UN continues to commit systemic failure through recognising constitution of genocidal “Sri Lanka”

[TamilNet, Wednesday, 26 February 2020, 23:34 GMT]
One of the main underlying arguments used by the SL State to withdraw its “co-sponsorship” of the UNHRC Resolution was that the past SL government had co-sponsored it violating the principles and framework of the so-called Constitution of the unitary state of genocidal Sri Lanka. That “Constitution” is fundamentally illegal as far as the occupied nation of Eezham Tamils is concerned. So far, “co-sponsorship” with the genocidal state and “containment” of the genocide-affected nation, was the narrative played out in the UN Human Rights Council. If the entire Geneva-based discourse was meant to be a remedy for what the UN itself has accepted as the systemic failure on its part, it just got “downgraded” into a systemic failure of the UNHRC. The global community has a shared responsibility not to allow the domino effect of the ‘systemic failure’ spiral itself in a vicious circle.

The Human Rights Council was established on 15 March 2006.

According to the founding resolution of the UNHRC (UN General Assembly resolution 60/251) the members of the council are obliged to cooperate with the Council and its mechanisms. However, the resolutions and decisions are not legally binding.



The UNHRC could also convene a special session “at the request of a member of the Council with the support of one third of the membership of the Council” as specified in the founding resolution.

In June 2007, the members of the UNHRC voted 46-1 to make “Human rights situation in Palestine and other occupied Arab territories” a Permanent Agenda Item of the Council (Agenda Item 7).

So far, it is only the Agenda Item 7 that remains to be very specific towards a human rights situation affecting a particular region, authority and country.

All other “country-specific” human rights-related issues are addressed under the remaining thematic agenda items, normally 4 and 10.

Country specific human rights situations that are deemed to require the Council’s attention are normally taken under agenda item 4 as such situations gain highest levels of scrutiny from the UNHRC.

Under item 4, the UNHRC could demand the OHCHR to submit a report on a specific area, instruct it to create a special procedures country mandate or set up an independent commission to investigate the country in question.



But, the “consensus” resolution on “Sri Lanka” was made under Agenda Item 2, which is “Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General”.

The application of Agenda Item 2 was a political compromise as it allowed for the concerned state/government an opportunity to engage.

The ineffective resolution which failed to deliver international justice, end the protracted genocide and to bring an end to the underlying national question in the island, was an attempt to apply transitional justice without making a meaningful transition a precondition.

By terminating “co-sponsorship”, the SL State wants to relocate the “country-specific” issue away from Agenda Item 2 to Agenda Item 10, which is “Technical assistance and capacity-building”, for example.

By bringing such changes under the ‘future-oriented’ Sustainable Development Goal 2030 agenda, the SL State wants to get rid of accountability for past crimes.

Since the OISL report failed to address the question of genocide and the subsequent resolutions were unable to bring international justice, it is now time for the human rights regime in Geneva to prove its credibility by making a resolved move on the priority of the agenda item.

A preferable approach would be to bring about a new Agenda Item, which is specific to the human rights situation in the island as the Council did for the rights situation in Palestine and other occupied Arab territories in 2007.

In doing so, the Council doesn't need to recognise the illegal state sovereignty of the unitary state, which is a fundamental violation of the historical sovereignty and the inalienable right to self-determination of the nation of Eezham Tamils in the island.

Full text of the statement by SL Minister of Foreign Relations Dinesh Gunawardena, made under the General Debate on Agenda Item 2 follows:

Madam President,
Madam High Commissioner,
Members of the HRC and Delegates to the 43rd Session of HRC,
Ladies and gentlemen,

As this Council deliberates on the written update presented by the High Commissioner on progress regarding the implementation of HRC Resolution 30/1, I wish to reiterate that Sri Lanka remains committed to engaging with the High Commissioner and her Office in achieving sustainable development, peace and reconciliation, within the national framework overwhelmingly approved by the people of Sri Lanka during the Presidential Election last November, where President Gotabaya Rajapaksa was elected with an overwhelming majority.

Yesterday, the Government of Sri Lanka, at the High Level Segment made clear it’s position with regard to HRC Resolution 30/1, particularly, its decision to withdraw from co-sponsorship of Resolution 40/1 of March 2019, which also incorporates and builds on preceding Resolutions 30/1 of October 2015 and 34/1 of March 2017.

Notwithstanding withdrawing from co-sponsorship of this Resolution, we emphasised our commitment to achieving accountability and human rights within the framework of our Constitution, towards sustainable peace and reconciliation – through the appointment of a domestic Commission of Inquiry, by implementing policies rooted in the Government’s commitments to operationalise the Sustainable Development Goals (SDGs), and by continuing to work with the assistance of the UN and its agencies.

To those who have expressed disappointment on Sri Lanka’s decision to withdraw from co-sponsorship of Resolution 40/1, despite the Government’s re-assurance to this Council of our commitment to achieving the goals set on accountability and human rights, towards sustainable peace and reconciliation, it is clear that they are privileging a superficial facade which has failed to deliver for four and half years, over the genuine possibility of reconciliation, underpinned by a people’s mandate.

In keeping with our consistent policy of continued engagement with the Human Rights Council, Sri Lanka wishes to respond to the current Report of the High Commissioner and engage in a constructive discussion with this august assembly today, with the sincere hope that this Council would recognize the realities on the ground.

We do so conscious of the fact that, of the period of 1 year since the adoption of Resolution 40/1, and 4 ½ years since the adoption of the initial Resolution 30/1, our government has been in power for only a little over 100 days out of the said period.

I wish to recall that, during the 40th Session of this Council, almost one year ago, the Government of Sri Lanka (GoSL) was represented by a delegation headed by my predecessor, the former Minister of Foreign Affairs, who, in Sri Lanka’s statement, explained at length the constitutional, legal and socio-political challenges involved in ‘fully implementing’ HRC Resolution 30/1.

In this context, we consider that the High Commissioner’s insistence in the current Report on the “full implementation” of the demands made on Sri Lanka in Resolution 30/1 indicates that the OHCHR fails to recognise the rational and legitimate concerns voiced by States that are seeking, in good faith, to address issues.

As highlighted before this Council on several occasions, Sri Lanka has consistently refuted the credibility of the false and unsubstantiated allegations leveled against Lieutenant General Shavendra Silva, the present Commander of Sri Lanka Army and Actg. Chief of Defence Staff (CDS).

Sri Lanka considers that the continued arbitrary accusations made against Lt. Gen. Silva in OHCHR Reports and other statements made in this Council and unilateral actions by certain countries, are unacceptable and a violation of the principles of natural justice.

We also stress that there are no proven allegations against individuals on war crimes or crimes against humanity in the OISL report or in any subsequent official document. It is an injustice to deprive any serving or retired officer of the Sri Lankan security forces or the police of their due rights.

With regard to alleged “intimidating visits”, “surveillance”, complaints of harassment” and “reprisals” referred to in the High Commissioner’s Report, The Government has already publicly refuted these allegations, and is committed to protecting and promoting freedom of expression and civil society space, and ensure that complaints received on alleged attacks against journalists, human rights defenders and civil society are investigated and prosecuted.

With respect to references in the report to the Thirteenth Amendment to the Constitution that established Provincial Councils, it must be noted that, soon after the end of the conflict, the citizens in the Northern Province were able to use their franchise at a Provincial Council election after a lapse of 25 years.

However, the near two year delay in holding Provincial Council elections in any part of the country, by the previous Government which co-sponsored Resolution 30/1, with the active support of Members of Parliament representing the North and East, has hampered the operationalization of devolution of power as mandated by the constitution of Sri Lanka.

The new Government, is committed to holding the Provincial Council elections at the earliest possible opportunity, upon suitable amendments being made to the requirements that are needed to conduct the provincial council elections in terms of the law.

We wish to reiterate to the Council Sri Lanka’s commitment expressed during the High-Level Segment to achieve sustainable peace through an inclusive, domestically designed and executed reconciliation and accountability process.

The existing reconciliation mechanisms established by an Act of Parliament such as the Office on Mission Persons (OMP) and the Office of Reparations (OR) will be continued, with appropriate adaptation in line with Government policy framework. With regard to the issues on missing persons, steps would be taken, after necessary investigations, to issue death certificates or certificates of absence, while also providing livelihood and other assistance to affected families;

A Commission of Inquiry (COI), headed by a Justice of the Supreme Court, will be appointed to review the reports of previous Sri Lankan COIs which investigated alleged violations of Human Rights and International Humanitarian Law (IHL), to assess the status of implementation of their recommendations, and to propose deliverable measures to implement them keeping in line with the new Government’s policy;

National law enforcement systems will continue to investigate and prosecute cases on all allegations of torture and other human rights violations that are currently before the judicial processes.

We hope the Council would appreciate this approach of focusing on deliverable measures of reconciliation that are in line with the interest of Sri Lanka and its people, instead of the practice of taking on a host of undeliverable commitments with the intention of never implementing them.

Within the above parameters, we look forward to continuing our engagement with the Office of the UN High Commissioner for Human Rights, UN Human Rights mechanisms and procedures, and to continue to work in close cooperation with the international community through capacity building and technical assistance in mutually agreed areas, in keeping with domestic priorities and policies.

Thank you.

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