The Geneva Fiasco: A Way Forward

I have been commenting on the UNHRC’s actions on Sri Lanka since 2012 and written 3 books on the subject. In 2018, I worked with Sir Geoffrey Nice QC of the U.K. to file an unprecedented “complaint procedures” petition against the Yahapalanaya regime’s conduct in co-sponsoring resolution 30/1 of October 2015. I like to think that I have some expertise to comment on the present situation. In this article I briefly discuss: i) the problem and the way forward, ii) the most dangerous aspects of the new resolution and iii) recommendations.  

I argue that, the greatest danger in the new resolution (A/HRC/46/L.1. Rev.1) is that Sri Lanka’s enemies will try to amass purported evidence that the minorities in this country are being subjected to systematic discrimination and oppression and use it to gain an international endorsement for a “referendum on secession” for the North and East. Sri Lankans must do everything in their power to prevent such an eventuality.   

I)The Problem and the way forward
Ambassador Chen Xu of China, calling for a vote in the draft resolution, eloquently summarised what was really at stake and in my opinion anyone who wishes to formulate a way forward would do well to keep his remarks in mind because they help one identify the different tasks that must be done. He says:  

“The sponsors of draft resolution L.1/Rev. 1 ignoring the efforts and achievements made by the government of Sri Lanka in promoting and protecting human rights as well as the will of the people of Sri Lanka, attempt to interfere in Sri Lanka’s internal affairs and undermine its development and stability under the pretext of human rights.” (Statement of Ambassador Chen Xu calling for a vote on the resolution, 23rd March 2021, www.lankachinanews.com)  

Accordingly, the way forward should involve four tasks: a) acquainting the outside world of the efforts of the Government to promote and protect human rights and this would include placing on record the vast amount of work done to improve the living conditions of the people especially in the North and East, b) placing before the outside world irrefutable evidence of the “will” of the people in regard to the relevant matters including Constitutional changes, c) placing before the outside world evidence to show that what is really behind the resolution is an attempt to undermine Sri Lanka’s development and stability, and d) finding the institutional means within the U.N, system itself to challenge what is being done to Sri Lanka at the UNHRC.   

Of the above, ‘a,’ ‘b’ and ‘c’ are basically public relations challenges while ‘d’ involves legal challenges. The Government must find the people with the creativity, skill, professionalism and patriotic fervour to address these different tasks through a forceful, comprehensive and coordinated campaign.   

ii) The most dangerous aspects of the resolution
The most dangerous aspects of the new resolution are the mandates given to the High Commissioner to: a) to “collect, consolidate, analyse and preserve information and evidence” of purported war crimes against Sri Lanka (para 6) and b) to “enhance monitoring and reporting on the situation of human rights in Sri Lanka including on progress in reconciliation and accountability” (para 16). Of these two, the second is the more dangerous because of the following reasons.  

With option ‘a,’ the worst that could happen is that Sri Lanka’s enemies will haul certain of our military commanders before foreign courts for war crimes under universal jurisdiction. However, this will not be as easy as some people seem to think. First, there are threshold conditions that must be met in order for an action under universal jurisdiction to even be considered by a court. For instance, if there is even a hint that the accusers have political or personal motives in bringing the charges the courts will toss the case out.   

Second, the allegations must pass rudimentary evidentiary standards. For instance, they cannot be based purely on hearsay or anonymous witnesses and if the witnesses have delayed in coming forward they must give reasons for such delay. To my knowledge, the bulk of the allegations against Sri Lanka fail these rudimentary tests. In any event, if charges are filed under universal jurisdiction the accused persons have a chance to be heard and whatever happens to them the long-term interests of the country including its sovereignty will not be affected.   

In contrast, with option ‘b,’ if under the pretext of monitoring progress on reconciliation the High Commissioner can produce evidence that the Government is either reneging on its commitments to devolution or deliberately failing in its duty to protect the minorities, such “evidence” can be used by the allies and partners of certain powerful nations that seek to gain indirect control over Sri Lanka for geopolitical reasons to push for a resolution on a “referendum on secession” for the North and East. The said powerful nations can then hold the Government to ransom by threatening to support the resolution.   

The crucial point is that, the citizens of Sri Lanka especially the Sinhalese majority will not be able to challenge any of the reports that will state or affirm that there is systematic oppression of the minorities in this country because private citizens do not have local stand in U.N. forums.   

That the “end game” envisioned by the advocates of the new resolution is what I have stated above is suggested by the remarks of the Indian Ambassador to the UNHRC at the high-level segment of the 46th session. He says, “India’s consistent position rests on two pillars: a) support for the unity and territorial integrity of Sri Lanka and b) abiding commitment to the aspirations of the Tamils of Sri Lanka for equality, justice, peace and dignity….We call upon Sri Lanka to take necessary steps for addressing such aspirations including through the process of reconciliation and full implementation of the 13th Amendment to the Constitution of Sri Lanka.” (Sunday Times, 28th February 2021, p. 15)   

To digress a moment, the Indian Delegate’s argument is disingenuous. As a result of the thirty-year civil war, the Northern Province and especially the Jaffna Peninsula was completed denuded of its Sinhalese and Muslim residents. Meanwhile, in the Eastern Province where the three ethnic groups once had a rough parity in numbers today, there is a drastic decline in the Sinhalese. To my knowledge, the current population in the province is: 39.5% Tamil, 36.9% Muslim and 23.2% Sinhala (www.citypopulation.de).  

The Sinhalese areas of the Eastern Province consistently rank lowest on the island in regard to education, annual income and so on. In these circumstances, to devolve even more power to the provinces would be to help the minorities consolidate their power in the North and East and expel the remaining Sinhalese through a process of “constructive ethnic cleansing.” This is a recipe to ensure continued animosity and hatred among the different groups, not reconciliation.   

Reason and common sense suggest that, a threshold condition for increased devolution must be the return of the Sinhalese and Muslims evicted from the North and East during the war to their former homes so that they too can partake of the powers that are to be devolved. And yet, to my knowledge, there is not a word about this matter in the UNHRC’s discussions over “reconciliation” in Sri Lanka.   

The point is that, if the focus on Sri Lanka escalates to a stage where the issue is whether or not this country has met its purported “commitments” to reconciliation, this country will be completely at the mercy of its enemies.  

iii) Recommendations
Sri Lankan citizens, especially the Sinhalese must now presume that anti-Sri Lankan forces at the UNHRC will in the near future table a resolution on a “referendum on secession” for the North and East. The fiasco at the 46th session has shown that the citizens of the country can no longer rely purely on the Government to protect the interests of the country and must take additional precautions. Accordingly, I recommend two things,   
a) Call for Constitutional changes that would redraw the boundaries of the provinces in a way that incorporates the Northern and Eastern Provinces into areas where there are more Sinhalese people. This way, if there is an international endorsement for a “referendum on secession” the situation on the ground will ensure that it will fail.

  
b) Call for a referendum on the 13th Amendment. The 13A has now become the principal means for Sri Lanka’s enemies to hound this country at the UNHRC and other forums claiming that the Government is reneging on its “commitments” to reconciliation. If the people emphatically reject the 13A at a referendum, it would remove the said means.  

A referendum on the 13A and/or Constitutional changes that redraw the provincial boundaries would be the clearest possible expression of the “will” of the people in regard to devolution and force a re-appraisal of the premises on which reconciliation in this country should proceed.