UNHRC resolutions are not binding, but powerful countries could use them to arm-twist targeted States into submission or wrest political and economic concessions from them.
Sri Lanka is gearing up for a hard battle at the 46 th.,Session of the UN Human Rights Council (UNHRC) in Geneva in February –March. While the core group, comprising UK, Canada, Macedonia, Germany and Montenegro, are working on a draft “consensual resolution”, the High Commissioner for Human Rights, Michele Bachelet, has sent a draft of her report to the Sri Lankan government for its comments.
Sri Lanka is presently working on Bachelet’s report to rebut its claims point by point. In Colombo’s view, the High Commissioner’s contentions are based on one-sided reporting by interested parties and are not substantiated by hard evidence.
With Sri Lanka having declared that it will not co-sponsor any resolution against itself, the core group and Sri Lanka have agreed that the text of the consensual resolution will be decided by both sides.
In all probability, the High Commissioner’s final report will be a somewhat modified version of the original. But it will still be a bitter pill for Sri Lanka to swallow. Besides, it is inconceivable that Sri Lanka and the core group will arrive at a “consensual draft resolution” when most of the core group of countries (UK, Canada and Germany) are hosts to a large and politically influential pro-LTTE Diaspora.
Reasons for UNHRC’s Tough Stand
One of the main reasons for the UNHRC’s tough stand is the Gotabaya Rajapaksa government’s hard posturing on the human rights issue and its forthright opposition to meddling by foreign governments and agencies like the UNHRC in Sri Lanka’s internal affairs.
Colombo has told the Office of the High Commissioner of Human Rights (OHCHR) in no uncertain terms, that it will no longer co-sponsor any resolution against itself. Such an assertion, by itself, would weaken any chance of a compromise. Earlier, co-sponsorship had led to a significant dilution of the resolution, cushioning Lanka against hard demands on sensitive matters like setting up war crimes accountability mechanisms with foreign participation.
The second factor toughing the resolution will be the Tamils’ newfound unity. For the first time, the Tamil political parties in Sri Lanka have submitted a joint list of demands to the international community. These demands are the most radical, to date. The Tamil parties have demanded that Sri Lanka be hauled up before the International Criminal Court (ICC) which means taking its case to the UN Security Council.
The third factor is the heightened role of the Tamil Diaspora ensconced in Western democracies. The well-to-do and well-connected Diaspora is not only lobbying with the powers-that-be in various Western countries but are also financially backing the Tamil parties back home in Sri Lanka. According to Tamil political sources, money is no issue in the anti-Sri Lanka campaign both in the island and overseas. Over 500 websites and blogs propagate the Tamils’ case worldwide.
The fourth factor is the change of guard in the White House. Donald Trump, who cared little for human rights, has been replaced by Joe Biden who has put promotion of human rights on top of his agenda. The Biden Administration will bring the US back into the UNHRC. At any rate, it will play a key role from behind the scenes with the core group as its proxy.
Current Draft Report
The current draft of the High Commissioner’s report is very hard hitting. It says that it is “vital that the Human Rights Council takes further action on Sri Lanka for three important reasons: Firstly, the failure to deal with the past continues to have devastating effects on tens of thousands of survivors — spouses, parents, children, and other relatives — from all communities who continue to search for the truth about the fate of their loved ones, to seek justice and are in urgent need of reparations. Secondly, the failure to advance accountability and reconciliation undermines the prospects for sustainable peace, human and economic development in line with the 2030 Agenda and carries the seeds of repeated patterns of human rights violations and potential conflict in the future. Finally, the trends highlighted in this report represent yet again an important challenge for the United Nations, including the Human Rights Council, in terms of its prevention function.”
The draft points out that “by withdrawing its support for resolution 30/1 and related measures, and by repeatedly failing to undertake meaningful action across the full scope of that resolution, the (Lankan) government has largely closed the possibility of genuine progress being made to end impunity through a domestic transitional justice process.”
It goes on to state that the members have the option of referring Sri Lanka to the International Criminal Court. They can investigate and prosecute international crimes committed by all parties in Sri Lanka before their own national courts, including under the principles of extraterritorial or universal jurisdiction, it added.
“The High Commissioner encourages Member States to work with OHCHR, victims and their representatives to promote such avenues for accountability, including through opening investigations into possible international crimes, and to support a dedicated capacity to advance these efforts.”
“Member States can also apply 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, as well as support initiatives that provide practical benefits to victims and their families,” the draft said.
Further, the draft calls upon all Lankan security agencies to immediately end all forms of surveillance and harassment of and reprisals against human rights defenders, social actors, and victims of human rights violations; promptly, thoroughly, and impartially, investigate and prosecute all allegations of gross human rights violations and serious violations of international humanitarian law; and remove from office security personnel; and other public officials credibly implicated in human rights violations; establish a moratorium on the use of the Prevention of Terrorism Act for new arrests until it is replaced by legislation that adheres to international best practices; and establish standard procedures for the granting of pardons or other forms of clemency by the President, including subjecting it to judicial review and excluding grave human rights and international humanitarian law violations.
Not Mandatory but Potent
However hard UNHRC resolutions may be, they are not mandatory. Principally, they serve to name and shame recalcitrant countries. Member States’ actual policies or executive decisions will be based on political, economic and geo-political factors and compulsions and not on the resolutions per se.
Nevertheless, a tough resolution helps twist a recalcitrant State’s arm and wrest various concessions from it in the political, economic and geo-political sphere. The March 2021 resolution on Sri Lanka may be made to hang like the Sword of Damocles on the country. It could be used to squeeze various kinds of concessions from it. A variety of sanctions imposed by individual countries are possible.
An important factor in this regard will be the attitude of the Biden Administration. President Biden will in all likelihood put moral pressure on Sri Lanka while abjuring abrasive threats. India’s stand too will be a critical factor. India is a regional power and Sri Lanka’s immediate and only neighbor. It has issues with Sri Lanka, the most important of which is its bid to get the Colombo Port’s East Container Terminal (ECT) in the face of nationalist opposition and the Lankan government’s hesitancy. Currently, there is an uneasy stalemate on this matter.
India has political issues too with Sri Lanka. There is a strong move in Sri Lanka to dilute or do away with the system of devolution which was introduced in 1987 following the India-Sri Lanka Accord to solve the Tamil question. Indian Foreign Minister, Dr.S.Jaishankar, had personally conveyed to the Lankan President last month, New Delhi’s view that Sri Lanka should abide by the devolution system as contained in the 13 th. Constitutional Amendment “in its own interest” and as a bilateral treaty obligation.
If India-Lanka relations deteriorate, New Delhi’s support for Sri Lanka in international forums will be in doubt. Sri Lanka can, of course, turn to China and Pakistan for succor, and these two countries will definitely come to the island nation’s aid. But this may further exacerbate tension with India. And China might use Sri Lanka’s vulnerability to wrest more economic and geopolitical rights than it already has. Sri Lanka will thus have a lot of tight rope walking to do in the coming months. The scenario calls for deft diplomacy rather than bravado.