by Sanja de Silva Jayatilleka (copy by THE island news prepare 2017.06.21)
Making his submission in a long speech at the most recent parliamentary debate on Geneva called by JO leader Dinesh Gunawardene, Minister Mahinda Samarasinghe made a seriously inaccurate interpretation of the Resolution adopted by majority vote at the May 2009 UN Human Rights Council 11thspecial session on Sri Lanka.
The error or misreading was of the Joint Statement of 23rd May 2009 between then Secretary General Ban Ki Moon and President Mahinda Rajapaksa, issued only days after the end of the war.
As Minister Samarasinghe said, the Joint Statement was incorporated into the Resolution at the Human Rights Council at the final stages of drafting. The very fact that a communique together with the UN Secretary General was released at the highest level in Colombo while intense negotiation were ongoing on the draft resolution at the UN Human Rights Council in Geneva, made it inevitable that Sri Lanka’s negotiating partners within and outside the Non-aligned Movement would insist on its inclusion.
Knowing the significance of such a Joint Statement, Sri Lanka’s Ambassador/Permanent Representative in Geneva at the time Dr. Dayan Jayatilleka and the head of the Peace Secretariat Prof Rajiva Wijesinha independently had misgivings on the wording. The senior Foreign Ministry officials on site in Kandy where it was drafted included Ambassador/Permanent Representative to the UN in New York, H.M.G.S. Palihakkara, Foreign Secretary Dr. Palitha Kohona and Additional Secretary Prasad Kariyawasam. It was said the Joint Statement was co-drafted by Sri Lanka and staff of the Secretary General of the UN.
Years after Professor Wijesinha wrote of the Joint Statement:”When I saw the text, I was startled because it seemed to grant the need for an inquiry into our conduct during the war. I was reassured however by the Ministry official to whom I addressed my concerns. Later, when I got to Geneva, I found that Dayan too was alarmed by the actual text…However, in mitigation, I should note that Palitha Kohona, then our Foreign Secretary, told me that the President had been advised against that particular clause, but had finally got impatient and insisted that the text be finalized.” (https://www.colombotelegraph.com/index.php/never-glad-confident-morning-again-the-decline-of-the-last-five-years/)The misgivings of Prof Wijesinha and Ambassador Jayatilleka as regards the risk of misinterpretation of the very last paragraph remained valid many years later, when one of Sri Lanka’s own Ministers who should have been far more precise in his parliamentary speech since he was in fact responsible for the subject during the relevant period, indulged in such misinterpretation.
What Minister Samarasinghe said at the Parliamentary debate in June 2017 was that as a result of the Joint Statement between Ban Ki Moon and President Rajapaksa, and inter alia, the UNHRC May 2009 Resolution, Sri Lanka undertook before the international community to have an accountability process.
However, there was no commitment on the part of the Government of Sri Lanka to an “accountability process” in the UNHRC May 2009 Resolution. This is why Sri Lanka never appeared on the Agenda of the UN Human Rights Council for the next three years.
The only way that the word “accountability” even entered the May 2009 Resolution was through the Joint Statement issued in Colombo, and that reference too attributed/sourcedonly to the UN Secretary General, from which no commitment by GoSL issued and to which no commitment by GoSL was made.
The two relevant consecutive sentences of the Joint Statement between President Mahinda Rajapaksa and UN Secretary General Ban Ki Moon read as follows:
“The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law.”
“The Government will take measures to address those grievances.”
This is the only referenceto accountability in the entire Joint Statement. As it is clear from these two sentences, at no time did the Government of Sri Lanka commit itself to an “accountability process”. If it did, this would have been reflected in the text as “The GoSL and the Secretary General agreed…”– but there is no suchstatement. What GoSL did was to declare its intention “to address those grievances”. For “grievances” are what they were and remained from the point of view of the Sri Lankan government.
As a step in the direction of addressing those grievances, the GoSL set up the LLRC, which afforded space to voice those grievances, headed by a multiethnic panel of senior personalities which included the former Attorney General and Ambassador Palihakkara himself.
The LLRC report recommended an independent inquiry into certain specific violations; an inquiryto be conducted within the laws and judicial system of the country.
Overcoming the usual consequences of a Special Session or even a resolution adopted at a regular session, of the inevitable ‘review’ at every subsequent session of the Human Rights Council, Sri Lanka uniquely steered the drafting process in May 2009 to completely take the country off the Council’s agenda with no further follow up. This is also why, when Sri Lanka did reappear three years later, there was no reference to the May 2009 resolution in any of the resolutions from 2012.
Minister Samarasinghe also mentioned that the USA was not a member of the UN Human Rights Council in 2009. This is factually accurate but is misleading. It was not a voting member of the 47 member Council. Nor, however, was Sri Lanka at the time of the 2009 resolution. Just as was the case with Sri Lanka, the USA was very much a part of the Council as all other member countries of the UN were, attending its meetings and speaking at every session and participating in debates as non-members.
The USA was certainly interested in putting Sri Lanka on the UNHRC agenda, before the EU got going in Geneva in 2009. In fact, well before the end of the war, they were thinking of a Special Session on Sri Lanka at the Human Rights Council, of which they were not even members! A cable released by WikiLeaks from Ambassador Robert Blake back to the State Department dated Feb2008reveals that he suggested it to none other than Minister Mahinda Samarasinghe himself on Jan 26th 2008, who mercifully rejected it, saying that the UPR (Universal Periodic Review) was coming up in the UNHRC that year and Sri Lanka would be subject to scrutiny anyway.
Later, also through WikiLeaks, we learnt that Secretary of State Hillary Clinton herself sent instructions to the US mission in Geneva to help with the EU draft on Sri Lanka, including with “line edits” [Cable dated 4th May 2009 from Secretary of State (United States)]. Thus Washington involved itself fully in the effort to indict Sri Lanka at the Council, but Sri Lanka outplayed the West which included the USA, in multilateral diplomacy that year.
Western scholars described Sri Lanka’s diplomacy ruefully as “setting new norms” at the Council, because it was done through persuasion and discussion, and forging a consensus of the vast majority,on the ideas underlying the Council’s decisions.
“Many of the battles over conflict-related norms between Sri Lanka and Europe took place in UN institutions, primarily the Human Rights Council (HRC)…it was Sri Lanka which generally had the best of these diplomatic battles…”
“Although this process of contestation reflects shifting power relations… it does not mean that small states are simply the passive recipients of norms created and contested by others. In fact, Sri Lankan diplomats have been active norm entrepreneurs in their own right, making significant efforts to develop alternative norms of conflict management…They have played a leading role in UN forums such as the UN HRC, [where] such norms are contested, rejected or adapted in unexpected ways…”(David Lewis, ‘The Failure of a Liberal Peace: Sri Lanka’s Counterinsurgency in Global Perspective’, Conflict, Security & Development, 2010)
This is why we must appreciate the effort by JO parliamentary leader Dinesh Gunawardene to strive to undo the damage done by former Foreign Minister Mangala Samaraweera by signing up to the 2015 and 2017 resolutions which includes commitments without adequate thought or debate regarding (among other things)emerging concepts of humanitarian law.
It is important for Sri Lanka to participate and contribute fully in the evolution of norms and concepts at the Council. The work of the Council is informed by the experiences of all its members, as well as their intellectual input. Unquestioning co-sponsorship is not the best or the only way to address issues of protecting human rights while fighting terrorism.
The people of Sri Lanka and the parliament, consisting also of Opposition MPs have a responsibility to rigorously examine international commitments made by Ministers. It was a relief that this task of parliamentary responsibility was attempted recently, but it is hoped that the Joint Opposition will continue to challenge the commitments made in UNHRC resolutions 2015 and 2017 that are detrimental to peace and reconciliation in Sri Lanka.