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UNHRC’s brand of justice relating to external evidence gathering

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UNHRC in session (file photo)

by Neville Ladduwahetty

During the 57th Session of the UNHRC, Sri Lanka restated its opposition to HRC Resolution 51/1; a carryover of Resolution 46/1. These Resolutions were “consistently rejected” on grounds that the evidence gathering mechanism within the Office of the High Commissioner for Human Rights (OHCHR) “is an unprecedented and ad hoc expansion of the Council’s mandate and contradicts its founding principles of impartiality, objectivity and non-selectivity”.

The OHCHR’s mandate under Resolution HRC 46/1 states: “In March 2021, the United Nations Human Rights Council, through its resolution 46/1, recognized the importance of preserving and analyzing evidence relating violations and abuses of human rights and related crimes in Sri Lanka with a view to advancing accountability…” (OHCHR, Frequently Asked Questions). This document states that its scope addresses “four specific tasks”. The first task is to: “collect, consolidate, preserve and analyze information and evidence of violations and abuses of human rights and related crimes committed in Sri Lanka”.

FACTORS AFFECTING EVIDENCE ANALYSIS

Since the focus is only on the first specific task, the comments below are based on the following parameters: 1 Armed Conflict and 2 Declaration of Emergency

1 ARMED CONFLICT

During the period February 2002 to May 2009 the conflict in Sri Lanka was categorised as an Armed Conflict by none other than the OHCHR in their report of 2015. Thus, as an Armed Conflict, the report states that the applicable law is Common Article 3 to the four Geneva Conventions, which means that any violations or abuses committed during the armed conflict must be judged under provisions of International Humanitarian Law and to derogated Human Rights Law during an Emergency.

Consequently, evidence gathering and its analysis should take into account provisions of Humanitarian Law as provided in Additional Protocol II of June 1977 relating to Non-International Armed Conflict as part of Customary Law.

“Article 6 of Additional Protocol II of 1977 – Penal prosecutions”

1. “This Article applies to the prosecution and punishment of criminal offences related to the armed conflict”.

2. “No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular:

(a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;

(b) No one shall be convicted of an offence except on the basis of individual penal responsibility;

(c) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;

(d) Anyone charged with an offence is presumed innocent until proved guilty according to law;

(e)Anyone charged with an offence shall have the right to be tried in his presence; (f) No one shall be compelled to testify against himself or to confess guilt”.

3. “A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised”.

4. “The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children”.

5. At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained”.

2 DECLARATION of an EMERGENCY

Since an emergency operated from May 2000 to June 2010 throughout Sri Lanka, Human Rights are derogated during this period as declared by Article 4 of ICCPR.

Article 4 of ICCPR states: “In times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law…”.

Derogated Human Rights under emergency rules as permitted by ICCPR provisions stated in OISL Report are:

Articles 9 (2); 9 (3); 12 (1); 12 (2); 14 (3); 17 (1); 19 (2); 21 and 22 of the ICCPR.

Article 9 (2): “Anyone who is arrested shall be informed, at the time of arrest the reason for the arrest…”.

Article 9 (3): “Anyone arrested or detained on a criminal charge shall be brought before a judge….”.

Article 12 (1): “Everyone lawfully within the territory of State shall have the right to liberty of movement…”.

Article 12 (2): “Everyone shall be free to leave any country, including his own”.

14 (3): “In the determination of any charge, everyone shall be entitled to the following guarantees: to be informed promptly; time to prepare defence; tried without delay; tried in his presence; to examine witnesses against him; access to an interpreter; not to testify against him”.

Article 17 (1): “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence nor to unlawfully attack his honour…”.

Article 19 (2): “Right to freedom of expression …”.

Article 21: “…right to peaceful assembly…”.

Article 22: “…right to freedom of association…”.

The OISL report concludes the list of derogated human rights during the period of the Armed Conflict by stating: “Measures taken pursuant to derogation are lawful to the extent they comply with the conditions set out in international human rights law as provided in Article 4 of ICCPR. In keeping with this provision, successive Sri Lankan Governments have derogated over a period of 10 years, 9 Articles out of a total of 19 Articles in Part II of the ICCPR that the OISL has declared as being lawful.

CONSOLIDATE, PRESERVE AND ANALYSE INFORMATION AND EVIDENCE

“The OHCHR Sri Lanka accountability project will collect information and evidence from all sources willing to provide it, including Government authorities, other Member States, victims, witnesses, civil society stakeholders and any other sources. Various UN bodies have already gathered extensive documentation of serious violations and abuses of human rights and violations of humanitarian law committed in Sri Lanka, particularly during and after the conflict, which ended in 2009. Information and evidence collected will be reviewed and analyzed by OHCHR Sri Lanka accountability project…” (Frequently Asked Questions from OHCHR).

Therefore, by OHCHR’s own admission, the sources that gave information and evidence will fade into oblivion and the information and evidence that would be left would only be the “reviewed and analyzed version formulated by OHCHR”.

This in essence amounts to a tampered version of what the witnesses and other source furnished; a procedure that not only trivialises the sanctity of evidence but also denies access to witnesses; a fundamental right called for by Article 14 (3) of the ICCPR. Furthermore, the witnesses and sources that furnished information and evidence are NOT in a position to verify whether the evidence furnished by them accurately reflects the “analyzed” version of the evidence in the possession of the OHCHR. Thus the procedure adopted by the evidence gathering mechanism violates natural justice as understood by the community of nations.

Consequently, those responsible for alleged violations and abuses are denied the opportunity to challenge the authenticity of the evidence presented, because the procedure does not provide “for an accused before and during his trial all necessary rights and means of defence” as called for by 2 (a) of Part 6 of Additional Protocol II of 1977 that today is accepted as Customary Law. Furthermore, the procedure does not permit whether the evidence presented guarantees that alleged violations assure that no one is “convicted of an offence except on the basis of individual penal responsibility” as stated in 2 (b) of Part 6 of Protocol II. Under the circumstances, the fact that UNHRC Resolution 46/1 followed by Resolution 51/1 was endorsed by the HR Council and the Co-Chairs is not only beyond belief, but has also become jointly a party to what amounts to UNHRC’s Brand of warped justice because it violates International Law.

CONCLUSION

As stated by the OHCHR “the information and evidence collected will be reviewed and analyzed by OHCHR Sri Lanka accountability project ….” However, what is not disclosed is the extent and scope of the analysis undertaken by the OHCHR. For instance, what is not disclosed is whether the information and evidence under the evidence gathering mechanism takes into account the special circumstances associated with the Armed Conflict and the fact that certain Human Rights are derogated during the Emergency that operated from May 2000 to June 2010.

Consequently, the evidence analysed by the OHCHR would drastically differ from the evidence furnished by witnesses and other sources in the event the OHCHR took into account the special circumstances of the Armed Conflict and the imposed Emergency. On the other hand, if the evidence gathered is the raw evidence furnished by witnesses and other sources, the need for the OHCHR to “analyze” the evidence does NOT ARISE.

Therefore, the outcome of the analysis is to tamper with the raw evidence presented; a task that not only far exceeds the mandate under which the UNHRC is authorized to operate but also trivializes the sanctity of evidence on which Justice depends. This makes the evidence gathering mechanism initiated by the UNHRC justified grounds for rejection; a fact that Sri Lanka should bring to the attention of the Member State of the HR Council and take joint action for the benefit of all. Furthermore, co-sponsoring such an exercise casts a deep shadow on the brand of justice that is being attempted jointly by the UNHRC and its sponsors at a time when the credibility, competence and relevance of the UN and its Institutions are in serious question.



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Features

SL urged to use GSP+ to the fullest to promote export development

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Ambassador of the EU to Sri Lanka and the Maldives, Carmen Moreno and Chairman, Pathfinder Foundation Ambassador Bernard Goonetilleke

Sri Lanka needs to take full stock of its current economic situation and use to the maximum the potential in its GSP+ facility for export sector growth. In the process, it should ensure that it cooperates fully with the European Union. The urgency of undertaking these responsibilities is underscored by the issues growing out of the recent US decision to sweepingly hike tariffs on its imports, though differentially.

These were principal ‘takes’ for participants in the Pathfinder Foundation’s Ambassadors’ Roundtable forum held on April 8th at the Colombo Club of the Taj Samudra. The main presenter at the event was Ms. Carmen Moreno Raymundo, Ambassador of the European Union to Sri Lanka and the Maldives. The forum was chaired by Ambassador Bernard Goonetilleke, Chairman, Pathfinder Foundation. The event brought together a cross-section of the local public, including the media.

Ms. Moreno drew attention to the fact Sri Lanka is at present severely under utilizing its GSP+ facility, which is the main means for Sri Lanka to enter the very vast EU market of 450 million people. In fact the EU has been Sri Lanka’s biggest trading partner. In 2023, for instance, total trade between the partners stood at Euros 3.84 billion. There is no greater market but the EU region for Sri Lanka.

‘However, only Sri Lanka’s apparel sector has seen considerable growth over the years. It is the only export sector in Sri Lanka which could be said to be fully developed. However, wider ranging export growth is possible provided Sri Lanka exploits to the fullest the opportunities presented by GSP+.’

Moreno added, among other things: ‘Sri Lanka is one among only eight countries that have been granted the EU’s GSP+ facility. The wide-ranging export possibilities opened by the facility are waiting to be utilized. In the process, the country needs to participate in world trade in a dynamic way. It cannot opt for a closed economy. As long as economic vibrancy remains unachieved, Sri Lanka cannot enter into world trading arrangements from a strong position. Among other things, Sri Lanka must access the tools that will enable it to spot and make full use of export opportunities.

‘Sri Lanka must facilitate the private sector in a major way and make it possible for foreign investors to enter the local economy with no hassle and compete for local business opportunities unfettered. At present, Lanka lacks the relevant legal framework to make all this happen satisfactorily.

‘Sri Lanka cannot opt for what could be seen as opaque arrangements with bilateral economic partners. Transparency must be made to prevail in its dealings with investors and other relevant quarters. It’s the public good that must be ensured. The EU would like to see the local economy further opening up for foreign investment.

‘However, it is important that Sri Lanka cooperates with the EU in the latter’s efforts to bring about beneficial outcomes for Sri Lankans. Cooperation could be ensured by Sri Lanka fully abiding by the EU conditions that are attendant on the granting of GSP+. There are, for example, a number of commitments and international conventions that Sri Lanka signed up to and had promised to implement on its receipt of GSP+ which have hitherto not been complied with. Some of these relate to human rights and labour regulations.

‘Successive governments have pledged to implement these conventions but thus far nothing has happened by way of compliance. GSP+ must be seen as an opportunity and not a threat and by complying with EU conditions the best fruits could be reaped from GSP+. It is relevant to remember that GSP+ was granted to Sri Lanka in 2005. It was suspended five years later and restored in 2017.

‘The importance of compliance with EU conditions is greatly enhanced at present in view of the fact that Sri Lanka is currently being monitored by the EU with regard to compliance ahead of extending GSP+ next year. A report on Sri Lanka is due next year wherein the country’s performance with regard to cooperating with the EU would be assessed. The continuation of the facility depends on the degree of cooperation.

‘A few statistics would bear out the importance of Sri Lanka’s partnership with the EU. For example, under the facility Sri Lanka benefits from duty free access in over 66% of EU tariff lines. The highest number of tourist arrivals in Sri Lanka in 2023 was from the EU’s 27 member states. Likewise, the EU’s 27 member states rank second in the origin of inflows of foreign exchange to Sri Lanka; with Italy, France and Germany figuring as the main countries of origin. Eighty five percent of Sri Lanka’s exports to the EU market benefits from GSP+. Thus, the stakes for the country are high.’

Meanwhile, President, In-house Counsel & Legal Advisor, The European Chamber of Commerce of Sri Lanka, John Wilson said: ‘GSP+ should be seen as not only an opportunity but also as a necessity by Sri Lanka in the current international economic climate. ‘Implementation of local laws is what is needed. Considering the pressures growing out of the US imposed new tariff regime, a good dialogue with the EU is needed.

‘Sri Lanka’s level of business readiness must be upped. Among the imperatives are: An electronic procurement process, Customs reforms, a ‘National Single Window’, stepped-up access to land by investors, for example, a clear policy framework on PPPs and reform of the work permits system.’

It ought to be plain to see from the foregoing that Sri Lanka cannot afford to lose the GSP+ facility if it is stepped-up economic growth that is aimed at. It would be in Sri Lanka’s best interests to remain linked with the EU, considering the aggravated material hardships that could come in the wake of the imposition of the US’ new tariff regime. Sri Lanka would need to remain in a dialogue process with the EU, voice its reservations on matters growing out of GSP+, if any, iron out differences and ensure that its national interest is secured.

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SENSITIVE AND PASSIONATE…

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Chit-Chat
Chiara Tissera

Mrs. Queen of the World Sri Lanka 2024, Chiara Tissera, leaves for the finals, in the USA, next month

I had a very interesting chat with her and this is how it all went:

1. How would you describe yourself?

I am a sensitive and passionate individual who deeply cares about the things that matter most to me. I approach life with a heart full of enthusiasm and a desire to make meaningful connections.

2. If you could change one thing about yourself, what would it be?

Actually, I wouldn’t change a thing about myself because the person I am today, both inside and out, is the result of everything I’ve experienced. Every part of me has shaped who I am, so I embrace both my strengths and imperfections as they make me uniquely me.

3. If you could change one thing about your family, what would it be?

If there’s one thing I could change about my family, it would be having my father back with us. Losing him six years ago left a void that can never be filled, but his memory continues to guide and inspire us every day.

4. School?

I went to St. Jude’s College, Kurana, and I’m really proud to say that the lessons I gained during my time there have shaped who I am today. My school and teachers instilled in me values of hard work, perseverance and the importance of community, and I carry those lessons with me every day. I was a senior prefect and was selected the Deputy Head Prefect of our college during my tenure.

5. Happiest moment?

The happiest moment of my life so far has been winning the Mrs. Sri Lanka 2024 for Queen of the World. It was a dream come true and a truly unforgettable experience, one that fills me with pride and gratitude every time I reflect on it.

6. What is your idea of perfect happiness?

Happiness is a deeply personal and multifaceted feeling that often comes from a sense of contentment, fulfillment and well-being. For me, perfect happiness is in moments of joy, peace and accomplishments … and also being surrounded by my loved ones.

7. Are you religious?

Yes, I’m a very religious person. And I’m a firm believer in God. My faith guides me through life, providing strength, dedication and a sense of peace in every situation. I live by the quote, ‘Do your best, and God will do the rest.’

8. Are you superstitious?

I’m not superstitious. I believe in making my own decisions and relying on logic and faith rather than following superstitions.

9. Your ideal guy?

My ideal guy is my husband. He is compassionate, understanding and is always there to support me, no matter what. He’s my rock and my best friend – truly everything I could ever want in a partner.

10. Which living person do you most admire?

The living person I admire the most is definitely my mummy. Her strength, love and unwavering support has shaped me into who I am today. She is my role model and she inspires me every day with her wisdom and kindness.

11. Your most treasured possession?

My most treasured possession is my family. They are the heart of my life, providing me with love, support and strength. Their presence is my greatest blessing.

12. If you were marooned on a desert island, who would you like as your companion?

I would like to have my spouse as my companion. Together, we could make the best of the situation, supporting each other, sharing moments of laughter and finding creative ways to survive and thrive.

13. Your most embarrassing moment?

There’s quite a few, for sure, but nothing is really coming to mind right now.

14. Done anything daring?

Yes, stepping out of my comfort zone and taking part in a pageant. I had no experience and was nervous about putting myself out there, but I decided to challenge myself and go for it. It pushed me to grow in so many ways—learning to embrace confidence, handle pressure, and appreciate my own uniqueness. The experience not only boosted my self-esteem but also taught me the value of taking risks and embracing new opportunities, even when they feel intimidating.”

15. Your ideal vacation?

It would be to Paris. The city has such a magical vibe and, of course, exploring the magical Eiffel Tower is in my bucket list. Especially the city being a mix of history culture and modern life in a way that feels timeless, I find it to be the ideal vacation spot for me.

16. What kind of music are you into?

I love romantic songs. I’m drawn to its emotional depth and the way they express love, longing a connection. Whether it’s a slow ballad, a classic love song or a more modern romantic tune these songs speak to my heart.

17. Favourite radio station?

I don’t have a specific radio station that I like, but I tend to enjoy a variety of stations, depending on my mood. Sometimes I’ll tune into one for a mix of popular hits, other times I might go for something more relaxing, or a station with a certain vibe. So I just like to keep it flexible and switch it up.

18. Favourite TV station?

I hardly find the time to sit down and watch TV. But, whenever I do find a little spare time, I tend to do some spontaneous binge – watching, catching whatever interesting show is on at that moment.

19 What would you like to be born as in your next life?

Mmmm, I’ve actually not thought about it, but I’d love to be born as someone who gets to explore the world freely – perhaps a bird soaring across continents.

20. Any major plans for the future?

Let’s say preparing and participating in the international pageant happening in the USA this May. It’s an exciting opportunity to represent myself and my country on a global stage. Alongside this, I am dedicated to continuing my social service work as a title holder, striving to make a meaningful difference in the lives of others through my platform.

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Features

Fresher looking skin …

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The formation of wrinkles and fine lines is part of our ageing process. However, if these wrinkles negatively impact appearance, making one look older than they actually are, then trying out some homemade remedies, I’ve listed for you, this week, may help in giving your skin a fresher look.

* Banana:

Bananas are considered to be our skin’s best friend. They contain natural oils and vitamins that work very perfectly to boost our skin health. Skincare experts recommend applying the banana paste to the skin.

Take a ripe banana and mash a quarter of it until it becomes a smooth paste. Apply a thin layer of the banana paste on your skin and allow it to sit for 15 to 20 minutes before washing it off with warm water.

* Olive Oil:

Olive oil works as a great skin protector and many types of research suggest that even consuming olive oil may protect the skin from developing more wrinkles. Olive oil contains compounds that can increase the skin’s collagen levels. Yes, olive oil can be used as a dressing on your salads, or other food, if you want to consume it, otherwise, you can apply a thin layer of olive oil on your face, neck and hands and let it stay overnight.

* Ginger:

Ginger serves to be a brilliant anti-wrinkle remedy because of the high content of antioxidants in it. Ginger helps in breaking down elastin, which is one of the main reasons for wrinkles. You can have ginger tea or grate ginger and have it with honey, on a regular basis.

* Aloe Vera:

The malic acid present in Aloe Vera helps in improving your skin’s elasticity, which helps in reducing your wrinkles. Apply the gel once you extract it from the plant, and leave it on for 15-20 minutes. You can wash it off with warm water.

* Lemons:

Lemons contain citric acid, which is a strong exfoliant that can help you get rid of your dead skin cells and wrinkles. Also, as an astringent and a cleansing agent, it helps to fade your wrinkles and fine lines. You can gently rub a lemon slice in your wrinkled skin and leave it on for 10-15 minutes. Rinse afterwards and repeat this process two to three times a day.

* Coconut Oil:

Coconut oil contains essential fatty acid that moisturises the skin and helps to retain its elasticity. You can directly apply the coconut oil, and leave it overnight, after gently massaging it, for the best results.

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