UNHRC Resolution 30/1 Implications for Sri Lanka (Part II) (Based on a presentation to the OPA)

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By 2017-10-13

By Dr. Palitha Kohona

What are the consequences of cosponsoring the resolution for Sri Lanka? First, it must be remembered that a resolution of the Human Rights Council (HRC) is not binding. There is no obligation on the part of the target country to give effect to such a resolution. A Human Rights Council resolution is binding on the United Nations (UN) High Commissioner for Human Rights and his Secretariat, but not on Member States of the UN.

One must remember that even a resolution of the United Nations General Assembly (UNGA) has no binding effect. The freedom of action of the High Commissioner pursuant to a Council resolution is limited by what the target country would allow him to do within its jurisdiction. The impotence of the High Commissioner has been demonstrated, in a practical sense, time and time again, by countries which were regular targets of Council resolutions. Iran, Israel, Belorussia (Belarus), Syria, and others have had many resolutions adopted against them. And they happily ignore these. There are many such resolutions and reports produced by the High Commissioner which are gathering dust in the Secretariat simply because the target countries have refused to cooperate.

Are there possible consequences for noncompliance with a Council resolution? The Council is not empowered to impose penalties on a recalcitrant State, but the matter of a serious and persistent violator of human rights could be raised at an appropriate UN agency with punitive powers, such as the UN Security Council. Given the political nature of the Security Council, it takes considerable effort to get approval for any sanctions initiative, even if the other requirements of the Charter are satisfied. Those with powerful friends are always shielded at the Security Council. The Council is also unlikely to set a precedent that could make lives difficult for its members. It was not without reason that the West did not bring the matter of alleged Sri Lankan violations of global human rights standards before the UN Security Council.

Bilateral measures

The option of bilateral measures against Sri Lanka was always a possibility and due to their political nature, they were not dependent on HRC resolutions. Bilateral measures, which are invariably selective and politically motivated, are usually based on other factors which may not necessarily be legal, not on HRC resolutions. The European Union (EU) suspended the Generalised Scheme of Preference (GSP) Plus concession in the case of Sri Lanka before there was any action adopted by the HRC. Similarly, Washington suspended the promised Millennium Challenge Account concessions with no sight of any HRC action against Sri Lanka.

It could legitimately be asked whether the Council exceeded its mandate in adopting Resolution 30/1 in its final form. The Council was established by the UNGA to assist countries to improve their human rights standards, not to drag them over the coals in a targeted manner for alleged violations of global human rights standards. Certainly, selective political victimization was not one of the objectives of establishing the Human Rights Council. The Council has been overly politicised and it has been severely criticized for its selective application of global standards, mainly to non-European countries.

Sri Lanka decided to cosponsor the 2015 resolution. This, while not creating a legal obligation, certainly creates at least a powerful moral obligation to implement its provisions, but moral obligations in the international arena belong to a grey area. Many states would interpret moral obligations to suit their own circumstances. Others would give effect to them in bits and pieces. Yet, others would simply let them drift into history. Having said that, one could argue that a country's credibility would depend on complying with obligations it has voluntarily undertaken. In the international arena, it is not advisable to walk away from voluntarily adopted obligations, especially for a small country.

It is possible that a country which is not obliged to comply with a resolution can be talked into complying. We note that arange of international players, including Prince Zeid bin Ra'ad al-Hussein, the UN High Commissioner for Human Rights, Ben Emmerson, the Special Mandate Holder, Pablo de Greiff, the UN Special Rapporteur on the promotion of truth, justice, reparation, and non-recurrence, many other special rapporteurs, Alice Wells, Assistant Secretary of State, and even the US Ambassador in Colombo, Atul Keshap, are doing exactly that.

Or it could convince itself into complying. This may also be happening in Sri Lanka today. Egged on by the West dependent NGO community, the government appears to be bending over backwards to comply with the resolution, occasionally stopping to worry about the gathering storm of public criticism, although the President and the Prime Minister, both, have said that there will be no foreign Judges in the tribunals to investigate allegations against military personnel. The President has further said that war heroes will not be dragged before international tribunals. It would have been so much more sensible to have inserted a suitable qualification to the resolution at the time of cosponsoring. The struggle to qualify the resolution under domestic pressure, post facto, does our international image no good.

Stream of Western dignitaries

A stream of Western dignitaries and the former UN Secretary-General have visited the country and have given copious advice on the value of complying with the Human Rights Council resolution. Some would say that a high dosage of pressure has been applied on Sri Lanka. The many purveyors of pressure have included the former Secretary of State, John Kerry. The former UN Secretary-General, having resisted visiting Sri Lanka since the end of the conflict during the Rajapaksa presidency, decided to drop in with only four months left of his tenure of office, perhaps to add weight to the efforts of those trying to convince Sri Lanka to comply with the resolution. It is more than likely that he received a nod and a wink from Washington before he undertook this journey. Intriguingly, the Secretary-General apparently had given an assurance that he would have the resolution implemented.

This could have been another occasion that he has simply shot his mouth off without appreciating the gravity of what he was saying? His powers of implementation are only illusory. As Foreign Minister Lavrov once observed, when he was the Ambassador in New York and was requested not to smoke in the building on the orders of the Secretary-General (SG), "The Secretary-General is no General. Just a Secretary." Lavrov continued to smoke.

Compliance with the resolution, we are told, is the passport to enter the heaven of acceptance provided by the international community. (In reality, a small group of Western countries whose economic and military clout in the world may not be as significant as it used to be). In parallel, elements of the opposition continue to harp on the dangers of the UN Human Rights Council resolution, forcing the government to defend itself ever so vigorously and its efforts to comply with it. Thus, we have the ideal combination of circumstances, both external and internal, conducive to giving effect to the resolution. It is noted that many of the UN Human Rights Council country specific resolutions adopted by majority vote remain unimplemented. Many resolutions targeting the bad apples, as identified by the so called 'international community,' have been regularly adopted by the UNHRC and are just as routinely ignored. We have the usual club of suspects such as North Korea, Syria, Iran, and Belarus in this category.

Israel gets targeted regularly by the majority of the membership of the Council while some members of the 'international community,' the champions of human rights, abstain or vote against the resolutions on Israel. The US has even threatened to pull out of the whole process given the 'unfair' treatment of Israel by the Council. Myanmar has escaped the basket of bad apples and, up until the eruption of the Rohingya crisis, asked to pay a relatively small price for its newly acquired status. The real question is whether much has changed in the behaviour of the bad apples as a consequence of the adoption of UNHCR resolutions and increasingly shrill cries of the human rights community. The answer has to be a resounding 'no.'

Extreme selectivity

The extreme selectivity of the UN Human Rights Council resolutions, and the avoidance of the rich and the powerful in its criticisms, has made these resolutions all but meaningless. The big powers studiously avoid criticising each other or highlighting their own breaches. Serious and repeated violations of internationally agreed human rights standards by certain countries tend to escape the attention of the Council, while others get targeted regularly. No country quakes in its boots at the prospect of a Council resolution being adopted against it. Many members of the HRC could not understand why Sri Lanka spent so much time, energy, and resources fighting the adoption of resolutions in the past when the outcome seemed to be obvious and the willingness with which it cosponsored the resolution in 2015 with such objectionable provisions.

Many provisions of the 2015 resolution have gone way beyond the mandate of the Council. For example, it welcomes the government's commitment to devolve political authority by taking necessary constitutional measures, affirms the importance of participation in a Sri Lankan judicial mechanism, including the special counsel's office, of foreign Judges, defence lawyers and authorized prosecutors and investigators, encourages the government to accelerate the return of land to civilians and end the involvement of the military in civilian activity, provides advice on the retention and recruitment of personnel into the security services, etc. It could be argued that the Council, created with a mandate to advance the adherence to global human rights standards, not just standards favoured by a group of Western countries, had no business calling on a sovereign State which had only recently emerged from a devastating terrorist challenge to its territorial integrity and sovereignty, to leave all else aside and proceed to reduce its security forces from a part of the country, return land acquired for security reasons or introduce constitutional amendments. And now, there is pressure to do these things post-haste, fuelling the goals of extremist elements.

Sri Lanka's enthusiasm for cosponsoring the resolution of 2015, may not have gone down too well with its traditional supporters.

The precedent it set could be unhelpful to many. It is doubtful if Sri Lanka did itself any substantive favours either. If Sri Lanka were to renege on the commitments, that it so readily undertook, it may be confronted with the wrath of the so called 'international community' and it would not be surprising if the traditional supporters just turned the other way.

Enthusiasm

The enthusiasm with which Sri Lanka agreed to comply with prescriptions for reconciliation recommended by external entities will come to bite it sooner than later. As to whether these external entities, essentially the so called 'international community,' took the trouble to take into account the views of all elements of the Sri Lankan population or only the concerns of the pressure groups operating in their own countries is a valid question to ask. Judging by the reactions of a significant and vocal part of the Sri Lankan population, it is doubtful that they took much pain to reflect the concerns of the majority of the people. Unfortunately, this could be a recipe for generating serious disenchantment and the releasing of uncontrollable forces as has happened in the past.

Have the High Commissioner and his advisers paused to consider the consequences of pushing for the implementation of the resolution knowing the widespread resentment that it has generated? Is his desire to see blood on the streets to achieve his goals? One recalls the situation resulting from the Indo-Lanka Accord and the years of bloodshed that followed.

More significantly, Theresa May's UK does not appear to be obsessed with Sri Lanka's alleged wrongdoings as David Cameron was. President Trump has consistently emphasized the sacrosanct nature of sovereignty and it is unlikely that he will seek to impose US standards on any country, leave alone distant Sri Lanka.

External prescriptions have hardly ever assisted a country to resolve its internal problems.

Usually, a country's problems are exacerbated by blind adherence to externally prescribed cures.

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