On March 27th, the Human Rights Council passed a US-UK originated resolution against Sri Lanka: Various opinions and concerns have been expressed by organizations and countries like US, UK, India, China, Pakistan, and Sri Lanka, including Tamil groups and members. The contents of the resolution including the powers of the Human Rights Council and the Human Rights Commission have evoked conflicting views among the concerned and affected parties.
The issues in focus are:
- Has the resolution endorsed an independent international investigation against Sri Lanka for human rights violations and crimes committed during the period from 2002-2009, as covered by the LLRC.
- What are the powers of the Human Rights Council and its Commissioner in this matter?
- What will be the outcome of the report once submitted to the Human Rights Council by the Commissioner in 2015.
It has to be noted that the HRC resolution stresses the need for an international inquiry mechanism and to achieve this object has requested the Office of the High Commissioner to undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties.
The resolution includes “crimes committed in relation to human rights”. Accordingly all crimes including war crimes and crimes against humanity fall within the scope of this investigation. The complaint of not mentioning “genocide” does not carry much weight at this stage as this could be a conclusion after studying all the evidences by the proposed Commission. It is therefore important to mount pressure on the Council Members to include the crime of genocide against Sri Lanka at a later stage.
The resolution also targets the perpetrators of the crimes and their accountability preventing any impunity or escape from culpability.
The resolution does not specifically call for an independent investigation nor it is going to be an investigation ordered by the UN, or Secretary General, or Security Council.
However, the Human Rights Council is an Agency and an arm of the United Nations, and is empowered by the UN to
— “Address situations of violations of human rights, including gross and systematic violations and make recommendations there on”
Para 3 of the UN resolution which created the Human Rights Council in 2006.
— “Promote the full implementation of human rights obligations undertaken by the States and follow up to the goals and commitments related to the promotion and protection of human rights”
Para 5 (D)
— “Make recommendations with regard to the promotion and protection of human rights”
— “Submit an annual report to the UN general assembly”
Para 5 (J)
Functions and powers of the Office of High Commissioner for human rights are as approved by the UN general assembly. It is n agency of UN to promote and protect human rights guaranteed under international law and stipulated in the Universal Declaration of Human Rights 1948.
Some important functions of the Office of the Human Rights Commission are:
- Promoting universal enjoyment of all human rights by giving practical effect to the will and resolve of the world community as expressed by the UN.
- Responding to serious violations of human rights.
- Undertaking preventive human rights action.
- Undertaking human rights field activities and operations.
High Commissioner is responsible for all the activities of the office of UNHCHR, and also advises the Secretary General on the policies of UN in the area of Human Rights.
The HRC by its resolution on March 27th, 2014, has requested the Commission to undertake the above investigation with the assistance of relevant experts nominated by her. The Commissioner has to present on an oral update to HRC in October, 2014 and a comprehensive written report in March 2015 for discussion and follow up.
The Council has the powers to address situations of violations and make recommend actions to the UN: Para 3: of resolution on Human Rights Council 60/25 – 03-04-2006- 60 session of UN. Accordingly HRC has exercised its powers under this clause in relation to Sri Lanka and has requested the office of HCHR commission to look into and investigate the alleged human rights violations committed by Sri Lanka. The Human Rights Council will submit the report to the HRC which will also be submitted to the UN by the HRC. The office of Human Rights Commissioner works to promote and protect the human rights that are guaranteed under international law and stipulated in the Universal Declaration of Human Rights 1948. Office of the UN high commissioner for human rights has the following rights and functions among others: This office was established on 20-12-1993 and it’s treated as an agency of UN. The Commissioner has the important following mandate among others.
Under resolution 48/141 of 20-12-1993
To respond to serious violations of human rights and to undertake preventive human rights action.
The High Commissioner is empowered to carry out the above functions amoung other twelve functions as specially to him or her by the General Assembly under the above UN resolution.
The above provisions arm the HR commissioner to initiate any action on her own in response to serious violations of human rights. Under this clause the Office can take necessary steps, like visits, collecting evidences and obtaining statements from affected or other interested parties. The office can also appoint officials to investigate and also has the right to respond through necessary steps to stop and prevent those serious violations happening in any member country like Sri Lanka. Mandatory function of number 9 empowers the Commissioner to undertake preventive human rights action. This gives the Office blanket powers to initiate any steps aiming at preventing acts of human rights violations. This gives the Office, the power to monitor, report and recommend actions against any violating state or state officials.
It also empowers the office to appoint Commissions of inquiry for appropriate action against the offending State so as to prevent further human rights violations. In short, the Commissioner’s powers to respond and prevent human rights violations are absolute and can be exercised at the discretion of the Commissioner who is authorized to undertake human rights fact-finding while creating and supporting investigatory mechanism.
In view of the above empowering provisions authorized and granted to HRC and its commissioner, the statements of India, Pakistan, China, Russia saying that neither HRC nor the Commissioner has any powers to conduct inquiry and they are acting outside the scope of their powers, and devoid of any merit or substance and are merely blindfolded to please Sri Lanka. At the same time, Sri Lanka’s statement alleging that the resolution and any outside international investigation is a violation of its sovereignty, is nothing but clumsy and derogatory to HRC and its Commissioner. Sri Lanka being a member of Un and HRC is only showing its back to these international bodies like an ostrich which sees the world after burying its head into the sand. However, the statement of president Rajapakse requesting investigation from 1983 and not merely the last five days of the war (May-12-18,2009) is an acceptance of the legitimacy and justification of the investigation ordered by HRC. Undoubtedly, Rajapakse by making this statement successes with a vote of abstention by India which also for the time being escaped from inquiry into its complicity with Sri Lanka during the war and as an accomplice to the war crimes and crimes against humanity.
This conflicting and confusing stand of Sri Lankan Gov’t will not bear any fruitful results in the days to come. On the contrary, Sri Lanka will have to live with the hazards of isolation while war criminals face possible trials in the International Criminal Court in the future. Sri Lanka not being a signatory to the Rome convention thus not submitting to the jurisdiction of ICC, will not hold ground indefinitely as the security council can refer the case to ICC when Rajapakse becomes ordinary citizen as ICC targets only individuals who commit war crimes. However, this resolution has shortcomings in relation to the affected Tamils who are the roots of the whole problems as well as being the victims of politics and war. They are sidelined and not offered with any concrete political settlement proposals, due to geo-political and strategic interests of USA whose priority is to remove Rajapakse’s rule. Follow up action for the findings of report is specifically mentioned in the Resolution. This merely states a discussion by HRC as to steps of implementation of the resolution. It is evident that once the report is submitted to the HRC, members will have to agree on the steps for implementation and have to pass resolutions to the effect including recommendations as to how best they could be implemented. The report will then be submitted to the UN and Security Council by the Secretary General for discussion and endorsement or possibly with no action. However the probabilities of punitive measures in the form of political, economic or diplomatic sanctions could be enforced by US, UK, and European Union on their own to justify their role as sponsors of the resolution. But collective sanctions are only a distant possibility, and cannot be ruled out. In the meantime, Tamils can find solace and console themselves by the efforts of HRC and its investigation in exposing the partial war crimes and crimes against humanity, though not in full and complete by concerning the period of war from 2006-2009.
Sri Lanka as a member of HRC is bound to fully cooperate with the council under article 9. Under article 8 of HRC, member States shall take into account the contribution of candidates to the promotions and protection of commitments made there too. If any member State commits gross and systematic violations of human rights, UN general assembly can suspend the rights of membership of that country by a two-thirds majority of members present. As such Sri Lanka is also running this risk of suspension due to its persistent adamant refusal of cooperation with HRC and continuous violations of human rights.
The HRC also requested the commissioner to monitor the human rights situation in Sri Lanka and to continue to assess progress on relevant national process.
This is another pitfall for Sri Lanka which is still not free from complaints of violations of human rights, arrest and detentions, torture and allegations of rape. Using emergency regulations and continuing unabated even to the opposing Sinhalese parties.
All in all nothing seems rosy. But a Pandora box is opened for Sri Lanka which appears to be going down the hill on a mission of self-destruction. Sri Lanka, having chosen the policy of confrontation instead of cooperation and reconciliation, is having the alternate escaping course of action which is to quit from UN and other allied agencies.
Better late than never