| by Bandu de Silva
( March 21, 2012, Colombo, Sri Lanka Guardian) Jehan Perera writing seems to propose a conciliatory attitude towards the amended US Draft Resolution (D/R) now before the UNHRC. His reasons seem to be that the amended D/R differs in a significant area of its concern from the previous draft that had been in circulation; that the present draft no longer specifies the issue of serious violations of international law and prosecutions for them as in the previous draft…..instead it seeks to provide for an international role in monitoring the implementation of the resolution and specifically calls on the Office of the UN High Commissioner for Human Rights to “present a report to the Council on the provision of such assistance at its 22nd session.”
This is an attempt to mislead the readers. I hasten to point out that the amended D/R equally, if not more, spells danger to all member countries because it seeks to enable (read ‘empowers’) through this D/R which is Sri Lanka specific, powers which neither UNHRC nor HR High Commissioner held before, namely “encouraging” the latter and another body which did not exist in the UN lexicon so far called ” relevant special procedure mandate holders” ‘to provide advice and technical assistance on implementing the above mentioned steps’ and the Sri Lankan Government to accept them. Besides the D/R requests the office of the High Commissioner to report on the provision of such assistance to the HRC at its 22nd session (which is next year) which means a time-frame for its action. That qualifies the ‘enabling’ action and makes it more than a mere transfer of authority.
This has been interpreted by Jehan Perera and others as ‘monitoring’ the process of implementation of the findings of the LLRC but that is a wrong interpretation. The enabling provision applies to two areas, one to implementing the recommendations of the LLRC; the other is to areas over which the D/R has expressed concern over the LLRC Report’s inadequacy in addressing serious allegations of violations of international law. It is against both of these that the Operative three Paragraphs of the D/R have been set. The first area is covered by Operative Paragraphs One and Two which are specifically addressed to the government of Sri Lanka. The concern expressed in the Preamble over lack of adequate address in the LLRC Report on alleged serious violations of international law which takes primacy is addressed to the High Commissioner and other procedures/bodies.
It is then a danger to all countries to relegate the D/R as an innocuous instrument which is trying to persuade the GOSL to expedite the process recommended by the LLRC. If adopted by the Council, the D/R though brought in the form of a country specific Resolution, can have applicability to all countries in the form of a precedent. That is the competence of the UNHRC to define the process of action relating to a specific country in a situation where the Security Council is unable to do so because it is hamstrung by the veto procedure. That seems to be one of the major objectives of the US which is sponsoring this D/R with extra vigour.
Firstly, this is a very dangerous principle to be followed in respect of any UN body, namely, passing on the competency authorised only to the Security Council.
Secondly, it is dangerous because it seeks to “Enable” through a country specific Resolution, the office of the HR High Commissioner and other unspecified procedures/bodies which are couched in such vague terminology as ” relevant special procedures mandate holders” to advice and provide technical assistance to a sovereign member country. No such category as “relevant special procedures mandate holders” exists in the UN lexicon. This terminology seems to be introduced here with a purpose. In my view, it is to bring in the UNSC appointed Darusman Panel Report as a “relevant special procedure mandate holder.” What else?
Advice can be a “blueprint” for action
The “advice” is to be given not only by the office of the High Commissioner but also by “Relevant special procedure mandate holders”, if the Darusman Report is to be included there, which is not a procedure followed in the UN and as such does not have the approval of member countries of the UN or the Security Council. Perhaps the reference to “special procedure” means procedures such as the appointment of the Darusman Panel by Secretary General Ban-ki-moon to offer him personal advice. This can not be construed a “special procedure” because it was a procedure not approved by the UN. That it has come into existence and has gained status gradually, as it has now become a document before the UNHRC, surreptitiously introduced though, it could be argued as having a claim to “relevant special procedure” mentioned in the D/R. This wording in the D/R is ambiguous and should be rejected by member countries on that account alone.
The request for the High Commissioner to report to the Council at the 22nd session itself shows that the High Commissioner and others enabled by the Resolution cannot take their own time in dealing with the Sri Lankan case. They are given a [short]time frame. That itself is binding the office of the High Commissioner to a course of action. This makes the enabling action of the D/R not just a simple affair but one of “empowering” these bodies with powers of specific significance which will enable them to come out with a blueprint of sorts for action especially in respect of areas which according to HR High Commissioner, Darusalam Panelists and the US, U.K. and others, are not addressed adequately in the LLRC Report and which position the D/R has accepted. That is then an area which is strictly outside GOSL’s competence (not addressed to GOSL except to make it mandatory to accpt the advice / technical assistance as far as this D/R is concerned. This is precisely because the LLRC has not dealt with them.
GOSL has only to accept the advice of the High Commissioner and “others” in respect of this area. However, consultations regarding other areas recommended by the LLRC as well as areas excluded are not precluded. To that extent the issue is open and whether the process assigned to the High Commissioner and others is ‘monitoring’ or not is open to discussion.
However, on the whole, the amended D/R is not as innocuous instrument as it is made out to be. It is a dangerous instrument whose implications are hidden but can be used in a damaging way which calls for its careful examination by all member countries.
Nature of Advice / Technical Assistance
What is the nature of advice and Technical assistance which can be expected to be offered to the GOSL? There is no need to argue about it. It is spelt out in a nutshell in the Darusalam Panel Report which has been presented to the UNHRC by its High Commissioner who seems to have accepted its recommendations on the need of an independent investigative process.
The Panelists have gone public now through an article they together published New York Times on 7th March, the day US submitted her D/R to the UNHRC. In this letter the Panelists have gone a step further in rejecting GOSL’s internal mechanism, the LLRC. They specifically complain in their recent article in NYT that “when it came to proposing next steps for the government, it [LLRC] called for investigations by the same entities – the army and the attorney general – who have a track record of ignoring government abuses for decades.”
That shows a point of view not submitted to UNSG and now announced publicly by the Panelists that the investigations by the Sri Lankan Armed Services (Court Martial proceedings) and by the Attorney General through the Law Courts are not acceptable to the Panelists. (The UN High Commissioner’s statements show agreement with that position though not so explicitly. For all intents and purposes, the Panelists are demanding an investigative process by an independent authority outside these, i.e., an external mechanism).
They are asking the international community must now assume its duty to ensure that Sri Lanka fulfills its responsibilities to all its people and to the rest of the world. What this responsibility is clearly not stated. Ostensibly, they request to support of member countries to the US Draft Resolution. That is as a first step. But they go beyond that in requesting the UNHRC to create an independent mechanism of investigation as they have called in the article in NYT. One can see a catch here. The US sponsored D/R is a trap to bind Sri Lanka in the first instance. A Darusman type of Panel Report to advice the Secretary General could thereafter become part of UN process in future to be applied in situations where the Security Council becomes an obstacle, if the present D/R is accepted by the Council.
Now with the D/R seeking to enable both the Office of the High Commissioner and “relevant special procedure mandated holders” like Darusalam Report to work in tandem, the advice from these bodies could come in the form of an independent investigative process, which they have been advocating throughout, particularly in respect of the areas which are not claimed to be adequately addressed in the LLRC Report.
Recent Special Procedures
There are ‘special procedures followed by UN in establishing external mechanisms to investigate situations of alleged war crimes and violations of human rights and international humanitarian laws. More recently, two types of Special Courts were established to deal with allegations of war crimes and violations of human rights and international humanitarian laws. Good examples of the first category which was totally independent were the International Court on Yugoslavia (ICTY) and International Court on Rwanda (ICTR). An example of the other type was the Special Court which was a ‘hybrid’ one established for Sierra Leone. Unlike the two former Courts, in the latter court the Prosecutors represented both the international community (Chief Prosecutor) and the Sierra Leone government (Deputy Prosecutor). Though unlike the ICTY and ICTR, the court in respect of Sierra Leone had no primacy over national courts of third States or to order the surrender of an accused located in any third State that did not hinder the Court’s operation since most of the suspected perpetrators were in custody in Sierra Leone.
Here one is not concerned whether these special procedures were established on the directions of the Security Council or not. I the case of Sierra Leone, it was based on an agreement between UN and Sierra Leone government. There we have the closest to a bi-lateral process though it is not clear how much pressure was exerted on Sirra Leone to come to an agreement with UN. Presently, one can see in the US sponsored D/R an attempt to drive the GOSL towards such a bi-lateral process with the provision in the D/R which makes it mandatory for the GOSL to ACCEPT the Advice and Technical Assistance. In this situation whether a country has signed the Rome Statute does not arise. We are wasting time discussing that issue. The US D/R is paving the way for a blueprint.
Choices before the High Commissioner
So, it seems to me, that the Office of High Commissioner and others have two choices to select from these international practice mentioned to advice GOSL. They have just one year to do that and that advice could come in the form of nothing less unless blueprint as was presented by the Secretary General to the Sierra Leone government and the GOSL may not be in a position to reject the idea as the D/R binds Sri Lanka to a mandatory position. Besides, given the pressure exerted presently, prospects of rejection could be remote even in matters like demilitarization which affects the security of the country even if ‘Prime Minister’ of Eelam, Rudrakumar were to send his Eelam army and Navy to restart the war again supported by Tamil Nadu.
However, considering that Operative Para One and Two of D/R rests the responsibility of ‘taking necessary additional steps to fulfill its relevant legal obligations and commitments to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans,’ with the GOSL it could be expected that the HR High Commissioner and “others” enabled by the D/R might be seen becoming active especially in respect of addressing alleged violations of international law (the last section of Operative Para Two). Since Paragraph Two is addressed to GOSL, the High Commissioner and others cannot ignore GOSL’s views altogether. What might finally result if the US sponsored D/R is carried through, could be ‘hybrid’ procedure to investigate into alleged serious violations of international law as in the case of Sierra of Leone. It is also likely that like in Sierra Leone, the date line for inquiry could be fixed from a convenient point of time, like the end of the Cease Fire Agreement in the case of Sri Lanka.
It would seem that from the appointment of Mr.Moon’s advisory Panel team to the Report finding its way to UNHRC, the High Commissioner’s own call for an independent mechanism; and now the Panelists coming out openly in favour of the US sponsored D/R sounds very much like a big conspiracy against Sri Lanka. The member countries of UNHRC including India which country seems to be sitting on the fence this time because of undue racist policies of its Tamil Nadu state, have to weigh the implications of the D/R carefully on the future of UN institutions like the Security Council and the danger posed by empowering an office like the Human Rights High Commissioner and unspecified “others” with powers which were hither to confined to the Security Council and on its direction to the UN Secretary General.
It is natural to expect the Govt. Of Sri Lanka and likeminded countries to oppose the US sponsored D/R with all means available because of its far reaching implications going beyond the specific country situation. If a halfway house is desirable to moderate the D/R while at the same time conveying a message to the Govt/ of Sri Lanka, then the Operative Para Three is not necessary at all and Paras One and Two which are addressed to the Govt of Sri Lanka with a proviso requiring the Govt. of Sri Lanka to submit progress to the twenty second session of the UNHRC would be sufficient. Those who oppose the D/R on ground that country-specific resolutions should not be carried out on a matter of principle, might oppose such formula while hawks on the other side might want their D/R to be carried out.
The crux of the matter, as I see, is that US wants to find a way out of the present imbroglio in the Security Council with two countries using their veto power to scuttle western moves to action against states. As my former diplomatic colleague, Izeth Hussein asked in an article in these columns recently why should the US be so much concerned about the situation in a distant country like Sri Lanka which does not have a primary importance to US.