| by Dr Laksiri Fernando
( April 17, 2012, Sydney, Sri Lanka Guardian) It is extremely a callous attitude on the part of some senior ministers, particularly the Minister of External Affairs, to reject the UN Human Rights Council (UNHRC) resolution on Sri Lanka and claim that the resolution is ‘non-binding’ and therefore Sri Lanka is not bound to implement its provisions.
Stronger words have come from a key SLFP Minister, and Leader of the House, Nimal Siripala de Silva, who even blamed the Lessons Learnt and Reconciliation Commission (LLRC) that the Commission has gone beyond its mandate. It is in the same line of thinking that G. L. Peiris has said “There is no need to drag on things which occurred in the past.” This is a clear admission that something had gone particularly wrong.
As Nadira Gunatilleke reported in the Daily News (27 March 2012), the Professor has said: “It is only a non – binding resolution. The government and the people strongly opposed the resolution to prevent internal affairs of the country being internationalised and to protect sovereignty and independence of the country. It enabled outside elements to interfere in Sri Lanka’s internal affairs. This is why the government and the people opposed it.”
Issue of Sovereignty
UNHRC resolutions are argued to be ‘non-binding’ in a strict domestic legal sense in respect of UN member states. This is also not completely correct and many of the resolutions with reference to budget, organizational arrangements and technical assistance to member states are binding on the Human Rights Commissioner’s Office and Special Procedure bodies, and the officials and those bodies need to implement them.
If the UNHRC resolutions were completely ‘non-binding,’ then there was no point in Sri Lanka raising a ‘sovereignty’ issue in respect of the US draft resolution on Sri Lanka. A mere ‘critical or belittling’ resolution does not affect a country’s sovereignty. The raising of the ‘sovereignty’ issue particularly showed that Sri Lanka was mindful of the fact that if the resolution was passed then there were obligations to follow.
This is one reason why the present author requested the Sri Lankan government to take the draft resolution seriously and try to achieve some consensus through a ‘compromised resolution’ by proposing amendments to the draft, possibly through the Indian mediation (Asian Tribune, 14 March 2012). He however maintained that in an “interdependent world today the sovereignty of a State in respect of human rights is limited and relative and otherwise horrendous human rights violations could occur in the name of sovereignty.” The whole purpose of the UN and its human rights bodies is to prevent this occurrence.
When there was a decisive struggle against terrorism in the country before May 2009, and when there was clear ambivalence on the part of many actors of the international community, it was completely correct on the part of Sri Lanka to resist international pressure, interference or even influence. The present author unequivocally supported that effort and even advocated that ‘offensive’ to a considerable extent. Nevertheless, it was not as a license to indulge in human rights violations or humanitarian law but only to combat terrorism.
The situation now is completely different and there is a pathetic inability on the part of the government to appreciate this change and use foreign policy accordingly. Most hilarious is that some people who succumbed to the international pressure, and even interference, when terrorism was ‘roosting the roof’ now have become the champions of ‘sovereignty against human rights.’
One such a person is none other than the Minister of Foreign Affairs himself. To say the least, he was the local author of the Norwegian initiated Ceasefire Agreement (CFA) with the LTTE in 2002 which betrayed the ‘sovereignty and integrity of the country to terrorism.’ This is a matter highlighted by the LLRC Report itself.
The CFA not only surrendered sovereignty but also betrayed the country’s territorial integrity. This is completely different to Sri Lanka as a member country of the UN abiding by the general rules and regulations of that organization beneficial for its own good will and betterment. If not for the purpose of implementation, what is the purpose of a resolution?
There is no need to emphasise that the majority of the members of the UNHRC are Third World countries, and although some of them this time merely abstained from voting for the resolution, if Sri Lanka resists its implementation they would almost certainly go against Sri Lanka at the next turn of events. There is a strong normative force behind the resolution, although it is mild on recommending certain obligations that Sri Lanka should follow.
Nature of the Resolution
There is no question that the resolutions of the Human Rights Council do not have the same force of the resolutions of the UN Security Council. On this count the Professor is correct. The Security Council is more of an ‘executive body.’ One may say that UNHRC resolutions are similar to the General Assembly resolutions but much more focussed and specific in the case of human rights.
The reason is that the UNHRC is the main specialized body of the UN on human rights. The High Commissioner for Human Rights can report to the General Assembly and also directly to the Security Council. The resolution that touched on Sri Lanka has much to do with security issues and internal armed conflicts that directly come under the purview of the Security Council. This is something that Sri Lanka has to be careful about.
Although the resolutions of the UNHRC or the General Assembly are considered non-binding, some of the resolutions (not all) do have a special character which carries a strong normative force behind them. I would categorize the resolution on Sri Lanka in the latter category. On the surface it may appear innocuous, but within it there is something fundamental to all human rights and humanitarian law adopted by the UN since its inception and before. Let us look at the third paragraph of the Preamble.
It reaffirms “that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law, as applicable.”
Could the Sri Lankan government reject this fundamental principle saying, “there is no need to drag on things which occurred in the past”? If that is the case it is going to be a fundamental error and moral infirmity. During the heat of the war or for any other reason it is one thing for the soldiers or the commanders to indulge in atrocities. They nevertheless should be punished. But trying to cover them up through ‘sweet language’ is more reprehensible.
Do our law professors only teach the text of the law without ethics?
There is another moral aspect to the resolution. Without completely prescribing ‘recommendations’ from outside, it welcomes the ‘constructive recommendations’ of the LLRC. Major ones are listed as follows.
1. “To credibly investigate widespread allegations of extra-judicial killings and enforced disappearances.”
2. “To demilitarize the north of Sri Lanka.”
3. “To implement impartial land dispute resolution mechanisms.”
4. “To re-evaluate detention policies.”
5. “To strengthen formerly independent civil institutions.”
6. “To reach a political settlement on the devolution of power to the provinces.”
7. “To promote and protect the right of freedom of expression for all and enact rule of law reforms.”
Perhaps it is the LLRC recommendation ‘to credibly investigate alleged extra-judicial killings and disappearances’ and the comments about them, that Nimal Siripala de Silva accused the LLRC going beyond its mandate. After all it is to formulate a ‘home grown solution’ that the LLRC was appointed although some Ministers now grumble about its own ‘home grown recommendations.’
The LLRC recommendations are not internationally or externally induced but ‘home grown.’
There are obviously three operative sections to the resolution. The resolution is not just a statement of principles or opinions. These are the sections that Sri Lanka has to implement in concurrence with the UN Human Rights Commissioner’s Office. It is also because of this operational nature of the paragraphs that at the last moment additional reference was made in the Preamble referring to the Council ‘resolutions of 5/1 and 5/2 on institutional building.’ All implementing provisions could, therefore, derive from that basis without any special budget for the resolution.
The first operative paragraph calls upon the government of Sri Lanka to implement two things. ‘Implement’ is the term used. They are (a) the constructive recommendations of the LLRC. (b) To take all necessary additional steps to fulfill its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans.
One may question the meaning of the second aspect as it is obviously broad. This is where under the resolution that Sri Lanka is supposed to maintain a ‘good behavior’ in addition to ‘taking additional steps to fulfill its international legal obligations.’ For example, Sri Lanka has newly violated the recommendation by abducting Premakumar Guneratnam and Dimuthu Attygalla and forcefully deporting the former who is also a Sri Lankan citizen.
The second operative paragraph ‘requests’ the Government of Sri Lanka to present, as expeditiously as possible, a comprehensive action plan detailing the steps that the Government has taken and will take to implement the recommendations made in the Commission’s report, and also to address alleged violations of international law.
Although this is termed as a ‘request,’ what the government has to do to fulfill this request is clearly outlined. And it has to be done expeditiously as possible. A comprehensive action plan is requested. It should include detailed steps that the government has taken and will take to implement the LLRC recommendations. This action plan also should detail the additional steps taken to address alleged violation of international law.
It was only the third paragraph that was revised after the draft was presented and it is again thanks to India. The revised paragraph now ‘encourages’ the “Office of UN High Commissioner for Human Rights and relevant special procedures mandate holders to provide, in consultation with, and with the concurrence of, the Government of Sri Lanka to accept, advice and technical assistance on implementing the above-mentioned steps.”
Now if not for the Indian amendment, all those human rights bodies and ‘busy bodies’ could have directly ‘intervened’ in the implementation of the resolution with or without the concurrence of Sri Lanka. Although now this impediment is removed, on the other hand, it is more forcefully and morally incumbent upon the Sri Lankan government to cooperate with the same bodies of the UN.
Otherwise, the matter will be reported to the Council at its twenty-second session by the Office of the High Commissioner. That is where the real music will begin.
There is no way that the government of Sri Lanka could ignore the UNHRC resolution by claiming it is ‘non-binding.’ When the term ‘non-binding’ is used in international law, to the best of my knowledge, it means only the interpretative flexibility that a country has when there is no ‘implementing agency’ like the Security Council or its member States and particularly the permanent members.
But behind the UNHRC, nevertheless there is the Office of the Human Rights Commissioner. The flexibility of interpretation (which is also limited) would remain with Sri Lanka and the Office has to work concurrently with the government. But the obligations will remain the same as what they say in the operative three paragraphs of the resolution.
The government of Sri Lanka has terribly messed up the foreign relations of the country with particularly on human rights matters. Sri Lanka is the main country which has so far successfully eradicated terrorism.
While this may be appreciated by all sections of the international community (including the US) Sri Lanka is a test case to establish and ensure that ‘combat of terrorism complies with other obligations of human rights and humanitarian law.’ The international community including China and Russia in the future might not waver on these principles.