UN missionaries of Human Rights
by Neville Ladduwahetty
Courtesy The Island
Louise Arbour is the 5th United Nations official to visit Sri Lanka
in connection with the Human Rights situation in the country. While
three of them, Philip Alston, Allen Rock and Manfred Nowak visited Sri
Lanka as Special Rapporteurs, and John Holmes' visit was as Under Secretary
of the UN, Louise Arbour visited as the High Commissioner for Human
Rights. Walter Kalin is due to arrive to report on Internally Displaced
Persons. For the UN to give undue attention to the HR situation in Sri
Lanka despite it being relatively benign in comparison to the situations
in countries such as Iraq, Afghanistan, Myanmar must mean that Sri Lanka
has to serve a purpose assigned by interested parties. That purpose
may have very much to do with the need for strategic positioning in
the Indian Ocean.
One possible explanation offered is that Sri Lanka is to become another
Kosovo where military intervention by NATO was justified on grounds
of the HR situation that prevailed in Kosovo at the time of intervention.
If intervention of one sort or another is what is being planned for
Sri Lanka, the collective observations of these 6 officials would serve
as the basis for the UN to act. Although the Government of Sri Lankan
(GOSL) rejected the need for the presence of UN monitors, or for the
opening of an Office of the High Commissioner for Human Rights (OHCHR),
the position taken by Louise Arbour was that the situation in Sri Lanka
warranted the setting up of an OHCHR office in the country.
The need for such an office in Sri Lanka was expressed by Louise Arbour
even prior to her arrival in the country. The fact that her mind was
made up even before reviewing the situation in the country reflects
a blatant bias; a condition that brings into question the impartiality
and the objectivity of the office she represents and confirms the existence
of a preconceived plan wherein HR issues are to figure as the means
to an end.
THE OHCHR and the HUMAN RIGHTS COUNCIL
The UN General Assembly by Resolution 48/141 of December 20, 1993,
resolved to establish the OHCHR. During the course of its operations
the organization was subjected to severe criticism due to its failure
to meet expectations. Reasons such as shortages of resources and capacities
were offered as explanations for its shortcomings to fulfill its mandate.
In order to redress these shortcomings the General Assembly by resolution
60/251 of March 15, 2006 resolved to establish the Human Rights Council
(HRC). Clause 1 of this resolution states: "Decides to establish
the Human Rights Council, based in Geneva, in replacement (emphasis
mine) of the Commission on Human Rights, as a subsidiary organ of the
General Assembly; the Assembly shall review the status of the Council
within five years"
Louise Arbour was appointed High Commissioner to the Commission for
Human Rights in July 2004, before the HRC was set up. Since the Council
has replaced the Commission, what is the status of Louise Arbour, the
High Commissioner, vis-à-vis the HRC? According the Factsheet
titled "Work and Structure of the Human Rights Council" a
meeting was held one June 18, 2007, one entire year after the HRC met
for the first time to "establish the procedures, mechanisms and
structures that will form the basis for its future work". At this
meeting the Council resolved on four mechanisms.
They are: 1. Universal Periodic Review. 2. Special Procedures. 3. Human
Rights Advisory Council. 4. Complaint Procedure. One of the requirements
of the Universal Periodic review is that it shall be "carried out
by a working group composed of members of the Council…and will
be facilitated by groups of three States members of the Council which
will act as Rapporteurs…". Special Procedures is the name
given to the mechanisms established by the Commission and assumed by
the HRC. These provisions provide for country situations to be reviewed
by Rapporteurs or by a "working group composed of five members
(one from each region)".
Although the practice under the OHCHR was for HR situations in countries
to be reviewed by individual Rapporteurs, the HRC requires situations
to be reviewed by groups. It is absolutely critical the member states
such as Sri Lanka insist on this provision where the review process
is conducted by A GROUP AND NOT BY INDIVIDUALS. This is particularly
needed in view of the biased performances of the individuals who reported
on the HR situation in Sri Lanka with statements such as "credible
evidence" gathered during very brief visits without any firm evidence
to back up their claims.
NEED FOR PROCEDURAL
COMPLIANCE
Since the HR situation in a country has the potential to adversely
affect a country politically and economically it is vital that the process
of review is free of bias. Notwithstanding the fact that the GOSL failed
to exploit the provisions contained in the HRC for the HR situation
to be reviewed by a group rather than by individuals, one would have
expected Louise Arbour, a former member of Canada's judiciary, to have
on her own volition ensured that the review process was undertaken by
a group to ensure impartiality and objectivity in keeping with standard
judicial practices where important cases are heard by a PANEL of judges.
Under the circumstances, the GOSL should urge the General Assembly
to reject the findings of the 6 individuals who would be reporting on
the HR situation in Sri Lanka on the grounds that the procedures violate
the very provisions laid down by the HRC. If the GOSL fails to do so,
the 6 reports would form the basis for recommendations to the Security
Council whose actions would depend on the purpose Sri Lanka is to serve
in the agenda of global players. In the event some members of the Security
Council prevail on the others to take a relativist position on the HR
situation in Sri Lanka given the ongoing atrocities in other parts of
the world, a section of the International Community could advocate the
use of other resources such as members of NATO, since the latter are
already militarily engaged in Afghanistan. The one redeeming factor
would be that India may raise objections to any interventions in the
Indian Ocean. However, the issue is whether Sri Lanka can afford to
stake the future of its territorial integrity on the shifting sands
of interests of a country such as India considering that its self interest
would override all other interests.
HR SITUATION AS GROUNDS FOR INTERVENTION
The precedent to intervene in Kosovo on grounds of HR violations should
make Sri Lanka extremely cautious. Claims have been made that the HR
situation in Kosovo was orchestrated in order to justify intervention.
However, in the light of emerging realities where the need to justify
action is overlooked in the name of expediency, and unilateralism is
increasingly becoming the order of the day, Sri Lanka has to move with
extreme caution and prudence. Interpretation of the right to protect
or responsibility to protect (R2P) people at grave risk to the point
of intervention could result in violating the Human Rights of a much
larger segment of a country's population. The proponents of R2P avoid
addressing the inherent contradictions in their concept. However, since
such views are held only by some it is vital that the General Assembly
be called on to rule on such concepts without leaving it open for unilateral
interpretations to fit agendas of member states under the cloak of
Human Rights.
The weakening of the LTTE militarily coupled with the "repositioning"
of the UNP regarding federalism, is perhaps the reason for the urgency
to find other causes to justify intervention, even though it is not
an absolute necessity. Categorizing HR violations in Sri Lanka as "serious"
can be claimed to be sufficient cause for intervention, albeit its arbitrariness.
The warning issued by the German Ambassador that the continuation of
the "preventive war" would result in "catastrophic consequences"
lays the ground work for such intervention based on the arbitrary labeling
and categorization of the HR situation in Sri Lanka as "serious".
The right to intervene was justified on the grounds of preventing further
HR violations in Kosovo, and can be similarly used with regard to Sri
Lanka Since this approach has depended on a subjective assessment whether
the HR situation warrants intervention or not, a positive approach would
be to build capacities to prevent HR violations from occurring rather
than dealing with them after the fact; thus underscoring the concept
of Obligation to Prevent - O2P. In this regard, the comment by the US
Ambassador, Robert Blake, that recent reversals suffered by the LTTE
at the hands of the Sri Lankan security forces with the support of the
US, should demonstrate to the LTTE the futility of pursuing a military
option, is very apt. Rather than intervening after HR violations have
deteriorated, the approach should be to prevent violations by pressuring
the perpetrators of violence to pursue alternative approaches for realizing
political goals.
CONCLUSION
Multilateralism is supposed to be the guiding principle of the UN. This
is unfortunately yielding place to a new unilateralism. The emphasis
given to HR violation to the point of intervention is part of this process.
Having replaced the OHCHR in order to address HR issues more effectively,
the very procedures agreed upon to make the review process more objective
and impartial by engaging GROUPS rather than individuals to undertake
the assessment, are being violated in the reportage of the HR situations
in Sri Lanka. This gives the GOSL valid grounds to call for the rejection
of the reports of the several Rapporteurs.
The realities of the LTTE's military reversals and the fading of the
appeal for federalism as a power sharing arrangement is making the prospect
of gaining territorial access in Sri Lanka remote. Consequently, the
HR situation in Sri Lanka has come to the forefront because it has the
potential to justify intervention in case such action is in the cards,
as has happened in Kosovo.
The arbitrariness of what constitutes a HR violation varies from culture
to culture. Its range varies from the most basic, of the "right
to life", to others in which one culture would categorize as a
right what others would categorize as a violation. This relativism makes
it impossible for a universal guide to cover the range of human activity,
in regard to what constitutes Human Rights. This gives opportunities
for the unscrupulous to interpret HR violations to suit hidden agendas
and for the innocent to be victimized.
If Louise Arbour and her office are serious about Human Rights they
should set up a limited universal code that all UN member states could
live by, leaving room for cultural traits to survive alongside.
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