SL’s Sovereignty and recent Unhrc Resolution
By LakshmanI. Keerthisinghe
A sovereignty is always presumed to act upon principles of justice, and if, from mistake or oversight, it does injury to a nation or an individual, it is always supposed to be ready and willing to repair it.
Roger B. Taney-American Judge
Recently, a resolution was adopted against Sri Lanka’s human rights record by the UN Human Rights Council (UNHRC), granting the UN body a mandate to collect evidence of crimes committed during the country’s three-decade-long civil war against the Liberation Tigers of Tamil Eelam LTTE. The resolution titled ‘Promotion of Reconciliation Accountability and Human Rights in Sri Lanka’ was passed despite heavy lobbying by Sri Lanka.
The resolution calls upon the Sri Lankan Government to ensure prompt thorough and impartial investigation, if warranted, prosecution of all alleged crimes relating to human rights violations and serious violations of international human rights law during the country’s three-decade-long civil war. Sri Lanka rejected the resolution as it was based on false unproven accusations and insisted that its provisions could not be implemented without Colombo’s consent. The pro LTTE Diaspora alleged that 40,000 were massacred during the final stages of the war that ended in 2009 when the government forces killed LTTE leader Velupillai Prabhakaran. Lord Naseby has said this figure is around 7,000 citing evidence. The Sri Lankan Army denies the charge, as it was a humanitarian operation to rid the Tamils of LTTE’s control. At the end of the separatist war, the United Nations accused both sides of atrocities, especially during the conflict’s final stages. India and Japan were among 14 countries that abstained from voting. India has said its stand on the matter is governed by two considerations: support to the minority Tamils and stability and territorial integrity of Sri Lanka.
President Gotabaya Rajapaksa in his first public comments since the UNHRC resolution has observed that the recent UNHRC resolution against the country was the doing of “local and foreign forces” which do not want Sri Lanka to progress and vowed that his government would not succumb to such pressures. He said: “We will never succumb to (such) pressures (UNHRC resolution); we are a free nation. We will not be a victim of big power rivalry in the Indian Ocean.” The President also accused the previous government led by Maithripala Sirisena of betraying Sri Lanka’s sovereignty by co-sponsoring the UN rights resolution in 2015.
Apart from Pakistan, Bangladesh and Uzbekistan, nearly all remaining majority Muslim Member States abstained from voting, including Bahrain and Indonesia. The lack of support from Organisation of Islamic Cooperation (OIC) Member States might be an indication that the Government has paid heavily internationally for its mandatory cremation policy for COVID-19 dead and the proposed ban on the burqa – both moves seen as being discriminatory towards the country’s 2.5 million Muslims. The Government was counting on friendly nations to help to defeat the resolution with China and Pakistan calling for a vote in the Council.
The UNHRC Resolution 46/1 on Sri Lanka steps up monitoring of the Sri Lanka’s human rights situation by the High Commissioner for Human Rights Michelle Bachelet, requesting updates from her Office every six months until the resolution comes up for renewal in September 2022. OHCHR budgetary estimate indicates that operational costs of the resolution would be $ 2.8 million over an 18-month period. OHCHR estimates it will require 12 personnel to staff the mechanism, including three legal advisors, two analysts, two investigators/human rights officers, one information and evidence officer, two juris-linguists, one victim support officer and one programme assistant. The budget estimate also makes provision for a high-level human rights officer for enhanced monitoring to the human rights situation in Sri Lanka.
Operational A few months will elapse before the OHCHR could make the mechanism operational. The project will be led by a high-level legal advisor and methodologies will be developed to analyse and preserve evidence. Strategies will also be designed to monitor support at trials internationally against those accused of violating human rights in Sri Lanka. Under the 2021 resolution the central database at the Office of the High Commissioner for Human Rights (OHCHR) to store and analyse information and evidence of human rights abuses in Sri Lanka would be established..
In conclusion, the Human Rights Council has no legally binding power over States and any tangible action, including targeted sanctions, asset freezes and travel bans against perpetrators of human rights abuses will depend on individual countries to be exercised by such countries under the principles of universal jurisdiction. With the veto powers of China and Russia supporting Sri Lanka the criminal jurisdiction of the International Criminal Court will not be sanctioned by the UN as Sri Lanka is not a signatory to the Rome Statute thereby becoming not amenable to such criminal jurisdiction.
The writer is an Attorney-at-Law with LLB, LLM, MPhil.(Colombo)[email protected]