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US draft gets tougher, calls for probe by OHCHR and SL Govt.

2014 Mar 18

Russia, China and Iran present another resolution on HR but no direct reference to Sri Lanka India's concerns included in revised text; JHU submits plan for Lanka's counteraction

The United States is expected to deposit tomorrow with the Bureau of the UN Human Rights Council in Geneva an updated resolution on Sri Lanka.

This revised draft, a copy of which is available with the Sunday Times, makes it explicit that there would be an international probe into alleged war crimes and clarifies the mandate of the Office of the Commissioner of Human Rights among other matters. This is what the new operative paragraph (provision says:


“Takes note of the High Commissioner’s recommendations and conclusions regarding ongoing human rights violations and the need for international inquiry mechanism in the absence of a credible national process with tangible results, and requests the Office of the High Commissioner.

(a) To continue to monitor the human rights situation in Sri Lanka and assess progress on relevant national processes,
(b) To lead a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka and establish the facts and circumstances of such violations and of the crimes committed with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts,
(c) To present an oral update to the Human Rights Council at its twenty seventh session, and a comprehensive report followed by a discussion on the implementation of the present resolution at its twenty-eighth session.”

Quite clearly the wording has been made stronger. The initial draft sought to urge the OHCHR “to investigate alleged violations and abuses of human rights and related crimes by both parties.” However, in the latest draft, the word “serious” has been added before “crimes committed by both parties.”
However, as is clear from the operative provision, action, if any after the findings of an inquiry, will have to be determined by the Human Rights Council. This is after the Human rights Commissioner reports to them on what has transpired.

The new draft is the outcome of ‘informals’ (or talks on the side-lines of the ongoing 25th sessions) and consultations by a core group co-sponsoring the move. They are Montenegro, the Former Yugoslav Republic of Macedonia and the United Kingdom. Their diplomats spoke to their counterparts in member countries of the Human Rights Council and non-members. This draft will come for scrutiny before Council members and non-members an informal meeting between 10 a.m. and noon on Tuesday. Diplomats in Geneva say more changes are likely before the final text is formulated. It would incorporate changes suggested at the meeting.
The ‘informals’ saw many countries seeking changes in the initial draft. At this event, Russia wanted to know the need for a truth-seeking mechanism. Germany noted the initial draft was too much centred on places of worship as opposed to people. It sought that it be rephrased. Switzerland endorsed that view. Pakistan successfully saw the inclusion of the word “alleged” wherever the term attack was used. Pakistan noted, “the Sri Lanka Government has already provided factual information to the Council about what they have done. According to that, they have investigated all reported incidents.”

China argued that the operative paragraph was “unnecessary.” Mexico noted that it had “no problem with what is behind this but we think that the wording is a bit proscriptive into domestic arrangements of Sri Lanka. Hence it wanted references to the Northern Provincial Council be re-worded to say “something more general” like “warrants the proper functioning of the NPC.” Pakistan sought a deletion altogether saying that the reference “reflects preferential treatment of NPC over Sinhala people.” Chile supported Mexico’s assertion by saying it fully “understands the rationality behind this paragraph” since the Central Government helps the Provincial Councils to perform.” Britain added: “Last year we welcomed the announcement that the elections had taken place. We think it’s good to look ahead now after the elections have happened. We would like to say that the NPC can operate with sufficient resources.”

As a result of these views being expressed, the reference to the NPC now reads, “Calls upon the Government of Sri Lanka to ensure that the Northern Provincial Council is able to operate effectively, in line with the 13th Amendment of Sri Lanka’s Constitution.”

Thailand urged that Sri Lanka be given “time and space to implement the on-going mechanisms” and added that “perhaps it is not necessary to go for the international mechanism.” Cuba said the probe by OHCHR “is not a good proposal.” The European Union said it would strongly support the OHCHR for an international investigation. “We encourage you to make the terms clear — not going to suggest the wording — encourage you to suggest wording to be clearer.” Both Chile and Mexico sought clarity on the wording over the reference to the investigation. They said, “Fundamentally, the OHCHR was contemplating was a stand-alone inquiry mechanism and not a further investigation by her office. We would support the call for a stand-alone mechanism.”

Another change, coming at the instance of India, is in respect of asking the OHCHR and relevant special procedures mandate holders to provide advice and technical assistance on implementing provisions of the resolution. India sought express mention that it should be with the concurrence of the Government of Sri Lanka. The new draft (provision 9) says, “Encourages the Office of the High Commissioner and relevant special procedures mandate holders to provide in consultation with and with the concurrence of the Government of Sri Lanka, advice and technical assistance on implementing above-mentioned steps.” This inclusion has worried some Tamil groups, now in Geneva, that the words “above mentioned steps,” which precedes the operative provision in the draft resolution, would mean the OHCHR would have to obtain the concurrence of the Sri Lanka Government for the probe.

The first copy of The Jathika Hela Urumaya's programme of action being handed over to President Mahinda Rajapaksa on Friday by JHU Media Secretary Nishantha Warnasinghe, and candidate for the Western Provincial Council polls.

The move, far from being perceived as a measure to appease Colombo, is quite different, argue Indian diplomats in Geneva. They say India does not want to set a precedent by voting to empower special procedures mandate holders to visit countries without the express consent of their governments. Nevertheless, such visits without concurrence could only be approved by the UN Security Council.

As revealed in these columns last week, India’s concerns over Sri Lanka — accusations on the non-implementation of the 13th Amendment, the call to provide the Northern Provincial Council and its Chief Minister with resources and authority necessary to govern and devolution of political authority, though now amended — have been included in the draft resolution. Thus, New Delhi has found added muscle to deal with some of the most important bilateral issues for India with Sri Lanka and its vote for the resolution remains an absolute certainty. This is notwithstanding a last-minute effort by President Rajapaksa. After his meeting with Indian Premier Manmohan Singh in Myanmar (Burma), Rajapaksa sent a detailed report to the Government of India listing out how the Sri Lankan Government has addressed issues before the UNHRC by implementing recommendations of the Lessons Learnt and Reconciliation Commission (LLRC).
The report was carried by Defence Secretary Gotabaya Rajapaksa when he was on a two-day visit to New Delhi early this month and handed over to India’s National Security Advisor Shiv Shankar Menon.

Most of the changes in the initial draft have come as a result of informal consultations with other countries represented in Geneva. This has led to a number of other amendments in the latest text. One of the changes takes note of the Council being “alarmed at the significant surge in attacks against members of religious minority groups in Sri Lanka, including Hindus, Muslims and Christians.” Another notes that “the national plan of action does not adequately address all the findings and constructive recommendations of the Commission, and encourages the Government of Sri Lanka to broaden the scope of the plan to adequately address all elements of the Commission report.”

Two paragraphs which have been completely overhauled in the revised resolutions are:
“Emphasising the importance of a comprehensive approach to transitional justice incorporating the full range of judicial and non-judicial measures, including, among others, individual prosecutions, reparations, truth-seeking, institutional reform, vetting of public employees and officials, or an appropriately conceived combination thereof, in order to, inter alia, ensure accountability, serve justice, provide remedies to victims, promote healing and reconciliation, establish independent oversight of the security system and restore confidence in the institutions of the State and promote the rule of law in accordance with international human rights law, with a view to preventing recurrence of violations and abuses.”

“Underlines the truth-seeking processes, such as truth and reconciliation commissions, that investigate patterns of past human rights violations and their causes and consequences are important tools that can complement judicial processes and that, when established, such mechanisms have to be designed within a specific societal context and to be founded on broad national consultations with the inclusion of victims and civil society, including non-governmental organisations.”
Both the US and British envoys to Sri Lanka are busy with canvassing support and explaining provisions of the resolution. US Ambassador Michele Sison, who was in Washington DC is now due in Geneva. In the Swiss City already is John Rankin who flew to London for a meeting with Prime Minister David Cameron on Thursday.

The new changes to the draft, no doubt, strengthen the provisions in the second draft. However, Tamil groups that have turned up in Geneva were still not happy with the US over its initial draft which they claimed was “watered down.” An angry US diplomat asked a member of the Tamil diaspora “what more do you want us to do. The Government of Sri Lanka does not want this resolution. It is you people who have been pressing for it.” The move prompted TNA National List parliamentarian M.A. Sumanthiran, currently in Geneva, to make an appeal to Tamil groups not to make any critical comments on the draft resolution. However, that did not deter Northern Provincial Councillor Ananthi Sasheetharan from speaking at a side event on Friday. She claimed that the “Tamil people” were not “happy with the draft resolution” which was not enough to deal with what she called “genocide.”

She also used the opportunity to raise issue over an incident where a widow and her 13-year-old daughter from Dharmapuram in the Kilinochchi District were arrested. On Friday, a three member team of TNA members — Mavai Senathirajah (MP), Easwarapathan Saravanapavan (MP) and Subramaniam Pasupathipillai (NPC member) — interviewed Kilinochchi’s Senior Superintendent of Police, Edmond Mahendra. He told them that Police suspect that a wanted criminal fired at detectives of the Terrorism Investigation Division (TID) from the house of the widowed mother. She and her daughter were produced before Sivabala Sivasubramaniam, the acting Magistrate, Vavuniya on Friday night. The mother has been detained on a three months Detention Order under the Prevention of Terrorism Act and sent to the Boosa Detention Camp. The acting Magistrate ordered that the daughter be produced before the Judicial Medical Officer (JMO) for a report and produce her before courts tomorrow. According to Police spokesperson Ajith Rohana, SSP, the duo had allegedly harboured the criminal. Military spokesperson Brigadier Ruwan Wanigasooria said, “On the evening of March 13 when a police team attempted to arrest a suspect in connection with a crime he escaped after opening fire at the police. Investigations have revealed that the suspect has had LTTE connections as well. The police are on the look out to arrest the evading suspect and the Army will assist the police where necessary.”

TNA’s Sumanthiran was lobbying delegates in Geneva over the incident. He claimed that the mother and daughter were among those who had staged protests over missing persons when British Prime Minister David Cameron visited Jaffna in November last year. He also claimed that the youth whose arrest was being sought had distributed leaflets asking people in the Wanni to support the resolution on Sri Lanka at the Human Rights Council.

In a related development in Geneva, Russia, China, Iran (a non-member of the UNHRC) has caused some confusion among diplomats by introducing a joint resolution titled “enhancement of international co-operation in the field of human rights.” Besides the draft resolution on Sri Lanka, one by the United States on Right to Information, Postponement of the renewal of the mandate of the working group on enforced disappearances, this is the fourth draft listed in the Council agenda. If official Government Spokesperson and Media Minister Keheliya Rambukwella were to announce at a news conference that ‘friendly’ countries would move a resolution in favour of Sri Lanka, the three-country draft contained no such reference. Yet, some of the provisions, diplomats in Geneva believe, reflected on the US draft. One reference in this draft days”the need to promote a co-operative and constructive approach to the promotion and protection of human rights, as well as to enhance the role of the Human Rights Council in promoting advisory services, technical assistance and capacity building to support efforts to ensure equal realisation of all human rights and fundamental freedoms where appropriate.”

Another provision noted that “the promotion, protection and full realisation of all human rights and fundamental freedoms should be guided by the principles of universality, non-selectivity, objectivity and transparency and the enhancement of international co-operation, in a manner consistent with the purposes and principles set out in the Charter.”

However, UN officials in Geneva said that the three-nation draft only dealt with the Universal Periodic Review (UPR). This is a process where member countries of the UN have their human rights reviewed periodically. These developments came as the Government prepared to step up its campaign against the resolution in Geneva next week. Presidential Secretary Lalith Weeratunga will leave on March 23 to take part in the briefings. He headed a Presidential Task Force that oversaw the implementation of the LLRC recommendations. In late January he briefed UN diplomats there and thereafter undertook a similar mission to the United States. He will join delegation leader External Affairs Minister G.L. Peiris and Permanent Representative Ravinatha Ariyasinha. Minister Mahinda Samarasinghe, the President’s special envoy on human rights, has been tasked to brief regional groups whilst in Geneva to attend the 130th assembly of the Inter-parliamentary Union (IPU) there.

The initial draft continued to cause speculation in some circles, particularly among Tamil Disaspora groups, that it was ‘weak’ and did not refer to an ‘international probe’ as called for by UN Human Rights Commissioner, Navi Pillay. So much so, the Tamil National Alliance (TNA) sought a meeting with officials of both the United States Embassy and the British High Commission in Colombo. A statement issued later, signed by TNA leader Rajavarothayam Sampanthan and Northern Province Chief Minister C. Vigneswaran welcomed the draft resolution for the establishment of an international investigation “in respect of war-time abuses committed by both sides and violations of human rights throughout the country since the end of the war.”

The statement added, “We look forward to the co-sponsors effecting revisions to the draft over the following weeks that will clarify and strengthen the scope of the forthcoming investigation.”Diplomatic sources said that during their talks with officials of the two missions in Colombo, Sampanthan sought clarity over the resolution. It was explained to the TNA delegation that the resolution (as it now stands) in essence sought two investigations, one that was coming under the aegis of the OHCHR and another domestic one under the Government of Sri Lanka. The first, they explained, was based on the recommendations of Human Rights Commissioner Navi Pillay in her report to the 25th Council sessions. She said that there was the “need for an independent and credible international investigation in the absence of a credible national process with tangible results.”

The call for a domestic inquiry by the Government was a reiteration of the Council’s position like in the two previous resolutions. Such a call to the Government of Sri Lanka “to conduct an in independent and credible investigation” would empower the Human Rights Council “to monitor” and “assess progress” on the process and report to the Council as stipulated. That would be either to say that the Sri Lanka Government has not yet fulfilled the Council requirement for a local probe on the lines spelt out or in an unlikely event say they have complied negating the need for further international inquiry. The fact that such a ‘window of opportunity’ was being afforded to the Government was revealed exclusively in these columns last week.

TNA leader Sampanthan told the Sunday Times, “We stand by the statement we issued on behalf of the TNA. It is a further step in the process that has been taking place in the UNHRC since 2012. To bring about genuine reconciliation to the people of Sri Lanka, the Government should realise it has not meaningfully delivered on questions of accountability issues such as pertaining to land, oppressive military presence and grave violations of human rights including that of missing persons and that of ensuring a political solution. These are fundamental to reconciliation. To say there is an international conspiracy against Sri Lanka or that an LTTE rump is guiding the process is tantamount to evading what Sri Lanka has to deal with. The Government seems to be having a one point agenda. That is to win a domestic election by arousing nationalistic feelings and thereby continue to be in power. This is a very short sighted policy.”

A leader of the Jathika Hela Urumaya (JHU), partner of the UPFA Government, did not agree with the TNA leader’s views. “This is a witch-hunt by the United States and some allies to simply punish Sri Lanka,” declared Minister Champika Ranawaka, JHU General Secretary. He said, “They only need a resolution for an international inquiry to enable individual countries backing the move to take their own course of action against Sri Lanka.” He said the draft resolution was seemingly “watered down” but the people should not be fooled by such belief. He said it was imperative that the Government formulates its own economic strategy to deal with any situation that may arise.

In fact, the JHU’s views on what such measures should be, is contained in a 15 page booklet it handed over on Friday to President Mahinda Rajapaksa. Authored by Nishantha Warnasinghe, the JHU’s Media Spokesperson and candidate for the Western Provincial Council, it says that at present 60 per cent of Sri Lanka’s exports are to the US and European Union markets. Due to issues over preferential tariffs (GSP plus), the Government should consider a programme of export diversification. A few highlights:

Non-aligned Foreign Policy: The foreign policy that prevailed in 1960-70 which was not Pro-Western, pro-Indian or Pro-China should be continued. It is worth having equal relations with the Asian giants such as India, China, Pakistan and Japan while developing friendly relationship with emerging Asian powers including Thailand, Indonesia, and Korea as well.

Anti-Imperialist Front: Russia has re-emerged against the western obstinacy. Therefore defence, technical and diplomatic relations should be developed with Russia and other Central Asian countries.

Dealing with the Indian states: Both the Congress party and the BJP conceitedly assume that the neighbouring countries in the region must act under them. India is no more following Nehru’s ‘Panchsheela’ foreign policy. We should neither be an ally to India nor remain against it. Therefore we should not be silent but come up with strict diplomatic responses with regard to its misconduct such as not granting online visas to Sri Lankans, trade priority, fishery issue and harassing civilians.

The fact that India is politically divided to a number of states such as Kerala, Maharashtra, Uttar Pradesh, Kashmir and West Bengal, we need to openly work with the states’ political powers.

Resettle Sinhala and Muslims in the North: No peace can be achieved without this. The next of kin of soldiers who sacrificed their lives, others who lost their limbs also should be given the right to obtain land there. If the traditional homeland does not apply to Colombo, it should not apply to any area in the country. The right of Tamils to live in all parts of Sri Lanka should be ensured for Sinhalese and Muslims.

Developments in Geneva has also drawn the attention of the main opposition United National Party (UNP). It said last week that the “crisis Sri Lanka faces is not, as the Government would prefer the people to believe, an international conspiracy or petty jealousy against the Sri Lankan state for defeating terrorism.”
This week the party hierarchy is keeping a close watch on developments in Geneva to prepare itself for another statement. This is days ahead of the Southern and Western Provincial Council elections. The UNP is conscious that the UPFA Government would seize on the further developments to increase its vote base. That is amidst many a crisis the UNP faces. Another issue has flared up between Colombo Mayor A.J.M. Muzammil and Colombo District parliamentarian Ravi Karunanayake. The mayor has ordered the removal of a bus station in the City put up by Karunanayake with his photograph. National Leader Ranil Wickremesinghe was busy trying to resolve the dispute and to ensure there are no more feuds until the polls are over.

A victory for the UPFA at the polls, despite lesser crowds at some of its meetings, is in no doubt. However, a victory in Geneva is clearly a difficult exercise. At least after the on-going 25th sessions of the Human Rights Council, it would afford the Government an opportunity to re-examine whether the conduct of the country’s foreign policy has been fruitful or disastrous. Otherwise, the Government will continue to incur the wrath of its friends in the world by its moves at self-isolation.

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