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Media Release
1st August 2014.
THE UN INVESTIGATION INTO HUMAN RIGHTS IN SRI LANKA
itslegal basis, nature and scope
A UN investigation intoallegations of violations ofhumanrights inSri Lanka is about to commence. As an aid to public discussion, Friday Forum sets out below information tohelp the general public understand the legal basis,origin, nature and scope of this inquiry
Frequently Asked Questions on the UN Human Rights Council Resolution (2014) on Sri Lanka
1. WHAT is the Human Rights Council?
The Human Rights Council(HRC)is the main inter-governmental body within the United Nationsthat is responsible for the promotion and protection of human rights worldwide.Under the UN Charter (which is like the Constitution of the UN), promoting and encouraging respect for human rights for all without discrimination is a major purpose of the UN(Article1.3). The HRC and all other human rights institutions and procedureswithin the UNhave been establishedin order toachieve that purpose effectively.The HRC consists of 47 members, all of whom are Member States of the UN elected for a three year term by the UN General Assembly (UNGA). Sri Lanka too is aformermember of the HRC.
2. WHAT are the powers of theHuman Rights Council?
The Human Rights Council (HRC)succeeded the UN Commission on Human Rights which ceased to exist on 19 June, 2006. The HRC was established by UN General AssemblyResolution 60/251 of 3 April, 2006. Under that Resolution, the HRC is responsible for promoting respect for human rights the world over. Similarly, it is obligated to address human rights violations and make recommendations in that regard. It is also responsible for effectively coordinating human rights matters within the UN.
The HRC is based in Geneva, Switzerland and meets at least thrice each year.
3. UNDER what authority did theHRC adopt resolutions(2012,2013, and 2014)on Sri Lanka?
As already pointed outin 2above,the UN General Assembly (UNGA)has placed on the HRC the responsibility ofaddressinghuman rights violationsaround the worldand for makingrelevant recommendations.It is pursuant to thosepowersand its procedural rulesthat the HRC adopts resolutionson country situations. Resolutions adopted on Sri Lanka are but a few examples of such country resolutions.
Resolutions on country situations can be adopted under various agenda items of HRC sessions. The resolutions on Sri Lanka were adopted under agendaitem 2. That agenda itemfocuses on human rights issues and situations raised by the AnnualReportof the UN High Commissioner for Human Rights,reports of the High Commissioner’s office,andofthe UN Secretary General.As the principal UN official in charge of human rights, the High Commissioner on Human Rights has to present an annual report on the worldsituation on human rights.
4. WHO can proposeand vote fora resolution on a specific countryin the HRC?
The procedure to be followed in the HRC isset out in a separate resolution, popularly referred to as the“Institution-Building Package”. States that wish to sponsor a resolution related to a specific country are urged to get the support of at least 15 members of the HRC. Sponsoring States need not be members of the HRC. However, voting on a resolution can be done only by members.
The 2014 HRC Resolution on Sri Lanka(A/HRC/RES/25/1)wassponsored by 38States[1].The resolution was adoptedon 26 Marchwith 23HRCmembers voting for it. It was opposed by 12members while 12abstained.[2]
5. WHY is the HRC permitted to adopt country resolutions when countries can do as they wish under the idea of‘State Sovereignty’?
The idea of absolute State Sovereignty that existeduntilthe turn of the Twentieth Centuryis no longer valid. In the UN era, international law deals with very many subjects that were previously dealt with entirely under nationallaw. For example,family lawof a countrywas entirely based on law that had evolved at the nationallevel. Now, international human rights standardson rights of the child and gender equality require that a country'ssystems of family law should change to be in line withinternationalstandards. When countries legally accept international law standards on any subject(e.g. protection of human rights, environmentalprotection, trade), they are obligated under international law to implementthose standards at the national level. So, State Sovereignty is limited to the extent that a country has undertaken binding obligations under international law.
Sri Lanka has undertaken many binding obligations under international human rights law by ratifying (legally accepting) international human rights treaties such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Rights of the Child Convention, Convention on the Elimination of All Forms of Racism, Convention on the Elimination of All Forms of Discrimination Against Women,and the International Convention Against Torture.Similarly, Sri Lanka has ratified many treaties on the laws of war(i.e.InternationalHumanitarian Law).It then follows thatthe UN has the rightunder international lawto supervise whether Sri Lanka is complying with its international legal obligations. The HRC Resolutions on Sri Lanka were adopted on the basis of that principle.
Sri Lanka has already accepted the right of the UN to scrutinize Sri Lanka’s compliance with its international human rights obligations. Sri Lanka has a long history of submitting periodic reports to UN Treaty Bodies that supervise Sri Lanka’s compliance with international human rights treaties it has ratified. Similarly, Sri Lanka has readily cooperated with the HRC’s Universal Periodic Review process and submitted necessary reports and responses. Sri Lanka also has engaged in legal reform (e.g. amendment to the Citizenship Act to enable a child to obtain citizenship through the mother and the adoption of the Domestic Violence Act) or has established institutions (e.g. the Human Rights Commission of Sri Lanka) in response to recommendations made by UN human rights bodies or as a result of undertakings given by Sri Lanka to such bodies.
It must be noted that international human rights law obligations mainly make the State accountable for violations. However, obligations under international humanitarian law(laws of war)makeboth Statearmedforces and also non-State groups such as the LTTEaccountable for violations.
6. WHAT are the issues dealt with by the HRC Resolution on Sri Lanka (2014)?
The 2014 resolution follows two previous resolutions on Sri Lanka adopted by the HRC in 2012(A/HRC/RES/19/2) and 2013(A/HRC/RES/22/1).The first resolution, it should be noted, was adopted two and a half years after the ending of the civil war in Sri Lanka.
All three resolutions focus on promoting reconciliation, accountability and human rights in Sri Lankawhilerecognizing Sri Lanka’s sovereignty, independence, unity and territorial integrity. Asthethreeresolutionsare inter-connected, it is difficult to fully understand the 2014 resolution without going through the content of the 2012 and 2013 resolutions.
Each of the threeresolutions pointsout that combating terrorismhas to be carried out by States within the framework of their international law obligations -- in particular,obligations under international human rights law, international refugee law and international humanitarian law. The resolutions call on Sri Lanka to take action,in accordance with the country’s international law obligations,to effectively bring about reconciliationwithin the countryand accountability for violations of international human rights law and humanitarian law obligations.
Let us now examine the three HRC resolutions:
a)The 2012 resolution[3]is extremely brief. It welcomes the positive recommendations made by the Lessons Learnt and Reconciliation Commission (LLRC)appointed by the Government of Sri Lanka (GOSL). Itcalls on the GOSL to implement those recommendations andadditionalsteps that need to be taken under its legal obligations to ensure justice, equity, reconciliation and accountability for all Sri Lankans.It points out, however,that the LLRC recommendations, while being very constructive on national reconciliation, nevertheless do not adequately deal with the alleged violations of international law in Sri Lanka.
The Government of SriLankais called on to prepare a comprehensive action plandetailing the steps that it will take to implementLLRC recommendationsand to initiate investigations into alleged violations of international law.The High Commissioner for Human Rights and UN experts are called on to provide technical support for thosepurposes to the GOSL with its agreement.The Office of the High Commissioner of Human Rights(OHCHR)is called onto report on the progress made atthe HRC session to be heldin March 2013.
b)The 2013 resolutionwas adopted by the HRC[4]after examining the report presented to it by the Office of the High Commissioneras required by the 2012 resolution. The report of the OHCHR which was presented in February, 2013 was also based on avisitto Sri Lankaby atechnical mission consisting of OHCHRofficials. The team visited Sri Lanka in September, 2012with the permission of the Government of Sri Lanka. The visitwas made further to the 2012 resolution which called for the OHCHR to provide technical supportto the GOSL in fulfilling the recommendations made by the HRC.
The reportconcludes that, although Lessons Learnt and Reconciliation Commission’s Recommendationsoffer the promiseof achieving meaningfulreconciliation and accountability in Sri Lanka, the Governmenthas taken steps to implement only some of thoserecommendations. It further points out that the efforts made by GOSL to inquire into alleged human rights violations lack independence and impartialityrequired to inspire confidence. It then identifies areas on which the Office of the High Commissioner for Human Rightscan provide technical cooperation to the GOSL,andgoes on to makea series of recommendations to improve reconciliation and accountability in Sri Lanka.One of the recommendations is to establish a truth-seeking mechanism that will facilitate reconciliation.Finally, it calls foran independent and credible international investigation into allegations of violations of international human rights law and humanitarian law, while it could also monitor steps taken in Sri Lanka to inquireinto those allegations.
The resolution of 2013 recognizes the positive achievements of the GOSL in rebuilding infrastructure, demining andresettling of internally displaced persons. However, it points outthat the Plan of Action for the implementation of the LLRC recommendations leaves out many important recommendations such as those that call for the credible investigation of involuntary disappearances and extra-judicial killings, improvement ofthe Rule of Law, reachinga political settlement on devolution of power,and strengtheningpreviously independent civil institutions.It also notes with concern continuing human rights violations in Sri Lanka(after the war ended) including intimidation of journalists, extra-judicial killings and enforceddisappearances, threats to independence of the judiciary and the rule of law, and discrimination on the basis of religion.
Even thoughthe resolution notesthat theHigh Commissionerhas calledfor an international investigation,itcalls on the GOSL to carry out a national investigation that is credible and independent. The focus of the resolution is on stepsthat can be taken at the national level -- the full implementation of LLRC recommendations and the establishment of a domestic accountability mechanism.In achieving those goals, the GOSL is called on to obtain technical assistance from the OHCHR and UN independent experts.
The OHCHR is called on to report on progress made to the HRC session in March, 2014.
c)The 2014 resolutionwas adopted by the HRC on 27 March, 2014taking in to considerationthe report of the High Commissioner, who visited Sri Lanka in August, 2013.
Like the previous resolution, the 2014 resolutiontoo notescertain positive developments in Sri Lanka, but expressesconcern regarding the continued lack of progress in implementing theconstructive recommendations of the LLRC that would facilitate reconciliation and accountability.Again, the resolution expressesseriousconcernaboutcontinued violations of human rights in Sri Lanka includingextra-judicial killings, enforced disappearances, intimidation of journalists, lawyers and human rights activists,and also threats to independence of the judiciary and the rule of law.In particular, it expressed alarm about attacks on places of worship of religious minorities in Sri Lanka.
In strong terms it reminds Sri Lankaofthelegal obligation of States under relevant international lawto prosecutethose responsible for serious violationsof humanrights and humanitarian law whichamount to international crimes, and recallsthe conclusion of the High Commissioner that national processes in Sri Lanka havethus farfailed to deliver justice.The language of this resolution is more specific and firm.
Once again,through this resolution, the HRC callson Sri Lanka to establish a credible and independent national investigation process in regard to allegations of human rights and humanitarian law violations,and tohold those responsible accountable for their crimes. Theresolution goesfurtherand requiresthe GOSL to stop continuing human rights violations and comply with the recommendations of the High Commissioner’s report.
The most distinctive feature of the 2014 resolution is that, unlike in previous resolutions, it permitsthe High Commissioner toundertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes byboth partiesin Sri Lanka during the period covered by the LLRC. The investigation is called forin order to ensurethat those who have violated international law are held accountable.Sri Lanka is requested to cooperate with the OHCHR in the implementation of the resolution.
Under the terms of the 2014 resolution, the High Commissioner has to provide an oral report at the twenty seventhsession of the HRC(September, 2014)and thereafter a comprehensive report and a discussion on the implementation of the resolution at the twenty eighthsession(March, 2015).In other words, the HRC review of the situation in Sri Lankabased onSri Lanka’s international obligationswill continue.
A review of the three HRC resolutions on Sri Lanka makes it clear thatwhat the Government of Sri Lankawasmainlyrequired to do was toimplement the recommendationsof Sri Lanka’sown LLRC,including takingcredible and independent actionlocallyto investigate and to punish thosewho are found responsible forserious human rights violations.Similarly, where the allegations of serious violations of international human rights and humanitarian law are concerned, the HRC resolutionscall to Sri Lankawasalso tohold crediblelocalinvestigations, even though the High Commissioner had already concluded that an international investigation was necessary. Eventually, it was only in the third resolution (2014) that the HRC decided to request the Office of the High Commissioner for Human Rightsto itselfconduct an international investigation. It must be noted that the international investigation is not only in regard to allegations against the GOSL, buton allegations againstboth partiesto Sri Lanka’sconflict.
It is also noteworthy that unlikethe 2012 resolution,which only focused on past violations, both the 2013 and 2014 resolutions drawattention to a growing list of human rights violations in the country,including attacks on journalists, religious minorities, independence of the judiciary and the rule of law.
7. WHAT is the government’s Response to the 2014 HRC Resolution?
The GOSL hasrejectedthe threeHRC resolutions and has refused to cooperate with the international investigation to be conducted by the OHCHR. The Permanent Representative of Sri Lanka to the UN in Geneva reiterated the position of the GOSL at the twenty sixth session of the HRC held in June, 2014 that the mandate given to the OHCHR to conduct an international investigation is against the sovereignty and independence of Sri Lanka. The position of the GOSL is that the inquiries carried out bythe Sri Lanka Army intoalleged violations andthework of theDisappearances Commissionareadequate local accountabilitymeasuresandthat it (GOSL)isalsomaking satisfactory progress on post-war reconciliation.
8. WHAT Steps hasthe UNTaken to CommencetheInternational Investigation on Sri Lanka?
The High Commissioner recently announced the appointment of three international experts toadviseand guidethe OHCHR investigation team. They are Martti Ahtisaari, former President of Finland and Nobel Peace Prize winner; Asma Jahangir, aprominenthuman rights lawyer from Pakistan with extensive UN human rights workexperience; and Sylvia Cartwright, former Governor-Generalof New Zealand and High Court judge.Reportedlythe HRC has informed the GOSL that Sandra Beidas, an experiencedUN human rights officialwill lead the team consisting of twelve members. The team willwork under the guidance of the three experts andreport to the HRC on progressmade andofits findings and recommendations.
The team’s mandate isspelled out inparagraph 10of the 2014 resolution,which is as follows:
10.Takes noteof the recommendations and conclusions of the High
Commissioner regarding ongoing human rights violations and the need for an international inquiry mechanism in the absence of a credible national process with tangible results, and requeststhe Office of the High Commissioner:
(a) To monitor the human rights situation in Sri Lanka and to continue to assess
progress on relevant national processes;
(b) To undertake a comprehensive investigation into alleged serious violations
and abuses of human rights and related crimes by both parties in Sri Lanka during theperiod covered by the Lessons Learnt and Reconciliation Commission, and to establish thefacts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and specialprocedures mandate holders;
(c) To present an oral update to the Human Rights Council at its twenty-seventhsession, and a comprehensive report followed by a discussion on the implementation of thepresent resolution at its twenty-eighth session;
Whether or not Sri Lanka cooperates with the international investigation, the OHCHR will proceed with its work as mandated and present its report to the HRC. The HRC will discuss the report (Sri Lanka will have the right to respond) and decide on whether it will be adopted or not. If the report is adopted and there are findings that Sri Lanka is responsible for violations under its international human rights law obligations, Sri Lanka will be legally obligated to take corrective measures. Non-compliance will result in international law violations that could pave the way for international sanctions.
9. WHAT is the Role of Citizens of Sri Lanka in relation to HRC resolutions?
As citizens of Sri Lanka, in whom sovereignty lies (Article 3 of the 1978 Constitution), we should be the key players in regard to all public matters affecting us. If weare mere observers of events and do not voice our opinions and demands, we have failedbyboth our rights and duties as citizens, and indeed our society. What we need to do is to constantly inform ourselves of current happenings and ask questions such as how? and why?a given situation has arisen.We have to then form opinions and articulate thempublicly through various means—e.g.through various civicorganizations, by writing to newspapers and/or political representatives.