Govt. circulates document in Geneva noting legal and procedural implications of the UN resolution

The Government has prepared a document that is reportedly being circulated among the diplomatic community in Geneva noting the legal and procedural implications of the United States sponsored resolution on Sri Lanka.

Media reports from Geneva state that Sri Lanka has informed developing countries about the legal and procedural implications in the resolution that s to be taken up at the Unite Nations Human Rights Council (UNHRC) sessions and that it sets a bad precedent.

The Government has noted that the resolution converted the Council into a tribunal while undermining the sovereignty and domestic mechanisms for judicial redress and has defeated Sri Lanka’s move towards reconciliation.  “Sri Lanka needs to move forward to a pluralistic society, in which all citizens can live together in harmony, equality, dignity, justice, self-respect and interdependent prosperity. In purporting to deal with reconciliation in a manner that satisfies external perspectives rather than those of Sri Lankan citizens, this resolution will only benefit disruptive forces and prevent us from achieving the goals we share,” the document stated.

It says that instead of reconciliation the resolution will lead to the polarisation of the different communities in the country.

The polarisation has been evident even before the resolution is taken up for voting in the Council as the Sinhala and Muslim parties protest against the resolution while the major Tamil party calling the UNHRC members to support it.  Although various reports have been highlighted, the resolution is likely to be taken up for a vote on Thursday (22).  The resolution submitted by the US calls for the Government to expeditiously implement the recommendations made by the domestic body Lessons Learned and reconciliation Commission (LLRC) appointed by the President to probe the war and to investigate the war crime allegations against the Sri Lankan military during the war that ended in May 2009.

Following is the full text of the document prepared by the Sri Lankan Government:

Note on legal and procedural implications

US Draft Resolution:

Promoting Reconciliation and Accountability in Sri Lanka (3/6/12)

Item 2 - Annual report of the High Commissioner for Human Rights

1) This Resolution will lead to the Council for the first time addressing past issues, and thus taking on the character of a tribunal that will exceed its mandate.

2) This undermines a decision taken by the Council in 2009, and is doubly intrusive because there has only been change for the better since that decision.

3) The Council mandate provides for resolutions to address specific country issues through the UPR or through special sessions in cases of emergency. The alternative is under Item 4; when circumstances have arisen that require special attention, because there are current instances of gross and systematic violations.

4) Reopening issues decided upon in the past is unwarranted and presents a clear risk of developing countries, in particular, being targeted for collateral reasons.

5) The resolution undermines the cardinal principle and well entrenched rule of international law that demands the exhaustion of domestic remedies. Suspicion and criticism of domestic remedies undermines also the judicial process in democratic countries, and introduces a political dimension that attacks the independence of the judiciary.

6) Through this Resolution, the HRC is asked to reach conclusions on a report that of the Lessons Learnt and Reconciliation Commission (LLRC)], which has not been placed before this Council for deliberation. This precedent will encourage the Council to take cognisance of any writing in any document placed before the Council.

7) The resolution judges the intentions of an elected Government, and proposes actions that arise from unwarranted hypotheses. These hypotheses are of a piece with the condign criticism from countries advancing this resolution when the LLRC was appointed.

8) The effort to impose technical assistance and advice from the Office of the High Commissioner for Human Rights is contrary to the principle that these should be based on consent.

9) The conflation of these with Special Procedures and the requirement of a sovereign Government to mandatorily accept such advice are totally contrary to the principle of sovereignty, and have no precedent.

10) The lack of specificity as to the budgetary arrangements envisaged by the draft Resolution gives rise to potentially serious concerns about the transparency and accountability of funding sources of OHCHR and Special Procedures in fulfilling the requirements of the resolution. If recourse is had to largely opaque funding sources, developing countries must register their concern about donor driven programs not subject to scrutiny and monitoring by any inter-Governmental body.

11) The resolution subverts the principle of cooperation that has been institutionalised through the UPR procedure. The system of discussion and debate that the UPR has nourished will be undermined by this innovation. In particular, given the pledges made by Sri Lanka at the first UPR cycle, which will be reviewed in a few months, it is gratuitously inappropriate to introduce a fresh mechanism now which anticipates the evaluation due in a few months.

12) The justifications advanced for this resolution, which refer to intervention where States have failed, opens the floodgates for subjective assessments in a context of increasingly judgmental indices that are celebrated in the popular media with no reference to objective criteria or the funding sources of such information.

13) Whilst it is claimed that this resolution will promote reconciliation, it will only contribute to polarisation in a society that has begun to come together through the various reconciliation initiatives that have commenced.

14) Sri Lanka needs to move forward to a pluralistic society, in which all citizens can live together in harmony, equality, dignity, justice, self-respect and inter-dependent prosperity.  In purporting to deal with reconciliation in a manner that satisfies external perspectives rather than those of Sri Lankan citizens, this resolution will only benefit disruptive forces and prevent us from achieving the goals we share. (Colombo Page)