Tamara Kunanayakam …. A quick reading of Neville Ladduwahetty’s article on “who monitors the Monitors” in The Island suggested numerous confusions as well as an office-desk perspective divourced from ground-realities in the international power-games as well as the ground-realties of Eelam War IV. Since I had interviewed Tamara Kunanayakam recently and appreciated her thorough familiarity with the complicated UN machinery and the present international order, I asked her to pen a critical review for my elucidation. This is the result. Emphasis in red is my injection. Michael Roberts
- Ladduwahetty’s argument is essentially that the UN failed to implement R2P with regard to Sri Lanka, as it did so successfully in Rwanda. Throughout his text, he argues that the Human Rights Council failed in its mandate to “prevent” human rights violations and to “respond promptly to human rights emergencies.” According to him, this provision in the Council’s mandate was included as a result of the UN’s failure to prevent genocide in Rwanda. He goes on to conclude that, in the case of Sri Lanka, “the inability of the Human Rights Council to live up” to this provision, i.e., “to marshal the combined influence of several democracies in which the Tamil diaspora resided to bring pressure on the LTTE to release the civilians,” was “the primary cause for the violations” for which “the Council has to be held accountable.”
- Throughout the text, Ladduwahetty also treats the UN System as though it is some monolithic entity that functions independently of its member states and keeps referring to an alliance between the ‘UN and its systems’, ‘the international community’ (which he doesn’t define, but which is a term coined by the US to describe itself, acting on its own or with its allies), ‘the Tamil leadership’ and ‘the Tamil diaspora’, but provides no explanation on how they related to each other.
- To prove his point, Ladduwahetty, wittingly or unwittingly, undermines the UN Charter’s sovereignty principle on which the UN System is based, and which Washington and its Western allies seek to condition as part of their new international architecture. Ladduwahetty’s constant reference to the failure of the UN to prevent genocide in Rwanda is worrying, because that is precisely the argument that was used by the US and Canada to formulate R2P as a new norm that would condition the application of the sovereignty principle and govern international relations within the framework of the new international architecture, based on unilateralism, that Washington hopes would replace the UN Charter-based multilateral system.
- Ladduwahetty’s arguments show a total lack of understanding of the UN System or the debate within the system with regard to R2P, and more generally with regard to human rights. He compares the incomparable – Rwanda where “over 800,000 people were killed in 100 days between April and May1994 during the genocide” with the State being implicated, and Sri Lanka, where “nearly 350,000 civilians” were held hostage in January of 2009 by a non-State entity, the LTTE.
- Curiously, however, in the section dealing with the Darusman Panel, Ladduwahetty appears to contradict his earlier criticism of the UN for failing to prevent genocide in Rwanda, and also in Sri Lanka. The Darusman Panel, which he criticises, was doing precisely what he advocates, seeking to justify the application of R2P to prevent future violations of human rights.
- The fundamental flaw in Ladduwahetty’s argument summarised in the first paragraph of his article, that (a) the “Human Rights Council did not realize that the provision in its mandate for protection included not only prevention but also to meet emergencies,” (b) the Council had “nearly 5 months to marshal the combined influence of several democracies in which the Tamil diaspora resided to bring pressure on the LTTE to release the civilians, and (c) “the inability of the Human Rights Council to live up to the provisions in its mandate is the primary cause for the violations,
- He avoids addressing a crucial provision in the General Resolution 60/251 that established the Human Rights Council, which is the duty of “international cooperation” which is, in turn, based on the sovereignty principle underlying the UN Charter. Primary responsibility for the promotion and protection of the human rights of the population lies with the Member State. Other States and the United Nations have the duty to cooperate so as to enable the State concerned to carry out its international human rights obligations, but at its request; it cannot be imposed. The notion of “primary responsibility of States” also implies that only they can be held responsible for the international obligations, not individuals or non-governmental entities.
– Operative para. 5 (f) of General Assembly resolution 60/251, which Ladduwahetty refers to, provides that the Council shall, inter alia, “Contribute, through dialogue and cooperation [my emphasis], towards the prevention of human rights violations and respond promptly to human rights emergencies.” This proviso is based on the sovereignty principle and means that the Council or States Members of the Council cannot impose themselves upon a country, intervene in its internal affairs, or substitute themselves for its legitimate authority. Member States of the Council must engage in a dialogue with the country concerned on the steps to be taken internally, and, if requested to do so, assist that country, through technical cooperation and advisory services, to fulfill its international obligations.
– The language “through dialogue and cooperation” is a reiteration of Article 1 (paras 2 and 3) of the UN Charter, which stipulates that the Purposes of the United Nations are, inter alia, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples,” and “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”
– These fundamental principles are reiterated in the first preambular of the General Assembly resolution 60/251 that established the Human Rights Council.
- Ladduwahetty does not appear to be aware of the manner in which international decisions are made or how the international system functions:
– The Human Rights Council is composed of Member States, not non-State entities, and its decisions (or any UN body for that matter) is a reflection of the existing international power relationships (or balance of power).
– Today, Washington, with the support of its Western allies (also some Eastern states since the collapse of the socialist bloc), dominates the world – militarily, although no longer economically (given the emergence of China as the No. 1 economy in the world).
– Therefore, human rights are a privileged ‘weapon’ of the powerful Western countries that is used in a selective manner to exercise pressure on countries that refuse or are reluctant to tow their line, or paradoxically to support/strengthen pro-Western governments that need to overcome an internal opposition, as in the case of Sri Lanka with the Ranil-Sirisena regime.
– Given that the UN human rights system is only used against developing countries, most of these countries do not support “country-specific resolutions”, even if directed against the West. Since they are often used to intervene in their “internal affairs (or affairs that are State prerogatives), there is the fear that such precedent-setting will only be harmful to their interests. Developing countries prefer “thematic” resolutions rather than those that “name and shame.” This was the primary concern of developing countries when they negotiated the General Assembly resolution establishing the Human Rights Council.
– For the reasons cited above, neither the Council, nor its predecessor, the Commission on Human Rights, have adopted a resolution against the US or its Western European allies. The only resolutions that refer to individual Western countries – the US embargo against Cuba and Israeli occupied territories – are not “country-specific”, but address State sovereignty.
– The concern of developing countries about the use of human rights as a weapon is reflected in the following operative paragraphs of the General Assembly resolution that established the Human Rights Council (in addition to operative para. 5 (f), which is referred to above):
- Operative paragraph 4 provides that “the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation [my emphasis];”
- By operative paragraph 5 (e), the Council is required to examine the human rights performance of all States, not just some. In this regard, States decide to “undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States [my emphasis].” In this case too, the General Assembly stipulates, inter alia, that “the review shall be a cooperative mechanism [my emphasis], based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs;”
- Operative paragraph 5 (a), in keeping with the sovereignty principle, stipulates that the Council “shall promote human rights education and learning as well as advisory services, technical assistance and capacity-building, to be provided in consultation with and with the consent of Member States concerned [my emphasis].
- From the above, the following may be concluded:
- The co-sponsors of the 2009 counter-resolution, which was supported by Sri Lanka, did not include a provision that called upon the US and other Western countries “to bring pressure on the LTTE to release the civilians.” The co-sponsors of the resolution, who were “friends of Sri Lanka,” would have included such a provision only at the request of Sri Lanka. To my knowledge, such a request was not made.
- While the Human Rights Council has a mandate to “respond promptly to human rights emergencies,” it is bound by the provision “through dialogue and cooperation. Hence, even if such a provision had been incorporated in the draft, it would have had to be accepted/agreed to by the countries concerned.
- The existing unequal international balance of forces is not conducive to the adoption of resolutions against powerful Western countries, which have the ability to exercise economic, financial, political and/or military pressure on the capitals of many developing countries on how they caste their vote.
- Under the UN Charter, the United Nations, including the General Assembly and its subsidiary body, the Human Rights Council, can fulfill their human rights mandate only through international cooperation. There is no enforcement mechanism.
- Therefore, all three propositions contained in the first paragraph of Ladduwahetty’s article are incorrect. The Human Rights Council is bound by the Charter of the United Nations. Furthermore, it is not a monolithic entity. Made up of Member States, its decisions reflect the unequal balance of forces in the real world, despite the sovereignty principle. Under the UN Charter, the primary responsibility to protect its population resides in the State. Therefore, the responsibility “to bring pressure on the LTTE to release the civilians” lies with the Member States and only within their own territory. Had the Human Rights Council addressed such a request in its 2009 resolution to the countries who could have exercised such pressure within their territories, then a case could have been eventually made with regard to Council responsibility.
*** end ****
ADDENDUM: A NOTE from CHRIS BLACK, 3 August 2016
Yes, indeed the example of Rwanda has been used to justify R2P as a tool
of the west since the fall of the USSR. Rwanda was an example of how the
UN’s ostensible mandate of keeping the peace was used to create war and
massacres for which it is responsible. The UN forces in Rwanda in
1993-94-95 were used by Washington and London to overthrow a legitimate
government and in the process the forces they supported (the invading RPF
from Uganda) massacred hundreds of thousands and then blamed it on the
government forces. Rwanda is a prime example of why the UN should not be
involved in these situations as they too often act as Trojan Horse to
undermine the sovereignty and integrity of a nation. The same with the
various “human rights” NGOs that also supported the invading forces with
A ROGUE’S GALLERY?
Navy Pillai Rory Mugoven Samantha Power Prince Zeid
NOTE: Kunanayakam also inserted specific challenges to particular statements in Ladduwahetty’s essay. One pertaining to a ement about Kofi annan and Rwand a and th e supposed contrast with Ban ki-Moon’s appointment of the Darusman Panel drew this exclamatory note: “LADDUWAHETTY DOES NOT SEEM TO BE AWARE THAT IT WAS KOFI ANNAN WHO FIRST INTRODUCED R2P AND DEFINED ITS THREE PILLARS! BAN-KI-MOON ONLY REFLECTS CONTINUITY. THE ADVISORY PANEL, BY FOCUSING ON ACCOUNTABILITY, WOULD PROVIDE THE JUSTIFICATION FOR SUBSEQUENT IMPLEMENTATION OF R2P VIS-A-VIS SRI LANKA, AS WE SEE EVOLVING THROUGH SUCCESSIVE US-SPONSORED HRC RESOLUTONS AND REPORTS OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS].
Neville Ladduwahetty: “Who Monitors the Monitors?” The Island, http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=149274
ALSO TAKE NOTE OF THIS SELECT BIBLIOGRAPHY
Christopher Black: “The Criminalization of International Justice”
Christopher Black: *North Korea, The UN, And War Propaganda,” November 2014, http://journal-neo.org/2014/11/30/north-korea-the-un-and-war-propaganda-2/
Christopher Black & Edward S. Herman: “An Unindicted War Criminal. Louise Arbour and the International Crimes Tribunal, in YEAR 2000, http://www.whale.to/c/unindicted_war_criminal.html
Gerald H. Peiris: “The Doctrine of Responsibility to Protect: Impulses, Implications and Impact,” 30 June 2010, http://www.slguardian.org/2010/06/the-doctrine-of-responsibility-to-protect-impulses-implications-and-impact/ AND https://mail.google.com/mail/u/0/#search/from%3A(geraldpeiris%40yahoo.com)+OR+to%3A(geraldpeiris%40yahoo.com)/1510fc7141751033?projector=1
Michael Roberts: “Lilliputs in a World of Giants: Marga and CHA bat for Lanka in the Propaganda War, 2009-14,” 18 November 2015, https://thuppahis.com/2015/11/18/lilliputs-in-a-world-of-giants-marga-and-cha-bat-for-lanka-in-the-propaganda-war-2009-14/#more-18467
Michael Roberts: “Sturdy Advocacy: Marga’s Questioning of the UNPoE’s Assassination Job,” 25 November 2009, https://thuppahis.com/wp-admin/post.php?post=18544&action=edit&postpost=v2
Jeevan Thiagarajah: “Confronting the OCHR Investigation in Geneva, September 2014: Memorandum from Jeevan Thiagarajah,” 19 November 2015,
Sunday Times: “Marga/CHA confront the OISL Investigation in Geneva, September 2014: Godfrey Gunatilleke in Q and A with Lasanda Kurukulasuriya,” 19 November 2015, https://thuppahis.com/2015/11/19/margacha-confront-the-oisl-investigation-in-geneva-september-2014-godfrey-gunatilleke-in-q-and-a-with-lasanda-kurukulasuriya/#more-18492
Jeevan Thiagarajah: “Marga/CHA in Advocacy with BRIC Nations at Geneva, September 2014,” 19 November 2015, https://thuppahis.com/2015/11/19/margacha-in-advocacy-with-bric-nations-at-geneva-september-2014/#more-18498
“Marga & CHA Press Their Views in the Washington Den,” via Jeevan Thiagarajah: “Memo on Visit to Washington, 16-23rd October 2014: Resetting the Discourse on Post-War Issues of Accountability,” 19 November 2015, https://thuppahis.com/wp-admin/post.php?post=18505&action=edit&postpost=v2