Answers to two key objections

On 26th February 2020, the Government formally announced that it was withdrawing from the co-sponsorship of UNHRC resolution 30/1 of October 2015. As someone who advocated for withdrawal from the time the resolution was first adopted, I applaud the Government’s bold stance. However, a number of critics notably Mr. Sajith Premadasathe Leader of the Opposition and Mr. Mangala Samaraweera the Foreign Minister in 2015 have presented what at first glance appear to be compelling arguments against the withdrawal.   
In this article, I shall briefly present counters to these arguments. It is vital that members of the public get a chance to consult as wide a spectrum of views on the matters in question before coming to final conclusions about them.  

The Leader of the Opposition
Mr. Premadasa explained his stance on resolution 30/1 in a speech to Parliament on 20th February. 2020. (“Human Rights Concerns: Sajith blames those in the present govt.” Daily Mirror, 20-2-2020.) His argument is that, Res. 30/1 is the result of a commitment made by former President Mahinda Rajapaksa in a Joint Statement with then UN Secretary-General Ban Ki Moon in late May 2009 where the President purportedly conceded that war crimes had been committed during the war and accepted that the UN should play a role in monitoring accountability for the said crimes.   

Therefore, according to Mr. Premadasa, the blame for resolution 30/1ultimately lies with the people who were in power in 2009 and now that they are back in power they cannot arbitrarily withdraw from the resolution. If this indeed is his argument, it is wrong, because of the following reasons. These are the two sentences in the Joint Statement which deal with the issue of war crimes:  

According to Mr. Premadasa, the blame for resolution 30/1ultimately lies with the people who were in power in 2009 and now that they are back in power they cannot arbitrarily withdraw from the resolution

“The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances.” (“Joint Statement by the UN Secretary General and the Government of Sri Lanka, 26 May 2009, www.un.org )   

No reasonable person, going on the plain meaning of the words can conclude that in these sentences the Government is admitting that war crimes were in fact committed and relegating to the UN a role in monitoring an accountability process. In the first sentence, the Secretary-General appears to be asserting the importance of an accountability process if violations happened. In the second, the President is saying that the Government will investigate allegations if anyone (including the UN) forwards allegations that warrant further investigation.   
Clearly, there is an implied condition that the allegations in question would first have to be substantiated prior to any further investigation. No government can be expected to pursue unsubstantiated or frivolous allegations. The Secretary-General has imposed his own interpretation on the two sentences in question and claimed that the Government has admitted that war crimes were committed and agreed to the UN playing a monitoring role. Hence, to repeat, resolution 30/1 cannot be connected to a purported admission that war crimes were committed.   

Mangala Samaraweera
On 28th February 2020, The Island published an article with Mr. Samaraweera’s observations on the withdrawal. He is quoted as saying, inter alia:   
“It is important to be mindful of the fact that although Sri Lanka withdraws from resolution 30/1 and subsequent resolutions that extended 30/1 (i.e. resolutions 34/1 and 40/1) the mandate of the resolutions passed by the Human Rights Council does not go away. The Office of the High Commissioner for Human Rights will remain bound by the provisions of resolution 40/1…it can continue to act without Sri Lanka’s cooperation.” (“Mangala reveals Sirisena was with him in NY when text of resolution was finalised,” 28-2-2020)  

The question is, whether Mr. Samaraweera is correct in the above assessment. In my view he is not, because of the following reasons. First, as to the contention that the Council could pursue actions on Sri Lanka without this country’s cooperation, one must consult operative paragraph 4 of the founding statute of the UNHRC,UN General Assembly Resolution 60/251 of April 2006. It states: 

 
“[Decides further that] the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation.” (UNGA resolution 60/251 of April 2006)   

Note that, cooperation is a mandatory requirement for the work of the Council. Therefore, the Council cannot pursue actions on Sri Lanka without the latter’s cooperation.   

Second, and more importantly, the real reason that the withdrawal from the co-sponsorship is legitimate is because the UNHRC committed a number of procedural violations in adopting Res. 30/1, violations that go to the heart of obligations deriving from the UN Charter along with the Council’s founding statutes. Illegality, bad faith and coercion are universally recognized as valid grounds for nullification of a contract.   

In this regard, Sri Lanka has three powerful points in its favour: first, the Council adopted Res 30/1 without debating and discussing the OISL report whose charges of war crimes and other crimes are the basis for the resolution. The evidence in the OISL report can be analyzed in order to determine whether it establishes a reasonable case that war crimes and other crimes were committed. Therefore, the failure to have a substantive debate on the report arguably compromised the ability of the members of the Council and also the general public to objectively assess whether the measures that the Council was proposing on Sri Lanka were warranted or justified.   

Furthermore, at the time the Council adopted Res. 30/1 it had in its possession the LLRC report, the report of Sri Lanka’s domestic mechanism. The LLRC categorically states that no “system crimes” occurred, whereas the central claim of the OISL report is that they did. Therefore, if the Council was going to pick the OISL’s conclusions over that of the domestic mechanism, the Council had an obligation at least to debate the OISL report prior to accepting its conclusions. Again, this was not done.   

Finally, at the time the Council adopted Re. 30/1, the Council had been informed by many of its own Members of the possibility that the entire process of resolutions against Sri Lanka was politically motivated. For instance, during the debate on the authorisation of the international investigation that led to the OISL report, Ambassador Zamir Akram of Pakistan stated bluntly: “This resolution is about politics and not human rights. It is also a crass example of hypocrisy and double-standards.” (“Explanation of Vote by Pakistan,” 27 March 2013.)   

Meanwhile, in 2013, in response to one of the reports of the High Commissioner alleging that war crimes were committed, a group of fourteen nations that included China, Russia, Venezuela and Iran stated in very strong terms: “We are of the view that…the High Commissioner has clearly exceeded her mandate of reporting on the provision of assistance. These recommendations are arbitrary, intrusive and of a political nature.” (“Russia, China, etc. slam Pillai’s office,” Daily News, 21 March 2013.)

In the light of this, one can argue that at the time the Council adopted Res. 30/1 it had or should have had reasonable grounds to believe that Sri Lanka was being coerced to co-sponsor the resolution. Therefore, the Council should have been doubly careful in evaluating the allegations of war crimes and other crimes that were the basis for the resolution. On this ground also the Council had a duty to debate and discus the OISL report before taking further action on Sri Lanka.   

In sum, a very good case can be made that Res. 30/1 is null and void ab initio and the Government’s decision to withdraw from the co-sponsorship is the most reasonable step that could have been taken in the present circumstances.