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Thursday, June 20, 2024

The Geneva II debacle

Kalana Senaratne
The US-sponsored resolution at the UNHRC had to be defeated. It was not. 24 in favour, 15 against, 8 abstained. Hearts are broken, glasses are shattered, the ‘gods’ have ignored our prayers, there is madness surrounding us; 2012, we are now sure, is when the world comes to an end.

But that was yesterday. Today, the morning after, is once again cold; we need to pick up the pieces, mend our hearts, move on. And there are questions too: what is this resolution? How did we perform? Is it all India’s fault? Where did we go wrong? Are we to be blamed? What now?

Resolution L.2: From US, with love

The resolution titled ‘Promoting reconciliation and accountability in Sri Lanka’ has, during the process of the UNHRC session, undergone considerable change. From being an intrusive and arrogant one sponsored by the US, it now appears rather soft, innocent and caring. The US troops will not be in Sri Lanka tomorrow, no travel or trade embargoes are imposed. The object and purpose is to get the recommendations of the LLRC implemented.

But resolutions, like many other documents, can be interpreted differently. The manner in which it is interpreted depends on the interpreter’s own political predilections. There are numerous objects and purposes; some which are mentioned, some which are not. Interpretations change over time. And that is why all or most interpretations offered today have the potential of appearing to be accurate, or will prove to be accurate, in the future.

For instance, to make the resolution appear soft, the US and other promoters of the resolution can highlight the point that it is only about the implementation of the LLRC recommendations. They can stress in this regard, that they welcome the constructive recommendations of the LLRC, that technical assistance is to be provided “in consultation with, and with the concurrence of” the Sri Lankan Government; that its all about requests and encouragement, etc; that there is nothing intrusive, sovereignty is therefore not violated. There is love.

But others would dispute this. There’s another interpretation which states; that there is no mention of the LTTE which is astounding; that some recommendations are being termed ‘constructive’ because the sponsors have also included their own ‘constructive’ recommendations in place of the not-so-constructive recommendations of the LLRC; that it further internationalizes internal affairs of the State by reference to, for example, provincial-level devolution; that the phrase “requests the Office of the High Commissioner to present a report on the provision of such assistance to the Human Rights Council at its twenty-second session” implies in practice, assistance will need to be obtained; that it is not only about implementing the recommendations but also about taking “additional steps to address alleged violations of international law.”  This kind of interpretation, certain elements within the liberal camp would say, is pure nonsense.

But why is it not? Why do both interpretations seem accurate? Why and how can the former interpretation slide towards the latter, and the latter, in turn, appear to be the accurate one?

It is simply because the latter is, firstly, what the promoters of the resolution do not stress in their interpretations. It is the other half of the ‘truth’. Secondly, it is because the latter interpretation is that which will be adopted if the Government does not implement the LLRC recommendations. Promoters of the resolution will find it difficult to stick to the former interpretation if no action is taken; and with that the entire appearance of the resolution, its object and purpose, will begin to change. And with that change will come the following reminder: that the resolution did note “with concern that the [LLRC] report does not adequately address serious allegations of violations of international law.” The gentle touch and caress now feels like a punch; love turns into agony.

All this is not difficult to understand, of course. It is just that admitting the above makes the promotion of the resolution difficult. But also, this is where the politics of human rights, and the politics of the US, come into play. My point here is not an endorsement of the entirety of the observation made by the SL Representative in Geneva, that: the resolution “reflects a blatant case of politicization that takes the Council hostage to the hidden agendas of the mighty.” The UNHRC, being an inter-State body, is obviously political, and as Professor Makau Mutua once questioned at the American Society of International Law: “How can you politicize that which is political?” It is obvious.

Rather, my argument is that it is necessary to understand that there are “hidden agendas” (and of course, all actors have hidden agendas) of the “mighty” the US. States such as the US have better things to do, than to run around the UNHRC to obtain votes from this or that country to get a resolution passed. And when a super-power such as the US and its allies introduce such a resolution and canvass support, they sure know what they are up to (and up against), diplomatically, politically and even legally.

So there needs to be a more holistic appreciation of the politics underlying the adoption of the resolution. It is said to be a first step towards reconciliation; it is also a first step towards other things unmentioned and unmentionable. In other words: there is love, but it’s not unconditional love.

And yet, to conclude: the challenge is to move on, and that second type of interpretation mentioned above need not worry a Government too much if there is a genuine willingness to implement the LLRC-recommendations.

Performing at the UNHRC

We all know that the UNHRC is about human rights (also, human rights formalism), about international law, about bureaucracy, rules, regulations, procedures and technicalities. But it is far more interesting too. The UNHRC is also about politics, about feelings, about anger and frustration, about the ‘West’, the ‘Third World’, about drama and performance. Like all UN bodies, the UNHRC is a grand stage. It is where the language of international law and human rights is craftily used by actors to articulate their myriad grievances; where the beautiful hypocrisy of actors is played out; where we imagine that human rights problems get resolved; where performance does matter. But unlike in 2009 (Geneva-I), ‘performance’ was not Sri Lanka’s strong point in 2012.

At times, grand theoretical expositions are unnecessary to detect and understand the underlying problems of a country, its diplomatic approach or its foreign policy. What Sri Lanka’s diplomatic approach is, what its image is, where Sri Lanka wants to go and where it is going – are questions for which answers were provided in those few minutes during which Minister Mahinda Samarasinghe spoke. Where, for instance, was the Sri Lanka’s Permanent Representative in Geneva? Instead, why so many local politicians and Parliamentarians? A Minister leading the way, a not-so-comfortable looking Foreign Minister behind him, an accused Minister close by, a former Attorney General to the left, and a couple of more politicians in front: a sight which does absolutely nothing in terms of changing the attitude and foreign policies of other countries (at least in a positive or pro-Sri Lankan way, and that too, just minutes before the vote was taken); a sight which doesn’t inspire confidence.

And of course, this told us what we had known already: about the lack of autonomy, and perhaps influence, wielded by those who are meant to conduct matters of foreign policy in the diplomatic arena; the utter waste of resources given the futile presence of so many politicians in Geneva, not to forget the sheer waste of their time; also, the irresponsibility and the disregard shown for accountability in including certain individuals accused of crimes and with that, the inability and unwillingness to understand how strategically and diplomatically counter-productive it is to include them in delegations to the UNHRC, especially when matters of human rights and the implementation of the LLRC-recommendations are being discussed.

What of the message? Of course, given that the UNHRC is a stage, ‘mega-phone’ diplomacy is not essentially bad if the big and powerful have difficulty in listening to and respecting the concerns of the small and the weak. But much depends not on ‘sound’ alone, but substance too. And in this regard, what Minister Mahinda Samarasinghe had to say did sound unfortunate at times: it almost implied that there will be no reconciliation in Sri Lanka if the resolution is adopted. As he said: “This resolution if adopted will not add value to the implementation process in Sri Lanka; on the contrary, it may well be counter-productive and, as such, those who have been using extreme pressure tactics in garnering support for this ill-timed and unwarranted initiative should be mindful of the responsibility that accompanies it.”

It was also said: “If this proposed intrusion is accepted by this Council, no domestic process would be free to deliver on its mandate unimpeded. Instead, a superimposition of an external mechanism would become the order of the day.” While external mechanisms should not become the order of the day, the problem here is that Sri Lanka has institutions which have not freely delivered for quite sometime. More importantly, that ability to deliver freely has been retarded by certain legal and constitutional developments that took place after May 2009.

Tackling ‘Incredible India’: SL foreign/domestic policy

Geneva-II was also about votes, numbers and mathematical calculations. The way the members voted, their reasons for voting for, against or abstaining, are known. In all this, India did have a major role to play. And in ‘post-Geneva II’, Sri Lanka confronts some significant questions which reaffirm the importance of understanding that inextricable relationship between domestic and foreign policy.

One such question is the ‘Indian factor’; strengthening ties with India. Much depends on how we perceive India now, its role in the region and the wider world, its past and present, and our willingness to understand that not all actors are either black or white.

To begin with, the capitulation was significant. Pressured by Tamil Nadu, India went from being a country which was against country-specific resolutions to supporting a country-specific resolution. The structure of political argument, between India and Sri Lanka, now becomes fascinating. Sri Lanka thinks that India voted against her; India states that it was in fact a vote in support of Sri Lanka. Sri Lanka, before the vote, stated that India is a responsible member and will vote accordingly given their understanding of the ancient and historical ties; India has now voted (the way responsible members do!) and having done so informs in turn, that Sri Lanka understands why India did so given their long and traditional relationship. Coalition partners of the Sri Lankan Government state that India’s support for the resolution contradicts its (India’s) own foreign policy; but India can reply that it is India’s business to decide what her foreign policy is after all.

How then do we proceed?

There is a lot of anti-Indian sentiment generated everywhere. That cannot be prevented easily. Already, demands have been made by local politicians to re-think the nature of Sri Lanka’s economic ties with India. India, people will not forget, is well capable of making life ‘difficult’ for Sri Lanka, as history will teach you. There is of course the language of diplomacy: Sri Lanka and India are the best of friends; we are like brothers; ours is a historic relationship; it is a special understanding, a very unique relationship, etc, etc. And yet, India is no innocent bystander.

But playing the ‘China-card’ will not always ensure success. India is a geopolitical reality. A balance needs to be struck. As the late Lakshman Kadirgamar once stated: “… ideally the Tamil question within our polity should be so managed as to preclude the need for Indian concern, far less involvement. However, it would be wholly unrealistic for anyone to claim that under no circumstances could India have a legitimate concern with the management of certain aspects of our internal affairs” (Speech delivered at the Hindustan Leadership Seminar, Dec., 2003).

If then, there is a need to understand not only the complexity of SL-India ties, but the very complexity that is ‘India’; its own secessionist problems; the ‘Tamil Nadu factor’; India’s own strategic objectives, such as gaining membership in a restructured and reformed UN Security Council; about how such geopolitical goals bring India and US closer; and how that partnership, in turn, affects SL-India, and SL-US ties, etc.

Along with that, what also needs to be appreciated is the fact that India is not only capable of making life ‘difficult’ for the Sri Lankan Government, but also, making it ‘comfortable’; as it did in numerous ways during the last stages of the war, and especially diplomatically, especially in Geneva, 2009. That relationship which was strengthened during the last stages of the war, well harnessed and further developed in Geneva-2009 (we remember the support of the Indian Representative in Geneva even after the Special Session concluded) should not have been undermined.

And this latter kind of external relationship can only be maintained if internal policies within Sri Lanka are geared towards addressing the questions of power-sharing and the protection of the rights of Tamil people, especially in the North and the East, in a more sincere and serious manner. Sri Lanka either has to ensure that the political promises made to India are kept [especially regarding the implementation of the 13th Amendment – see, for instance, the ANI report, ‘India feels Lanka has done very little on devolution of power’, 24 March, 2012], or that it is able to move forward peacefully, with sincerity and determination, especially with the Tamil political parties and the TNA, in terms of devising a mechanism of power-sharing which is autochthonous. There are decisions here which Sri Lanka is unwilling to make.

India, then, is neither our best friend nor our worst enemy. Thinking of India in such extreme ways obfuscates the complexities surrounding inter-State relationships, and unnecessarily simplifies the challenge of foreign policy making too. Today, ‘nonalignment’ does not mean that India will always be with Sri Lanka (and against the West) on every conceivable diplomatic and political problem Sri Lanka confronts. That was the old way of thinking. Even the very term ‘nonalignment’, as the former Indian diplomat and politician Mani Shankar Aiyar (MSA) has stated, “was appropriate to a world characterized chiefly by the wooing of the rival superpowers to align with one or the other of their blocs” (MSA, A Time of Transition, p. 257). But after the Cold-War, relationships became much more fluid, much more complex; with such changes, ‘nonalignment’ ceases to become a simple question of voting for or against a State.

Political maturity

In addition, the current situation also demands more maturity in terms of assessing Sri Lanka’s diplomatic debacles.

It is, today, a popular argument (made by the SL Foreign Minister, for example) that Sri Lanka had the support of 23 members (i.e. including the 8 abstentions) of the UNHRC. Spin is fine, and is to be expected from all Governments. But where does this kind of spin take us?

Minister GL Peiris argues, for instance, that an abstention amounts to a vote against the resolution. But of course, the same argument can be raised by the opposing party. The US too has the right to claim that an abstention amounts to a vote for the resolution.

But this argument gets more dangerous, and ignores history. If Sri Lanka is pleased with the current performance, how much more pleased should we be with the result in 2009? To put it differently, how much more worrying should the current performance be, when compared with the solid and overwhelming majority Sri Lanka gained in 2009?

And, in proclaiming that Sri Lanka fought with the US (but didn’t it do the same in 2009?) and got the support of 23 members, the SL Foreign Minister ignores (or forgets) that there has been a serious nosedive from 35 (29 + 6 in 2009, following the logic of Minister Peiris) to 23; forgetfulness or ignorance which is quite dangerous, as it fails to appreciate the kind of degeneration that Sri Lanka’s vote-base at the UNHRC has undergone over the relatively short span of three years. And if this degeneration is not taken seriously, not much effort will be made to mend our own policies and re-build relations with other States.


Closer to home, there are more problems. There is the continuous labeling of the critic, journalist or human rights activist as ‘LTTE-agent’, ‘Tiger’, ‘terrorist’, ‘separatist’ or ‘traitor’. It is not a novel development, but it takes a far more dangerous twist now with the adoption of the resolution. Also, the time has come when we are exposed to the sight of mad politicians who make public utterances which amount to direct and indirect threats to the lives of journalists and human rights activists. It is highly questionable whether the Government is concerned about such developments. Given the dangerous nature of these threats and the manner in which they seem to be receiving the approval of the public (did we not hear people applauding Minister Mervyn Silva?), the mere condemnation of these utterances and open threats is wholly inadequate.

Debate, argument, and political rivalry are essential and are to be celebrated. But in this case, all this turns dangerous and deadly when critics of a Government who call for accountability, human rights protection and devolution are conveniently labeled and transformed into ‘traitors’ and ‘separatists’. Every criticism becomes a criticism of the State, every critic an enemy of the State; no amount of statements made by such a critic in favour of the need to build a plural, democratic and united Sri Lanka seems convincing to the regime if such an advocate also demands accountability and/or devolution. In such a context, even the rejection of all forms of violence (as Parliamentarian MA Sumanthiran has commendably done, in critiquing the armed forces and the LTTE: ‘TNA faults both govt. and LTTE’, Daily Mirror, 21 March, 2012) might not be enough to satisfy the regime. Geneva or no Geneva, the challenge of securing a more tolerant democracy seems to be a gargantuan task.

Moving on

The UNHRC in Geneva may be a place for the great matters of law, human rights, and justice. But it is also a place that makes us feel human; a place for politics, passions, love and joy, agony and tears. It is a place which gives those of us far away (and would you not agree?) that moment to switch on our computers, to watch the live webcast, to have that drink, to shout whatever we liked at those we saw on our screens. And we do this, not because we are less concerned about peace and reconciliation in Sri Lanka. Rather, it is because we know that peace will not come with the beginning or the end of some UNHRC-session, far away in Geneva.

If then, reality should set in. The morning after is as cold as the day before. And after yet another UNHRC-session, we are back to where we were. But then, perhaps before leaving, we might need to answer one more question: we talk about victories and defeat, but who really won or lost in Geneva? It is here then that all those who are less-forgiving would need to engage in the politics of re-imagination. The task is to re-imagine, or better still, to recognize that Geneva is where we all win and lose, and that in every victory there is something to be lost, and that in every defeat, there is something to be won, too. Because after all, we need to be there for each other if progress is to be made. At the moment, we are against ourselves. And that has to be changed.


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