KAMALIKA PIERIS

UN Commissioner for Human Rights issued a report on Sri Lanka in January 2021. https://www.ohchr.org/Documents/Countries/LK/Sri_LankaReportJan2021.docx. Sri Lanka   rejected this report.  

Tamara Kunanayagam commented on the report in a television interview. http://www.lankaweb.com/news/items/2021/02/14/sri-lanka-cannot-compromise-at-the-unhrc-sessions/ Tamara said that this report has dangerous concepts in it. It is an attempt at precedent setting, to change the very norms on which the current international order is based.

 She drew attention to three matters recommended in the Report.  First, ‘R2P’ which says if a state is not willing or able to protect its own citizens, then other states can intervene. This is a dangerous notion, which   has been rejected at the UN.

 The second matter is ‘universal Jurisdiction’, which was always  dicey and controversial. Third is ‘sanctions’, which according to this Bachelet report, must be used to prevent human rights violations. Chapter 7 of the UN Charter says sanctions can be applied only if there is a threat to international peace and security or act of aggression against another country.  It cannot be used as a preventive measure, said Tamara. These three recommendations are dangerous for all countries. There is something going on behind all this, said Tamara.  

UN Human Rights Council passed    yet another Resolution on Sri Lanka at its March 2021 session. This was resolution A/HRC/RES/46/1 titled Promoting reconciliation, accountability and human rights in Sri Lanka”

This Resolution made it clear that it was linked to the earlier resolutions 19/2 of 22 March 2012, 22/1 of 21 March 2013, 25/1 of 27 March 2014, 30/1 of 1 October 2015, 34/1 of 23 March 2017 and 40/1 of 21 March 2019.  It was adopted by a vote of 22 to 11, with 14 abstentions.

This 2021 resolution is yet another Tamil Separatist Movement write up. It diplomatically supports the sovereignty, independence, unity and territorial integrity of Sri Lanka, also the importance of a peaceful and unified land.  Then   comes the call for Eelam.

The Resolution speaks, inter alia, of devolution of political authority, of holding of elections for Provincial Councils, and making sure that all provincial councils, including northern and eastern operate effectively.   Actions taken against terrorism, meaning  the Eelam war of course, must conform to International Human Rights Law and International Humanitarian Law.

The resolution then goes into  intimate matters. It condemns the militarization of government, and   marginalization of Tamil and Muslim communities. It criticizes the government for not allowing burials for Covid 19 Muslims .It criticizes restrictions on the war memorials and the destruction of a memorial. These are   warning signs of a deteriorating situation of human rights in Sri Lanka”, declared the Resolution.

The Resolution then moved to its main purpose, transference of responsibility to the OHCHR and  the creation of a new  Anti Sri Lanka Secretariat.  The war    crimes charge now moves from the  UNHRC to the much more stable OHCHR, which, unlike UNHRC,  is  a department of the Secretariat of the United Nations.   The Resolution 

• a)  Recognizes the importance of preserving and analyzing evidence relating to violations and abuses of human rights and related crimes in Sri Lanka with a view to advancing accountability.
• b) Requests the Office of the High Commissioner to enhance its monitoring and reporting on human rights in Sri Lanka,
• c) decides to strengthen the capacity of the Office of the High Commissioner to collect, consolidate, analyze and preserve information as evidence  on rights violations in Sri Lanka.  Also develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka.
•  d) the UHCHR must  present an oral update on this matter  to the Human Rights Council at its forty-eighth session, in September 2021 and a written update at its forty-ninth session (March 2022) and a comprehensive report that includes further options for advancing accountability at its fifty-first session,(probably September 2022) .

The OHCHR   moved quickly to set up a  Special Secretariat of 13 members. The Secretariat was to comprise investigators and lawyers, among others. Military experts are not mentioned.. There will be one senior Legal Advisor and two Legal Advisors. The top-most position is expected to be given to a Senior Legal Advisor with experience in international criminal justice and/or criminal investigations and prosecutions to coordinate the team and oversee an information and evidence collection strategy, said analyst.    

The Advisor’s responsibilities included the development of a central repository to consolidate, preserve and analyze information and evidence; co-ordinate the processes of reviewing and sharing of information with national authorities for universal jurisdiction and extraterritorial jurisdiction and other accountability purposes in line with relevant United Nations guidelines.

The advisor’s other responsibilities include developing accountability strategy and engaging with specialized investigators, prosecutors, judges, and other legal practitioners. The Office of the Human Rights High Commissioner has already advertised for applications for the new positions.

OHCHR put forward a budget of US$ 2,856,300 for the Secretariat for   2021. UN Headquarters initially cut this down by more than 50 percent. But in August 2021,the  Administrative and Budget Committee (Fifth Committee) of the UN General Assembly approved the funds. The US$ 2.8 million has been phased out as $ 0.737 million for 2021 and $ 2.1 million for 2022.

Sri Lanka strongly objected to   this fact finding Secretariat. The UNHRC Resolution makes a reference to a ‘traditional Tamil homeland’. This is a deliberate attempt to give recognition to the illegal, unconstitutional claim of a homeland, the so-called ‘Eelam’ .In doing so the UNHRC Resolution encourages separatism and condones terrorism, said Sri Lanka. Sri Lankan delegates urged the UN members not to provide funds for the new Secretariat.

The UNHRC Resolution wanted Sri Lanka to cooperate with the proposed Secretariat. Colombo rejected this outright. Sri Lanka is not prepared to allow such investigations to take place using unsubstantiated and cooked-up charges, Sri Lanka said.

If the Secretariat is  allowed to come into Sri Lanka ,OHCHR staff would  have freedom of movement throughout the territory; unhindered access to all places and establishments; freedom to meet and interview representatives of national, local and military authorities, community leaders, non-governmental organizations and other institutions, and any such person whose testimony is considered necessary for the fulfillment of its mandate. It would also mean free access to all sources of information, including documentary material and physical evidence. UNHRC has also  called for cooperation from other governments on whose territory the Secretariat may interview witnesses and gather information.

This is the first physical intrusion into Sri Lanka that the foreign powers have managed to make after Yahapalana, said Chandraprema. The unit that is being set up by the OHCHR seems to be more in the nature of collecting evidence for future use said Shamindra Ferdinando.  OHCHR has not indicated how the investigations would be carried out without cooperation from the Government of Sri Lanka.   (Continued)