HRC - a butterfly or a caterpillar with lipstick? - Part II:

A drifting away from guiding principles

Text of the speech delivered by Mohan Pieris, PC Senior Advisor to the Cabinet on Legal Affairs, former Attorney General and chairman Seylan Bank to the Rotarians on May 8, 2012

The conduct of business in the Council has to be guided by the parameters set by these two constructional documents. Even the moving and passage of resolutions have to be authorized by the principles that are found in these documents. Were they adhered to or even taken note of?

I must tell you - if you look at the GA resolution of 2006, you will see a pious declaration that was exhorted of the Human Rights Council - the Council must be guided in its work by the principles of “universality, impartiality and non-selectivity, constructive international dialogue and co-operation.”

In other words the Council was expected to operate in a ‘transparent, fair and impartial' manner so as to achieve the objective of promoting dialogue.

Quite contrary to these principles partiality and selectivity characterized the ethos and undue haste with which certain countries waged this war of attrition against Sri Lanka in the Council while paradoxically the conduct of mighty nations in many a part of the world passes muster. That conduct, however reprehensible it may be, is beyond the pale of scrutiny of the Council.

This is why I say today that the Human Rights Council has been drifting away from its obligation to keep up to its guiding principles.

No jurisdiction

If you analyse the constitution of the Human Rights Council - the Institution Building Package, nowhere would you find jurisdiction to go into the recommendations of a domestic mechanism of a sovereign nation - The LLRC was established by virtue of a legislation of the country called the Commission of Inquiry Act. The findings of the Commission are amenable to review by competent courts of this country but not by an extra territorial body such as the Human Rights Council. The Institution Building Package nowhere sets out powers to dissect and discuss the recommendations of the Lessons Learnt Commission at the Human Rights Council or for that matter even order an implementation of those recommendations.

Former Attorney General Mohan Pieris, PC

It is axiomatic that when the Human Rights Council voted on a resolution to force a speedy implementation of the recommendation, the council most respectfully took on a resolution without jurisdiction.

No country or any resolution of the Human Rights Council can set deadlines when it comes to the matter of implementing recommendations of the LLRC. That critical engagement about the contents of the LLRC report (especially those aspects pertaining to human rights and humanitarian law) should, firstly, take place in a spirit of dialogue; and not by attempting to introduce a resolution that binds a government to some international time-table, especially one set by a country which has no moral right to extract commitments from other countries on human rights protection.

The so called international community, as a critical legal scholar stated, is a 'completely impossible international player.' It reduces small and weak states, in particular, to a state of helplessness in the world; for, its hypocrisy, its arrogance, its 'impossibility' cannot be easily dealt with. This is the backdrop in which we faced the might of the countries which sought to abuse their might.

The resolution was placed on the agenda regardless of many a salutary positive in the country. When we went to Geneva, we had a plethora of positives.

At no point were we saying that we would resile from the recommendations. The country had just implemented the substantial portion of the interim recommendations of the LLRC.

Rehabilitation and reinsertion of former combatants was part of a restorative justice programme that was in place. The resettlement of the displaced was a near success.

National Action Plan on Human Rights

Moreover, a national Action Plan on promotion and protection of Human Rights was a reality which was the product of a deliberative process which involved several stakeholders. In fact it was a fulfilment of a voluntary pledge Sri Lanka made at a Universal Periodic Review that was conducted in 2008. This Action Plan takes cognizance of what needs to be done progressively on the human rights front. This stocktaking involved an examination of Sri Lanka’s UPR, all of the Treaty Body Recommendations, the recommendations of Special Rapporteurs, and Reports of NGO’s submitted during the UPR. This process moved on to conduct national consultations with the involvement of over 200 civil society organizations as well as relevant governmental agencies to identify issues in relation to eight thematic areas. Eight Drafting Committees that comprised six to ten experts from both Governmental and Non-Governmental members were appointed to prepare a draft Action Plan in respect of each thematic area. An important feature of the draft Action Plan is the inclusion of measurable indicators, emphasizing a serious focus on the monitoring and evaluation component.

In September 2010 under a Presidential directive, a Cabinet sub-committee assisted by the Attorney-General was appointed to finalize a composite plan incorporating the eight thematic plans.

The composite Plan titled the 'National Action Plan for the Protection and Promotion of Human Rights' and incorporating a time frame for implementation, was approved by the Cabinet and in all earnest the implementation of the plan has commenced.

If I may itemize the eight thematic areas of the Action Plan, they are Civil and Political Rights, Economic Social and Cultural Rights, Prevention of Torture, Rights of Women, Labour Rights, Rights of Migrant Workers, Rights of Children and Rights of Displaced Persons.

Each Thematic Action Plan divides into sub categories and effective implementation of the plan has inspired a process that provides for the input of all stakeholders including those who will assume responsibility for implementation. The inclusion of measurable indicators will ensure that there is a ready platform for Monitoring and Evaluation. We believe that the Monitoring and Evaluation (M and E) component will make the difference between a Plan that will work and one that may not.

Universal Periodic Review

I must make a mention of this process that has been built into both the constitutional documents of the HRC. In fact the movers of the resolution paid scant respect to this inbuilt mechanism of review. The Institution Building Package of the Council tells us that a country formally reports on its country situation at what is called Universal Periodic Review. GA Resolution of 2006 mandated the HRC to conduct this review. HRC Resolution of 2007 (Institution Building Package) tells us that it is a co-operative mechanism based on an interactive dialogue, with the full involvement of the country concerned. All countries go through this and we went through this in 2008.

Our next cycle is later this year when we will lay bare our progress. Though the constitution of the Council stipulates this review process and Sri Lanka contended that Universal Periodic Review would be the best occasion for a review of Sri Lanka, this was not taken notice of in view of the polarization and politicization that characterize the Human Rights Council today.

I must say that we have reached a situation that anything and every thing is cannon fodder for discussion in the name of human rights and constitutional documents are consigned to history. That is why we say that this resolution is non binding.

It does not stand pari materia with a security council resolution which usually amounts to an equivalent of a court decree.

If you look at the text of the resolution, the permissive language in which it is couched would indicate its non binding nature. The first part calls upon the government of Sri Lanka to implement the LLRC recommendations.

The second part requests the government of Sri Lanka to present a comprehensive action plan detailing the steps the government has taken and will take to implement the recommendations.

The third part encourages the office of the High Commissioner for Human Rights to provide and the government to accept any advice and technical assistance that office would give us if we need such advice.

Despite all the developments I referred to earlier and the government’s continuing commitment to charter a road map to implement the LLRC recommendations sua sponte (on its own), certainly we did not need a resolution that was placed on the agenda outside the parameters of the Council’s jurisdiction.

This resolution was timed under a guise of co-operation to coerce and force a country which was limping back to normalcy after so many years of bloodshed and it was a stark reminder of the continuing legacy of politicization of the Commission that haunts today its successor.

The government has not rested on its laurels. The 258 recommendations of the LLRC have been compartmentalized into four categories.

There is a road map that has been clearly strategized and we as Sri Lankans would march towards that halcyon era when we will have eternal peace and harmony.

But I venture to say this - when the Human Rights council was born, the US Ambassador to the UN, John Bolton said with a flourish, “We want a butterfly. We’re not going to put lipstick on a caterpillar and declare it a success.”

In other words he wished the Council to be a butterfly and not something where you put lipstick on a caterpillar - of course the reference to a caterpillar was to the Commission. But in the light of what has been the course of events at this Council whose work suffers from politicization, we wonder whether the General Assembly launched a caterpillar with lipstick that has sullied the fabric of nations that wish to rise from an internecine post conflict. So I part with these thought - Universal Periodic Review would have been the best occasion for a review. But a mistimed and ultra vires resolution once again tells us a sad commentary - the trigger mechanisms for discussion in the Council have grown higgledy-piggledy and those entrusted to watch over the interests of human rights get it wrong as to the vires of their actions. It reminds me of what that Roman poet Juvenal said in Latin - Quis custodiet ipsos custodes? Who will guard the guardians? Who will take custody of the custodians?

“Who indeed?”

Concluded