The good news is that the US failed to achieve consensus on Sri Lanka – Tamara Kunanayakam | Sunday Observer

The good news is that the US failed to achieve consensus on Sri Lanka – Tamara Kunanayakam

25 April, 2021
Tamara Kunanayakam
Tamara Kunanayakam

In an exclusive interview with the Sunday Observer, former Ambassador/Permanent Representative to the UN and Ex-Chairperson, UN Working Group on the Right to Development Tamara Kunanayakam explains the pluses and negatives of the recent Geneva Resolution on Sri Lanka and shares insights on how best to handle it.

Q: Why is Sri Lanka still a major concern at the UN Human Rights Council, in fact the battle against LTTE terrorism ended more than a decade ago?

Behind the relentless persecution of Sri Lanka at the UN Human Rights Council (HRC) is Washington. Its actions can be traced back to the December 2009 US Senate Foreign Relations Report, “Sri Lanka: Recharting US Strategy after the war” (Kerry-Lugar Report), prepared less than six months after the historic defeat of the LTTE. The report was categorical - the US “cannot afford to lose” Sri Lanka, because of its geostrategic importance to it. Accordingly, a new approach was recommended to “catalyse much-needed political reforms that will ultimately help secure a longer term U.S. strategic interests in the Indian Ocean”.

Washington’s priority thus shifted to increasing leverage over the country, expanding the tools necessary to catalyse radical neo-liberal transformation of the Sri Lankan State to bring it permanently under its control.

US strategic goals have since been articulated in the ‘Indo-Pacific strategy’ to combat China as the principal adversary and obstacle to its ambition for a unilateral world order under its leadership. The Biden Administration has intensified the campaign for a global ‘coalition of the willing’ that will also engage militarily through greater involvement in NATO and the US-led QUAD, which includes India.

Since terrorism ended in May 2009, Washington has been directly or indirectly responsible for every resolution against Sri Lanka. Human rights are the weapon to coerce it into submission, OHCHR the catalyst.

Q: Do you think Sri Lanka did the right thing in Geneva by refusing to become a co-sponsor of the Resolution L.1 Rev.1?

The right thing Sri Lanka did was to prevent Washington from achieving the consensus it sought by calling for a vote through its friends on HRC, China and Pakistan.

Initially, however, although the Government refused co-sponsorship, it was ready to negotiate a consensus, which could only have been obtained by compromising on sovereignty.

The controversial ‘Responsibility to Protect’ (R2P) doctrine that demands sovereignty be surrendered permeated the US-UK text. It was also the logic that prompted the High Commissioner to use R2P language in her conclusion that the Government has demonstrated ‘its inability and unwillingness’ to protect its citizens from “international crimes and serious human rights violations”.

The reference here is to war crimes, genocide, ethnic cleansing and crimes against humanity. It implied Sri Lanka was a ‘failed State’ and had hence surrendered its sovereignty to external forces, along with the associated state responsibilities. It is this notion that justified the interventionary recommendations to expand the scope of universal jurisdiction, apply sanctions, and equip OHCHR with prosecutorial functions.

The good news is that the US failed to achieve consensus. Sri Lanka has not been disarmed. The vote signified its rejection of the new rules unilaterally determined by Washington, a denial of consent for the interventionary measures, a reaffirmation of international co-operation as a condition for the promotion of human rights and a refusal to place its natural allies before a fait accompli.

Q: If the Foreign Ministry handled Geneva differently, could we have defeated the country specific Resolution on March 23, 2021 by convincing the member states to vote with Sri Lanka

It is impossible to predict the outcome of a battle not yet undertaken. The question that must be answered is whether Sri Lanka’s independence and sovereignty is worth fighting for.

It is crucial we understand that HRC decisions are not technical or about human rights, but essentially political. Composed of member States, they reflect the reality of the world outside and the balance of power at any given moment, which means it can be influenced by mobilising allies on the basis of common interests. Members of the Non Aligned Movement (NAM) have a sizeable majority both in HRC and the General Assembly.

The Government’s biggest error was to misunderstand the nature of the HRC and to confuse adversary for ally and ally for adversary. It is this blindness that led to its initial acceptance of the request from hostile countries to negotiate a consensual resolution. The Government should have realised that the desire for consensus revealed a lack of confidence on the part of the sponsors of winning a vote. It should also have understood that negotiating would neutralise Sri Lanka’s potential allies by conveying the message that it was ready to compromise. Countries of NAM and the Global South do not interfere in bilateral negotiations.

Q: Should we fear the actions proposed under the Resolution, if yes, why? (We have been told that the resolutions at the UNHRC are not legally binding.)

It is true UN resolutions are only recommendations that are not legally binding, except decisions by the Security Council under Chapter VII of the UN Charter (the Charter).

However, politically motivated resolutions, irrespective of whether they are adopted by consensus or without the consent of the State concerned, do not prevent coercion and interventions by the West from continuing. In our case, they may take the form of financial and other support for prosecutorial functions by OHCHR that it has no authority to carry out under the Charter, the initiation of criminal proceedings in national courts by expanding the scope of universal jurisdiction that has been rejected by the majority of States, and even threats of sanctions or sanctions not authorised by the Security Council.

Coercion and threats will continue until sovereignty is surrendered, but since that is not an option for nations that value freedom and dignity, Sri Lanka must be prepared for the long struggle.

Q: Do you think the funding for the proposed mechanism to gather evidence on Sri Lanka, to be used in the future - US$ 2.8 million, can be justified?

The issue is not whether or not the budget is justified, but whether it is legitimate. The size of the budget is irrelevant.

The Security Council alone has the authority to decide on universal jurisdiction by ICC or ad-hoc tribunals and on sanctions, which can in no way be used as a preventive measure in instances of violation of international law, norms or standards. Member States have also rejected attempts to expand the scope of universal jurisdiction to include human rights.

The decision to establish a ‘mechanism’ with prosecutorial functions within OHCHR to support criminal investigations is a blatant violation of international law and the Charter. Even the General Assembly cannot create a mechanism that has more powers than itself and HRC is only a subsidiary.

Besides, international co-operation is essential for the promotion of human rights and consent, an unquestionable rule in international law - a State is bound only by those international legal obligations to which it consents.

Q: How best can we manage the bad effects of the Resolution?

The vote clarifies the debate and equips us with the political wherewithal to continue to resist with renewed energy, without ambiguity and with our friends and allies at our side.

Consensus would have increased Sri Lanka’s vulnerability to US pressures, accorded a semblance of legitimacy to interventions in its internal affairs or wherever US strategic interests are involved, and would have isolated Sri Lanka from its natural allies.

Sri Lanka should communicate in writing to HRC and the General Assembly reiterating and explaining its position. Later this year, it should make every effort at the General Assembly to have all references to the ‘mechanism’ removed from the proposed program budget for 2022, because its inclusion will legitimise an illegitimate mechanism.

Not only will all UN member States, including Sri Lanka, be financing such a mechanism, but they will also be financing illegal criminal proceedings in countries allied to Washington.

At this September’s session of HRC where the High Commissioner will give an oral update, Sri Lanka should seek to reverse the damaging resolution. It will have other opportunities at HRC’s 49th and 50th sessions in 2022 at which a written update and a comprehensive report are envisaged.

An essential condition for success is political will to mobilise our natural allies within the framework of NAM to ensure that the balance of power is in our favour as was achieved in September 2011, when I represented the country in Geneva under the leadership of the then President Mahinda Rajapaksa, forcing the US to withdraw a resolution hostile to Sri Lanka.

Q: Since we are not a party to the resolution and have taken a stand to reject it, there will not be a chance for FM to ask the OHCHR to refer to favourable evidence such as British HC dispatches by colonel Gash. In those classified cables he talks about casualty figures during the final phase of the conflict.

Denial of consent to the new ‘mechanism’ does not prevent Sri Lanka from raising the issue in a legitimate forum - at HRC, in a treaty body where it is under consideration, or with a special procedures mechanism.

The latest resolution has taken the struggle to a qualitatively higher level and Sri Lanka must be able to rise to the new challenges it poses.

Q: The UK, the chief proponent of the Resolution against Sri Lanka is accused of suppressing evidence that could shed light as to whether war crimes were committed during the last phase of the war in Sri Lanka. BHC’s war time despatches were revealed as a result of a Freedom of Information request by Lord Naseby. Your comments?

It goes to prove that human rights is only a weapon in the hands of the West to achieve strategic goals.

Q: The US is to make a re-entry to the HRC, what will this latest development mean as far as SL is concerned?

The only difference is the additional leverage it will have over the votes of others through its own voting power. We have seen how even without being a member, it can flex its muscle through its Western allies and bilaterally in the capitals where decisions are taken.

The situation, however, is not static, the global reality is changing and US hegemony is under challenge with the emergence of a multipolar world, the systemic crisis of capitalism, the acceleration of de-dollarisation as more and more countries become victims of US sanctions, and rising domestic challenges within its borders and inside the European Union.

Sri Lanka must seize the opportunity and cure itself of its foreign policy ambiguity, taking a principled on issues that concern developing countries actively engaging in strengthening NAM. It must rid itself of its damaging reputation as a ‘single-issue country’, going beyond vote-seeking at UN fora to building sustainable co-operation with its natural allies at bilateral, regional, and multi-lateral levels, based on solidarity, co-operation and complementarity.

Q: During the vote on Sri Lanka, a number of countries including China, India, Russia, Pakistan and the Philippines, cautioned against actions that could lead to politicise the UNHRC mandate. Your comments

They reflect a common concern of the Global South about the increasing weaponisation of human rights and the selective targeting of developing countries for reasons other than human rights. Like its inglorious predecessor, HRC has become a space for political confrontation, double standards, manipulation and punitive action rather than a platform for dialogue and co-operation.

In view of the growing alarm at the dangerous trend that undermines the principles of universality, impartiality, objectivity and non-selectivity, Sri Lanka may wish to consider a larger initiative within the framework of NAM to consider ways and means to rescue the central objectives of co-operation and dialogue by which HRC body should be governed.