A head-on confrontation between the Government and the UN system has become inevitable, judging from the latest report of the Office of the High Commissioner for Human Rights.
The preliminary report, obtained by me from an authoritative source, appeared in these columns last week. Sections of the Colombo-based diplomatic community and other ill-informed quarters, here and abroad, surmised that it had been leaked by the Government so it may publicly criticise the contents. It is furthest from the truth. There was embarrassment in government circles. Some even tried to locate the source whilst a few in the Foreign Ministry pinned it on one of Sri Lanka’s diplomats serving in an important capital. To all of them, what mattered was the source and not the substance.
However, it seems that the UN Human Rights High Commissioner has taken cognisance of the hurriedly put together response from Colombo. It was transmitted to the HRC’s office on the same day that the report was officially released in Geneva on Wednesday (January 27). There were no changes in the contents but only additions of footnotes.
This is reflected in the front-page of the report where it states that “The present report was submitted after the deadline as a result of consultations with the member State,” and contains other footnotes referring to communications from the Permanent Mission in Geneva including that of January 27. The delay was because of two schools of thought – one to ignore the report in its entirety and the other to respond and hit back hard. After last Sunday’s disclosures in these columns, the latter gained more traction highlighting the need for a prompt and strong response.
The UNHRC Report calls upon member states to refer the situation in Sri Lanka to the International Criminal Court (ICC), resort to; “actively pursue extraterritorial or universal jurisdiction” and “prosecute “international crimes committed by all parties in Sri Lanka”. It has also called for “targeted sanctions, such as asset freezes and travel ban against State officials and other actors credibly alleged to have committed or be responsible for grave human rights violations or abuses.”
Hard on the heels of the Report on Sri Lanka, making matters worse for the Government, is that the UN High Commissioner’s Office has resorted to sensitising the world (on the Report) through a video campaign. It seems to be a new manner in publicising a country situation report. It is based on visuals of the separatist war, highlights the “suffering” of civilians and calls for support to enforce human rights. Does one need to say anything more that the odds are being stacked against Sri Lanka? This brings into question the bona fides of the UN High Commissioner’s objective of supposed constructive engagement with Sri Lanka. The Government is to lodge a strong protest in Geneva over this and issue a statement condemning the move. It is of the view that the exercise shows the prejudice of the UNHRC.
Added to that was a tweet from UN Human Rights Commissioner Michele Bachelet. She said she “calls on intl community to establish dedicated capacity to collect/preserve evidence of crimes in Sri Lanka for states to pursue prosecution in their national court and consider targeted sanctions against perpetrators.”
President Gotabaya Rajapaksa was angered by the UNHRC Report. His advisors had told him that the tenor and content of the UNHRC report, compared to any country in the past, was “unprecedented” and “unconventional.” He summoned a meeting at his Secretariat last Monday to obtain the views of the participants for a strong response. Those taking part – a cross section of those in the present government – seemed politically significant because of the different schools of thought they came from. They not only represent the constituent parties of the Government but also members of President Rajapaksa’s “Viyath Maga.”
Those taking part in the conference were Prof. G.L. Peiris, Nimal Siripala de Silva, Sarath Weerasekera, Wimal Weerawansa, Udaya Gammanpila, Mahinda Samarasinghe, Nalaka Godahewa, Prof. Channa Jayasumana, Jayanath Colombage and P.B. Jayasundera. Foreign Minister Dinesh Gunawardena, and his deputy Tharaka Balasuriya took part via Zoom since both were undergoing quarantine. This was after the detection of a positive Covid-19 victim at their office. Consensus was reached that a reply should be sent since some of the contents of the report were “not based on facts” and were “totally misleading.” It was agreed that the salient issues would be addressed.
The same group met the next day (Tuesday) for more than two hours at the Foreign Ministry where the formulation of the response took shape. Absent at this meeting were Wimal Weerawansa and Nalaka Godahewa. Foreign Secretary Jayanath Colombage gave a presentation of the current situation vis-à-vis the dialogue with the UNHRC. In essence, the reply from the Government is to declare that the report is “selective on Sri Lanka, subjective and biased” to mislead the international community. The reply was sent to the UNHRC in Geneva on Wednesday through the Permanent Representative, C.A. Chandraprema. The Government has also defended the appointment of military officers to key positions saying it was a general practice followed in other countries too. Moreover, these military personnel, the Government has claimed, were experts in the field in positions they have been appointed to. It has added that accountability issues were being addressed on a ‘factual approach.’
Another course of action President Gotabaya Rajapaksa will follow is speak to as many leaders as possible of the 47 member states of the UNHRC. Besides this, Foreign Minister Gunawardena, who is taking a low-key approach to these issues shying away from the media at this crucial moment, will meet heads of missions of the member countries that have diplomatic representation in Colombo. Sri Lankan envoys overseas are to be tasked to brief the others.
The absence of Foreign Minister Gunawardena, unlike his predecessors, to defend the issues confronting Sri Lanka as a result of the Report is worrisome and damaging. More so when other senior politicians in the Government have all remained stoically silent. It is only a ‘one-man’ campaign that is under way by a bureaucrat though some of his comments have raised eyebrows. There is also the absence of a cohesive communications strategy to tell Sri Lankans and the world about the issues related to the UNHRC. This is at a time when Sri Lanka’s own envoys overseas are otherwise busy — sending pictures and reports to the media here only about themselves and what they are purportedly doing. There is not one account of their meeting any high-level personality in the host country or pushing the country’s interests.
A glaring case in point, unprecedented and unconventional, came from Foreign Secretary Colombage, a retired Admiral from the Sri Lanka Navy, Ahead of that, it is important to note that Colombage has remained a very friendly personality when he served the Sri Lanka Navy, the Pathfinder Foundation and now as Foreign Secretary. Foreign diplomats have commended him for his outgoing and persuasive ways. This came about when they were comparing predecessors. His demeanour won him friends. When Indian High Commissioner Gopal Baglay then told him about an impending visit by Indian External Affairs Minister Dr Subramaniam Jaishankar, he promptly replied “We will give him a grand welcome.” Thus, he has won friends and brought pride to the country.
Alas, this week, he crossed the forbidden red line in diplomatic practice. He told several media outlets that the United States’ new President Joe Biden should first put his house in order. He was alluding to the protection of democracy and fighting extremism in the US. Not that President Biden is free from criticism. Neither Foreign Secretaries nor persons in the ilk of foreign relations are expected to make such remarks and this is the first time one holding office in Sri Lanka has done so. It is common sense that it is offensive to the country concerned.
Imagine if the new US Secretary of State, Anthony Blinken was to make such remarks about Sri Lanka. Would it not have drawn a protest from Colombo? Would not there be a lot of chest thumping asking the US to mind its business? Was this a response for the US Ambassador Allaina B. Teplitz’s remarks during a roundtable discussion with journalists? If that be the case, she is perfectly entitled to speak out as the US envoy. Such conduct only causes damage to the reputation of the country and its leaders. Sadly, one senior diplomat remarked, “you guys have a superpower complex.” Added a retired, senior Sri Lankan diplomat who did not wish to be named: “The least a Foreign Secretary says, except on extraordinarily important issues, the better it is for the country, the Government and its leaders.”
Of course, this is not the first time a Ministry Secretary has caused such a faux pas. In October 2007, the then UN Human Rights High Commissioner Louise Arbour, a Canadian lawyer, prosecutor, and jurist visited Sri Lanka. The morning she was due to address a news conference in Colombo, the Secretary of the Ministry which dealt with human rights, called her “a football” in a morning newspaper report. This was because she was short in height and appeared fat. She was infuriated and refused to attend the news conference. It took time and effort by the minister concerned to persuade her that the views expressed were not of the Government. She later agreed.
It is not only in the conduct of foreign relations that such highly damaging faux pas occurs. Take for example the story about Health Minister Pavithra Wanniarachchi, rather unfortunately, being stricken by the deadly coronavirus. Many reports in the western media ridiculed her in the reportage citing her as the promoter of a syrup made by a sorcerer. She had earlier dropped ‘charmed’ clay pots into rivers standing atop bridges. This is on the advice of faith healer Dr Eliyantha White. The resultant publicity embarrassed the Government, its leaders and the people of Sri Lanka. This is at a time when, in other parts of the world, health ministers were giving studied discourses on satellite television channels about the Covid-19 epidemic in their own countries.
In a world dominated by western media influence, Sri Lanka cannot compete with the machinery available in the United States and its allies. Certainly not with offensive rhetoric. The Government requires a strategy to get its message across. The increasing negative media coverage could only strengthen the international lobby of the Liberation Tigers of Tamil Eelam (LTTE). Therefore, taking an adversarial position against the Western powers and their media empires could be counterproductive, particularly with the current mediocre and unprofessional approach. There is no communications strategy and the focus is on media statements and interviews from the Foreign Ministry.
The global alignment of world powers has changed. India in the past was preoccupied with Pakistan, an ally of the US then. The importance of India to the US has been categorically outlined by President Biden and his administration comprises Indian American nationals in key positions. Therefore, it could be expected that India will don the US mantle to monitor the South Asian region, to which Sri Lanka needs to pay heed. Today India has to counter alleged Chinese aggression in the Himalayan border and Indian Ocean. Equations are, therefore, different. India is now a member of the Indian Ocean Quad with the US, Australia, and Japan. On top of that, one must concede, Sri Lanka’s conduct of foreign relations has deteriorated. Take for example India – there has been no High Commissioner in New Delhi for more than a year now. This is besides the appointment to higher and lower positions in diplomatic missions overseas of sons and daughters of ministers, state ministers, government officials and close relatives of leaders. That is notwithstanding the Government’s election pledge to appoint the most suitable from the Foreign Service. If indeed there was interaction, part of the damage Sri Lanka now faces could have been minimised.
At the UNHRC in Geneva, a new resolution is now taking shape. The precursor to this was Resolution 30/1 and the subsequent 34/1 and 40/1 as related rollovers to mark time for Sri Lanka to deliver on its undertakings. Though the Government was earlier in favour of a ‘consensus’ resolution, it has now taken a step back from the move. There has also been a suggestion for the Government to seek the help of friendly nations to move a resolution of its own. The new resolution could be expected to be contested and the question remains on of how many countries will back Sri Lanka, how many will abstain and how many will vote against.
According to a Framework Document for a draft resolution, it covers significant elements of the latest UNHRC report. In general terms, it will “remind Sri Lanka of the state’s responsibility to comply with their obligations” and make positive reference to OHCHR so far. Among the highlights of the operative paragraph are:
- Express concerns over current and developing situation in Sri Lanka based on the UNHRC report.
- Express the importance of a comprehensive accountability process for all violations and abuses committed during the war.
- Express the need for an achievable time-bound plan of implementation.
- Highlight the inability so far to achieve any meaningful domestic mechanism to achieve accountability.
- Hint at possibilities of individual countries devising their own mechanisms to deal with the perpetrators of these alleged crimes
- Encourage the Government of Sri Lanka to implement as many recommendations as possible from the previous resolutions and from the UNHRC report.
- Encourage cooperation with OHCHR and to allow field presence.
- Encourage cooperation with special procedure mandate holders.
- Request new reporting by OHCHR on progress and on national reconciliation and accountability mechanisms – update in March 2022 and full report in September 2022.
As is now known, the United States is not a member of the UNHRC. This was after then US President Donald Trump pulled out of it. President Joe Biden, however, has said that the US would re-join. The core-group that backed the US – the United Kingdom (playing the lead role), Canada, Germany, North Macedonia, and Montenegro are still active.
This week, interesting enough, strong differences among the core group countries represented in Sri Lanka – Canada, Germany and the United Kingdom – surfaced. The envoys of the countries met on Wednesday; the same day the Government’s response was sent to the UNHRC report. UK High Commissioner in Sri Lanka, Sarah Hulton tweeted, “UK raising human rights concerns with Sri Lanka, including forced cremation of Covid-19 victims. UN report to be published next week, will inform the approach to @UN HRC.”
She also retweeted a message from Julian Braithwaite, UK Ambassador to the World Trade Organisation (WTO) and the United Nations. He said, “The UK will be considering the important new UN Human Rights report on Sri Lanka. We will continue to support human rights and accountability in Sri Lanka at the upcoming session of the UN Human Rights Council.” Holger Seubert, the German Ambassador in Sri Lanka, responded that consensual resolution will be possible, because Germany is not supporting a “tough” resolution against Sri Lanka. He tweeted, “Important UNHCR session coming up in Geneva soon. Hoping that a consensual resolution will be possible.”
The German Ambassador’s tweet, which seemed a diversion from his UK colleague, appears to have ruffled feathers in his home capital. Berlin. Barbel Kofler, Commissioner for Human Rights policy in the Federal Foreign Office, tweeted that ”The report published by @Human Rights yesterday is cause for grave concern about the situation of human rights in Sri Lanka. I am pleased Germany remains committed to reconciliation and accountability, also through the Human Rights Council.” There was another tweet thereafter by Ambassador Seubert which said, “Very important report, to be discussed thoroughly at the forthcoming Human Rights Council (HRC) in Geneva.”
A diplomatic source in Colombo, familiar with the goings on, claimed that the position taken by the German Ambassador made it difficult for the core group to take a unified position to lobby member states. It has also made it near impossible to finalise the wording for the resolution. However, home capital Berlin will prevail in Geneva together with the other western capitals.
It is most likely that Foreign Minister, Dinesh Gunawardena will address the “high level” segment of the Human Rights Council sessions from Colombo through a video link. Already, a team of officials have travelled to Geneva to assist the permanent mission there in work related to the UNHRC sessions.
Playing a key role locally in these developments is the Tamil National Alliance (TNA). Its front-liner M.A. Sumanthiran spoke to the Sunday Times. Edited excerpts:
“We welcome the report from the Office of the UN Human Rights Commissioner. Many would have noticed that the report reflected some issues we raised in the collective letter we sent earlier to the office of Human Rights Chief. It is a coincidence. The fact that the Government refused to cooperate with the UN mechanism despite it agreeing to do so three times previously has got the Government into this position. If the State which gave assurances to the UN and international community in the past and then receded from those commitments, these are the natural consequences.
“For wartime accountability, Sri Lanka gave its consent for a hybrid mechanism to investigate violations through the UN Resolution 30/1. However, the Government kept saying that it will never allow the foreign judges to sit in such a mechanism as agreed. This February, the Government informed the UN that it will not comply with those UN resolutions. You need the consent of the concerned country to do this. When the State fails to comply, it escalated to other steps such as referral to the International Criminal Court (ICC), urge other member states to apply universal jurisdiction, travel bans and freezing assets.
“From the recent interviews given by the Foreign Secretary, it seems the Government is still continuing the denial mode even after ten years. The matter was vested with the Human Rights Council with the submission of the report by the Panel of Experts in 2011. We had to take a harder position now as the international community also realised after giving ten years for the Government to achieve wartime accountability and it failed to do so.”
Added Suren Surendiran from the London Global Tamil Forum (GTF) which is at the forefront of the lobbyists in Geneva: “We believe it is a damning report by the High Commissioner and it clearly reflects the frustration, anguish and despair that the OHCHR feels for the future of Sri Lanka based on the current trajectory. Some of the recommendations made by the High Commissioner to the member states are bold, historic and apt.”
Public Security Minister Sarath Weerasekera charged that the High Commissioner’s report was full of incorrect allegations against Sri Lanka. The Minister, who has previously travelled to Geneva when the UNHRC was in session, told the Sunday Times, “High Commissioner Bachelet is poking her finger into the internal affairs of a sovereign country. Against our President, she is making allegations which are wrong. For example, even US President Biden has appointed retired military officers to top positions. She has criticised me. I am an elected parliamentarian. I won the largest number of votes in Colombo District and the second largest in Sri Lanka. For her, even that is wrong.”
Minister Weerasekera said the blame for the current situation should be on former Foreign Minister Mangala Samaraweera. It was he, on behalf of the previous Yahapalana government, who co-sponsored the US-backed resolution. That was a treacherous act. “The people of Sri Lanka should not be scared. President Rajapaksa will take good care of them,” he added.
Minister Udaya Gammanpila told the Sunday Times “The UN Human Rights Commissioner has gone beyond her remit in producing the Report on Sri Lanka. From a 17 page report, it is unfortunate, that she had only devoted two pages to deal with subject matters at issue. The reference to cremation of Muslims who die of Covid-19 has been for valid reasons. She does not talk about how Muslims were attacked on five different occasions during the previous Yahapalana government. On military appointments, they have lost sight of the fact that the Chief of Defence Staff and Army commander General Shavendra Silva was appointed by the previous government .
The strategy on addressing this issue at hand seems rudderless at present. This is extremely alarming. Lucidly strategised, constructive engagement with all parties is the need of the hour. Understandably, at the outset, Sri Lanka is not able to accept a consensual resolution as wished by the proponents considering that it would recall the earlier related resolutions, particularly 30/1 and those that followed, being unconstitutional in their content had been established on earlier occasions by the country.
However, Sri Lanka cannot expect to simply wish away the dictates of the Human Rights Commission resolutions by having retracted co-sponsorship but seek other ways and means to proceed towards their closure. Whilst there is much to contend with vis-à-vis the UNHRC process, it is imperative to ensure that this issue does not breach this framework to be lodged in the Security Council which is the only UN mechanism that can dish out prescriptions that are legally binding.
It may be recalled that the Tamil political parties and civil society groups in their joint communication to UNHRC member countries recently requested for such action. It is incumbent upon the Government to conduct a strategy of engagement based on the accepted tenets of diplomatic practice, rather than slaving to megaphone sound bites which seems to be presently gaining ground. It is not in the country’s interest to waste time on history, lecturing and publishing atrocities of the LTTE, considering that it remains proscribed in 32 countries, having been convinced of the unacceptability of its modus operandi during the separatist terrorist war. Let not Sri Lanka get isolated in the international arena due to the ill-conceived notions and attitudes, which is unaffordable at any cost. The key to assistance to Sri Lanka is within the country’s immediate neighborhood.
The onus also lies fairly and squarely on Sri Lanka’s Permanent Representative to the UN in Geneva to strategize and forge relationships with Human Rights Council member states there, to positively sensitize on the related contentious issues of the Report, and assist Sri Lanka in securing support against foreign machinations and those of the UN High Commissioner for Human Rights.