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SL fiasco in the UNHRC

2014 Mar 10

For months Geneva was the main topic of conversation in this country. But last week, the bottom seemed to fall out of the whole issue. One reason was that when the first draft of the resolution against Sri Lanka was tabled, it did not have the institution of a commission of inquiry against Sri Lanka or any such thing. All it did was to request the Office of the High Commissioner for Human Rights to ‘assess progress towards accountability and reconciliation’ ‘to monitor relevant national processes’ and ‘to investigate alleged violations and abuses of human rights and related crimes by both parties in Sri Lanka’. The High Commissioner on Human Rights has been requested to make an oral update on this in September this year and to submit a comprehensive report in March next year.

It should be noted that the fact that the Office of the High Commissioner of Human Rights has been asked to ‘investigate alleged violations and abuses of human rights and related crimes by both parties in Sri Lanka’ does not mean a commission of inquiry. The latter is a formal procedure of the UN Human Rights Council, and in order to establish a three man commission of inquiry, specific mention has to be made in the resolution that a commission of inquiry is being instituted. Moreover, the person who appoints the three man commission of inquiry is not the High Commissioner on Human Rights, but the President of the Human Rights Council. It should be noted that no such process has been mentioned in this latest resolution.

However, feints have been made in that direction. The resolution ‘recalls’ (but does not recommend or institute)  Navi Pillay’s suggestion that an independent inquiry into war crimes be held in the absence of a credible domestic inquiry. Then the resolution asks the OHCHR to ‘investigate’ alleged violations of human rights ‘by both parties’. It is very clear that what this resolution aims at is to institute an imitation commission of inquiry outside the established procedure of the UN by using the wording of the resolution as an excuse.  Though people do not realize it, Sri Lanka is a truly unique country. We have the uncanny ability to make the UN perform contortions it has never had to perform with regard to any country in the past seven decades of its existence! Sri Lanka has turned the highest officials of the UN into counterfeiters of institutional processes. In April 2011 no less a person than the UN Secretary General put out a counterfeit ‘Panel of Experts’ report on Sri Lanka.

A real ‘Panel of Experts’ on a country can be appointed by the UN Secretary General only when he is mandated to do so by the UN Security Council (UNSC). For the UN Security Council to authorize the appointment of a Panel of Experts is an awe inspiring and history changing event for the country concerned because the Security Council acts according to the report of that PoE in relation to the country concerned. Because it was practically impossible to get the UNSC to agree to appoint a Panel of Experts on Sri Lanka, Ban Ki-moon adopted the ruse of appointing an advisory committee (to advise him on Sri Lanka) and calling it a ‘Panel of Experts’.  All the outward appearances of a genuine PoE were maintained. It was not only referred to as a Panel of Experts, it had three members just like a real PoE. Then it held hearings and compiled a report as genuine PoEs do. A real PoE is taken very seriously by the whole world. But Ban’s PoE on Sri Lanka is widely regarded as a joke.

Sometime after it was published, a Labour MP tried to use it to challenge the British Conservative Party’s policy on immigration by saying that Tamil asylum seekers should not be sent back to Sri Lanka because 40,000 Tamil civilians had been deliberately slaughtered by the Sri Lankan government according to Ban’s PoE. This was countered by a Conservative MP who stumped the labour MP by pointing out that Ban’s PoE report itself says in paragraph 53 that nothing in this report should be taken as established facts!  Ban’s imitation PoE report has not had any impact on Sri Lanka except to serve as a propaganda tool of the Tamil diaspora and its allies. We can see from the wording used in this latest draft resolution against Sri Lanka that what it aims to do is to give Navi Pillay the authority to appoint an imitation commission of Inquiry on Sri Lanka just like Ban’s imitation PoE. Appointing a UNHRC commission of inquiry will not be possible unless there are compelling reasons to do so.  It will not be easy to convince member states to appoint a commission of inquiry into an issue that is five years in the past.

Mistrust of the OHCHR

Hence the backdoor approach to an imitation ‘commission of inquiry’ run by the UN Human Rights Commissioner. The question is, what is the UN Human Rights Commissioner going to do with this report that she will be presenting to the UNHRC in March next year? Even when the UNHRC appoints a genuine commission of inquiry according to the formal procedures, all that can be done is for that report to be sent to the UN Secretary General (UNSG) for further action. But in the case of Sri Lanka, the UNSG has already prepared a report of its own and sent it to the UNHRC for further action. Now this latest resolution has asked the UN Human Rights Commissioner to write a similar report that will most probably be like a genuine commission of inquiry report, sent to the UNSG for further action. The fact that the Office of the High Commissioner on Human Rights (OHCHR) has been asked to write a report on Sri Lanka instead of a formal Commission of Inquiry appointed by the president of the UNHRC, will work in Sri Lanka’s favour.

The majority of member states of the UNHRC deeply mistrust the OHCHR. Not only does two thirds of the funding of the OHCHR come from Western countries, until recently, nearly two thirds of its staff were Westerners. In fact, in 2012, when the first resolution was passed in the UNHRC against Sri Lanka, the very next matter taken up for consideration by the UNHRC was resolution  A/HRC/RES/19/3 titled "Composition of staff of the Office of the United Nations High Commissioner for Human Rights". This resolution is a regular feature of the UNHRC agenda and is taken up every March right after the resolution on Sri Lanka. One way in which the Western powers funded the OHCHR was to send government servants of Western states to the OHCHR so that the OHCHR will be spared the need to pay staff salaries out of their budget. This preponderance of Westerners in the OHCHR was causing disquiet among member states and every year, they vote overwhelmingly to reduce the number of Westerners on the OHCHR staff.

In 2012, when the resolution on  "Composition of staff of the Office of the United Nations High Commissioner for Human Rights" was put to a vote, 33 members of the 47 member body voted to reduce the number of Westerners on the OHCHR staff. Only the Western powers and their allies voted against that resolution or abstained. So this mistrust is a powerful tool that the Sri Lankan government can use against the inquisitor that is about to be appointed to inquire into the goings on in Sri Lanka. External Affairs Minister G.L.Peiris said in the course of the speech in the UNHRC last week that  "we remain deeply concerned that the lack of financial independence of the OHCHR leads to the erosion of independence in its overall functioning... We believe that additional budgetary allocations from regular funding would lessen the OHCHR’s dependence on voluntary contributions and earmarked funding and thus would allow it to function in an independent manner." He was thereby plumbing the disquiet that already exists about the domination of the UNHRC Secretariat by Western powers. Though resolutions are being passed by the UNHRC only on the composition of the staff of the OHCHR, a closely related issue is that of funding which is also mentioned indirectly in the resolution regarding the composition of the OHCHR staff.

The Joint Inspection Unit (JIU)of the United Nations System is a body of eleven independent inspectors appointed by the UN General Assembly to investigate and report on various functions of the UN and its subsidiary bodies. In 2007, this unit published a report titled "Funding and Staffing of the Office of the United Nations High Commissioner on Human Rights." This report was also referred to in the 2012 resolution on the composition of OHCHR staff that we mentioned earlier. According to this report, while about one third of the OHCHR budget was received from the regular budget of the UN, two thirds came from voluntary contributions from donor countries. These voluntary donations often came with conditions attached to promote what the donor thought was important. The JIU of the UN system observed in their report that the OHCHR had eight trust funds to receive these voluntary contributions such as the Trust Fund for Victims of Torture, Voluntary Fund for Indigenous Peoples and so on.  They noted with concern that there is no involvement of the member states of the UNHRC in the process of approval of the voluntary contributions made to the OHCHR. Nor for that matter did the member states have any role in reviewing of the conditions (if any) attached to each contribution.

 The most important of these voluntary funds is the "Trust Fund for Support Activities of the OHCHR." The JIU Inspectors observed that this trust fund does not have a board of trustees, to review and approve the projects and activities that are financed by the fund. The JIU also noted that a crucial activity like human rights, which is one of the core mandates of the United Nations, is increasingly financed through voluntary contributions which are subject to certain conditions. Moreover they noted that these voluntary contributions are made by a relatively small number of donors. In 2006, 97.6 per cent of voluntary contributions came from 20 major donors and 80.8 per cent came from just ten countries. Furthermore, in 2006, 63 per cent of the funds from the top 20 donors were earmarked (which meant that these funds could only be used for a specific purpose).The JIU also observed that there is no mechanism for member states to review or approve individual voluntary contributions made to the OHCHR, nor are they informed of the conditions under which individual contributions are being made. The JIU Inspectors were of the view that voluntary contributions, as well as the conditions that may be attached to them, should be reviewed for acceptance by the Member States.

In 2012 and 2013, the regular resolution on "Composition of staff of the Office of the United Nations High Commissioner for Human Rights" was taken up immediately after the resolution on Sri Lanka and one may assume that this is how it has been positioned on the UNHRC agenda. This regular resolution on the composition of the OHCHR staff and the related JIU observations on the funding sources of the OHCHR provides many opportunities for Sri Lanka since it is this very OHCHR that is now to be appointed as ‘inquisitor’ on Sri Lanka.  Sri Lanka has to raise questions as to who is providing funding for the inquisition against Sri Lanka and who is carrying out the inquisition against SL. Perhaps SL can table a separate resolution demanding transparency in these matters.  It is more than likely that the very countries that are sponsoring resolutions against Sri Lanka will also be providing earmarked funding for the proposed OHCHR witch hunt against Sri Lanka. SL should insist that the funding for this should come out of the regular UN budget and not out of voluntary contributions to the OHCHR.

The other danger that has to be pointed out to the member states of the UNHRC is the danger of the UN Human Rights Commissioner and the OHCHR being appointed to carry out inquisitions against a country in lieu of a proper commission of inquiry appointed by the President of the UNHRC. The Western powers can use this precedent to appoint the OHCHR as inquisitors in relation to any country they dislike if they feel that support will not be forthcoming from the member states of the UNHRC for the appointment of a proper commission of inquiry. In this respect, the trajectory taken by Minister GLP in his speech to mention the lack of financial independence of the OHCHR, and the demonstrated bias of that body into matters relating to Sri Lanka is certainly a step in the right direction.  These are matters that have occupied the minds of the members of the UNHRC long before Sri Lanka got involved. For example, this regular UNHRC resolution on the composition of the OHCHR staff is not something that Sri Lanka initiated or was even aware of. We were too busy fighting those days to think about such matters. It was the other countries in the UNHRC that banded together and started demanding that the OHCHR be more independent from the Western powers.

Bishop Tutu misled

In an ironic twist, Bishop Desmond Tutu had signed a petition calling on the UNHRC to appoint a commission of inquiry against Sri Lanka just when the Sri Lankan government was examining how the good bishop brought about reconciliation in South Africa which was certainly not through commissions of inquiry. Bishop Tutu’s co-signatories to the petition asking that a commission of inquiry on Sri Lanka be appointed were the likes of Yasmin Sooka (of Darusman report fame) R.Sampanthan, Bishop Rayappu Joseph, C.V. Wigneswaran et al which explains many things. The bishop appears to be keeping company only with one side of the Sri Lankan conflict and he appears to know only what that side tells him. The South African government which has heard both sides, firmly took the side of the SL government. None of this however should prejudice Sri Lankans against Bishop Tutu because his contribution to the world far outweighs any statement he may sign about Sri Lanka.

The manner in which Bishop Tutu implemented the provisions of South Africa’s Promotion of National Unity and Reconciliation Act No. 34 of 1995 as the Chairperson of the Truth and Reconciliation Commission will remain an inspiration to all nations recovering from internal conflicts. At the very core of the South African truth and reconciliation process lie the indemnity law that applied equally to both warring factions. The good bishop implemented this indemnity law with a determination and clarity of purpose one would expect of a consummate politician, not a priest. He was at pains to tell the world that the South African amnesty process was unique in that it provided not for blanket amnesty but for a conditional amnesty, requiring that offences be publicly disclosed before amnesty could be granted. Though he said this, in reality, the bishop knew and he said so in his report on the TRC, that it was only those who were already on the dock, or thought their doings would one day come to light that came before the TRC and asked for an amnesty.  He knew that what he was doing was not so much a search for the truth as a sweeping of it under the carpet. It was an uphill battle all the way for the bishop to justify the amnesties he was handing out.

 He wrote in his TRC report: "There were those who believed that we should follow the post World War II example of putting those guilty of gross violations of human rights on trial as the allies did at Nuremberg. In South Africa, where we had a military stalemate, that was clearly an impossible option. Neither side in the struggle (the state nor the liberation movements) had defeated the other and hence nobody was in a position to enforce so-called victor’s justice. However, there were even more compelling reasons for avoiding the Nuremberg option. There is no doubt that members of the security establishment would have scuppered the negotiated settlement had they thought they were going to run the gauntlet of trials for their involvement in past violations. It is certain that we would not, in such circumstances, have experienced a reasonably peaceful transition from repression to democracy. We need to bear this in mind when we criticize the amnesty provisions in the Commission’s founding Act. We have the luxury of being able to complain because we are now reaping the benefits of a stable and democratic dispensation. Had the miracle of the negotiated settlement not occurred, we would have been overwhelmed by the bloodbath that virtually everyone predicted as the inevitable ending for South Africa. Another reason why Nuremberg was not a viable option was because our country simply could not afford the resources in time, money and personnel that we would have had to invest in such an operation. Judging from what happened in the De Kock and so-called Malan trials, the route of trials would have stretched an already hard-pressed judicial system beyond reasonable limits. It would also have been counterproductive to devote years to hearing about events that, by their nature, arouse very strong feelings. It would have rocked the boat massively and for too long."

When Bishop Tutu signed that petition to the UNHRC asking for a commission of inquiry on Sri Lanka, it is clear that he has been misled by the Tamils he keeps company with. He does not seem t be aware, that the Sri Lankan government forces won a comprehensive victory over the Tamil terrorists, yet they did not impose a victor’s justice on the vanquished terrorists. Most of these terrorists have been rehabilitated and granted amnesties. While nobody opposes the blanket amnesty granted to the terrorists, everybody seems to be opposed to a similar amnesty being granted to the victor. In Bishop Tutu’s case, he was handing out amnesties to participants in a conflict that had not been won or lost but had been resolved on the basis of an agreement. He would be shocked to hear that the while the Sri Lankan government has won the war on terror and given the vanquished a blanket amnesty, the government has done nothing yet to grant a similar amnesty to the victor!

When the Sri Lankan government finally gets round declaring immunity from prosecution for the victor, there is an important matter that Bishop Tutu pointed out in his TRC report that they should take note of. When Bishop Tutu was handing out amnesties in South Africa, applications for amnesty were received from persons in leadership positions in various political groupings (especially the African National Congress) who accepted collective responsibility for human rights violations.  Though such people applied for amnesty, they were not able to reveal a specific offence they had committed and were therefore not eligible for an amnesty according to the mandate of the TRC. The expedient adopted in such cases was to declare that none of the applicants had committed any offence!  Bishop Tutu was so much in favour of granting indemnity to such individuals that he pointed out in his TRC report that in the latter instance where some individuals could not be granted amnesties because they could not disclose a specific crime they had committed, that it would be in the interests of justice to clarify ‘the mistaken public impression’ that these applicants are liable for prosecution because they had not been granted amnesties. The bishop’s view obviously was that such individuals are not liable for prosecution even though they had technically not been granted an amnesty. Bishop Tutu’ observations with regard to such grey areas should be taken note of by the Sri Lankan government if they are thinking of setting up a South Africa style Truth and Reconciliation Commission. The powers of the Amnesty Committee in Sri Lanka should be wide enough to deal with instances where an applicant may not be able to specify a particular act for which he was seeking an amnesty.  

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