Ways and means to strengthen the UNHRC resolution on Sri Lanka – Ruki Fernando

“How many more years should we come to Geneva?” – Sandya Ekneligoda, wife of disappeared journalist Prageeth Ekneligoda, speaking at an informal consultation on the United Nations Human Rights Council (UNHRC) Resolution on Sri Lanka, in Geneva, Switzerland, 16 September 2022.

Amongst the many international institutions in Geneva is the UNHRC, set up in 2006 through a decision of the UN General Assembly (UNGA), which comprises 193 UN Member States, including Sri Lanka. It replaced the UN Commission on Human Rights. The 193 UN Member States elect 47 States to the UNHRC from the States that present candidatures. Sri Lanka was a member of the UNHRC from 2006-2008, but in 2008, with mounting allegations of rights-related violations, its candidature to be elected to the UNHRC was defeated. Since then, Sri Lanka never presented itself as a candidate to be elected to the UNHRC.

Another key UN human rights institution in Geneva is the UN Office of the High Commissioner for Human Rights (OHCHR), with staff members led by the HCHR. This was set up by the UN GA Resolution in 1993.

UNHRC Resolutions and OHCHR Reports on Sri Lanka

In 2009, nine days after the end of the war, the UNHRC adopted a resolution along the lines requested by the then-Government of Sri Lanka (GoSL), the overall tone of which was to praise the GoSL. In 2012 and 2013, UNHRC resolutions on Sri Lanka expressed mild criticism of the human rights situation and reconciliation in Sri Lanka and called for domestic measures to address concerns. In 2014, the UNHRC resolution decided to ask the OHCHR to conduct a comprehensive investigation of Sri Lanka. The GoSL vehemently opposed these resolutions.

In 2015, the GoSL made a series of commitments towards reconciliation which were reflected in a “consensus resolution” with no voting, with the support of the GoSL. In 2021, after a new GoSL had declared they would no longer honour the 2015 consensus resolution, a new resolution was passed through voting, to gather evidence and advance accountability.

The voting at five resolutions on Sri Lanka between 2009 and 2021 indicates the dramatic loss of support for the GoSL at the UNHRC, with the number of countries supporting the Government decreasing from 29 out of 47 in 2009 to just 11 out of 47 in 2021. The loss of support was mostly in Latin America, Africa, and Asia, which countries comprise 34 of 47 members of the UNHRC.

The 2012 UNHRC resolution and all the subsequent resolutions on Sri Lanka asked the OHCHR to monitor the human rights situation in Sri Lanka and report back to the UNHRC. OHCHR reports have captured key human rights-related concerns of different Sri Lankans, such as the war-affected communities in the post-war North and East with a significant focus on Tamils, emblematic cases such as the Welikada Prison massacre, the murder and enforced disappearances of journalists and youth, militarisation, Covid-19-related concerns, the freedoms of expression, assembly, and religion, the situation of human rights defenders and the civil society, and most recently, the Easter Sunday attacks and economic crimes.

Reports have also highlighted institutional, legal and policy changes and initiatives, scrutinising both positive and negative implications on the human rights of Sri Lankans. The OHCHR recommendations have included referring Sri Lanka to the International Criminal Court and the use of universal jurisdiction to promote accountability, as well as measures like asset freezes and travel bans.

The new resolution

The highlight at the UNHRC on Sri Lanka last week was the OHCHR’s most recent report on Sri Lanka. As this has been written and talked about, I will focus on the draft resolution on Sri Lanka, which had been shared with the GoSL and subsequently published and opened up for discussion.

Two consultations known as “informals” were held in Geneva on 16 September, led by the “Core Group”, consisting of a small group of countries, namely the US, the UK, Canada, Germany, North Macedonia, Montenegro, and Malawi. GoSL representatives dominated the proceedings, rejecting the draft resolution. But, perhaps, understanding that the majority of the governments at the UNHRC may support a resolution along the lines of the draft presented, the GoSL also made proposals to drastically dilute the resolution’s text. They rejected any form of international involvement to advance accountability and reconciliation as well as the reference to the commitments the then-Government had made in 2015 under the Premiership of present President Ranil Wickremesinghe and insisted that the 2021 resolution was beyond the mandate of the UNHRC.

The GoSL also claimed that the economic crisis was beyond the mandate of the UNHRC, despite the UNGA Resolution establishing the UNHRC explicitly referring to its mandate to promote all human rights, including economic, social, and cultural rights.

States such as Cuba, Russia, China, Pakistan, the Philippines, Vietnam, Iran, and Ethiopia supported the GoSL position. Countries such as Ireland, Finland, Sweden, Norway, France, Luxembourg, the Netherlands, Lichtenstein, Australia, and New Zealand supported the draft Resolution but did not offer suggestions towards strengthening the draft resolution.

Government representatives, including from Sri Lanka, were given priority to speak during the two consultations lasting more than three hours in total. In the roughly 15 minutes allocated for non-Governmental speakers, Sandya Ekneligoda was one of the four who spoke. Recalling her travels to Geneva in search of justice for more than 10 years, she queried how many more years governments were expecting her and others like her to come to Geneva.

Strengthening the text of the resolution

The UNHRC process on Sri Lanka has seen slow progress since 2009, with landmarks being the OHCHR-led investigation of 2014, the GoSL commitments in 2015 and the evidence-gathering process in 2021. Hence, it is disappointing that the 2022 draft resolution does not indicate any progress from the March 2021 resolution 18 months ago.

The draft resolution as of now is very similar to the 2021 resolution on Sri Lanka, with some new language to reflect the economic crisis, the large protests, and the violations of the rights to the freedoms of assembly and expression.

As noted above, there were hardly any proposals to strengthen the resolution.

Below are some ways that the draft resolution could be strengthened to better reflect the situation in Sri Lanka:

• Complement the tasks entrusted to the OHCHR with the establishment of an independent expert mechanism to monitor ongoing rights violations and the progress made on accountability within and outside Sri Lanka, and report back regularly to the UNHRC and to the UNGA for two years
• Call on the GoSL to co-operate in the implementation of the resolution (such a call was there in the 2014 resolution, but was absent in the 2021 resolution, and is absent in the present draft)
• Call on the GoSL to protect Sri Lankans co-operating with the UN in implementing the resolution
• Call on UN Member States and UN officials to establish protection and support-based mechanisms for those who may face reprisals for co-operating with the implementation of the resolution. This is essential for the implementation of the resolution.
• Use the term “economic crimes” in the resolution, one of the most significant new additions in the OHCHR’s latest report on Sri Lanka
• In referring to the importance of preserving and analysing evidence to advance accountability, make specific reference to wartime atrocities, the Easter Sunday attacks and economic crimes (operative paragraph [OP] eight)
• Caution on the potential negative implications on human rights due to International Monetary Fund (IMF) conditionalities when welcoming the staff-level agreement between the GoSL and the IMF (preambular paragraph [PP] eight)
• Note the importance of considering public input and work done in previous efforts of Constitutional reform when acknowledging the Government’s commitment to Constitutional reform (PP 13)
• Call on the Government to implement (not just give due consideration) the recommendations of UN Special Procedures, and include recommendations made by UN Treaty Bodies (OP two)
• Make specific reference to student activists, trade unionists, religious leaders, lawyers, and the families of disappeared when expressing concern about the surveillance, intimidation, and harassment of civil society and calling for their protection (OP five and OP 13)
• Mention the withdrawal of charges by the Attorney General and the Commission to Investigate into Allegations of Bribery or Corruption in reference to undermining justice for emblematic cases, in addition to delays and the Presidential pardon (OP seven)
• When referring to the prosecution of emblematic cases and corruption, remove the words “if” where warranted as prosecutions must happen in relation to all these cases (OP 10 and OP 11)
• Request the OHCHR to present the next oral update on Sri Lanka at the 52nd session of the UNHRC in March 2023, instead of at the fifth session in June 2023 (OP 18)

Way forward

Sri Lanka’s approach at the UNHRC appears to be to demand more time and make new promises. But promises without actions on the ground are unlikely to be taken seriously. Making and breaking promises to its people and international bodies such as the UNHRC has been the hallmark of successive GoSLs.

For example, the then-Foreign Minister at the last session of the UNHRC in June, three months ago, announced a moratorium on arrests under the Prevention of Terrorism (Temporary Provisions) Act (PTA), but three student leaders were arrested last month under the PTA and remain in detention. In 2015, the then-Government (with Wickremesinghe as the Prime Minister) had agreed to set up a judicial mechanism with foreign judges, defence lawyers, and authorised prosecutors and investigators, but did not even present draft legislation to Parliament.

The only way to stop or reduce scrutiny and critical commentary by the UNHRC and the OHCHR is to stop or at least minimise ongoing rights-related violations and to ensure truth and justice for past violations, including wartime atrocities, the Easter Sunday attacks, economic crimes, corruption, and the crackdown on dissent.

(First published in the Morning)