Mandates of UN High Commissioner for Human RightsMarch 31, 2014, 8:56 pm
By Neville Ladduwahetty
Paragraph 10 and 10 (b) of the US-proposed UN Resolution A/HRC /25/L.I/Rev.1 that was passed in Geneva on March 27, 2014, "requests the Office of the High Commissioner of Human Rights (OHCHR):
(b) To undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission and to establish the facts and circumstances of such alleged violations and of the crimes perpetuated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedure mandate holders"
During a meeting on Monday between the OHCHR with NGOs, in the sidelines of the 25th session of the Council, Ms. Pillay stressed that the OHCHR "has the power to establish an international mechanism" to investigate crimes, as it falls under the human rights protection mandate of her office. Ms. Pillay is reported to have stated: "Now apart from calling for an international investigation, we have interpreted our mandate to say that the High Commissioner herself has power to investigate a situation". Furthermore, that "This did come out when we needed legal advice to see whether the Secretary General can himself set up a panel on Sri Lanka when as you know not a single inter-governmental forum had addressed the issue of the serious crimes committed. Obviously the fact that the Secretary General went again means that we are very clear that the UN does have these powers, because it falls under the overall mandate of protecting human rights." (Tamil Guardian, March 17, 2014).
By Ms. Pillay’s own admission, the High Commissioner has "interpreted" the mandate of the OHCHR as having the right to investigate alleged violations of human rights. However, her "interpretation" is not good enough for sovereign member states to comply. Member states need more than "interpretations". Member states need unequivocal statements that have legitimacy of the sort of a General Assembly resolution. Until then, Sri Lanka has no alternative but to appeal to the General Assembly that conducting inquiries into the internal affairs of sovereign states cannot be permitted based on "interpretations" by temporarily-appointed individuals with no accountability.
Seeking redress by appealing to the UN Secretary General (UNSG) as to the legitimacy of OHCHR’s "interpretation" would not serve any meaningful purpose judging from the conduct of the Panel of Experts (PoE) appointed by him in violation of his commitment to the President of Sri Lanka when a joint statement was signed by them in May 2009. After this latter statement, the UNSG stated on March 2010 that: "The panel I am establishing will advise me on the standards, benchmarks and parameters, based on international experience that must guide any accountability process such as the one in the joint statement. Now this panel will report to me directly and not to another body".
Instead of establishing the "standards, benchmarks and parameters" he had called for, the UNSG covertly sanctioned the PoE to conduct a clandestine investigation and leak its findings to the public. The conduct of the Office of the UNSG and the image of the UN itself has been tainted by this entire episode. Under the circumstances, no member state can hope to rely on the impartiality and objectivity of the UN or any of its organs such the OHCHR. The ONLY hope for member states is to rely on their own strength in the General Assembly.
MANDATE OF RESOLUTIONS 48/141 and 60/251
Space does not permit the publication of the full text of Resolution 48/141 that establishes the mandate of the Office of the High Commissioner for Human Rights, and the full text of Resolution 60/251 which establishes the mandate of the Human Rights Council. However, a careful review of its provisions reveals that nowhere in these provisions is there a mandate given for "investigation". The reason for exclusion of such a provision makes sense because the OHCHR or any other body cannot carry out multiple functions that conflict with each other. For instance, the OHCHR is expected to promote and encourage respect for human rights and monitor and report the human rights situation in member states while maintaining "principles of impartiality, objectivity and non-selectivity, in the spirit of constructive international dialogue and cooperation," as stated in the preamble of Resolution 48/141. If, in addition the OHCHR is also mandated to conduct "investigations", the spirit of engagement to promote human rights would be clearly compromised. An agency whose primary function is to promote and encourage human rights, needs to develop a relationship of understanding and cooperation with the member states; a relationship that would be severely compromised if it were to engage in "investigations" as well. The stated primary function of promoting and encouraging human rights would be compromised, as has been demonstrated already in Sri Lanka’s relationship with the UNSG and OHCHR.
Furthermore, considering the fact that paragraph 3 (a) of 48/141 requires the OHCHR to "And paragraph 3 states: "
Function within the framework of the Charter of the United Nations, the Universal Declaration of Human Rights, other international instruments of human rights and international law, including the obligations, within this framework, to respect the sovereignty, territorial integrity and domestic jurisdiction of States…", it is realistically not possible for external agencies such as the OHCHR to also investigate violations within countries without impacting on the domestic jurisdiction of member states. Investigating human rights violations by an external agency such as the OHCHR as called for in the resolution would be no different to investigations relating to internal law and order being conducted by external agencies without causing disrespect to the domestic jurisdiction of member states; an obvious impossibility.
Similar standards of impartiality and objectivity are required by the UN Human Rights Council. For instance, paragraph 4 of Resolution 60/251 states: "Decides further that the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights …". These words ring hollow considering the fact that the recently passed resolution expands the scope of the mandate of the OHCHR to authorize it to "investigate" human rights situations in Sri Lanka with the assistance of "experts and special procedure mandate holders" who, being hand- picked individuals with dubious loyalties, would not have the impartiality and the objectivity to meet guidelines set for the OHCHR. Instead, their loyalty and accountability would be to the OHCHR. Consequently, one could be certain that outcomes would be predetermined. If the fates of sovereign states and their citizens are permitted to be determined by such individuals it would be the biggest human rights violation of all, as demonstrated by the highly prejudiced report of the PoE on Sri Lanka.
These circumstances are coupled with the fact that the OHCHR does not have the needed resources to be independent and free of pressures and the influence of the sources that finance these "investigations". Thus, outcomes of "investigations" would inevitably not have the imprint of impartiality and objectivity. In a background where investigations are compromised due to lack of independence, as well as these investigations being carried out by individuals who are biased or have no credibility, the vulnerability of states are at stake. The precedent set would enable the OHCHR to selectively pick amenable member states to report on human rights situations in countries and recommend that "investigations" be conducted to suit the geopolitical strategies of Powers that have a firm grip on the OHCHR and its workings.
Despite protests by some member states that the resolution violates the mandate granted to the OHCHR and the HR Council, other representatives of Governments have maintained that the OHCHR and the HR Council have the mandate to "investigate" HR violations. The very fact of a lack of consensus on this vital issue confirms that the fates of member states cannot be permitted to be left to "interpretations", but has to be based on mandates definitively granted by the General Assembly.
Resolutions 48/141 and 60/251 do NOT in any way definitively grant the OHCHR or the HR Council the mandate to "investigate" alleged HR violations in member states. Claiming such authority based on "interpretation" by the High Commissioner/UNHRC is unacceptable. What is acceptable is a General Assembly resolution granting such authority if such is its view. In the absence of such a definitive resolution, for the UNHRC to authorize the High Commissioner to "investigate" is in clear violation of the need for impartiality and objectivity mandated under the current General Assembly Resolution 60/261.
There is no mechanism for member states to appeal or seek a definitive interpretation as to whether current scope of the mandate as stated in Resolutions 48/141 and 60/261 authorizes "investigations". Appealing to the UNSG would be a futile exercise considering his unprofessional conduct in the appointment of the PoE who were supposed only to "set standards, benchmarks and parameters" to guide an investigation, but instead carried out a clandestine investigation and made its findings public. In this vacuum, the OHCHR has interpreted and arrogated to itself the right to "investigate" alleged violations in Sri Lanka. Under the provisions of the resolution the investigative process would be conducted by "experts and special procedure mandate holders". These individuals are accountable only to the OHCHR who engages them. To expect impartiality and objectivity from such individuals is a vain hope.
Since representatives of some governments claim that such investigative powers have been used previously, it is all the more necessary that member states band themselves together to prevent this continued abuse of power based on "interpretations". Not to act is to allow the institution of the UN to be hijacked by individuals whose conduct does not meet the guidelines set by the General Assembly. Since the UN General Assembly is similar to a Parliament of member states, violating its powers is an affront to its very existence; a fate that would be no different to the previous Commission for Human Rights that was abandoned due to its ineffectiveness through politicization.
Therefore, Sri Lanka should with the support of the member states that opposed the Resolution, and those that abstained, engage in a collective effort to initiate a resolution in the General Assembly to deny the OHCHR and the HR Council the mandate to "investigate" human rights situations in member states, because it violates the principle of intervention in matters relating to issues of domestic jurisdiction, clearly recognized and emphasized in the UN Charter. It is imperative that issues relating to domestic jurisdiction should not be left to "interpretations" by individuals and their handymen. If left unchallenged the banner of human rights would be used to dismantle states that stand in the way of fulfilling their "manifest destiny".
Last Updated Mar 27 2017 | 09:46 pm