My approach in this article is to make as little comment as possible, and to let the documentation, consisting of authoritative Resolutions, Statements and other material, speak for itself.
I. Address by President Sirisena at the United Nations General Assembly (UNGA)
In his address at the UNGA on September 25, 2018, President Maithripala Sirisena made the following strong remarks: “My request here is to let us solve our problems. Independence of a country is very important ….. As a sovereign State, we need no foreign influence or threats. As such, I reiterate my request to all, as a strong nation, to allow us to sort out our problems as a sovereign nation, that moves forward while protecting our rights”.
This is a very clear and, indeed, emphatic statement. The obvious question, however, is whether it reflects continuity even at the basic level with previous solemn commitments or whether there is total inconsistency and contradiction.
II. UNHRC Resolution 30/1 of October 1, 2015
This is a Resolution by none other than the Government of Sri Lanka itself. Sri Lanka co-sponsored a Resolution proposed by the United States, adopted the Resolution as its own and called upon all Member States to support it unreservedly. The result was the unanimous adoption of the Resolution by the Human Rights Council.
It requires little perception to observe how startlingly intrusive this Resolution is, in content and spirit. No sovereign and independent country, firmly resolved to reject foreign influence, could possibly have agreed to, much less proposed, such a Resolution.
The Resolution “welcomes and encourages the positive engagement between the Government of Sri Lanka and the High Commissioner and the Office of the High Commissioner (for Human Rights) …… in exploring appropriate forms of international support for, and participation in, Sri Lankan processes for seeking truth and justice.” (Para 2).
It “notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special Counsel ….. and affirms in this regard the importance of participation in a Sri Lankan Judicial Mechanism, including the special counsel’s office, of Commonwealth and other foreign Judges, defence lawyers and authorized prosecutors and investigators” (Para 6).
It “encourages the Government of Sri Lanka to reform its domestic law to ensure that it can implement effectively ….. the recommendations of the report of the Office of the High Commissioner” (Para 7).
It “encourages the Government of Sri Lanka to introduce effective security sector reforms as part of its transitional justice process” (Para 8).
It “encourages the Government of Sri Lanka to undertake further efforts to tackle the considerable work that lies ahead in the areas of land use and ownership, in particular the ending of military involvement in civilian activities” (Para 10).
It “welcomes the commitment of the Government of Sri Lanka to review the Public Security Ordinance and to review and repeal the Prevention of Terrorism Act, and to replace it” (Para 12).
It “welcomes the commitment of the Government of Sri Lanka to a political settlement by taking the necessary constitutional measures, encourages the Government’s efforts to fulfil its commitments on the devolution of political authority” (Para 16).
It “encourages the Government of Sri Lanka to continue to co-operate with special procedure mandate holders, including by responding formally to outstanding requests” (Para 19).
It certainly defies reason how a Government, conscious of its independence and its sovereign right to make decisions on behalf of its people, free of foreign influence, could make such sweeping pledges to foreign countries with regard to matters as crucial as the involvement of foreign judges in war crimes trials against its Armed Forces, the reform of its Armed Forces and Police, limits on land utilization by the military, repeal of pivotal legislation governing security, devolution of power within the country and implementation of foreign directives in respect of this awesome array of issues. Indeed, one would be hard put to conceive of a more comprehensive foreign-led programme.
III. UNHRC Resolution 34/1 of March 23, 2017
Like its predecessor, this Resolution is the direct initiative of the Government of Sri Lanka. It does not seek to depart from its previous commitments, made with all gravitas to the international community, by one jot or tittle. On the contrary, its reaffirms in full all its commitments, and makes only the tame plea for a further two years for complete delivery on all its pledges. Furthermore, it specifically confers on the High Commissioner for Human Rights a wide-ranging supervisory authority. This Resolution “requests the Office of the High Commissioner to continue to assess progress on the implementation of its recommendations and other relevant processes related to reconciliation, accountability and human rights in Sri Lanka” (Para 4).
Again, it is difficult to imagine a clearer antithesis to independent, nationally oriented derision making and implementing power exercised by a sovereign Government.
IV. The High Commissioner’s Conception of His Role in Relation to Sri Lanka
UNHR Chief at the time, Prince Zeid Ra’ad Al Hussein, was quite categorical in his statements defining his role vis-à-vis our country, with total acquiescence and indeed encouragement at every point, by the Government of Sri Lanka.
He declared: “The report and the Human Rights Council Resolution suggest international participation in the accountability mechanisms set up to deal with international crimes and gross human rights violations” (Statement to the Council on 9 February 2016). He enjoyed the strongest support of the President and the Prime Minister of Sri Lanka. As part of the same Statement, Prince Al-Hussein asserted: “I was reassured this morning to hear both the President and the Prime Minister state their firm conviction in this regard”.
Four months later, the High Commissioner stated: “I remain convinced that international participation in the accountability mechanisms, as stipulated in the Human Rights Council’s Resolution, would be a necessary guarantee for the credibility, independence and impartiality of the process” (Statement to the Council on 29 June 2016).
The Resolution welcomes and encourages the positive engagement between the Govt of Sri Lanka and the High Commissioner and the Office of the HC of Human Rights
The High Commissioner was particularly explicit in his attitude to war crimes allegations against Sri Lanka’s Armed Forces. In the following year, he commented in his statement to the Council: “The consistent failure to effectively investigate, prosecute and punish serious crimes appears to reflect a broader reluctance or fear to take action against members of the security forces. Combined with a general lack of trust in the impartiality of the justice system regarding past violations, this continuing unwillingness or inability to address impunity reinforces the need for international participation in a judicial mechanism ….. For this to be credible, it should include a special counsel, foreign judges and defence lawyers, and authorized prosecutors and investigators” (Statement on March 22, 2017).
What is truly remarkable, however, is the vigorous support extended at all times to these postures by the Government of Sri Lanka. In his Statement of February 9, 2016, the High Commissioner, having baldly asserted that “The country’s history over the past few decades is littered with judicial failures,” went on to add: “The Prime Minister commented on it at great length, and with admirable candour, during a January 27 debate in Parliament.” It is much too late in the day to reverse these disastrous trends.
V. Contrasting Approaches Asserting National Sovereignty
In sharp contrast with the diffident and submissive attitudes underpinning the behaviour of Sri Lankan leaders, representatives of the current Administration of the United States of America at the 73rd Session of the UNGA, struck a different note altogether.
President Donald Trump, who took the floor on September 25, the day on which President Sirisena delivered his address, made no apology for a defiant articulation of his policy: “America is governed by Americans. We reject the ideology of globalism, and we embrace the doctrine of patriotism. Around the world, responsible nations must defend against threats to sovereignty, not just from global governance, but also from other, new forms of coercion and domination.”
A key official in his Administration, John Bolton, was devastatingly scathing in his denunciation of “self-styled global governance.” He had this trenchant comment to make in New York on September 10 this year: “This Administration will fight back to protect American constitutionalism, our sovereignty and our citizens. No committee of foreign nations will tell us how to govern ourselves and defend our freedom.”
While the Government of Sri Lanka belatedly laments foreign influence and threats, here is a sharply contrasting robust rejection of capitulation. Bolton minced no words in defining the Trump Administration’s policy with regard to the International Criminal Court: “We will not co-operate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead.”
It must not be forgotten that the United States, having co-sponsored the Resolution against Sri Lanka, subsequently relinquished its membership of the Human Rights Council. In doing so, its representatives characterized the Council as “a cess pool” riddled with hypocrisy, double standards and self-serving motivations. The U.S. has now withdrawn from the Council, but Resolutions 30/1 and 34/1 still remain valid and binding, and Sri Lanka has to abide by the consequences. Tragically, co-sponsorship of these Resolutions by the Government of Sri Lanka itself effectively silenced a considerable swath of the globe which, until then, had steadfastly stood for, and staunchly defended, our country’s independence and sovereignty.
The co-sponsorship of the Resolutions of 2015 and 2017 by the Government of Sri Lanka itself makes the Resolutions intrinsically distinct from Resolutions sponsored at the HRC by a foreign State. This circumstance signifies that the Resolutions are emblematic of the intent and stance of the Government of Sri Lanka: foreign involvement and collaboration are essential for post-war reconstruction and reconciliation. A domestic and autochthonous process was deliberately and repeatedly eschewed during the last three years in favour of the former. That this collaboration is all-pervasive is explicitly indicated by the all-encompassing language of the Resolutions which contemplate core domestic issues including constitutional reforms, devolution of power, defence and public security restructuring, and alienation of State land – matters within the exclusive purview of the Parliament of Sri Lanka.
The far-reaching implications of the involvement of the international community in each of these matters necessarily means that the Government of Sri Lanka intended and adopted the position that it is incompetent or unable to exercise its sovereign powers and capacity to steer the nation on its own, and required external intervention even in respect of matters admittedly fundamental to the spirit of the nation. This is further buttressed by the Prime Minister’s own statement in Parliament impeaching the credibility and independence of Sri Lanka’s judicial system, which was strongly relied upon by the United Nations High Commissioner for Human Rights in his justification for international participation in the proposed accountability mechanism.
In surrendering the State’s sovereign right to chart the course of its post-war future, the Government of Sri Lanka alienated its mandate to nations whose representatives, at the very same session of the United Nations General Assembly, emphasized in uncompromising terms the precedence of patriotism over globalism, and the paramount need for nations to withstand threats to sovereignty from purported global governance (vide the remarks of President Trump) and vowed to protect their own defence personnel from international or foreign scrutiny and prosecution, going so far as to threaten international institutions such as the International Criminal Court with dire sanctions, should such institutions pursue action against their military personnel (vide the speech by John Bolton, National Security Adviser of the United States).
I read President Sirisena’s speech at UNGA with growing bewilderment, as I wondered whether co-sponsorship of the 2015 and 2017 HRC Resolutions was the work of his Government or that of some other entity wholly remote from, and entirely unconnected with, the Sirisena- Wickremesinghe Administration. The reason for my perplexity is the evident reality that speeches at UNGA in New York, however lofty in aspiration, have no inherent impact whatsoever on Resolutions, approved and adopted at the HRC in Geneva. They are mere straws in the wind. This is more so, when the country in question has sponsored the Resolutions and urged the rest of the world to give them unqualified support. No practical consequences of any kind flow from exhortations at the General Assembly, unless and until the Government of Sri Lanka takes concrete steps to withdraw its own substantive Resolutions, and initiates action to have them rescinded, at the Human Rights Council. This is the bottom line.