pursue alternate strategies to advance accountability at the international level. Regarding our implementation of the accountability related aspects of resolution 46/1, preparatory work is underway. Our team will analyze the information that has been consolidated in the evidence repository using a criminal justice perspective with a view to identifying gaps and priorities for further information collection, and incorporating a victim-centered approach.” (4 March 2022, )
The above indicates that, the work of the repository has progressed considerably and evidence is being “consolidated” with a view to initiating criminal prosecutions. In these circumstances, one can expect actions under universal jurisdiction to start being filed against selected officers and civilian leaders who oversaw the war against the LTTE in the near future.
In the event, the government would have to spend enormous amounts of money to defend the accused persons unless the government plans on leaving them to defend themselves. Meanwhile, the government would also suffer irreparable harm as a result of the loss of face and humiliation of letting officers and men that most Sri Lankans whether rightly or wrongly consider as heroes who fought in order to free the country from terrorism, be dragged in front of foreign courts on charges that the government itself says are based on unsubstantiated allegations.
It would by definition be an exercise in futility for the government to expend energy and resources to address the concerns raised by the Council including to brief members on the progress of the domestic mechanisms if the Council nevertheless persists in such parallel measures. Therefore, the way forward must include the means to deal with this problem.
Recommendations
Firstly, in addition to keeping the friendly nations updated on the activities of the domestic mechanisms, the government should in consultation with the nations that spoke in favour at the 49th session, produce a legal opinion on the impugned evidence-gathering mechanism and file it of record with the Council. This would discourage people, especially judges, from relying on material forwarded by or associated with the unit.
Secondly, the government should establish a mechanism to “collect, consolidate, analyze and preserve” the mountain of material including photographic evidence of soldier’s helping civilians out of the battlefield, records of the food and medicines sent to the conflict during the relevant period, testimonies of foreign journalists and others who were at or near the conflict zone during the crucial period, testimonies of the thousands of rescued civilians as well as rehabilitated LTTE cadres and so on, to create a repository of exculpatory evidence that can be made available to the Council as well as to foreign judges before whom actions under universal jurisdiction may be filed in order to help them gain some perspective on the charges.
Thirdly, the government in consultation with like-minded nations should launch a concerted effort to discuss reform at the UNHRC focused on re-affirming the principles and purposes of the Council. Such a drive would blunt any effort by the “Core Group’ and others to introduce yet another country-specific resolution on Sri Lanka at the UNHRC’s 51st Session in September.
(The writer is an Attorney-at-law and a Consultant to the Strategic Communications Unit of the Lakshman Kadirgamar Institute)