By Tamara Kunanayakam,
former Ambassador and Permanent Representative to the United Nations in Geneva
and
Dr. PalithaKohona,
former Ambassador and Permanent Representative to the United Nations in New York

July 21, 2017, 12:00 pm

The Human Rights Council Special Rapporteur Ben Emmerson’s haughty statement at a media briefing in Colombo on 14 July,with the UN Resident Representative at his side not contradicting the special rapporteur in any way, and his official communiqué in Geneva on 18 July, is arbitrary, judgmental, arrogant, accusatory, threatening, interventionist,and insulting. It reeks of the worst white supremacist holier than thou attitude with regard to the non white world. When a national of a country, which has persistently violated human rights standards, including in Sri Lanka during its colonial overlordship, adopts a profoundly objectionable judgmental attitude, one must dismiss it publicly with contempt.

Ben Emmerson

Emmerson exceeds mandate, fails to “fully respect” mandates of other mandate-holders and OHCHR

The Special Rapporteur was entrusted with a thematic mandate,as opposed to a country-specific mandate, confined to the question of “protection of human rights and fundamental freedoms while countering terrorism.” The Human Rights Council circumscribed the scope of his work by requiring that the duplication of efforts by other actors be avoided. In gathering, requesting, receiving and exchanging information and communications on individual allegations “including through field visits,” the Council requires Emmerson to pay “special attention to areas not covered by existing mandate holders.”

Despite these confines, in a 7-page report titled “preliminary findings” of a 5 day visit to Sri Lanka, made public on the fifth day of his visit disguised as a Press Release, Emmerson exceeded his mandate and acted well beyond his specified limits and addressed a wide range of human rights issues not within his specified role, As a lawyer, he should have known better than to act ultra vires.

His entry point was the unprecedented and infamous US-led 2015 Human Rights Council resolution 30/1 on Sri Lanka, (which we meekly cosponsored) which covers a wide range of human rights issues and even political issues that do not fall within the purview of the Human Rights Council. In a sweeping statement, arrogating to himself a power that was not his on the extent to which that resolution had been implemented, a task that was given to OHCHR, Emmerson claimed, “…two years on, and already four months into a two-year extension granted to the Government by the Human Rights Council,progress in achieving the key goals set out in the Resolution is not only slow, but seems to have ground to a virtual halt. None of the measures so far adopted to fulfil Sri Lanka’s transitional justice commitments are adequate to ensure real progress, and there is little evidence that perpetrators of war crimes committed by members of the Sri Lankan armed forces are being brought to justice.”

The Council resolution on Sri Lanka does not authorise Emmerson to monitor its implementation, it only “encourages” relevant special procedures mandate-holders to provide advice and technical assistance on implementation of the steps required”in consultation and with the concurrence of the Government.” Of relevance to Emmerson’s mandate is only the Government’s commitment “to review the Public Security Ordinance Act and to review and repeal the Prevention of Terrorism Act, and to replace it with anti-terrorism legislation in accordance with contemporary international best practices.”

Emmerson’s conduct, questions his integrity, independence and impartiality

Was he simply miffed at the statements made by the Justice Minister, nevertheless, he had no right to exceed his mandate on that basis. Commission on Human Rights Decision 2000/109 that governs the network of special procedures requires that, in making appointments, paramount importance will be “the professional and personal qualities of the individual – expertise and experience in the area of the mandate, integrity, independence and impartiality. ” (para. 7)

On his visit to Sri Lanka, Emmerson was tried and found wanting in all respects.

By launching a targeted attack on what he described as “retrograde elements in the security establishment and their allies in Government” and calling upon”Government and people” not to “allow the process to be diverted,” Emmerson proved to be partial, interventionist, arrogant, insulting and unprofessional.

His integrity, independence and impartiality, as well as his professionalism were brought into question by the threat he is reported to have made at the media briefing in Colombo that “a range of consequences”will “befall Sri Lanka” if it failed to meet “the United Nations Human Rights Council commitments.”So did his listing among possible measures, unilateral coercive measures that are contrary to international law and others that were the sole prerogative of the Council:(a) the revocation of Sri Lanka’s “newly regained GSP+ facility” by the European Union; (b) “potentially increasing the various measures by the Human Rights Council or indeed a reference to the Security Council” – decisions that are the prerogative of the Human Rights Council; and (c) “a range of measures increasing in severity that are potentially available” to an “international community,” that he does not define.

Unilateral coercive measures refer to”tools of political or economic pressure against any country, particularly against developing countries, with a view to preventing from exercising their right to decide, of their own free will, their own political, economic and social systems.”Understood in the context of Emmerson’s desire for “a new order in Sri Lanka,” his motivations become clear.

Emmerson absurdly takes upon himself a role that was never within his purview, and ventures blatantly into the political realm. If every special rapporteur were to do so, the day when special rapporteurs are used to encourage and enhance global human rights standards would rapidly come to an end.

‘Preliminary findings’ or ‘press release’ – a subterfuge?

Emmerson’s release already on the fifth day of his visit of a seven-page document containing assessment, conclusions, and recommendations,rather than the customary brief non-judgmental press communiqué issued at the end of similar visit, violates the rule of contradictory procedure applicable to mechanisms that include country-specific sections in their reports. The rule requires that texts of reports are made available to the concerned Government “a minimum of six weeks” in advance so that it has the opportunity to comment. The comments must also be made available as an official document and circulated at the same time as the report. (Commission on Human Rights Decision 2000/109)

This is standard procedure. Any special rapporteur who violates this standard with regard to any other country would be dragged over the coals. The Sri Lankan Government must act promptly and expose Emmerson. Had he done this to any Western country, he would have been thrown to the wolves, and perhaps, the investigations into sexual abuse allegations against him reopened.

This can mean that Emmerson was resorting to subterfuge by calling a “report,” a “press release,” but it can also mean that the report was prepared in advance, shared with and approved by the Government,or perhaps a section of the Government as his attack on “retrograde elements … and their allies in Government” seems to indicate.

Usurping the authority of Human Rights Council, and beyond

By releasing a report on his “preliminary findings” containing ‘recommendations,’Emmerson usurped the authority of the Human Rights Council, which alone is authorised by the General Assembly to “make recommendations with regard to the promotion and protection of human rights.” [GA resolution 60/251, Op 5(i)] Special procedures mechanisms are subsidiary organs of the Human Rights Council to which they must submit their report, along with their personal conclusions and recommendations that have the value of suggestions, for consideration and action.

By issuing orders to a sovereign State and by bullying and threatening sections of the Government, Emmerson not only violated his obligation to implement his mandate through dialogue and cooperation, but went beyond the authority accorded even to the Human Rights Council, the principal human rights organ of the United Nations, which is bound by the General Assembly to respect the principles of “universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation” [GA resolution 60/251 Op 4]

What is more, he may have come dangerously close to violating a sacred principle of the Charter, the non intervention in internal matters of a Member State incorporated in art 2(7).

Intervention, on whose behalf?

If Emmerson was not acting within the scope of his mandate and in the interest of the UN, then the legitimate question is for whom was he acting, in whose interest?

A pointer may be his references at the Colombo media briefing to a nebulous “international community” that would reach “the end of its patience” and to his identification with the likely initiator of a follow-up resolution in March 2019 when it discusses implementation of the 2015 resolution: “all of that, we [our emphasis] will have to look at, at the end of the current extension.”

He continues to suffer from the delusion (or is it arrogance?) that the international community consists of Western nations who only yesterday, (and in the case of some still continue to), were violating human rights standards with gay abandon. We all know who that might be.

The United Nations must act urgently to restore credibility of its human rights actions.

The UN Resident Representative must disown the unfounded and ill researched statements of the special rapporteur.

When Emmerson threatened, blackmailed and bullied Sri Lanka, he was acting as a representative of the United Nations. His undermining of the credibility of the Human Rights Council makes it incumbent upon both the Council and the General Assembly to urgently act to ensure that the multilateral human rights system can play its role effectively.

The Government, must defend the sovereignty and integrity of Sri Lanka

The conditions that made Emmerson’s attacks possible while still on Sri Lankan soil and a guest of the Sri Lankan Government must be traced back to the Yahapalana Government’s meek acceptance of resolution 30/1 in Geneva, in 2015; and its abdication of its sacred responsibilities toward nation, people and its armed forces.

It is the responsibility and duty of the Government to safeguard the sovereignty, integrity and independence of the State, and to ensure that the dignity of the nation is respected. Under similar circumstances, any self-respecting Government would have packed the Special Rapporteur off on the first flight out of the country and intervened directly with the UN Secretary General, the President of the General Assembly, and the President of the Human Rights Council to request immediate clarification and appropriate action against the offender. The UN Resident Representative should have been asked to clarify Emmerson’s statements and retract any apparent endorsement by the UN.

The government has so far failed to react to the attack, a fact that does not augur well for the treatment reserved for Sri Lanka as a nation, in the future. The question that requires an urgent response now is: Will the Government fulfil its constitutional obligation to defend the Sri Lankan State, the sovereignty of the nation that belongs to all Sri Lankans, and to safeguard its independence?

It is incumbent upon the President of the country, who has executive powers as the Head of State and the Commander of the Armed Forces, to take necessary measures for the urgent restoration of the nation’s dignity.