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Third UN Resolution: Authorization of Power

| by Ted Orlin and Paul Newman from Geneva

( March 19, 2014, Geneva, Sri Lanka Guardian) The second draft of the resolution, 'Promoting reconciliation, accountability and human rights in Sri Lanka,' was taken up for discussion on the 18th March. The US Deputy Secretary of State, who is also the head of delegation at the 25th UNHRC as well as chair of the resolutions drafting committee, led the informal consultation. The resolution, co-sponsored by Macedonia, Montenegro, Mauritius and the United Kingdom was discussed at length with State Parties suggesting alterations to the text.

In the earlier draft the Russian Federation requested that that ‘demilitarization’ is removed from the Preamble Para (PP) 9 that much work lies ahead in resolving this condition. This draft eliminated the term and inserted ‘land use and ownership’. Russia continued to request the deletion of both these terms as areas that need to be addressed.

Pakistan suggested that after Para 6 there needs to be an additional para inserting, “Reaffirming the sovereignty, territorial integrity and right to combat terrorism”. Further, Pakistan sought a change in PP 8; suggesting the term ‘unified land’ should replaced by ‘Unitary state’ arguing that the Sri Lankan constitution uses the later term. Clearly the intent was to strengthen the claims of the right to protect sovereignty.

In contrast, Switzerland argued that the use of ‘demilitarization’ was necessary, especially in the Northern Province, as the report of the High Commissioner specifically mentioned the presence of the military as an issue that needed to be addressed. It is apparent that the discussion reflected a concern on how the militarization of the North should be addressed by the Council in its attempt to bring human rights to all people in Sri Lanka including those who live in the former war zones.

Norway complemented the drafting committee for preparing a strong resolution, one that it would support.

The discussions continued with certain states attempting to alter the intent of the drafters by making alterations that would weaken the language of the text. For example, in PP 11 in the first line, Vietnam wanted the insertion of the word ‘cooperation’ to describe Sri Lanka’s support of the UN effort. China objected to the term ‘open access’ wanting it to be replaced with ‘unfettered access’ (line three of PP11). Indonesia and Thailand, in the same spirit, supported both Vietnam and China’s suggestions.

Similarly, Indonesia wanted the replacement of the term ‘reported intimidation’, to ‘alleged intimidation’. Pakistan made several recommendations, reiterating that the national efforts to address the post war issue in Sri Lanka should be acknowledged. Russia, China and Pakistan objected to the use of ‘sexual and gender based violence’ and argued for its deletion, but Canada, Italy, Denmark and Switzerland insisted on the retention of the terms as they reflected the factual events.

The discussion surrounding the Operational Paras (OP) was in the similar vein. Cuba pointed out in OP 6 there should not be singling out a single province and wanted the para to be deleted. They argued that no country had a right to suggest how another country should manage their provinces and the resolution should respect the right to govern without interference. Pakistan followed by saying it was inappropriate to point to one province and instead of Northern Provincial Council, they should be using all Provincial Councils.

Egypt stepped in and did not want specific incidents mentioned in OP 5 to be pointed out. On OP 6 they did not want the 13th amendment to be referenced and suggested that the whole constitution of Sri Lanka be referenced. Chile wanted the word ‘encourage’ to replace ‘calls upon’.

To the contrary, Canada wanted the retention of the reference to the 13th amendment as it had been challenged. It was pertinent to point out that the 13th amendment was the only reference to the devolution of power in the Sri Lankan constitution and was also highlighted in the LLRC report and urged maximum devolution of power to the Provincial Councils.

Vietnam objected to OP 6 and sought its deletion.

On OP 8, Egypt spoke of the visible results based on the national processes which need to be recognized. They further elaborated that the UN High Commissioner of Human Rights has the mandate to investigate and not the Office of the High Commissioner.

Macedonia, one of the Cosponsors, pointed out that as early as 1994 the General Assembly by resolution, Sub Para B empowered the High Commissioner to carry out an investigation, thus permitting a call for such a investigation.

France welcomed the text of the resolution and told it was a very balanced text which was in line with the report of the High Commissioner for Human Rights. Ireland wanted a time frame to be fixed for the investigation.

UK, another Cosponsor, stepped in by presenting a detailed input as to the past precedence’s of the investigations carried out by the Office of the High Commissioner for Human Rights (OCHCHR) starting with 1993 when the Secretary General requested the OCHCHR to investigate cases of extra judicial killings in Abkhazia, a disputed territory that Georgia claims as part of its state.

In 1998 Afghanistan was investigated. In 2002 there was a general mandate to investigate the killings of civilians in Colombia. In 2004, Cote d’ivoire was to be investigated for the atrocities in its civil war. Again in 2004, Darfur was investigated, in 2005 Togo was investigated. In the recent past in 2009 Honduras was investigated for its violation of human rights. In 2011 Syria was investigated for the deterioration of the humanitarian laws and in 2012 Nepal was investigated over allegations of disappearances.

The list demonstrated to many in the room that the High Commissioner of Human Rights possesses such a mandate and that those who dispute it are acting contrary to the history of UN investigations.

Montenegro, another cosponsor, intervened and highlighted that the High Commissioner had made an assessment and had called for an Independent International Investigations and had pointed out that the lack of political will on the part of Sri Lanka supported such an investigation. The Secretary General had pointed out that witnesses were willing to speak out at International Inquiry where there had been reluctance to speak before national bodies. The argument progressed with the understanding that up till now there was a total absence of national inquiry and there is a need to create opportunities for justice in Sri Lanka.

Sweden intervened and suggested that the draft was well balanced and thoroughly explained. The European Union stressed that the national mechanism in Sri Lanka had failed and there is a need for a International investigation. Myanmar questioned how the High Commissioner would get the resources and the impartiality of the inquiry. Russia wanted to know who the relevant experts were, and who actually would investigate Sri Lanka. The USA intervened and said that it was for the OCHCHR to decide.

Denmark wanted a stand-alone investigation; at the same time Austria supported an investigation led by the High Commissioner who was fully equipped to lead the investigations. Canada intervened and suggested that though there were processes in Sri Lanka that the situation was going backward.

There were multiple testimonies, including the Channel 4 revelations, all supporting the need for an international investigation. Canada equated the situation in Sri Lanka to an earth quake and told that it would take time to make assessments. On the question of timelines, they wondered whether it should start from 1983 when the war started or at another time.

The USA responded by suggesting that that appropriate time might be from 2002-2009, as this was the period covered by the LLRC. Switzerland wanted the expansion of the time limit as they wanted the inclusion of the ongoing violations to be taken into account.
Chile and Argentina wanted the special mandate holders to investigate rather than ‘relevant experts’. The USA intervened and stressed that in this situation a variety of experts were necessary and gave the example of possible use of forensic experts, at the same time stressing that experts would include special mandate holders.

Canada did not want a time frame to be set up for the investigations and specified that a commission of Inquiry should take into account gender and geography.

At the end of the session when the civil society was asked to respond, Mr.Sumanthiran referred to PP9 and the deletion of the term ‘demilitarization’. He pointed out to the arrest of Mr.Ruki Fernando and Fr.Praveen as reflective of the problem. Ms. Nimalka Fernando spoke of the need to highlight the 13th amendment and the mention of the Northern Provence, which had suffered the most during the course of the civil war. With this the informal consultation came to an end with the hope that the resolution would not be diluted further.

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