Sri Lanka to Withdraw from Co-sponsorship of UNHRC Resolution on War Crimes

COLOMBO: The incumbent Gotabaya Rajapaksa government in Sri Lanka has decided to withdraw from the co-sponsorship of resolution 30/1 of the UN Human Rights Council (UNHRC) on Sri Lanka on the grounds that the decision to co-sponsor was fundamentally flawed and lacked legitimacy.

A top official in President Gotabaya Rajapaksa’s office told The Citizen that the decision to co-sponsor the resolution was taken in 2015 by the then Prime Minister Ranil Wickremesinghe and Foreign Minister Mangala Samaraweera without consulting the cabinet, the Executive President Maithripala Sirisena and parliament.

“In other words, the decision had no mandate. It was because co-sponsorship was resorted to without taking the domestic stakeholders into consideration that the accountability mechanisms demanded by the resolution could not be put in place. The constitution and legal system of Sri Lanka had no place for some of the mechanisms that the then government had committed itself to. It ran into popular opposition. It was because of the lack of mandate that 30/1 of 2015 could not be implemented in the last five years,” the top source explained.

Resolution 30/1 of 2015 was on measures that Sri Lanka should take to address “credible” allegations of “war crimes” committed by the Lankan armed forces in the closing stages of the 2006-2009 war against the separatist Liberation Tigers of Tamil Eelam (LTTE). It sought a hybrid judicial mechanism with the participation of foreign judges and investigators.

Asked if, after withdrawal from co-sponsorship in the coming (March) session of the UNHRC, the Lankan government will make an effort to get 30/1 cleared by the due democratic process, the source said that the idea is not to rework the resolution but to reject it altogether. “Our policy is to seek a closure of the resolution,” he said.

The Sri Lankan government appears to be moving step by step. It expects to negotiate with the US on a wide range of matters which are bedevilling bilateral relations because of the need for good relations. But at the same time, it is keeping its powder dry for a sharper confrontation if push comes to shove in defending national sovereignty.

Although the previous Wickremesinghe government had co-sponsored the resolution, it nevertheless argued at the UNHRC that no war crimes were committed by the Lankan forces, and that any killings that might have taken place, had been inadvertent collateral damage.

However, the then government promised to set up an information gathering and judicial mechanisms as demanded by the resolution. But it did not deliver on any of its commitments because the mechanisms had no political support among the majority of the population. Only the minority Tamils were asking for them.

Facing difficulties and lacking internal consensus (Executive President Sirisena was totally opposed to the resolution and not just to co-sponsorship), the government dragged its feet on implementation and kept seeking from the annual sessions of the UNHRC, more and more time to implement it. Eventually, it ended up doing nothing.

The UNHRC co-sponsorship fiasco was one of the reasons for the unpopularity of the UNF government which in turn led to the defeat of its candidate, Sajith Premadasa, in the November 16 2019 Sri Lankan Presidential election.

The winner of the election, Gotabaya Rajapaksa of the nationalist Sri Lanka Podujana Peramuna (SLPP), decided to tell the West that resolution 30/1 of 2015 was unacceptable at least in parts as the mechanisms demanded had no place in the Lankan constitution. He said that government will try to amend it.

US Arm-Twisting on MCC and SOFA

However, with the US and the West piling pressure on him, and the US trying every trick in the book to get his government to agree to the controversial Millennium Challenge Corporation (MCC) Compact and the sovereignty-damaging Status of Forces Agreement (SOFA), the President’s attitude hardened.

The last straw on the camel’s back was the designation of Lankan Army Chief Lt.Gen.Shavendra Silva last week. The General, who is seen by the majority Sinhalese community as a “war hero” and his family were barred from entering the US.

The Foreign Office and Foreign Minister Dinesh Gunawardena issued statements to express “strong objections” to the designation of a war hero like Gen.Silva who had led the campaign to rid Sri Lanka of the Scourge of separatism and terrorism.

The Gotabaya government (like the previous government) had vowed that it would not allow its brave soldiers to be dragged before an international tribunal on allegations of war crimes, not based on an independent and impartial inquiry. As Foreign Minister Gunawardena put it, the allegations of indiscriminate killings and extra-judicial killings against Gen.Silva were unproven. He asked the US to conduct a proper inquiry before accepting the allegations made against Gen.Silva and lift the ban on him. He appealed to the US not to create complications in US-Lanka relations.

But the US will not give up its bid to impose the MCC and SOFA on Sri Lanka since it considers both as being essential for containing China within Sri Lanka and in the Indian Ocean. Equally determinedly, the opinion of the majority Sinhalese community is resolutely against entering into the two pacts. The Gotabaya regime, which is sensitive to the opinion of the majority Sinhalese community, has set its face against the two pacts. Therefore the US and Lanka are on a confrontational course.

Search For Common Ground

However, there are faint signs of a search for a meeting ground between the US and Lanka. The US embassy told a local Sunday paper that Gen.Silva’s designation will not hamper US-Lanka military cooperation. This is to keep the door open to SOFA, which is meant to secure for visiting US troops a free run in Sri Lanka with the added privilege of being governed by US and not Sri Lankan laws. And Foreign Minister Gunawardena told American Ambassador Alaina Teplitz that the designation of Gen.Silva should be rescinded to avoid unnecessary complications in Lanka-US relations. Gunawardena was giving the impression that Lanka wants an amicable settlement of the dispute.

These utterances by the two countries keep the door open for settlement. Neither country actually wants an open and prolonged confrontation because they need each other.

Commenting on this, a top Lankan security official said: “The US will be more eager to seek a settlement with Sri Lanka than vice versa. In fact the US needs Sri Lanka more than Sri Lanka needs the US.”

As the former Indian National Security Advisor Shivshankar Menon put it: Sri Lanka is like a stationary aircraft carrier in the Indian Ocean, control over which is necessary for controlling the ocean. The US needs the stationary aircraft carrier to control check China in the region.

Economic Sanctions

As for Sri Lanka, it needs the US to keep its balance of payments position healthy. Europe accounts for 32% of Lanka’s exports and the US and Canada account for 28.1%. Sri Lanka has a huge US$ 2.35 billion trade surplus with the US. With the EU, which is an US ally, Sri Lanka has a trade surplus of US$ 1.4 billion. The US and EU are the topmost markets for Lanka’s small basket of exportable goods. The US and EU together take 86% of Lanka’s apparel exports.

Both the US and EU give duty concessions under GSP and their withdrawal for human rights violations can cost Lanka quite a sum. In 2010, the EU withdrew the GSP Plus concessions from Sri Lanka on human rights grounds but they were restored in 2018 when the situation supposedly improved. This EU facility will be in place till 2023. The US GSP will be in place till the end of 2020.

However, both the US and the EU can withdraw the facility on human rights grounds to twist Colombo’s arms in order to gain some strategic advantage.

But while withdrawal of the EU GSP Plus will be harmful for Sri Lanka, withdrawal of the US GSP will not have a very adverse impact. 70% Sri Lanka’s total exports to USA, including apparels, is not covered by US GSP facility anyway.