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Geneva : “Responsibility to Protect” Vs sovereignty of the people!

| by Tamara Kunanayakam

“Only the working class in its mass remained loyal to the profaned homeland!”
Francois Mauriac, 1943

( April 17, 2013, Colombo, Sri Lanka Guardian) Reactions to the latest US resolution adopted by the Human Rights Council have varied from lamenting about unjust criticism when significant progress in resettlement, reconstruction and demining has been made, to complacency about minor amendments, although these have left intact its essence, the relentless logic that underpins the “Responsibility to Protect” (RtoP). Despite these differences, there seems to be a consensus that the text is soft, harmless, and “nothing to worry about.”

It is this latter interpretation, which disregards that accountability is only a pretext for Washington to advance its geopolitical interests in the region, that I consider my duty to challenge in this piece, an interpretation for which, until recently, I had a more charitable explanation – erroneous reading of the text! I have meanwhile revised this position. The startling suggestion from certain high quarters that Sri Lanka “become a stronger geopolitical and strategic ally” of the US and confirmation of behind the scenes concessions to Washington as the US draft was being considered by the Council, indicate that sections of the ruling elite might have chosen to capitulate and bargain away our independence and sovereignty.

The relentless logic that underpins the “Responsibility to Protect” (RtoP) remains intact! According to that logic, if the State fails to protect its citizens, then that responsibility is transferred away from the people within that State to an alien power. This new concept that the US seeks to impose on UN member States as an ideological pillar of the new international architecture attacks the sovereignty principle, effectively depriving the people of their inalienable right to self-determination, and its corollary, permanent sovereignty over natural wealth and resources, without which the right to self-determination will be bereft of substance. RtoP effectively transfers sovereignty from the people to an alien power, meaning, in today’s still unipolar world, the USA. The ideology that underpins RtoP, which is that peoples’ of developing countries are incapable of governing themselves, is no different from the ideology of racial superiority advanced by former colonial powers in their so-called “civilising mission” over peoples of Africa, Asia and Latin America that lasted over five centuries.

Speaking to press in September 2001, Silvio Berlusconi, declared, “We should be conscious of the superiority of our civilisation, which consists of a value system that has given people widespread prosperity in those countries that embrace it, and guarantees respect for human rights and religion.” He also said the West was "bound to occidentalise and conquer new people.”

In this context, it is legitimate to question the motivations behind sections of the ruling elite who argue that if harshness there is in Washington’s attitude toward Sri Lanka, then it is due to the unkindness or “megaphone diplomacy” on the part of some of us. Is it meant to disarm the people, to justify a choice that swings between discarding all dignity and pleading for “time and space” (to do what is, anyway, the country’s sovereign right and responsibility to do), or capitulating and accepting a strategic alliance with Washington?

Under the circumstances, it is a moral obligation and a patriotic act to examine the text thoroughly, grasp its implications, and understand why “the Sri Lanka issue” is increasingly moving centre stage in the most politicised of all UN fora. Only that will arm the people, collectively, with the knowledge, conviction, and the confidence to assume responsibility for defending their sovereignty in the months and years ahead, in the context of US ambitions to dominate Asia in its quest for global supremacy that is, elsewhere, leaving behind ruin, dissension, chaos, death, deprivation, and despair for all those who have become victims of its aggression.

Washington’s focus on accountability – pillar of the controversial “Responsibility to Protect” (RtoP)

Government and critiques alike, for different reasons, provide a skewed interpretation of the text, wrongly concluding that the focus of the resolution is on reconciliation and LLRC recommendations, missing its essence – accountability. It ignores the fact that the entire US text is built on a concern that LLRC and the National Action Plan do not “adequately address serious allegations of violations of international human rights law and international humanitarian law.”

This focus on accountability is not motivated by a genuine belief that there can be no reconciliation without it, but because accountability is the pillar upon which the Responsibility to Protect (RtoP) stands, a concept initially known as the “right to intervene,” which Washington is forcing upon the UN so as to provide legitimacy for its increasingly aggressive unilateral interventions, and domination of peoples and their wealth and resources in countries of strategic interest to Washington!

As early as 2011, the High Commissioner for Human Rights declared her intention to send a team to identify the gaps in the LLRC report. The thrust of the report of Stephen J. Rapp, Ambassador-at-Large in the Office of Global Criminal Justice at the US State Department, presented to the US Congress in April 2012, was that an independent mechanism must be established to investigate the “credible allegations, which the LLRC failed to address.”The March 2012 and 2013 resolutions, both authored by the US, acknowledge only LLRC’s “possible contribution” to reconciliation.

Washington’s stand, in the case of Sri Lanka, is that there can be no reconciliation without accountability, contrary to that it adopted for those responsible for apartheid South Africa or US-supported military juntas in Latin America. US Ambassador Eileen Donahoe, speaking to the press in Geneva, was clear that the resolution was a signal by the international community that “lasting peace and reconciliation in Sri Lanka will require meaningful steps toward truth and accountability.” “The international community,” she said, “knows an independent and credible investigation must go forward and that that’s what’s lacking.”

As for the language and meaning of the text, Washington is also very clear: “if you compare the text from last year… it is fair to say there’s a strengthening in the language and the meaning of the text … and does rely heavily on the findings of the High Commissioner, which were serious and reasserted the need for a truth mechanism. Very clearly!” 

International machinery set in motion

In a smart move that seems to have gone totally unnoticed by the foreign policy establishment, Washington has sneaked into the resolution the beginnings of the international machinery conceptualized by the Darusman Panel and incorporated in the Navi Pillay Report. Since then, Sri Lanka’s foreign policy makers have adopted an Ostrich-like attitude, perhaps wishing away a mechanism that is suddenly taking on frightening proportions.

The resolution sets in motion the monitoring component of the international investigation mechanism; the mandate is assigned to OHCHR, a “constructive role for the Office,” according to US Ambassador Michele Sison in Colombo. The Office is asked to report to the Council in five months, and again in seven months, on the implementation by the Government of the requests contained in operative paragraphs 2 and 3, which focus primarily on accountability. The Council approved the allocation of General Budget funds to engage a professional staff person for 5 months to conduct research, consult with “stakeholders”, and to produce draft texts. It is likely that additional staff will be recruited using voluntary funds originating from rich countries with conditions attached.

OHCHR will be monitoring and reporting on the steps taken by the Government to: (1)“conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law, as applicable”; (2) implement “effectively” the “constructive” recommendations of LLRC (meaning those related to accountability); and, (3) “fulfil its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability, and reconciliation for all Sri Lankans.”

In a clear indication that Washington is moving resolutely toward international action, the only request addressed to OHCHR is monitoring and reporting. Unlike the 2012 resolution, the 2013 resolution does not request OHCHR to provide technical assistance to Sri Lanka; it only “encourages” it to do so.

Implacable logic of “Responsibility to Protect” (RtoP)
The 2013 resolution subjects Sri Lanka, henceforth, to the implacable logic of the “responsibility to protect,” applicable to four specified crimes: genocide, war crimes, ethnic cleansing and crimes against humanity, as well as to their incitement. A controversial concept, it was initially conceived as the “right to intervene” by Bernard Kouchner, former Minister of Foreign Affairs of France, who participated in the 2009 operation to rescue Prabhakaran, along with US Secretary of State Hillary Clinton and British Foreign Secretary David Milliband.

It is significant that all three pillars of this still debated concept are reflected in the latest US resolution: (1) the primary responsibility of the State to protect its populations; (2) the responsibility of the “international community” to encourage and assist States in fulfilling this responsibility; and, (3) the responsibility of the “international community” to protect in a “timely and decisive” manner when the State is unable or unwilling to do so, through “appropriate” diplomatic, humanitarian and other means, including coercive military intervention.

As for pillar one, the latest resolution is further defines the steps the Government must take to fulfill its responsibility.

Elements of pillar two are reflected in the encouragement to OHCHR and special procedures mechanisms to provide advice and technical assistance to the Government to fulfil that responsibility. This point was also emphasised by US Ambassador Donahoe in her press statement: “The United States stands ready to assist Sri Lanka... The Office of the High Commissioner, as well as the Special Procedures, are also standing by ready to assist the government of Sri Lanka with technical assistance and capacity building so that they can move forward toward a sustainable peace and reconciliation, based on truth and accountability.”

The Charter obligation to cooperate with UN mechanisms, in accordance with articles 55 and 56 of Chapter IX on International Economic and Social Cooperation, is also reflected in the request to OHCHR to prepare the report on Sri Lanka “with input from relevant special procedures mandate holders.” Despite the trumpeting about “small victories” achieved through “amendments,” the request to OHCHR meets Washington’s objective of providing Navi Pillay with the space necessary to demonstrate that GoSL is failing in its Charter obligation, should it continue to ignore them.

However, it is the decision to put in place the monitoring and reporting components of an international investigation mechanism that is the most significant, in that it sets in motion the still debated and controversial third pillar of RtoP, which authorises the “international community” to utilise a wide range of tools, from peaceful to coercive measures such as economic and political sanctions or military intervention.

The language of the resolution is harsh. It seeks to demonstrate that GoSL is unwilling – not just unable – to protect its own populations and has also failed to cooperate with the UN in carrying out this primary responsibility, so as to justify application of the third pillar. While providing the Government another opportunity to conduct “independent and credible investigations” domestically, the decision to ensure external monitoring also signals the lack of confidence in its willingness to do so.

The text is clear in its judgement that the Government has failed to adequately address accountability for past abuses and by doing so, has also failed to prevent “continuing ... violations of human rights,” thus bringing the Sri Lanka issue squarely within the mandate of the Council, which handles ongoing, not historical, situations. It is noteworthy that “discrimination on the basis of religion or belief” was added to the list of “continuing reports of violations” only in the final version. Its simultaneity with the dispatch of a letter addressed to the Government by the 57 member Organisation of Islamic Cooperation expressing concern over the anti-Muslim campaign launched even as the Council was meeting, is an indication that Sri Lanka may risk losing the traditional support it has benefited from.

US Ambassador Donahoe, speaking to the press in Geneva shortly after adoption of the resolution, claimed that the US had put forward the resolution “out of a genuine concern about the lack of follow-through on the promises by the government of Sri Lanka to carry out a credible form of domestic accountability.” Linking impunity to continuing reports of violations of human rights, she referred to “the deteriorating human rights situation in Sri Lanka” over the past year and recalled strong concerns “over the lack of progress on these vital issues as well as backsliding on respect for human rights and the rule of law” and the “protection of human rights in the current situation as well.”

The logic pursued is that if there is no accountability for past crimes, impunity for present crimes will continue and give rise to similar crimes in the future, which, in turn, justifies external intervention to ensure that the population is protected from future crimes. As will be shown below, the resolution clearly envisages the establishment of an international investigation mechanism as a next step.

With this implacable logic, it would have been sufficient victory for Washington had the resolution only contained four elements, one implying failure of the Government to take independent and credible action to ensure accountability, another expressing concern about continuing violations, a third implying failure to cooperate with UN mechanisms, and, a fourth, requesting the High Commissioner to report on implementation! A reference to “international investigation” would not even have been necessary, since it is the logical next step!

Possible next steps

The next steps will depend on the content of the monitoring reports, oral and written, submitted by the High Commissioner to the Council at its September 2013 and March 2014 sessions. US Ambassador Donahoe admitted that the latest resolution had relied “heavily on the findings of the High Commissioner.” That resolution now contains all the elements necessary for Navi Pillay to orient her future reports.

Declarations of the foreign policy establishment, its representative in Geneva, statements of certain members of the Government, and the interpretation given to the text, all indicate that the ruling class is unlikely to respond to the real issues posed in the latest resolution or adopt a domestic and foreign policy capable of rendering the country less vulnerable to external pressures. Instead, the signs are that it is caving under US pressure, surrendering the country’s sovereignty and independence, isolating it further from its natural allies – the UN majority – with whom the country shares common interests, and increasing its vulnerability to external intervention.

Sri Lanka should remember that a similar line was adopted by Yugoslavia’s Slobodan Milošević, Iraq’s Saddam Hussein, Libya’s Muammar Gaddafi, Sudan’s Omar Hassan Ahmad Al-Bashir, and to a certain extent, Syria’s Bashar al-Assad – who all initially conceded to US pressures in the delusion that Washington was a friend.

It is likely that the reports produced by OHCHR in September 2012 and March 2014 will seek to confirm that Sri Lanka is not willing to fulfil its responsibility to protect by conducting “independent and credible” investigations and cooperating with UN mechanisms. Any allegation received by UN special procedures mandate holders during this period and any instance of impunity, will be utilized to demonstrate the failure to arrest a dangerous trend.

The next step is reflected in the first operative paragraph of the latest resolution, which by welcoming Navi Pillay’s Report and its conclusions and recommendations, implicitly endorses her call for “an independent and credible international investigation into alleged violations of international human rights law and international humanitarian law.” To remove any ambiguity, the call is explicitly spelled out in the preamble.

And, for those who haven’t understood, US Ambassador Michele Sison, speaking to the Foreign Correspondents Association in Colombo on 8 April, said that what happens next “depends on the government of Sri Lanka. The UN High Commissioner for Human Rights’ report ... reaffirmed a long-standing recommendation for ‘an independent and credible international investigation’ into alleged violations of international human rights and international humanitarian law in Sri Lanka. The latest resolution took note of this call, and asks the Office of the High Commissioner to update the Council on Sri Lanka’s progress at the September 2013 session and present a comprehensive report in March 2014. The latest resolution also encourages Sri Lanka’s government to respond to the eight outstanding requests by UN special procedures mandate holders.”

In an earlier statement, Ambassador Sison said that Washington would renew “consideration of all options available in the UNHRC and beyond,” pointing out that international mechanisms can be appropriate when States are either unable or unwilling to meet their own obligations. A few days after the resolution was adopted, US Assistant Secretary of State for South and Central Asian Affairs, Robert Blake, warned that it may be forced to investigate alleged war crimes if the Sri Lankan government does not conduct its own "independent and credible" inquiry.

It is likely that in a follow-up resolution, the US will focus on a combination of pillar two and three responsibilities of the international community to “respond collectively in a timely and decisive manner when a State is manifestly failing to provide such protection.”

Available tools for external intervention – pacific and coercive

The 2005 World Summit Outcome Document endorsed by the General Assembly, provides a range of tools available under the UN Charter to the international community, both pacific measures envisaged under Chapter VI on Pacific Settlement of Disputes and Chapter VIII on Regional Arrangements that have traditionally been carried out either by intergovernmental organs or by the Secretary-General, as well as coercive measures under Chapter VII, “should peaceful means be inadequate and national authorities manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” Under Chapter VII, the Security Council may authorize coercive measures, including economic and political sanctions or coercive military intervention.

• Peaceful measures

Chapter VI provides for peaceful measures, including negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means, including by appointing eminent persons or special envoys to initiate dialogue and prepare for local, regional or UN mediation or facilitation efforts as in the case of Libya, or Southern Sudan, or Syria.

Washington could, as a next step, and through the UN, call for international assistance under pillar two in the form of an international commission of inquiry, a Special Rapporteur, or an Independent Expert to establish the facts and to identify the perpetrators of crimes and violations relating to RtoP.

Commissions of Inquiry and fact-finding missions are increasingly used and may be established by the Secretary-General, the Security Council, or the Human Rights Council as it did in the case of Syria to conduct investigations and gather “a body of evidence” that will help ensure accountability. At its recent session, the Council also established a Commission of Inquiry on the Democratic Peoples’ Republic of Korea, a country that Sri Lanka recently joined Washington in condemning! It is noteworthy that Darusman was the Council’s Special Rapporteur on DPRK and is also expected to serve on the Commission. Both Commissions were established on the basis of reports submitted by Navi Pillay.

In an indication of the consequences, Rupert Colville, Navi Pillay’s spokesman pointed out that “earlier Commissions of Inquiries played really key roles in moving situations into the area of international justice, for example … a Commission of Inquiry…in the former Yugoslavia, which predated the Hague Tribunal…” What Rupert Colville does not say is that the first illegal war of aggression led by US-led NATO forces against Yugoslavia, under the guise of protecting human rights, resulted in thousands of civilian deaths and more than 6,000 seriously injured, according to the Independent Commission of Inquiry called by Ramsey Clark, former US Attorney General. Children made up 30% of all casualties and 40% of total number injured. In addition, approximately 300,000 children suffered severe psychological traumas and will require continuous medical surveillance and treatment. Having got rid of Milosevic, the aggressors dismantled Yugoslavia – the only NAM country in Europe – giving birth to the now famous “Kosovo model” championed by Washington and its allies. According to European Union expert Swiss Senator Dick Marty, Kosovo has become the centre of trafficking – from drugs, to arms, to human organs, to prostitution, under the control of the so-called freedom fighter and current Prime Minister of this artificial state, Hashim Thaci.

Chapter IV of the UN Charter also authorizes the General Assembly and the Secretary-General to bring “situations which are likely to endanger international peace and security” to the attention of the Security Council, as in the case of Syria. The High Commissioner may request the Security Council to bring to its attention her report on Sri Lanka, a request that the Council may or may not grant, depending on the Government’s ability to unite its forces internally and externally through actions at domestic, regional and international levels. Navi Pillay’s recommendation to the Security Council on 12 February 2013 to refer Syria to the International Criminal Court is an indication of a course of action open to her.

The Security Council may refer cases to the International Criminal Court, where the Court may not otherwise exercise jurisdiction, an authority recognized in the Rome Statute. It exercised this power for the first time in March 2005 when it referred “the situation prevailing in Darfur since 1 July 2002.” Sudan was not party to the Rome Statute. The second such referral was in February 2011 when the Council asked the Court to investigate the Libyan government’s violent response to the Libyan civil war.

• Coercive measures

When a State fails to respond to diplomatic and other peaceful measures, the Security Council may authorise coercive measures under Articles 41 and 42 of the Charter, including sanctions that may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, freezing of financial assets and imposition of travel bans; suspending credits, aid and loans from international financial institutions; restricting provision of other financial services; the severance of diplomatic relations; sports embargoes; restrictions on scientific and technical cooperation.

Eventually, the Security Council may authorize the use of force, under Chapter VII, Article 42, of the Charter, including coercive military action that may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Illegal unilateral interventions

The US Administration is empowered by Congress to institute unilateral coercive measures, in violation of the UN Charter and international law, including sanctions, blockades and embargoes, against other States if they fulfil the "rogue and recalcitrant" requirement.

Washington’s concept of “regime change” does not end with a change in leadership, but with the dismantling of the Nation State, disarming the people by dividing them, usually on ethno-religious lines, as between Muslims and Orthodox in Yugoslavia, Sunnites and Shiites in Iraq, Sunnites and Alaouite in Syria, Muslims and Christians in Sudan, the tribes in Libya, etc. The partitioning of countries on communitarian lines, a system theorised by the US Administration, particularly by former Secretary of State Madeleine Albright, is a clear demonstration that Washington’s doesn’t care a dime about reconciliation!

US imposed unilateral sanctions may take the form of arms embargoes, foreign assistance reductions and cut-offs, export and import limitations, asset freezes, tariff increases, import quota decreases, revocation of most favoured nation (MFN) trade status, votes in international organizations, withdrawal of diplomatic relations, visa denials, cancellation of air links, and credit, financing, and investment prohibitions. Over the past several years, Congress has enacted – and the Administration has implemented – the equivalent of a financial system meltdown on the Islamic Republic of Iran and on Syria, by means of sanctions targeting the countries’ financial systems.

While the sanctions are presumed to exempt humanitarian trade in food and medicine, such commerce is severely constrained, because of executive orders blocking the attendant financial transactions.

Sri Lanka, in an international quagmire of its own making

Today, Sri Lanka finds itself in an international quagmire largely of its own making. The decision-makers have tragically failed in their duty to meet the political, social and economic aspirations of the people, without whose backing and sacrifice, whatever their ethnic origins, the defeat of terrorism and separatism would not have been possible in May 2009.

The immediate aftermath of the war provided the conditions necessary for the adoption of independent socio-economic policies and the search for a political solution to the national question that would have facilitated reconciliation and unity among all Sri Lankans. Buttressed by socio-economic policies aimed at eliminating disparities and the emergence of a common Sri Lankan identity would have also rendered the country less vulnerable to external pressures and conditionalities.

However, instead of taking advantage of the favourable conditions thus created to pursue the choice of the people for peace and socio-economic development and well-being, decision-makers have squandered away the peace dividend by aligning themselves to the demands of an elite, whose interests are closely tied to that of US-led global capital.

The pursuit and further reinforcement of a foreign debt-driven, export-oriented neoliberal development model, referred to as the “Washington Consensus,” has made Sri Lanka more dependent and vulnerable to external pressures, shocks and conditionalities and has drastically reduced its ability to pursue an independent foreign policy. It is significant that in the affair of the Ceylon Electricity Board, US Ambassador Michele Sison felt invested with a "responsibility to protect" by acting like a proconsul. Tying Sri Lanka’s future well-being to decisions taken in Western capitalist nations, where the model is on the verge of collapse, also, irresponsibly, exposes the entire country and people to the unprecedented shock that is inevitable.

What will be the response to the anticipated disaster? A search for scapegoats, diversionary tactics, as the country has known in times of serious socio-economic crises? How will it facilitate reconciliation and unity? How will tax-exempted casinos improve the real economy and the lives of the majority of ordinary people who depend upon it?

The consequences of this neoliberal vision for Sri Lanka’s foreign policy are becoming evident! Less than one month after the US resolution was adopted, a strategically-placed Sri Lankan representative pleaded for a stronger “geopolitical and strategic” alliance with the USA, as part of John Kerry’s Asia Pivot to reverse “China’s drive to tighten its grip” on the region! Rumours also have it that discussions on the establishment of a US base on this strategic island might have been revived. Fifty-five years ago, in 1957, the British were forced to withdraw their military bases in the country, and Sri Lanka officially became a Non-Aligned country. Washington has never made a mystery of its interest to acquire Trincomalee for its Seventh Fleet.

Having once been a front-line British base against the Japanese during World War II, will Sri Lanka now become a front-line base for the US, against China or even India? Is this confirmation of a radical shift from Sri Lanka’s traditional policy of Non-Alignment in international relations? Is India playing a risky game with the US that may help create a Trojan Horse on its southern flank, through a partition of Sri Lanka with possible repercussions for its own territorial integrity and credibility in the region?

Are we also seeing a surrender of Sri Lanka’s sovereignty to powerful US lobbies, which are speaking on our behalf? A recent edition of The Sunday Times (7th April) reported on a decision by the Central Bank, during the recent session of the Human Rights Council, to hand over defense of Sri Lanka’s economy and finance to Thomson Advisory Group LLC (TAG) in Washington.

To complete the picture, Dr. Dayan Jayatilleke made another revelation about a secret agreement made with Israel, even before war ended, for post-conflict cooperation on Homeland Security, indicating that there might be a strengthening of those same forces within the centres of power, which are ready to sacrifice people and country for mercenary ambitions.

The ruling class with its vassal mentality, as reflected in its refusal to reject the threats and orders decreed from Washington, cannot be relied upon to consolidate Sri Lanka’s political sovereignty, which requires a strategy that renders the country economically independent of those who seek its subjugation and domination, a strategy capable of defending the choices of the people.

If Sri Lanka is to avoid a disastrous scenario, experienced by those who also believed they would be spared by Washington, it has no other alternative, but to rely on its own people and their unity – not on an alien power – to protect and advance its interests. It is equally necessary to unite in resolute opposition to the criminal logic of RtoP, which aims not only at disarming the people, but at replacing governance by a national elite with domination by an alien elite.

What is needed is a collective effort to develop a new society and a common identity, founded on a shared heritage of values and principles and based on recognition of the needs and aspirations of all groups of people living within the national borders. To permit genuine reconciliation, this vision must respond to the need for social justice, equality and non-discrimination, founded on social aspirations rather than on the greed of an arriviste elite, thus also strengthening the economic and social base of the country.

Internationally, Sri Lanka must consolidate its political independence by eliminating its vulnerability to pressures from Washington and its allies and by freeing itself through diversification of its economic, financial and political relations, based on mutual respect, solidarity, reciprocity, and complementarity.

Only thus will Sri Lanka regain its rightful place in the international community and respect for the dignity of its people and its millenary history!
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