UNHRC Resolution: Zero draft remains zero to victims
BY S.V. Kirubaharan
The United Nations (UN) definition of “victims” is as follows: “‘Victims’ are persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss, or the substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within the Member States, including those laws proscribing the criminal abuse of power.”
If this is the case, then who is not a victim in Sri Lanka? From top to bottom, i.e., from so-called Executive Presidents to ordinary citizens, everyone remains a victim. Here, I can quote several examples but to be brief, the President, the Chief Justice (CJ), and members of civil society (human rights defenders, journalists, Parliamentarians, lawyers, religious leaders, academics, and others) were/are victimised in Sri Lanka.
A Tamil proverb says: “One will know the effect of a fever and a headache only when they get it.” In Sri Lanka, we have experienced the fact that victims have become horrendous violators of human rights and then again become victims.
In an earlier session of the UN Human Rights Council (UNHRC), I listened to a representative of Sri Lanka as he related in meetings how at one time he had been in hiding in Sri Lanka because security forces were looking for him. Unfortunately, later, he was heard defending the State violations to the maximum in the same forum, the UNHRC.
This is to say that Sri Lanka should learn to take the grievances of victims seriously and with sincerity. Victims vary from the youth uprising to capture the whole of Sri Lanka to the failure of a 30-year non-violent struggle to achieve political aspirations that consequently turned into an armed struggle. Today, where is Sri Lanka? It has become an international arena for super-powers, the regional super-power, and peace-loving States and groups.
The Greek philosopher Socrates said: “Mankind is made of two kinds of people: wise people who know they’re fools and fools who think they are wise.” The stubborn, egocentric attitude of politicians, under the pretext of patriotism, has led Sri Lanka to its current situation.
Now, let me discuss the impending resolution in the 51st session of the UNHRC in Geneva, Switzerland. The damning, comprehensive report of the UN High Commissioner for Human Rights (HCHR) was published. As part of the follow-up procedure, the Member Countries of the UNHRC are now working on a resolution on Sri Lanka. The first draft dated 12 September 2022, known as the “zero” draft, is in circulation. Well and good. This present draft is not very different to the last resolution (46/1).
Once the Core Group finalises the draft, they will table it by the third week of the session (26-28 September). During the fourth week of the session (4-6 October), voting on the resolution will take place.
For the victims who have waited since the Independence of Sri Lanka or since the end of Mullivaikkal in May 2009, the zero draft does not provide any encouraging messages. For those who organised demonstrations against the Government in various venues including in the Galle Face Green and brought a change in the Government in Sri Lanka, this draft does not give any good message either. Some of the demonstrators travelled to Geneva to find justice for their call and cause.
The zero draft has 23 preamble paragraphs (PPs) and 18 operational paragraphs (OPs). The Core Group on Sri Lanka (the UK, the US, Canada, Germany, North Macedonia, Montenegro, and Malawi) who drafted it, find it very difficult to accommodate every request by the Government of Sri Lanka, their pied pipers, and the victims. When drafting a resolution, countries have to consider many factors; otherwise, it may end up in a disaster.
I still remember why neither the European Union (EU) countries nor Canada tabled a resolution on Sri Lanka until the US became a Member of the UNHRC in 2012. I do not want to elaborate more on this matter.
“Informal consultation meetings” on the zero draft, organised by the Core Group, took place in the UN building on 16 September. These were well attended by the concerned country, Sri Lanka, several other countries, and various members of the civil society. Here, I should say that not all members of the civil society are working genuinely to strengthen this zero draft. We are finding it difficult to understand what they say and what is in their minds. The reason is that they have a deep link to any Government in power in Sri Lanka. Therefore, their presence in the UNHRC is to observe what is happening there. In the UN, this style of work goes on not only with Sri Lanka but with many other countries as well. They are known as Government non-Governmental organisations or Gongos.
Leaving this never-ending Gongos business aside, the world should know what has happened in the last two informal consultations. On the morning of 16 September, the first informal consultation regarding the zero draft took place. It focused mainly on “PP1 to PP23” and on general comments. UK Representative Bob Last presided over the meeting on behalf of the Core Group and read out the zero draft. He said that it is based on the last resolution on Sri Lanka. He also made a note of the crisis in the country, demonstrations, and the changes in the Government. The Sri Lankan representative then expressed their opinion of the concerned country.
So, the Sri Lankan representative read a statement which presumably was received from the Ministry of Foreign Affairs in Colombo. The statement said that Sri Lanka rejected the zero draft and that Sri Lanka will not accept any resolution other than a resolution passed by consensus. This surprised everyone because even the resolution passed on 1 October 2015, by consensus in the 30th session of the UNHRC (30/1) was not implemented.
The statement also said that the UN HCHR’s report goes beyond the mandate and that in the past, two HCHRs have visited Sri Lanka. Yes, that is true, but what happened to the reports that they published after their visit to Sri Lanka?
The Sri Lankan representative also said that the UNHRC is always moving the goalposts and requested the Member Countries to reject this resolution. This raises the serious question as to whether there is any ground in Sri Lanka to find justice. I mean, are there any visible goalposts? However, the speech of the Sri Lankan representative was similar to that of any other concerned country when facing a resolution addressing their human rights violations.
Attending UN HR forums for 32 years
Following this, many countries spoke generally about the zero draft. Some were supportive of the resolution and some were not. There were a few countries against the resolution, out of which only China, Cuba, Pakistan, Russia, and Venezuela are current Members of the UNHRC. At the same time, countries supportive of the resolution were mostly Members of the UNHRC. This gives a clue as to what could be the eventual outcome of this resolution.
Before the closure of the morning session, some members of the civil society had an opportunity to make their remarks. These people were mostly those who had come directly from Sri Lanka. They were attorney Ameer Faaize, Opposition MP M.A. Sumanthiran PC, and Sandya Ekneligoda, the spouse of the missing journalist (2009), Prageeth Ekneligoda, and attorney and researcher Bhavani Fonseka. Faaize touched on the issue of Muslim burials and the displacement of Muslims.
Sumanthiran went into the history of the resolution on Sri Lanka in the UNHRC. He recalled how the present President and then Prime Minister co-sponsored the resolution in 2015 and then Sri Lanka’s co-sponsorship was withdrawn in 2019. Sumanthiran reminded in the meeting that the then-Minister of Justice is the present Minister of Justice and that therefore, there should not be any problem in accepting this resolution. Sumanthiran also spoke about the failure in implementing their own recommendations of the Lessons Learnt and Reconciliation Commission. He spoke further about the Prevention of Terrorism (Temporary Provisions) Act (PTA) and impunity and requested that this resolution be made stronger than it is at present.
Sandya Ekneligoda’s speech was translated from Sinhala to English. She said that she has attended the UNHRC for the last 10 years and she queried how many more years she would have to attend the UNHRC to find justice for her disappeared husband. She also said that an international mechanism is the right solution for the situation in Sri Lanka.
In fact, when Sandya was speaking about her 10 years in the UNHRC, I was thinking about my 32 years of attending all UN HR forums, from the UN HR Commission, the Sub-Commission, Treaty Bodies, Working Groups, the Universal Periodic Review, all UN HR conferences, seminars, etc., and I am still here without finding any justice for the victims. In fact, on many occasions, I have become a victim myself, because of my active commitment to the promotion and protection of human rights in Sri Lanka.
When Fonseka spoke, she reminded those present that even after 13 years since the end of the war, there is no credible justice, no political solution, no abolishment of the Executive Presidency, that impunity prevails and that there are economic crises. With their interventions, the morning session on the general comments and the discussion on the PPs were brought to an end.
Hypocrisy about the PTA
In the afternoon, the informal discussion started on OPs 1 to 18. As usual, the Sri Lankan representative who rejected the resolution started to make comments on every paragraph. The main countries supporting Sri Lanka, namely, China, Pakistan, Russia, and Venezuela also gave their input on every paragraph. If we put all their interventions together, the message is to delete the whole resolution. One by one, Sri Lanka, China, Pakistan, Russia, and Venezuela wanted different OPs to be deleted.
The usual pattern in the UN is that even though the concerned countries do not agree with the resolution, they prefer to contribute to the discussion.
What was surprising was that Russia, in this meeting, said that this was “interfering in the affairs of other countries”. I think that Russia has forgotten what they are doing in Ukraine. Also, China seems to have forgotten that they are a part of the present problem in Sri Lanka when the representative said “not to interfere in any internal affairs”.
During the first week of the 51st session, a meeting took place outside the UN. It was about the PTA. In this meeting, two speakers who justified the PTA when they were the Minister of Justice and a Sri Lankan representative to the UN in Geneva, now spoke about the difficulties and dangers of the PTA. This is called hypocrisy. Shame on them.
If Sri Lanka ruled the country according to the Constitution, there would be no need for any resolution by the UNHRC. Sri Lanka complains that the UNHRC resolutions are against their Constitution. Many issues and affairs in the Constitution have, for decades, never been implemented by Sri Lanka.
When they talk about external involvement being against the Constitution, how about the appointment of the International Independent Group of Eminent Persons by then-President Mahinda Rajapaksa and led by former Indian CJ P.N. Bhagwati? Also, regarding foreign judges, what about the Commission of Inquiry appointed by then-Prime Minister Sirimavo Bandaranaike in 1963 to inquire into the political aspects of the assassination of former Premier S.W.R.D. Bandaranaike? Two out of the three judges were foreign. They were Justice Abdel Younis from Egypt and Justice G.C. Mills-Odich from Ghana.
In the same case, the first and the second accused, Ven. Mapitigama Buddharakkitha Thera and H.P. Jayawardene were represented in the Supreme Court by Queen’s Counsel Phineas Quass from the UK. Was this against Sri Lanka’s Constitution? Come on. Please look at the grievances of the victims in a polite, decent, and cultured way rather than always rejecting them blindly.
In conclusion, victims seriously wonder why Sri Lanka should be given a two-year period as an extension by the Core Group, knowing very well that for the last many years, Sri Lanka has not implemented and will not implement the resolution. The PP18 reads as follows: “Requests the Office of the HCHR to enhance its monitoring and reporting on the situation of human rights in Sri Lanka, including on the progress in reconciliation and accountability, and on the human rights impact of the economic crisis and corruption, and to present oral updates to the UNHRC at its 53rd session (June 2023) and 55th session (March 2024), and a written update at its 54th session (September 2023) and a comprehensive report that includes further options for advancing accountability at its 57th session (March 2025), both to be discussed in the context of interactive dialogue (46/1 OP 16).”
Those who understand the rulers in Sri Lanka well will understand that Sri Lanka will do wonders in the North and the East for the demography of those regions. Do wake up!