The US Draft Resolution on Sri Lanka: “a System Change”


A US-sponsored draft resolution against Sri Lanka is back on the Human Rights Council agenda, this time with a vengeance and despite the Ranil – Sirisena government’s conciliatory and obsequious pro-Washington, pro-Western stance!

There is no more Mahinda Rajapaksa to blame, no more pro-Beijing foreign policy, no more Non-Alignment, no more ‘megaphone diplomacy’ or ‘megaphone diplomats’, no more corruption. History dawned in Sri Lanka only on 8 January, before that, there was only darkness, violence and obscurantism. Today, enlightened leaders have flooded the land with newness, goodness, transparency, and unity, along with privileged relations with a much-maligned West.

So, what went wrong? A generous response would be our new, enlightened leaders read all the signs wrong. An accurate response would be they have something to gain from subservience to Washington’s interests.

When post-election triumphalism and declarations by flying US diplomats, even before the formation of a new Government, brought glad tidings that Washington would now support Sri Lanka in the Human Rights Council, I drew attention to the fact that genuine ‘support’ in the UN Human Rights Council generally translates itself into ‘no resolution at all’. In a US-dominated world, ‘country-specific’ resolutions are a ‘soft power’ weapon to promote the strategic interests of its author, not anybody’s human rights.

Why is the US involved in Sri Lanka to the extent of dictating what should be done or not done? In May 2015, during his visit to Sri Lanka, the top US diplomat, Secretary of State John Kerry, made no bones about Sri Lanka’s strategic importance to Washington. He said, Your country sits at the crossroads of Africa, South Asia, and East Asia. … The Indian Ocean is the world’s most important commercial highway… And with its strategic location near deep-water ports in India and Myanmar, Sri Lanka could serve as the fulcrum of a modern and dynamic Indo-Pacific region.” The US could play a leadership role in making this happen “because we have a strong economy and an ability to be able to project.” It saw its role also as convenor, and partner.

The draft resolution – a system change

A closer examination of the recommendations in the US sponsored draft resolution is revealing.

The draft resolution is all about system change, a complete overhaul of Sri Lanka’s political, legal, security and defence system to serve the global interests of the United States. It is fully in line with the President Obama’s new National Security Strategy, launched in February 2015 and reflected soon after in the US Secretary of State’s May 2015 statement in Colombo. The State Secretary outlined a series of measures to be undertaken by the new Government – Constitutional reform, reform of the military, the judiciary, law enforcement, electoral processes, institutions such as the Parliament and Ministries, devolution of political power, and transfer of State responsibility for social matters to civil society, in particular.

In Geneva and Washington, the Sri Lankan Government is negotiating a consensus resolution. Given its ‘system change’ approach, even if the initial draft is ‘watered down’ and reduced from its present 26 operative paragraphs to just two, Washington will have achieved its objective. It must only retain the request to the Government to implement its own commitments and the equally wide-ranging recommendations of the Office of the High Commissioner for Human Rights (OHCHR), and retain also the request to OHCHR to assess progress in their implementation and report to the Human Rights Council in 2016 and 2017. The Government would have committed itself, country, and people, and Sri Lanka will have a place guaranteed on the Council’s agenda for the next two years, without need for another resolution during this period!

Given the panoply of measures recommended, I will focus only on the most important, due to their political implications for Sri Lanka’s independence and sovereignty.

The Judiciary

The resolution holds Sri Lanka to the commitment made by the Government to establish a parallel judicial mechanism, and calls on the Government “to involve international investigators, prosecutors and judges in Sri Lanka’s justice processes.” The resolution also calls on all concerned to work together to determine the forms of international engagement “with Sri Lanka’s processes” and support for them.

Despite claims to the contrary by the Government and certain Sri Lankan commentators, the mechanism envisaged is indeed a hybrid court, and the “international involvement” is not the kind of international cooperation provided for under the UN Charter for the promotion and protection of human rights. Had that been the intention of the author, the language would have referred to the provision of expert advice or training for judges and lawyers to be requested by the Government.

Hybrid courts stand opposed to the human rights mechanisms envisaged by the UN Charter, unless when voluntarily agreed to. Instead of international assistance for local capacity building to enable domestic mechanisms to ensure the required protection, hybrid courts are a parallel system of justice composed of a mix of international and local staff, applying both international and national law, with foreign judges and domestic judges trying cases prosecuted and defended by teams of both local and foreign lawyers. They reflect a concrete application of the third pillar of R2P or the “Responsibility to Protect”, about which I have written at length on other occasions. The third pillar, an ideological tool of Washington that is subject to much controversy, authorises external “intervention” should the so-called “international community” deem that the State is unable or unwilling to protect its own citizens.

Hybrid courts, with the enormous investments they require, are generally funded, managed and run by Western countries and cater to Western interests, as, for example, in Sierra Leone, Cambodia and Iraq. Human Rights Watch, an NGO closely linked to the US foreign policy elite and one of the most influential pro-interventionist lobby, is already campaigning that the proposed hybrid court for Sri Lanka contain a majority of international judges and an international chief prosecutor “to best insulate the court from improper political and other interference.”

Today, hybrid courts like the ad hoc international tribunals before them and the principle of universal jurisdiction, have lost credibility, not only because of their selective application to developing countries, but also because they have undermined the domestic judicial system, wherever they have been established.

The Parliament

The draft resolution contains recommendations that will seriously undermine the Parliament and its ability to hold the Government accountable to the people.

The most significant recommendation in this respect is, once again, based on a commitment made by the Sri Lankan Government, through its Foreign Minister, to establish domestic mechanisms toward truth seeking, justice, reparation, and non-recurrence and to give them the freedom to “obtain assistance, including financial, material and technical assistance, from international partners, including OHCHR.”

Now, on the Foreign Minister’s own admission, these mechanisms must still be evolved and designed through a wide process of consultations involving all stakeholders, including victims.” Given that the consultations haven’t even begun, it is of utmost concern that the Government did not see it fit to submit the matter first to the country’s own Parliament to which it is accountable before announcing it to an international body. Not only did it provide the required ammunition to Washington, but it also placed the institution in which popular sovereignty is vested before a fait accompli.

Everywhere in the world, relations between States are conducted through a Foreign Ministry, with the Minister accountable to Parliament. In this rather unique case, the envisaged justice mechanisms will be accountable only to their funders, the international partners, including OHCHR, referred to in the draft resolution!

Given the gravity of the proposal, it is pertinent to take a look at the “international partners” that generally provide funding, staff, expertise and material support for such domestic mechanisms. Support for similar activities elsewhere, including those that are conducted by OHCHR, comes from the US, UK, and other rich Western countries. It must be recalled that the US Secretary of State, during his May 2015 visit to Sri Lanka, announced Washington’s preparedness to furnish whatever legal, whatever technical assistance, whatever help” it can to support Sri Lanka with regard to justice and accountability.

Will our domestic mechanisms become the Trojan Horses through which the West will interfere in our internal affairs?

Other recommendations that undermine Sri Lanka’s internal political processes relate to the devolution of political authority, land use and ownership, and the direct call to the people of Sri Lanka to work with OHCHR, relevant international organisations and experts, in order “to determine appropriate forms of international support for and engagement with Sri Lanka’s processes.” Of a political character, these recommendations go beyond the mandate of the Human Rights Council and intrude also on matters that belong to the internal affairs of States.

Defence and National Security

The recommendations aimed at transforming Sri Lanka’s security and defence system pose a more immediate danger to the sovereignty, independence and territorial integrity of Sri Lanka, exposing the country to destabilisation from within and without and rendering it vulnerable to external aggression.

Among the most dangerous recommendations are demilitarisation of the North and East; wide-ranging security sector reforms, including employment in the security forces, security or intelligence units; the ending of military involvement in civilian activities; and the repeal and replacement of PTA with anti-terrorism legislation “in line with contemporary international best practices.”

A question that comes immediately to mind is why the US is so eager to end Sri Lanka’s military involvement in civilian activities, given its own military’s engagement in, for instance, agriculture and education in rural areas in Afghanistan through the US Army Agribusiness Development Teams (ADT) or the Commander’s Emergency Response Program (CERP) that “enables local commanders in Afghanistan to respond with a nonlethal weapon to urgent, small-scale, humanitarian relief and reconstruction projects and services that immediately assist the indigenous population.” Another obvious question is why Sri Lanka is expected to demilitarise two-thirds of its coastline, when the US and its Western allies are tightening control over their own borders?

The recommendations can be fully comprehended only when read in conjunction with President Obama’s ‘Pivot to Asia’ or ‘Rebalancing’ strategy to contain China, and the 2015 National Security Strategy, as applied to Sri Lanka in the May 2015 statement by the US Secretary of State. On the occasion of his visit, John Kerry, significantly, called on Sri Lanka to “look beyond its borders”, that is, away from its own border to new theatres of conflict and confrontation as an ally of Washington, protecting vital sea lanes, and taking part in UN peacekeeping missions all over the world.”

With budgetary cuts and US involvement in other global adventures, ‘rebalancing’ against China requires allies who are ready to share the burden of securing the region. And, with a fully committed, pro-Washington regime at its helm, Sri Lanka would become “the fulcrum of a modern and dynamic Indo-Pacific region,” that ‘pivotal point’ or ‘agent’ in a strategic region where the US provides leadership on maritime security; promotes the Indo-Pacific Economic Corridor to connect South Asia to Southeast Asia; ensures secure, sustainable and accessible energy sources; addresses threats to democracy; and enhances preparedness for natural disasters that will be “more frequent and intense” due to climate change.

If national borders are no longer important and Sri Lanka’s military is transformed from a force protecting its independence, sovereignty and territorial integrity to one defending US global interests, then the recommendation to demilitarise the North and East takes on new meaning. With two-thirds of the country’s coastline exposed to external aggression or externally engineered threats to its territorial integrity, and the only regional allies able to play a counterbalancing role alienated, Sri Lanka will only have the US Seventh Fleet to turn to for its defence and security.

Despite the illusion that is being created that history began on 8 January and notwithstanding the short memories and opportunism of politicians vying for power, the fact is that country has lived through an almost 30-year war against separatism and the horrors of terrorist attacks supported, trained and funded, directly or indirectly, by external powers. Today, the US is host to the Transnational Government of Tamil Eelam, the government in exile of the envisaged separate state in the North and East.

The implications for internal democracy are equally foreboding. President Obama’s 2015 National Security Strategy sees the entire world as its ‘backyard.’ The threat to US interests can come from anywhere and justify US military intervention, “unilaterally, if necessary.” The document views virtually any form of economic, social or environmental disruption as a strategic security issue that potentially justifies US military intervention. “Threats or attacks” on “allies”, for instance, is considered a top strategic risk. What will this mean for Sri Lanka and for Sri Lankans? Will a social or political upheaval against the present regime be viewed as a “threat” or an “attack” on Washington’s ally?

Permanent OHCHR presence – a Trojan Horse?

The resolution also allows for the establishment of a permanent Western presence in the form of an OHCHR field office in Sri Lanka, which will have the combined function of investigation, monitoring, and governance. The draft resolution does what former High Commissioner Louise Arbour was unable to do at the height of the war, when Western efforts focused on strengthening the LTTE. At the time, the then Government, quite rightly, rejected the proposal to set up a such a field presence.

Although there is no express provision in the draft resolution, it is one of the recommendations of OHCHR that the Government will be required to implement. The field Office will not only assist in obtaining the required material, financial and technical support for implementation of the numerous recommendations, but will also monitor, assess and verify the implementation of the resolution, going beyond its General Assembly mandate.

It is public knowledge that OHCHR field offices are fully funded by the rich Western countries, and that most of the staff are directly or indirectly linked to the donors. It is also public knowledge that the offices are frequently utilised for destabilisation purposes and to gain a foothold in countries where a direct Western presence proves politically difficult. Their credibility, independence and impartiality have come into question wherever they are or have been, including in our own region, until recently the Government of Nepal asked OHCHR to leave the country.

There is no doubt that, through the OHCHR field office, Washington and London will take over the entire process in Sri Lanka and, for all practical purposes, the office will become the Trojan Horse that will permit direct US intervention in Sri Lanka.

The democratic choice

What does this ‘system change’ mean for Sri Lanka’s ability to defend itself against external aggression? What will it mean for the ability of its people to exercise their democratic rights? What will it ultimately mean for the country’s independence, sovereignty, and territorial integrity?

The unprecedented attack on Sri Lanka’s democratic institutions and on the means it has to defend itself against external threats or against destabilisation efforts has a single objective: to release the resources of the State, including its armed forces, to serve US global interests, while, at the same time, rendering the country dependent on Washington, and, therefore, subservient.

What are choices before the Government of Sri Lanka today?

The resolution has been drafted craftily to make it marketable to public opinion in Sri Lanka and, thus, help Washington’s newfound ally, and also to ease the fears of developing countries in the Human Rights Council, who will otherwise object to a precedent that could endanger their own independence and sovereignty. The text is scattered with references to voluntary commitments made by the Government of Sri Lanka and to domestic initiatives. International involvement is presented as support to these domestic processes, not a substitute.

Sri Lanka’s eagerness to negotiate with Washington and to arrive at a consensus has not gone unnoticed. With its aggressive stand against China, its condescending attitude toward the Non-Aligned Movement, and open flirtation with the West, the Yahapalanaya Government has alienated those countries in the Human Rights Council that could have come to its rescue.

Today, Sri Lanka stands alone. On one side, it faces a determined United States coercing it to join its camp in its confrontational logic with China, Russia, Iran and potentially, even India, in a region of utmost strategic importance to it. On the other side, Sri Lanka is eyed with deep suspicion and distrust by the developing countries, but also Russia, with which it, nevertheless, shares common interests.

One option facing the Government of Sri Lanka is consensus, another word for capitulation, given that it is negotiating from a position of utter weakness with the global superpower. The option is to oppose the resolution and return home with the dignity of one who has defended higher ideals. Consensus means that Sri Lanka has acquiesced with the conditions, with all their implications for country and people. Opposing the resolution will require that the Government backtracks, swallow a lot of pride, and returns to an ally of the Mahinda Rajapaksa regime, one of the members of the Human Rights Council with the authority to call for a vote.

Whatever decision the Ranil – Sirisena Government takes in Geneva, ultimately, the democratic choice will be one that the people of Sri Lanka will be called upon to take, sooner or later. For today, the vital question is, which political and social forces in the country are on the side of Sri Lanka’s national interest? Are they ready to stand up?

Tamara Kunanayakam is former UN ambassador from Sri Lanka. She is the author of numerous books.