UNHRC Resolution 40/1: A Threat to Fundamental Rights

By Neville Ladduwahetty

UNHRC Resolution 40/1 has come and gone leaving behind a host of questions. By co-sponsoring the resolution, first in 2015 and recently in 2019, Sri Lanka has become a party to the resolution notwithstanding the fact that some provisions require revisions to the Constitution, and other provisions require the introduction of new legislation. Despite the fact that such challenges had existed from 2015, what is exceptionally noteworthy is the fact that this was the first time that such challenges were brought to the attention of the Human Rights Council by Sri Lanka through the Foreign Minister Hon. Tilak Marapana’s statement to the Council.

The most significant issue brought to the attention of the Human Rights Council relates to “a Sri Lankan judicial mechanism…including foreign judges” as stated in paragraph 6 of UNHRC Resolution 30/1 of 2015. The other relates to devolution and for “the government to ensure that all Provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka” (paragraph 16). Although the former was brought to the attention of the Council, no reference was made to the latter. Despite the fact that both issues involve constitutional and legislative changes of an order that reached an all-time high, post-October 2018, for the government to repeatedly co-sponsor the resolution reflects a level of deceit that shames Sri Lanka because there is no guarantee of overcoming the needed constitutional impediments without which they are hollow commitments.

Paragraph 6 of UNHRC Resolution 30/1

In the course of his statement in March 2019 Sri Lanka’s Foreign Minister stated:

“In referring to para 68 (C) of the OHCHR Report (A/HRC/40/23), which pertains to the Recommendations to GOSL, ‘to adopt legislation establishing a hybrid court to investigate allegation of violating and abuses of international law and violations of international humanitarian law’, I wish to make it clear that our position on this matter is as follows’:

“The Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioner for Human Rights and other interlocutors, explained the constitutional and legal challenges that preclude it from including non-citizens in its judicial processes. It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a referendum”.

Whether the President was aware or not that Sri Lanka’s Ambassador in Geneva was instructed to co-sponsor the resolution is not the issue. At issue is that instructions had been given by an individual who has no official connection with Geneva. In such a background the outcome in Geneva boils down to the State of Sri Lanka through its Ambassador committing to fulfill undertakings, and for Sri Lanka’s Foreign Minister informing the Council that implementing them would be problematic.

What is not brought to the attention of the Council by the Ambassador or by the Foreign Minister is the unique nature of the conflict in Sri Lanka. Unlike most conflicts in other parts of the world the conflict in Sri Lanka reached the threshold of an armed conflict where the applicable law is International Humanitarian Law; a fact that has been acknowledged by the UN appointed Panel of Experts and by the Office of the Human Rights Commission (OHCHR) in their respective reports.

The UN appointed Panel of Experts in their report stated: “There is no doubt that an internal armed conflict was being waged in Sri Lanka with the requisite intensity during the period that the Panel examined. As a result, international humanitarian law is the law against which to measure the conduct of both government and the LTTE”.

Paragraph 182 of The OHCHR report states: “Article 3 common to the four Geneva Conventions relating to conflict not of an international character is applicable to the situation in Sri Lanka”.

Paragraph 183 goes on to state: “In addition, the Government and armed groups that are parties to the conflict are bound alike by relevant rules of customary international law applicable to non-international armed conflict”.

Consequently, the standards, benchmarks and parameters that should guide a judicial inquiry should be Additional Protocol II of 1977 and Rules of Customary International Law applicable to non-international armed conflict embodied in ICRC document Volume 87, Number 857 of March 2005. Therefore, any violations prohibited by provisions in Additional Protocol II of 1977 should be addressed under provisions of Article 6, “Penal prosecutions”, in the Protocol and NOT by a judicial process that does not have specific guidelines for an inquiry as evident from Paragraph 6 of the UNHRC Resolution 30/1 of 2015. It is the absence of specific standards benchmarks and parameters to guide a judicial inquiry this makes it an impending threat to Fundamental Rights of those associated with the armed conflict.

“Article 6. PENAL PROSECUTIONS:

1. This Article applies to the prosecution and punishment of criminal offences related to the armed conflict.

2. No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular: (a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence; (b) No one shall be convicted of an offence except on the basis of individual penal responsibility; (c) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was [committed] ‘ if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby; (d) Anyone charged with an offence is presumed innocent until proved guilty according to law; (e) Anyone charged with an offence shall have the right to be tried in his presence; (f) No one shall be compelled to testify against himself or to confess guilt.

3. A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.

4. The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children.

5. At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”

The Foreign Minister referred to the challenges that exist as long as Paragraph 6 exists in its current form. However, even if possibilities exist to overcome challenges relating to foreign judges in a purely Sri Lankan judicial mechanism, what is of paramount importance is the context or terms of reference (remit) for the conduct of the judicial inquiry. If such a judicial mechanism fails to abide by provisions of Customary International Law as incorporated in Additional Protocol II of 1977 and in particular Article 6 in Additional Protocol II of 1977 cited above, the Fundamental Rights of those who would be tried would be violated. Therefore, as long as Paragraph 6 stands as stated in UNHRC Resolution 30/1 without a clear reference to standards, benchmarks and parameters that should guide a judicial inquiry, there is an imminent danger of violating the Fundamental Rights of anyone charged with allegations of violations of Humanitarian Law.

Paragraph 16 of UNHRC Resolution 30/1.

A similar paradox exists in relation to paragraph 16. This states:

“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, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and also encourages the Government to ensure that all Provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka”;

The Human Rights Council cannot be unaware that it is next to impossible to make any headway to reach consensus on the issue of devolution. All it means is that as far as devolution is concerned, the status quo would remain not only because of the public’s disenchantment with Provincial Councils as an institution, but also the fact that though most of them are currently not operational, there is little or no impact on the delivery of goods and services to the People. In view of the prevailing mood in the country, the tendency is either for less devolution or devolution to a smaller unit. Under the circumstances, the commitment to fulfill provisions in paragraph 16 relating to devolution rings hollow.

Paragraph 4 of UNHRC 30/1

Paragraph 4 inter alia states: “also welcomes in this regard the proposal by the Government to establish a commission for truth, justice, reconciliation and non-recurrence, an office of missing persons and an office for reparations”.

It is clear from the foregoing that the Sri Lankan government has accepted responsibility for setting up the office of missing persons and the office for reparations. The question that arises is on what grounds does Sri Lanka become solely responsible for setting up offices for missing persons and reparations since the conflict in Sri Lanka was an armed conflict wherein all parties “are bound alike by relevant rules of customary international law applicable to non-international armed conflict” (para. 183).

RULE 117: Missing Persons

This rule states: “Each party to the conflict must take all reasonable measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate”.

RULE 150: Reparations

While a State party to an armed conflict is “required to make full reparations for loss or injury caused, an armed opposition group that is recognized as a party to the armed conflict is also liable for reparations”. For instance, “the UN Security Council called upon “the leaders of the factions” in Afghanistan to ensure the return of looted property. In a resolution on Afghanistan adopted in 1998, the UN Commission on Human Rights urged “all the Afghan parties” to provide effective remedies to the victims of violations of human rights and humanitarian law. In 1998, in his (the Secretary General) report on the causes of conflict and the promotion of durable peace and sustainable development international legal machinery be developed to facilitate efforts to find, attach and seize the assets of transgressing parties and their leaders” (ICRC, Customary IHL).

Therefore, while the UNHRC Resolution welcomes the proposal of the government to establish “an office for reparation”, Customary Law states that all parties to an armed conflict are responsible for reparations.

Therefore, it could be legitimately concluded from the foregoing that the commitment by the government to establish offices for missing persons and for reparations should be limited only to those that the government is responsible for according to provisions of Customary International Law. However, since it is realistically not possible to separate those who were victimized by government action from those victimized by the LTTE, the least that should be expected is for those who represented and continue to represent the interests of the LTTE also be required to participate in earnest in a joint effort to fulfill respective responsibilities.

CONCLUSION

Sri Lanka recently witnessed their Ambassador in Geneva co-sponsoring UNHRC Resolution 40/1 that called for the full implementation of UNHRC Resolution 30/1, while the Foreign Minister brought to the attention of the Council some of the challenges associated with its implementation. For instance, if it is not possible to set up a Sri Lankan judicial mechanism including Commonwealth and other foreign judges due to constitutional constraints, what would Sri Lanka’s standing be among the community of nations? Similarly, what explanation would Sri Lanka have if it cannot implement constitutional amendments to “ensure that Provincial Councils are able to operate effectively in accordance with the thirteenth amendment”?

What Sri Lanka has failed to accomplish in Geneva since 2015 when it first co-sponsored resolution 30/1 is to establish the context, meaning the standards, benchmarks and parameters that should guide all issues relating to the non-international armed conflict. And as a non-international armed conflict the appropriate standards, benchmarks and parameters should be those in Additional Protocol II of 1977 and Rules of Customary International Law applicable to non-international armed conflict embodied in ICRC document Volume 87, Number 857 of March 2005. While such an approach may appear legalistic, it is unavoidable because issues of accountability, missing persons, and reparations are based on Law.

The issue of accountability is expected to address alleged violations of human rights and humanitarian law. The government of Sri Lanka has not come to an understanding with the OHCHR as to the standards, benchmarks and parameters that should guide such an inquiry. Furthermore, domestic laws relating to humanitarian violations during an armed conflict do not exist. Conducting a judicial inquiry in such a vacuum means that there is a strong possibility that the Fundamental Rights of anyone who could be tried would be violated. Therefore, it is imperative that the government and the OHCHR come to an understanding that any judicial inquiry conducted is based on the standards, benchmarks and parameters in Additional Protocol II and the ICRC Rules of Customary International Law. Until then, the government of Sri Lanka should be restrained from conducting any form of judicial inquiry relating to accountability.

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