by Neville ladduwahetty Courtesy The Island

Himalee Subhashini Arunatilaka speaking at UNHRC, Geneva

Sri Lanka’s Permanent Representative to the UN in Geneva, Himalee Subhashini Arunatilaka, in her statement to the HR Council stated that Sri Lanka has consistently rejected Resolutions 46/1 and 51/1”, because Sri Lanka is in fundamental disagreement with its unacceptable content in particular the so-called evidence gathering mechanism, the establishment of which is unprecedented”. Furthermore, Sri Lanka added that it goes beyond” the Mandate conferred by the General Assembly on the Human Rights Council by UNGA Resolution 60/251 in 2006.

The UNGA Resolution 60/251 that set up the Human Rights Council in 2006, to replace the Commission that had existed until then, has no mandate to collect evidence relating to the Human Rights situation in any Member State. All it has in para. 5 (e) is: Undertake a universal periodic review, based on objective and reliable information of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment” (emphasis added). It is therefore clearly evident that the HRC has taken a unilateral decision to graduate from objective and reliable information” stated in 5 (e) of its Mandate to an accountability project” that involves collecting, consolidating, analyzing and preserving information and evidence.

The decision to unilaterally extend and reinforce the capacity of OHCHR in this manner is not only unprecedented” as stated by Sri Lanka, but also underscores the fact that no prior precedent had existed in respect of any other country prior to this decision by HRC to single out Sri Lanka in complete violation of the principle of universality of coverage and equal treatment” of all States as stated in the HRC Mandate. Since equal treatment of all States is one of the key pillars of the Charter and the entire edifice of the UN system, it is unlikely that the UN General Assembly would have been a party to extending and reinforcing the capacity of the OHCHR without formally revising the mandate of the HRC

If the UNGA had given its blessings informally, its own accountability is in serious doubt. On the other hand, IF the HRC’s decision was unilateral the legitimacy of Resolution 46/1 is questionable, thus making the entire exercise of strengthening HRC capacities and the exercise of evidence gathering unlawful, for which the Council has to be held accountable. Furthermore, the States that sponsored Resolutions 46/1 and 51/1 and those that voted in support, are complicit in participating in an exercise that unilaterally amends Mandates conferred by the General Assembly; an act that undermines its own credibility as for its capacity for due process. Therefore, while Sri Lanka’s Representative should be commended for raising the issue that the HRC has gone beyond its Mandate, the opportunity should have been seized to bring to the attention of all the Members of the HR Council the legitimate grounds why Sri Lanka consistently rejected Resolution 46/1 and 51/1 is because these Resolutions have been authenticated without seeking the authority of the UN General Assembly thus violating established practices that are identified with Institutions of the UN.

RESOLUTION 46/1

According to an explanatory note by the OHCHR the Human Rights Council Mandate, under which the team will operate, is not limited to violations and abuses by a particular party to the conflict or to particular victims, a particular period in time, or any one geographic area of Sri Lanka. It will collect, consolidate, preserve and analyze information and evidence on violations and abuses of international law regardless of which parties or individuals are alleged to have committed them ….”

In exercising its mandate, it will be possible to provide information to parties in criminal or civil proceedings in national, regional or international courts of competent jurisdiction ….”

Accordingly, the OHCHR appointed team” would be collecting so-called evidence without limiting it to a period of time or area of Sri Lanka and regardless of who was responsible for them. It is this evidence that would be analyzed and made available to parties engaged in civil or criminal proceedings by courts with competent jurisdictions.

Sri Lanka has serious doubts as to the authenticity of the evidence gathered given the complexities involved. For instance, during the period February 2002 to May 2009 the conflict in Sri Lanka was categorized as an armed conflict by none other than the OHCHR in their report of 2015. Thus, as for an armed conflict, the report states that the applicable law is Common Article 3 to the four Geneva Conventions, which means any violations or abuses committed during the armed conflict must be judged under provisions of International Humanitarian Law and derogated Human Rights Law during a declared emergency as provided by ICCPR that operated from May 2000 to June 2010. On the other hand, since the state of emergency applied to all of Sri Lanka, the derogated Human Rights apply throughout Sri Lanka from May 2000 to June 2010. These complexities, not to mention the lapse of over 15 years makes the authenticity of the evidence gathered highly questionable.

DEROGATED HUMAN RIGHTS

The derogated Human Rights under emergency rules as permitted by ICCPR provisions are:

Articles 9 (2); 9 (3); 12 (1); 12 (2); 14 (3); 17 (1); 19 (2); 21 and 22 of the ICCPR.

Article 9 (2): Anyone who is arrested shall be informed, at the time of arrest the reason for the arrest…”.

Article 9 (3): Anyone arrested or detained on a criminal charge shall be brought before a judge ….”

Article 12 (1): Everyone lawfully within the territory of State shall have the right to liberty of movement…”.

Article 12 (2): Everyone shall be free to leave any country, including his own”.

14 (3): In the determination of any charge, everyone will shall be entitled to: informed promptly; time to prepare defence; tried without delay; tried in his presence; to examine witnesses against him; access to an interpreter; not to testify against him”.

Article 17 (1): No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence nor to unlawfully attack his honour….”

Article 19 (2): Right to freedom of

expression ….”

Article 21: …right to peaceful

assembly ….”

Article 22: …right to freedom of

association ….”

The OISL report concludes the list of derogated human rights during the period of the armed conflict by stating: Measures taken pursuant to derogation are lawful to the extant they comply with the conditions set out in international human rights law as provided in Article 4 of ICCPR. This Article states: In times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law ….”

In keeping with this provision successive Sri Lankan Governments have derogated over a period of 10 years, 9 Articles out of a total of 19 Articles in Part III of the ICCPR that the OISL has declared as being lawful. Despite the adoption of such lawful measures it is only by making Members of the HR Council aware of the extent to which Sri Lanka has gone, that its image could be made to be seen in a more favourable light.

IMPLICATION of NON-COORPORATION

In her highly commendable statement made by Sri Lanka’s Representative in Geneva said: Many countries have already serious concerns on the budgetary implications of this Resolution given its dubious mandate. Sri Lanka has repeatedly pointed out that this is an unproductive and unhelpful drain on the resources of the Council and its Members. For all the reasons stated above, Sri Lanka will not cooperate with it.”

The stand of non-corporation taken by Sri Lanka, if it means having to gather evidence without visiting Sri Lanka, would present not only logistical issues but also impact on the quality and acceptability of the evidence in a Court of Law, particularly after the lapse of 15 plus years. Furthermore, whatever evidence that is gathered has to be undertaken not only while being outside Sri Lanka, but also from sources outside Sri Lanka. How authentic would such evidence be without the ability to verify it on the ground?

The intention of the accountability project is to provide information to parties in criminal or civil proceedings in national, regional or international courts ….” A fact that has to be borne in mind is that since the overwhelming majority of violations and abuses occurred within the territory of Sri Lanka, the primary applicable Law is the Penal Code of Sri Lanka backed by International Customary Law with other Laws acting in their complementary capacities. Whether such courts have the required competency to function effectively is in serious doubt.

CONCLUSION

While it must be acknowledged that the stand taken by Sri Lanka and forcefully articulated by Sri Lanka’s Representative in Geneva was highly commendable, the question that needs to be asked is this: What has caused the issue of accountability to reach such unprecedented” proportions? Is it the refusal by successive governments to accept that the conflict was a non-International armed conflict as in Common Article 3 of all Geneva Conventions advocated by OHCHR and the applicable framework to address accountability is International Humanitarian law along with derogated Human Rights Law, or was it the misguided notion that accountability should be addressed from a Human Rights perspective e. g. LLRC, because the focus was on reconciliation? The Foreign Ministry has consistently adopted the latter approach and couched the two approaches as Political vs. Legal. Is it this divergence of approaches to address accountability that is the cause for the current state of affairs?

While one can argue for and against either approach, the legal approach resonates with the OHCHR, while the political does not. However, one fact that stands out as a sore thumb is the failure to harness an effective team to articulate Sri Lanka’s position consistently among individual Members of the Council. Instead, the approach has been an individual effort by committed members of the Foreign Ministry. For instance, how many in the Council or the Ministry would know the difference between International Humanitarian Law and Human Rights Law. How many in the Ministry or in the Council would know the extent to which Sri Lanka derogated Human Rights during the armed conflict in keeping with ICCPR provisions. The common opinion in the Ministry is that since Sri Lanka has not ratified Additional Protocol II, its provisions are not applicable to Sri Lanka. They are unaware that the ICJ downward accept Protocol II as part of Customary Law.

Therefore, there is an urgent need to revisit the road Sri Lanka has taken thus far and organise a team that could consistently present to the members of the UNHRC an accurate narrative as to how Sri Lanka conducted itself during and after the armed conflict and also bring to their attention the fact that Resolutions 46/1 and 51/1 are products of a mandate conceived beyond the Mandate conferred by the General Assembly, the consequences for which the HRC has to be held accountable.