Tuesday, December 5, 2023

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UN Universal Periodic Review – UPR on Sri Lanka

S. V. Kirubaharan, France

The Universal Periodic Review – UPR was established when the United Nations Human Rights Council – UN HRC was created on 15 March 2006 by the UN General Assembly. On 18 June 2007, one year after its first meeting, members of the UN HRC agreed on its institution-building process – providing a road map to guide the future work of the Council. The UPR is the newest addition to the long-standing regulatory framework for monitoring or supervising UN member states.

Do the one hundred and ninety-three (193) member states honor and implement agreements and promises made to the United Nations? Some countries are not worried about human rights violations in their countries. The UPR is a tool for investigating or scrutinising such issues and has been implemented for the last fourteen years. It combines different concerns, previously monitored by separate treaty bodies and working groups, into one process.

The UPR takes place three times a year in a series of meetings of the UPR Working Group in Geneva. In this process, the UN questions its member states to see whether those states have honoured their obligations. It also gives an opportunity for other member countries to question or criticize a state that is undergoing the UPR process. At this time, friendly countries of the scrutinised country will exaggerate, portraying it as a country that respects human rights, democracy, and rule of law. It is to be noted that any country can ask a few questions, make statements and propose recommendations.

In this process, a country subject to its UPR cycle will submit a report to the UPR Working Group at a specific time. This is called a National report and may exaggerate the country’s ‘achievements’, misinforming the UN about: what they are implementing; what they are going to implement; what they have not implemented; and their intentions etc. The UPR unit of the Office of the Human Rights Commissioner – OHCHR also submits its report on the country. Members of Civil society organizations including human rights activists who carry out specific country programs submit a report too. This is known as Stakeholders’ reporting. These reports are compiled into a summary.

To oversee this process, representatives of three countries known as the ‘Troika’, selected by the forty-seven member countries of the UN HRC are appointed to discuss all the reports with the country under scrutiny.

Following this, on a specific day, the UPR Working Group meeting is discussed in an open forum in the UN. During this process, member countries express their doubts, fears and apprehensions about the country under scrutiny. Within exactly forty-eight (48) hours of this scrutiny – the ‘Troika’, facilitated by the OHCHR submits an ‘outcome report’ on the country, to the UPR Working Group. The statements, recommendation and queries that have been accepted or rejected by the country under scrutiny can be found in this report.

Fourth Cycle underway

Although the UPR Working Group would have adopted the report, the respective country is allowed to make some changes in their position within two weeks.

Following this, the report is submitted for approval by the UN Human Rights Council in their usual session. At that time, the country under review is allowed to present its views again. In addition, member states and non-governmental organizations may also submit comments.

So far, forty-one UPR Working Groups have been held. Three cycles for Member States have been reviewed, and the fourth Cycle is currently underway.

In December 2008, when Israel faced its first UPR, fifty countries, along with Islamic countries and some other countries, raised very serious questions about Israel.

Because of this, in January 2013, Israel refused to participate in its second UPR Cycle. At the time, this was seen as a revolutionary decision by Israel. Due to UN pressure, eventually Israel re-joined the UPR process and seventy-four countries raised questions to Israel, putting it under severe pressure.

Based on the fourth Cycle of the UPR, Sri Lanka will be discussed at the 42nd session of the UPR Working Group on 1st February 2023 in Geneva.

Sri Lanka’s National Report for this has been published – consisting of thirteen (13) pages and eighty-three (83) paragraphs. Meanwhile, the Stakeholders’ reports covering seventeen (17) pages and (82) paragraphs have also been published. In this report, some important NGOs’ reports were not included due to late submission. Fortunately, their submissions are covered in some other joint statements.

United Kingdom – UK, Algeria and Qatar have been appointed as ‘Troika’ countries for the forty-second session on Sri Lanka.

Countries waiting to question Sri Lanka

In the impending UPR process on Sri Lanka, it is believed that many countries are waiting to question Sri Lanka on accountability, as promised to the UN Secretary General Ban Ki Moon in May 2009, and on the draconian law known as the Prevention of Terrorism Act – PTA. In addition, states are waiting to ask questions about the failure of seventy-four years of promises to create a political solution to the Tamils: especially after thirteen years since the end of the war. Now it’s obvious to the international community that Sri Lanka is buying time and space until they fully achieve their four pillars – Militarisation, Buddhistisation, Sinhalisation and Colonisation of the North and East. It’s believed that once this is fully done, there will be no question of a political solution for the Tamils on the island.

The first Cycle on Sri Lanka was held in May 2008 at the 12th session of the UPR Working Group. At that time, Bangladesh, Cameroon and Ukraine acted as ‘Troika countries’. During this process, fifty-six (56) member countries asked serious questions creating a very embarrassing situation for Sri Lanka.

The second Cycle on Sri Lanka was held in November 2012 at the 18th Session of the UPR Executive Committee. At that time – India, Benin and Spain acted as ‘Troika Countries’. In this Cycle, ninety-eight (98) member countries questioned Sri Lanka. This may be a record-breaking number of countries questioning a country under scrutiny in the UPR Working Group meetings. Over fifty percent of the one hundred and ninety-three (193) member countries raised questions, making Sri Lanka’s atrocious human rights situation known to the world.

The third Cycle took place in November 2017 at the 28th session. In this process eighty-eight (88) countries questioned Sri Lanka.

To be frank, Sri Lanka has never implemented or respected the recommendations they have agreed to, nor kept the voluntary pledges they themselves have given during the UPR process!

Date examined13/05/20081/11/201215/11/201701/02/2023
Report & dateA/HRC/8/46

N°. States intervened569888
Troika countriesUkraine
Rep. Korea
Bol. Rep. Venezuela
UK – United Kingdom

* Agreed = no. of statements and recommendations made by other states, enjoying the support of Sri Lanka

** Rejected = no. of statements and recommendation that did not enjoy the support of Sri Lanka

*** Delayed/Noted = Sri Lanka would reply later or noted the point: it’s a diplomatic reply rather than rejection

Sri Lanka has either rejected/delayed answering, or diplomatically said it noted the contents, of many of the recommendations or statements made by other States in the past UPR cycles. Although the number of statements and recommendations agreed to is high – the point is whether they are taken seriously or not, and whether they are implemented or not. Some interesting questions, concerns and recommendations raised by other countries, on Sri Lanka, are given below:

Questions raised in the past

Many countries wanted Sri Lanka to: examine the possibility of ratifying OP-CAT and ratifying the Rome Statute; accede to the Rome Statute of the International Criminal Court (ICC) and draft a law on cooperation between the State and the Court;  ratify the Second Optional Protocol to ICCPR; continue its efforts to ratify the International Convention for the Protection of All Persons from Enforced Disappearance; fully incorporate the Convention on the Elimination of Discrimination against Women into its domestic system; adopt a number of laws on freedom of expression and speech, and of the media; and consider the possibility of abolishing the death penalty.

Countries remained concerned about: Sri Lanka’s consolidation of executive power; the militarization of former conflict zones; serious human rights violations, including disappearances, torture, extrajudicial killings, and threats to freedom of expression; reports of human rights violations under the Prevention of Terrorism Act; intimidation and harassment of human rights defenders and journalists; insufficient protection of rights of religious minorities; and prevention of acts of violence.

Sri Lanka was encouraged to continue the reconciliation and peace process, urged to resolve residual resettlement and rehabilitation issues; and develop a strategic plan against human trafficking. Countries were concerned about the slow progress in the constitutional reform and transitional justice process, urging a constructive approach to addressing post conflict reconciliation issues and resolving post-conflict challenges.

Many countries encouraged Sri Lanka to adopt an action plan to implement its Human Rights Council resolution commitments; noting that much work remained on accountability, transitional justice and reconciliation. Concerns remained about recent developments in the fight against impunity; Protection of Victims of Crime and Witnesses Act, and the Peace building Priority Plan…….

So far what we have learned from the UPR mechanism and process of the UN HRC is that, although it looks different to the earlier mechanisms (Treaty bodies and other working groups), eventually the UPR has no teeth. It is just like other mechanisms in its incapacity to punish a country’s failure to implement its agreed commitments.

If one seriously considers the time, energy, finance and other means spent on the UPR process, one comes to the conclusion in UN language, what counts is ‘just’ the potentially powerful act of “naming and shaming”.

It is to be noted that according to the last resolution, Sri Lanka will not be on the agenda during the 52nd session of the UN HRC, which will begin in the last week of February. However, lobbying on Sri Lanka continues as usual.

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