Sri Lanka: Working with India on the UNHRC front now?

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N Sathiya Moorthy 12 March 2020

At a time when Sri Lanka is being hauled up before the UN human rights affiliate, UNHRC, all over again, it may have found a more understanding benefactor of sorts in neighbouring India than at any time in the past. Yet, the differences between the procedural row that Sri Lanka is involved in over the unilateral withdrawal from ‘co-authored’ Resolutions 30/1 and 40/1 on war crime probes and related issues makes for a procedural departure while the UNHRC accusations against India is more direct.

In an unprecedented move, the UNHRC has approached the Indian Supreme Court, seeking to be accepted as amicus curae in the pending case on the controversial ‘Citizenship Amendment Act’ (CAA), 2019. Incidentally, under the Indian scheme, the high courts and the Supreme Court suo motu decide if they needed an aide or partner of the kind and also choose a person or institution, based on qualification and suitability – and does not entertain petitions from an ‘interested party’ of the UNHRC kind in this case.

Both the Government of India and the ruling BJP have reiterated that the CAA was an ‘internal matter’. During his recent India visit, US President Donald Trump too side-stepped the issue when asked at a joint presser with Prime Minister Narendra Modi, but that has not deterred American official institutions from commenting adversely on the Indian law and also on the Indian position.

It is now left to the Indian courts to decide if the UNHRC or any other international body or organisation has any role in the pending case. It may also be then that the nations that are otherwise arraigned against India on this and what may have become a relatively forgotten yet presumably related ‘J&K Special Status abrogation’ matter to the UNHRC in the upcoming September session. New Delhi should not be surprised if any mention of either or both are made at the UNHRC’s ongoing 43rd Regular Session, which concludes on 20 March.

If someone in India, particularly BJP acolytes outside of the Government, thought that with China’s inability to get the numbers right at the informal UNSC consultation on the ‘Kashmir issue’ twice in almost as many months was victory for the nation, that is not so. Much of their celebration flows from inadequate understanding of international diplomacy and UN procedures. China was possibly seeking to keep the issue alive, to be taken up on another day.

The UNHRC’s current ‘India position’ is not much different from the West’s coinage of Sri Lanka under then President Mahinda Rajapaksa, ‘shifting the goal-post’ on post-war political reconciliation, without the former leaving the terminology undefined and unrefined. If anything, both Sri Lanka and its western ‘partners’ from the concluding ‘Eelam War IV’ against the LTTE terror, were ‘shifting the goal-post’ and that of the other, especially.

It is a game that the ‘international community’ (read: West) has mastered over the decades, to telling and chilling effect. The question is how far will they go in the case of a relatively powerful and equally assertive India when compared to a smaller neighbour in Sri Lanka. The question also remains how far would New Delhi, too, would go, and if and how far it could also impact on the nation’s overall approach to the West, including in matters of strategic cooperation and military purchases.

Indo-Pacific ‘real estate’

India was among the nations that voted the first US-sponsored Resolution 19/2 at the UNHRC in 2012, which sought an ‘international, independent probe’ into ‘war-crimes’. New Delhi followed it up with a vote for an equally ‘watered-down’ resolution a year later. Unacknowledged by Colombo, which ultimately rejected the draft as publicly indicated, New Delhi did soften the original, to make it more acceptable to the nation’s international commitments, future projections and perceptions. As has been with American behaviour on ‘military intervention’ in nations from Vietnam to Afghanistan, Iraq and Syria, the nation walked out not only on the Sri Lanka resolution(s) but also out of the UNHRC.

The UK and Canada are now the prime-movers of the resolution(s) since but the unseen hand of the US too is obvious. The question at present is if the US is pressing human rights issues viz Sri Lanka, beginning now with a ban on Army chief, Lt-Gen Shavendra Silva, visiting the nation, has more to do with alleged ‘war crimes’ alone of the ‘China factor’, military pacts like SOFA (Status of Forces Agreement) and investment pacts of the MCC (Millennium Challenge Corporation) kind.

Like with the co-authored UNHRC Resolutions 30/1 and 40/1, the previous Sri Lankan government had initialled the American initiatives on SOFA and MCC. Like with the co-authored UNHRC resolutions, the Rajapaksa-centric political opposition had declared his intention to scrap whatever deal of the kind on both fronts, during the long run-up to the presidential polls last year. Sri Lanka has since pulled out of the two Resolutions-related activities even while promising to work with UN bodies on human rights issues, otherwise. Almost simultaneously, Prime Minister Mahinda Rajapaksa, a predecessor and elder brother of President Gotabhaya, has also declared his government’s decision not to sign SOFA and MCC with the US.

Senior American officials visited Sri Lanka after Gotabhaya Rajapaksa, the war-time Defence Secretary, became the President in November last. Among them, Principal Deputy Assistant Secretary of State, Alice Wells, who carried a personal letter for President Rajapaksa from his US counterpart, later described Sri Lanka as a ‘piece of real estate in the Indo-Pacific’. That was weeks after US Secretary of State, Mike Pompeo, talked as much about human rights as about bilateral cooperation, in his congratulatory message to the new Sri Lankan President.

While sounding positive, DAS Wells’ statement had all the tones of then US Senate Foreign Relations Co-Chair John Kerry declaring post-war Sri Lanka’s ‘strategic importance’ for his country. If someone in Colombo had mis-read the statement of Sen Kerry, who later became US Secretary of State, they were obviously wiser now viz DAS Well’s ‘real estate’ declaration.

Neighbourhood First

The avoidable Indian predicament on the human rights front now, more than any time in the past, may have enlightened New Delhi on what some in the nation’s strategic community may condemn as ‘dubious’ Indian behaviour and others may describe as a ‘de-hyphenated’, issue-based relationship. The situation is not unlikely to provide the Indian policy-maker and political leadership to revisit the West’s position of the past decade or so, viz Sri Lanka’s ‘war crimes’ charge and probe-demands.

Topping the Indian list for consideration in the matter should be the controversial ‘Darusman Report’, which was supposedly produced for the personal understanding of then UN Secretary-General Ban Ki-moon. The document not only found its way officially to the UNHRC Secretariat for being cited in the High Commissioner’s Reports to the Council, but both the interim and the final reports were also promptly leaked to the western media – no questions asked, no inquiries conducted and no action taken against the errant official(s).

The current UNHRC position on India’s Article 370 abrogation and the CAA, coupled with on-again-off-again gratuitous observations of Secretary-General Antonio Guterres and also UNHRC boss, High Commissioner Michelle Bachelet, may now cause New Delhi to look inwards after years and decades of extending its vision beyond its immediate horizon. It could mean India taking a closer re-look at PM Modi’s ‘Neighbourhood First’ policy with newer insights than was available even when it issued similarly gratuitous statements on other neighbours like Maldives, then under President Abdulla Yameen.

For India, the UNHRC game may still be in the warm-up stage. In preparing to face off the future threats and ‘actions’, if any, in the near or not-so-near future, New Delhi may be tempted to study the Sri Lankan approach through the past years, with changing governments and changing vision and views.

The last time the two nations worked together at the UNHRC, for instance, was to defeat the EU-sponsored resolution against Sri Lanka, taken up for vote just 10 days after the successful conclusion of the LTTE war in May 2009. In doing so, India, in the company of China and Pakistan, its traditional adversaries, moved a counter-motion sorts in Resolution 11/1 applauding the Sri Lanka for ending terrorism and promising ‘assistance …in the promotion and protection of human rights’.

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