Toughest-ever UNHRC resolution against Lanka
By Our Political Editor
Leaders and officials guilty of economic crimes may face travel bans, freezing of assets and other legal action
Govt. rejects the draft, vote on October 7, several countries speak in favour of Lanka
India comes out forcefully, calls for early PC elections and full implementation of the 13th Amendment
Battle of words with China which calls on countries not to take advantage of Sri Lanka’s economic crisis
A new six-page draft resolution before the United Nations Human Rights Council, (UNHRC) in Geneva, handed in last Monday by the United Kingdom, is the strongest since 2009, thirteen years after Sri Lanka came to its attention officially.
It is co-sponsored by the United States, Canada, Germany, Malawi, Montenegro, and North Macedonia. The government is set to reject this latest one, to be titled 51/1 by the Council Secretariat upon formal acceptance after consultations. It is built largely on the previous resolution 46/1, which Foreign Minister Ali Sabry re-iterated at the 51st sessions last Monday as being “rejected” by the government. “We are compelled to categorically reject any follow-up measures to the resolution,” he declared.
A vote on this new resolution is due before the sessions end on October 7. He and his official entourage returned to Colombo on Thursday after the plenary sessions ended. They stayed at the Intercontinental Hotel in Chem du Petit-Saconnex 7-9, Geneva, closest to Palais de Naciones, where the sessions are being held. A classic room at this hotel costs Swiss Francs 563 a day without breakfast. That works out to US$ 586 or a whopping Rs 210,301 a day. As is well known, Geneva is one of the most expensive cities in the world and how a foreign exchange strapped government, which has declared bankruptcy, must fork out such large amounts for periodic Human Rights Council sessions is clearly highlighted.
During the interactive sessions that began this week after the high-level segment, several countries came out strongly in favour of Sri Lanka. They included the Philippines which said if Sri Lanka were to be arraigned for human rights violations, then, it should begin with colonial times when such offences were committed on a large scale. The Iranian delegate spoke from Teheran via Zoom. Among other countries that backed Sri Lanka, both voting and non-voting members, were Switzerland, Cuba, Ethiopia, Brazil (on the grounds that they had not received instructions from their government), China, Pakistan, Vietnam and South Africa (again saying no instructions have been received), Among those who backed the resolution were Greece, New Zealand, Ireland, Nicaragua, Cambodia, Finland, Liechtenstein, France, and Norway. Among the countries likely to abstain at the voting, diplomats in Geneva say, are India, Nepal, and Japan.
On Friday, Bob Last, Political/Human Rights Counsellor to the UK mission in Geneva, chaired a daylong session. Delegates of the core group were accommodated at the head table. A note circulated to delegates earlier said, “On behalf of the Core Group on Sri Lanka, please find attached a draft resolution on ‘promoting reconciliation, accountability and human rights in Sri Lanka.” The attached draft indicates which paragraphs are new, as well as the sources for previously adopted wording. “We would like to invite all delegations to open informal negotiations on Friday 16 September from 0900-10:30 and 1500-16:30 in room XXII (22), to discuss the draft.” The forenoon sessions were a discussion on comments made at the high-level segment on the new resolution. The afternoon was a paragraph-by-paragraph study of the text. The consensus was to approve the draft in its present format.
The task of canvassing to defeat the new draft resolution at the Council, the most important phase, has fallen on Sri Lanka’s Permanent Representative to the UN in Geneva, C.A. Chandraprema. Its passage, there is little doubt, could have wider and far-reaching ramifications than the previous ones. That is both for political leaders and officials responsible for the recent “economic crimes” that have impinged on human rights. This is notwithstanding the government’s official position that the term ‘economic crimes,’ besides its ambiguity, exceeds the mandate of the Human Rights High Commissioner. On Friday, Ambassador Chandraprema called it the result of “ presumptions and suppositions” of the Council. Yet, those involved could face travel bans, freezes of illegal assets accumulated abroad and legal action by countries empowered to exercise universal jurisdiction. A separate mechanism in the UNHRC, now probing human rights violations, will also investigate aspects related to issues identified as economic crimes.
Coming in concert with this new resolution before the UNHRC is one by the United States Congress at its second session (of the 117th Congress). It is moved by Senators Bob Menendez (New Jersey), Chairman of the powerful Foreign Relations Committee, together with Dick Durban (Illinois), Patrick Leahy (Vermont) and Cory Booker (also from New Jersey). Among the issues they have raised, according to a key preamble to this resolution is: “Whereas, the Government of Sri Lanka, under the rule of President Rajapaksa— (1) devoted state resources for personal political purposes with little transparency; (2) implemented misguided agricultural policies; and (3) borrowed billions of dollars from China to develop economically unviable mega projects, Whereas, since 2019, Sri Lanka has faced an economic crisis, only further exacerbated by predatory loans from the People’s Republic of China as part of its debt trap diplomacy; Whereas Sri Lanka’s economic crisis caused millions of Sri Lankan citizens to live in extremely dire conditions, with severe shortages of medicine, food, and fuel.”
The US Senate resolution, besides other matters, calls upon the “United Nations Human Rights Council to extend and reinforce the Office of the High Commissioner for Human Rights mandate from HRC 46/1 (2021) for an additional two years and to fully resource the Sri Lanka Accountability Project.” Since the resolution referred to is superseded by a new draft, the two-year term, as revealed in these columns earlier, will apply to it. Other than that, the US Senate is canvassing for the allocation of more funds for the “independent mechanism” under the Human Rights High Commissioner. It is now probing different human rights issues relating to Sri Lanka. In Geneva, diplomatic sources say they “have uncovered substantial information of serious violations with credible evidence to frame charges.” Foreign Minister Ali Sabry, however, charged at the Council on Wednesday, during a statement at the interactive dialogue, that these actions “violate the sovereignty of the people of Sri Lanka and the UN Charter.” In New York, the United Nations has so far voted funds for the mechanism despite protests from the government. A shortfall was met by two member countries. A further UN allocation is due before the end of the year to cover fresh initiatives.
Of the 42 paragraphs in the latest UK-sponsored draft resolution, 14 are new inclusions and have been included for the first time. Others are largely from resolution 46/1 adopted on March 23, 2021, which has been the focus of the ongoing discussion so far. Some provisions have been elaborated upon whilst others have been repeated. A clause has also been included from Resolution 30/1, co-sponsored by Sri Lanka and adopted on October 1, 2015. It relates to assurances given by the then-yahapalanaya government. Highlighted in the new draft resolution are four new preambular paragraphs introduced for the first time. They are:
- (PP6) Recognizing the severe economic crisis which deteriorated in Sri Lanka since late 2021 and the profound impact that this has had on the people of Sri Lanka.
- (PP7) Underscoring the importance of addressing underlying governance factors and root causes which have contributed to this crisis including deepening militarization, lack of accountability in governance and impunity for serious human rights violations and abuses.
(A footnote on the above preambular paragraph states: The High Commissioner urges the international community to support Sri Lanka in its recovery, in line with obligations around international co-operation and assistance. International financial institutions and Member States also need to support Sri Lanka in meeting its core ICESCR (International Covenant on Economic, Social and Cultural Rights) obligations when negotiating financial support. The High Commissioner also underscores the importance of addressing the underlying governance factors and root causes, which have contributed to this crisis and that she has highlighted in previous reports. These include the deepening militarization and lack of transparency and accountability in governance, which have embedded impunity for serious human rights violations and created an environment for corruption and the abuse of power)
The ICESCR covenant came into effect in January 1966. It lays down, among other matters, that States Parties undertake to ensure the equal right of men and women to the enjoyment of all economic, social, and cultural rights set forth. Is this a message to the International Monetary Fund (IMF) and other foreign lenders to keep to the provisions in the Covenant?
- (PP8) Recognising the recent efforts of the Government of Sri Lanka to address the ongoing economic crisis and welcoming the staff-level agreement reached between the Government of Sri Lanka and the International Monetary Fund.
- (PP9) Recognising that the promotion and protection of human rights and the prevention of and fight against corruption are mutually reinforcing, that corruption can have a serious negative impact on the enjoyment of human rights, and the poor and those in marginalized and vulnerable situations, including women and girls, are at particular risk of suffering from the adverse impact of corruption on the enjoyment of human rights.
The new draft resolution has also drawn attention to the protests that culminated in President Gotabaya Rajapaksa fleeing the country. After a 52-day sojourn, first in the Maldives, then in Singapore and thereafter in Thailand, he has since returned to Colombo and lives in a government-assigned bungalow at Malalasekera Mawatha (former Longdon Place) off Bauddhaloka Mawatha. This week, he took part in religious ceremonies at the Gangaramaya Temple. Here are the new preambular paragraphs in the new draft resolution dealing with the matter:
- (PP10) Emphasising that peaceful protests can make a positive contribution to the development, strengthening and effectiveness of democratic systems and to democratic processes, including elections and referendums, as well as to the rule of law and acknowledge that participation in peaceful protests can be an important form of exercising the rights to freedoms of peaceful assembly, of expression, and of association and to participation in the conduct of public affairs.
- (PP11) Stressing the importance of the full respect for the freedom to seek, receive and impart information, including the fundamental importance of access to information, and for democratic participation, transparency, and accountability, and of combatting corruption.
- (PP12) Noting the declaration of four States of Emergency in Sri Lanka since August 2021 and recalling that, in accordance with Article 4 of the International Covenant on Civil and Political Rights (ICCPR), certain rights are recognised in the Covenant as non-derogable in any circumstances and that any measures derogating from other provisions of the Covenant must be in accordance with that article in all cases, and underlining the exceptional and temporary nature of any such derogations as stated in General Comment No 29 on states of emergency adopted by the Human Rights Committee on 24 July 2001.
- (PP13) Acknowledging the Government’s commitment to constitutional reforms while stressing the importance of the independence of key commissions and institutions including the Human Rights Commission of Sri Lanka, the Election Commission, the National Police Commission, the Commission to Investigate Bribery or Corruption and the judiciary.
- (PP19) Recalling Sri Lanka’s co-sponsorship of Human Rights Council resolution 30/1 of October 2015 which laid out the commitment of the Government of Sri Lanka to undertake a comprehensive approach to dealing with the past, incorporating the full range of judicial and non-judicial measures based in part on broad national consultations with the inclusion of victims and civil society from all affected communities.
With those preambular paragraphs above, the new draft resolution adds five new operative clauses. They are:
- Expresses concern at the human rights impacts of the economic crisis, including as a result of increased food insecurity, severe shortages in fuel, shortages in essential medicines and reductions in household incomes, whilst stressing the need to promote and protect the rights of the most marginalized and disadvantaged individuals, including daily wage earners, children, older persons, and persons with disabilities.
- Also expresses concern over other human rights developments since April 2022 including violence against and arrests of peaceful protestors, as well as violence against Government supporters, resulting in deaths, injuries, destruction, and damage to houses of members of Parliament and stresses the importance of independent investigations into all attacks for those found responsible to be held to account.
- Remains concerned at the continued militarization of civilian government functions; the erosion of the independence of the judiciary and key institutions responsible for the promotion and protection of human rights; lack of progress in addressing longstanding grievances and demands of Tamil and Muslim populations, surveillance, intimidation, and harassment of journalists, human rights defenders, families of the disappeared and persons involved in memorialisation initiatives, and sexual and gender-based violence.
- Notes the persistent lack of independence, impartiality and transparency of domestic mechanisms, and that emblematic human rights cases have been undermined through delays and the granting of Presidential pardons to those accused or convicted of crimes relating to grave violations of human rights.
- Calls upon the Government of Sri Lanka to address the ongoing economic crisis and help ensure it does not happen again, including by investigating and, where warranted, prosecuting corruption, including by public and former public officials, and stands ready to assist and support independent, impartial, and transparent efforts in this regard.
The most controversial provision in resolution 46/1 (Operative Paragraph 6), which relates to the evidence-gathering mechanism under the Human Rights High Commissioner, tasked to a separate secretariat with special funding (now listed as OP8), has been revised to make it stronger. It now says: “Recognises the importance of preserving and analyzing evidence relating to violations and abuses of human rights and related crimes in Sri Lanka with a view to advancing accountability, and decides to extend and reinforce the capacity of the Office of the High Commissioner to collect, consolidate, analyse and preserve information and evidence and to develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka, to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in the Member States, with competent jurisdiction.”
Despite vigorous opposition from Sri Lanka, the elaboration of the investigative mechanism under the Human Rights High Commissioner is most significant. In sections of the government, the exercise has been misconstrued as one where Sri Lanka, too, would be called upon to initiate legal action on those against whom there is ‘credible’ evidence. No such initiative was envisaged, diplomats in Geneva say when this proviso was included first in resolution 46/1 and later re-iterated in the latest one. As for the Sri Lanka government, the measures have been rejected outright. However, they say, “This is for countries that seek to utilize provisions in their laws to initiate action in courts that are independent. Victims so indicted could have their own counsel to represent them,” they said. That raises the all-important question of what other legal recourse Sri Lanka would have in such situations. Would a government be willing to use ‘such evidence’ to separately prosecute those involved? Of course, the answer to that would be guided largely by political factors.
Also updated from resolution 46/1 is a provision related to the Prevention of Terrorism Act. The new draft resolution points out that it: “Takes note of the introduction of amendments to the Prevention of Terrorism Act in March 2022, that detentions under this legislation continue to occur, and the Government’s expressed intention in this regard to introducing new legislation on combating terrorism, and encourages the Government to engage in consultations with civil society, the Office of the High Commissioner for Human Rights and relevant UN Special Procedure Mandate holders in the preparation of new legislation, in order to ensure that any legislation on combating terrorism complies fully with the State’s international human rights law and international humanitarian law obligations.”
India takes tough stand
If the new draft resolution itself has turned out to be stronger, one of the countries that came out forcefully against Sri Lanka was India. This was particularly in the backdrop of many Indian media reports taking note of Premier Narendra Modi’s government taking a tough stand. India’s Permanent Representative in Geneva, Indra Mani Pandey declared at the Council last Monday that “India has always believed in the responsibility of States for promotion and protection of human rights and constructive international dialogue and cooperation guided by the principles of the UN Charter.
“In this regard, the Indian delegation notes with concern the lack of measurable progress by the Government of Sri Lanka on their commitments of a political solution to the ethnic issue through full implementation of the 13th Amendment of the Constitution, delegation of powers to Provincial Councils and holding of Provincial Council elections at the earliest.
“India’s consistent view on peace and reconciliation in Sri Lanka has been for a political settlement within the framework of a united Sri Lanka, ensuring justice, peace, equality, and dignity for the Tamils of Sri Lanka. The current crisis in Sri Lanka has demonstrated the limitations of the debt-driven economy and the impact it has on the standard of living.
“It is in Sri Lanka’s best interests to build the capacity of its citizens and work towards their empowerment, for which devolution of power to the grassroots level is a prerequisite. In this connection, the operationalization of Provincial Councils through early conduct of elections will enable all citizens of Sri Lanka to achieve their aspirations for a prosperous future. We, therefore, urge Sri Lanka to take immediate and credible action in this regard.”
Diplomatic sniping between New Delhi and Beijing over issues revolving around Colombo was not altogether absent on issues that came up in Geneva. Colombo-based western diplomats believe the reference in the Indian statement to a “debt-driven economy” is a veiled aside to China. Beijing’s envoy to the UN in Geneva, Chen Xu, declared in his speech that “China opposes any country taking advantage of the current difficult situation in Sri Lanka to seek self-interest and urges relevant parties to respect the human rights development path that Sri Lanka has independently chosen ….” The battle of words began after the controversy over the visit of the Chinese research vessel Wang Yi 5 to the Hambantota Port.
However, the new resolution has in fact re-iterated provisions in the previous resolution 46/1 where references were made calling upon the government “to fulfil its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights….” It was “through the holding of elections for provincial councils, and to ensure that all provincial councils, including the northern and eastern provincial councils, are able to operate effectively in accordance with the 13th Amendment to the Constitution.”
Japan, which President Ranil Wickremesinghe will visit to take part in the official funeral of former Prime Minister, Shinzo Abe, on September 27, also expressed its concern over “the devastating economic crisis” and stressed, “the need for Sri Lanka to urgently take all necessary measures to guarantee all people’s rights.” Japan’s envoy to the UN in Geneva, Honsei Kozo, said, “Japan also believes it is vital for Sri Lanka to take further voluntary actions and provide remedies to achieve meaningful reconciliation and a better human rights situation. In this regard, Japan acknowledges the amendments to the Prevention of Terrorism Act as an important initial step and encourages Sri Lanka’s further efforts to impose a moratorium on the PTA, enact comprehensive counterterrorism legislation, and establish transitional justice mechanisms, including a truth and reconciliation committee….”
President Wickremesinghe left yesterday for London to attend the funeral of Queen Elizabeth II. He will return to Colombo thereafter and fly to Tokyo on September 26. At the end of the official funeral ceremonies for onetime Premier Abe on September 27, he will fly to the Philippines capital of Manila. There, Sri Lanka is chairing a meeting of the Governors of the Asian Development Bank (ADB). President Wickremesinghe is attending this event in his capacity as the Minister of Finance, a position that makes him a Governor.
The new resolution, like the previous 46/1, endorses the joint communique of May 26, 2009, of the President of Sri Lanka (Mahinda Rajapaksa) and the UN Secretary-General (Ban ki-moon), in which the Secretary-General, inter alia, “underlined the importance of an accountability process for addressing violations of international humanitarian law and human rights law.”
The first resolution on Sri Lana before the UNHRC was in May 2009. This was after the military defeat of Tiger guerrillas. It heaped praise on the then government for the military victory. The resolutions on promoting reconciliation, accountability and human rights in Sri Lanka were moved thereafter. They were 19/2 of March 22, 2012, 22/1 of March 21, 2013, 25/1 of March 27, 2014, 30/1 of October 1, 2015, 34/1 of March 23, 2017, 40/1 of March 21, 2019, and 46/1 of March 23, 2021.
The new draft resolution concludes by urging the Office of the High Commissioner to “enhance its monitoring and reporting on the situation of human rights in Sri Lanka, including on progress in reconciliation and accountability, and on the human rights impact of the economic crisis and corruption, and to present oral updates to the Human Rights Council at its 53rd sessions (June-July 2023) and 55th sessions (February-March 2025), and a written update at its 54th sessions (September-October 2024) and a comprehensive report that includes further options for advancing accountability at its 57th session (September-October 2025), both to be discussed in the context of an interactive dialogue.”
It is clear from the above that issues concerning Sri Lanka at the Human Rights Council will continue beyond 2024. That will sure cover the period before and after parliamentary elections scheduled for 2025. Thus, if not most, at least a good part of the issues raised in the successive resolutions on Sri Lanka would have led to action and exposure worldwide. Successive governments that have bungled in handling issues will not be able to prevent any of them. One need hardly says they could become election issues too.
There has been a total lack of a consistent approach by the Gotabaya Rajapaksa government earlier. That saw a string of contradictions in the approach to issues. That inconsistency was highlighted once by diametrically opposite positions taken by the previous yahapalanaya regime. The then Foreign Minister, the late Mangala Samaraweera, co-sponsored a resolution. Foreign Minister Dinesh Gunawardena (now Prime Minister) later announced at the Council that Sri Lanka would withdraw from the co-sponsorship — a move that raised more issues than it resolved. Later, Foreign Minister G.L. Peiris, who led the Sri Lanka delegation to Geneva many times took up an increasingly hostile posture. He was a key shareholder in that diplomatic onslaught that was backed by political leaders and a combative, inexperienced senior Foreign Ministry official in Colombo.
The supreme irony came early this year. Peiris went to the 50th session of the UNHRC. During behind-the-scenes consultations with key member countries, he began a series of plea bargaining to persuade them to let Sri Lanka go free. The reason, he said, was because the country was facing an economic catastrophe and a resultant political turmoil. It later turned out that beleaguered ex-President Gotabaya Rajapaksa had sent him on that special mission. The postscript to Peiris’ war and peace diplomacy came in recent weeks. As the leader of a smaller breakaway group of the Sri Lanka Podujuna Peramuna (SLPP), he was now beating a different drum — extolling the serious dangers of what the Human Rights Council holds for Sri Lanka. Last week, this group was in Kandy, for the second in a series of praying to deities for good luck to become a powerful political force. Its earlier programme was in Anuradhapura.
State Ministers want more
The goings-on in Geneva is not the only cause for concern for government leaders, particularly President Wickremesinghe. It was only a week ago that he swore in 37 Ministers of State. Two more were added just this week bringing the total to 39 leaving one more to reach the constitutional limit. To cut down on expenditure, he has made clear to them that they will not be entitled to salaries that are paid to ministers. As reported earlier, there were groups that threatened not to back the interim budget in Parliament if they were not appointed Ministers of State. The appointment of a coterie, including those whose credentials were in serious doubt, led to a temporary respite. The exercise to give them positions has been engineered by Basil Rajapaksa, the power behind the SLPP. He has been doctoring the power play.
Arguably, President Wickremesinghe can now contend that he has faithfully fulfilled the demand of SLPP ideologue Basil Rajapaksa. However, the Ministers of State are still not happy. They want more. They are complaining that subjects assigned to them have not been published in a Government Gazette. Moreover, they say no Secretaries have been appointed to their State Ministries. Imagine the cost of appointing 39 government officials as Secretaries for State Ministries. A government source said President Wickremesinghe expects the Ministers of State to work closely with the cabinet ministers and to get them to assign their subjects. A hill country parliamentarian tried to approach a government leader to have the official notification of subjects issued with their subjects and an official appointed as Secretary. There was no luck since he was told to wait.
On the one hand, a sizeable segment of the world community, barring some, are screaming over corruption, violation of human rights and international humanitarian laws, and of the people living in fear of starvation. On the other, their elected representatives, do not seem to be content with the perks and privileges they already enjoy. The more they get, the more they demand. That too at the expense of the people. One factor that stays unanswered as the people cough out more money for their food, taxes, electricity, water and what have you, is that they are also making up for the humongous bribery and corruption that has bled the country. Will anything be done about it?