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“As the health crisis is eroding economic and social stability, a functioning judiciary is more essential than ever”- Justice Iddawala



Address by Justice Neil Iddawala at the ceremonial sitting of the Court of Appeal held on 24th March 2021.

Thank you, Mr. Attorney General and Mr. Kalinga Indatissa for your kind and stimulating words. May I commence by thanking you all for honoring me by your presence. I consider myself privileged to be a Justice of the Court of Appeal at a time of unprecedented challenges for the justice system not only in Sri Lanka but across the world created by the COVID-19 pandemic.

Locking down courts might be necessary to protect the health and safety of justice professionals and court users but the challenge is to do this in a careful manner as it results in an important limitation of access to justice and further case backlogs. More attention than ever before must be paid to due process and fair trial standards if courts are unable to hold trials in person.

The functioning of the courts with regard to case management systems and data collection is a special challenge during this health crisis. Judges, Registrars, court officials, should continue to monitor and manage cases according to their responsibilities, even remotely. ICT offers the opportunity for the functioning of justice systems to continue functioning during the health crisis.

Online services and strengthening access to information through court websites and other means of communication such as phone, email, etc. can help maintain justice services and provide access to justice by alternative means. In applying ICT to expedite cases, courts must be careful to minimize the digital gap so that due process and fair trial rights are satisfied and access to justice on all matters is guaranteed including respect for fundamental rights, judicial independence, principles of a fair trial, cyber security and protect legitimacy of judicial proceedings.

The new innovations make judicial training even more important and judicial training should adapt to the emerging needs, including the use of IT. New curricula should be developed to support justice professionals during and after the health crisis. Specific training on teleworking, use of digital platforms for meetings and hearings, access to the internet, should be provided for justice professionals. Famous American Chief Justice, John Marshal observed that “the judicial system comes home in its effects to every man’s fireside; it passes on his life, liberty, property and everything”.

Laws delays is a perennial problem in our courts and to deal with delays and remedies in general, the judiciary can use the current situation to innovate ways in which on line solutions can be used to resolve backlogs. This should also include reviewing different levels of courts have been impacted differently and, if so, in what ways. Prosecutions of minor offenses, civil or commercial cases, could be postponed in this streamlining process. Matters oriented to protect rights, when serious crimes are committed including corruption connected to this crisis and cases of domestic violence should receive prior attention and space. Where and how to report abuses, using current online technologies must be addressed and urgently implemented.

A crisis requires immediate and urgent response. However, any kind of reaction to the crisis must be strictly based on the principles of the Rule of Law and must respect and protect human rights. Emergency measures must respect the principles of legality, legal certainty and proportionality and need to be constantly re-evaluated. Poor and vulnerable groups will be the most affected by the health and economic consequences of COVID 19. This is an opportunity for justice sector to adopt a people-centered approach to justice, to remove barriers to innovation and technologies that can further improve the way in which justice is delivered.

Transforming the judiciary for the future should maintain the necessary dialogue between all segment in the justice system and to take advantage of the new relations created between judges, court staff, lawyers, and other judicial experts to improve access to justice. As the health crisis is eroding economic and social stability, a functioning judiciary is more essential than ever. As William Penn, a well-known nobleman, writer and early advocate of Justice and Religious Freedom, stated “Justice is the insurance we have on our lives, and obedience is the premium we pay for it”.

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A post-mortem of Gotagogama



By Uditha Devapriya

Sri Lanka is still living with the consequences of Gotabaya Rajapaksa’s presidency, partly because his government has not left and partly because resistance to it, though repressed, is still alive. Under Ranil Wickremesinghe the State has asserted its will and imposed it on those who disagree with it. It has arrested protesters without as much as a blink of an eye from those who walked to Gotagogama. Today their (mostly middle-class) supporters have relapsed into silence, seemingly getting on with their lives.

When protests began in early March, I predicted that sooner or later, middle-class calls for IMF reforms would sour. While a section of the middle-class still bats for those reforms, the lower middle-classes have been so battered by price hikes and tariff revisions that they have wavered. Still, even they couch their hatred of such reforms in the rhetoric of resistance to political corruption. Sri Lanka’s middle-classes do not appear politically mature enough to take the leap from that sort of resistance to opposition to neoliberal reforms.

Sri Lanka’s middle-classes tend to sway from one extreme to another: from wholehearted support for the yahapalana regime, for instance, they shifted to Gotabaya Rajapaksa and his brand of Bonapartist nationalism. They are also so disenchanted with local institutions, particularly political institutions, that they believe any alternative is better than what we have. This explains their newfound love for the IMF, and their inability to translate their hatred of IMF reforms into a coherent critique of those reforms. Instead they have directed the brunt of their anger, not on the institution demanding such reforms, but the institutions enforcing them. This is a curious contradiction, and it needs examining.

The protests against Gotabaya Rajapaksa’s government did not begin in March and April. One of that government’s biggest blunders was its fertiliser policy. As Dayan Jayatilleka has pointed out, the policy cost the regime its peasant heartland, a loss it could never hope to regain. The peasantry and the (predominantly Sinhala and Buddhist) middle-classes made up the biggest pillars of support for the government. It was these constituencies that gave the SLPP a two-thirds victory in 2020. The government had no better strategy for losing its momentum than losing these bases. This is what it began doing in 2021.

The class composition and preferences of these groups have not been seriously examined. The peasantry had been hit hard by the import bans. Yet what caught the headlines wasn’t farmer protests, but corporate opposition to those bans: in effect, the big estates and farms that would lose the most from the government’s policy. The outcome of such policies was to bring together a diverse array of class interests, which would otherwise not have united and coalesced into a resistance movement. The anger of the farmers was apparent enough, but it was left to corporate and middle-class elements to articulate it fully.

For obvious reasons, attitudes to neoliberal economic reforms differ from social class to social class. While the rupee was artificially pegged, and petrol was still going for less than 200 rupees a litre, the lower middle-classes felt no need to oppose such reforms, even as they were being imposed on the peasantry and the urban poor. When IMF reforms finally saw the light of day, they changed their tune. It was this that led to the peak in the protests between June and August. Once petrol prices hiked and shortages ensued in late June, the middle-class felt it had nothing to lose. So they walked to Gotagogama.

I have mentioned several times, in this column, that the ideological preferences of the bulk of the demonstrators at Gotagogama did not bear out progressive-liberal perceptions of the protests and the protesters. The UN Human Rights Council’s situation report on Sri Lanka, titled A/HRC/51/5, implies that the bulk of these protesters demanded accountability from the government. True as this may be, the document does not capture the essence of those demands. The reality is that middle-class perceptions of accountability, and transparency, differ considerably from liberal progressive definitions of such concepts. To put it bluntly, the call at Gotagogama was not so much the establishment of institutional mechanisms, as the restoration of fuel and gas supplies and uninterrupted electricity.

I am not suggesting here that the protests were regressive and reactionary, though at times they were almost that – particularly when their opposition to the political leadership in the country took on homophobic dimensions, as I personally witnessed on July 12. Yet, again as I have mentioned in this space, the Gotagogama demonstrations never fitted in with liberal progressive narratives that framed them as a mass, courageous, youth-driven and youth-led uprising. The youth themselves, who formed the crux of the protests, hardly ever bore out such stereotypes. Their class composition aside, the racial dimensions of the youth were so evident that one would have to be wilfully blind to ignore the cynical commentaries on the protesters authored by sections of Tamil civil society.

My point is that these divisions were never appreciated or understood when the protests gained steam. Had we taken stock of them, they would not have fragmented so soon. The middle-class’s confused attitude to IMF reforms should inform us that they are, as yet, not mature enough to take on the task of critiquing local and international institutions, including political institutions. Their resistance to power and privilege is couched in populist calls for personality and system changes. The task of the Left, particularly the New Left (the JVP and the FSP), is to transform these popular calls into a larger, broader programme, one that can carry the protests forward and ensure a leftward tilt within the middle-class. There are signs that the New Left is doing this. But more needs to be done. Much more.

The writer is an international relations analyst, researcher, and columnist who can be reached at

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The Draft Resolution: Can the UN help with Systemic Corruption & Economic Crimes?



By Sanja de Silva Jayatilleka

At the informal consultations held on September 16, it is reported that the government had objected strongly to the Resolution now being drafted on Sri Lanka in Geneva, while however, proposing amendments to dilute it. This latter move indicates that its reading of the balance of support at the Council is that the resolution could be adopted at a vote, despite GoSL’s rigorous objections. The draft resolution now in the public domain includes many references to Sri Lanka’s “on-going economic crisis” and proposes ways to prevent its repetition.

In an Operative Paragraph (paragraphs that calls for some action), it “Calls upon the Government of Sri Lanka to address the ongoing economic crisis and help ensure it does not happen again, including by investigating and, where warranted, prosecuting corruption, including by public and former public officials, and stands ready to assist and support independent, impartial, and transparent efforts in this regard”.

The phrase “Calls upon” is the strongest language that can be used in the operative paras, which differentiates it from other language such as “urges”, “encourages” or “expresses concern”.

Noteworthy is the offer of the Office of the High Commissioner which “stands ready” to support a properly constituted investigation on corruption. With the resources at its disposal, including the Special Rapporteurs and other expert mechanisms, it is an offer that such an investigative body should avail itself of. Regardless of Sri Lanka’s response to the offer, the Resolution itself will give the Office of the High Commissioner the authority to gather evidence of such violations as part of its Sri Lanka Accountability Project:

“Requests the Office of the High Commissioner to enhance its monitoring and reporting on the situation of human rights in Sri Lanka, including …on the human rights impact of the economic crisis and corruption, and to present oral updates to the Human Rights Council…”

This gathering of evidence on Sri Lanka, which has been ongoing for several months, including the already completed uploading of the various existing databases of human rights violations to a single location at the OHCHR, will include data on corruption and other violations of economic rights including corruption. The draft Resolution bases its recommendations on its observation of the deteriorating economic situation in Sri Lanka which it describes in one of its paragraphs:

“Expresses concern at the human rights impacts of the economic crisis, including as result of increased food insecurity, severe shortages in fuel, shortages in essential medicines and reductions in household incomes, while stressing the need to promote and protect the rights of the most marginalized and disadvantaged individuals, including daily wage earners, children, older persons, and persons with disabilities.”

This is pretty comprehensive and accounts for the major violations of the implicit social contract between the citizens and the government. It is beyond question that “food insecurity” was not due to a dearth of dollars. Anyone with a TV saw how many farmers cursed the government on the evening news well ahead of the actual event, very clearly articulating that the country will be short of food following the new fertilizer policy, and the false promises of a magical organic variety, not to mention cash compensation for any shortfall. Their warnings and their curses were more explicit than any resolution could be, but were ignored.

“Severe shortages of fuel” had severe consequences, including several deaths while hapless citizens stood in queues, some including fishermen and farmers, three wheel-wheel drivers et al, unable to practice their livelihoods, leading to “reductions in household incomes” or eliminating the opportunity for any income at all in some cases. As the parliamentary COPE committee found out, the reason for the shortages had more than one reason, uncovering corruption of major proportions over many years. That the prorogation of Parliament made the COPE reports not actionable cannot make the citizens not see the proceedings and its revelations.

More pitifully, “shortages of essential medicines” has its own very unsavory story attached. A private TV station reported this week those responsible for the procurement of essential medicines were clearly unaware of the medicines that were in short supply at the various hospitals nor able to provide them on time. It was reported that an elaborate IT system for efficient procurement was in the making for five years at great cost and yet was incomplete at the end of that period and therefore, a new system was now in the process of being constructed.

This is hardly a surprise when the public was treated to the spectacle only a few months ago of an entire database of approvals for procurement of medicines, especially created according to government specifications mysteriously got wiped out completely, with no back up of that information! That this was in the aftermath of public concern over corruption during imports of Covid related medical supplies, didn’t do anything to reassure the long-suffering public that corruption which seemed to have permeated the entire system had any chance of being arrested. Instead, arrests are on-going of those who dare to protests against these practices which brought the country to bankruptcy adding to the already miserable lives of the people.

Preventing Terrorism

The arrests of some protesters are made, with the full knowledge and concurrence of the President of the country, under the Prevention of Terrorism Act. The Resolution takes due note of this situation:

“Also expresses concern over other human rights developments since April 2022 including violence against and arrests of peaceful protestors…”

“Takes note of the introduction of amendments to the Prevention of Terrorism Act in March 2022, that detentions under this legislation continue to occur…”

There has been a massive public outcry against the recent arrests under the PTA of student activists who were prominent participants of the Aragalaya against the government. These arrests are seen by the public as being politically motivated and insidiously so, as the economic crisis deepens.

Surely, the government cannot think that it is part of their counter-terrorism strategy to arrest these protesters, where there have been no victims of terrorism. The usual excuse trotted out is the recent burning of the private residences of parliamentarians as the reason for the use of the PTA convinces no one, because these student activists were not by any stretch of the imagination implicated in those acts.

There is another zero draft, this time in the ‘thematic’ category, at the current session of the UN Human Rights Council on Terrorism and Human Rights. The draft includes the following:

“Notes with concern the measures that undermine human rights and the rule of law, such as the detention of persons suspected of acts of terrorism in the absence of legal basis for detention and due process guarantees, the use of torture, the unlawful deprivation of the right to life and other human rights and fundamental freedoms, and urges States to review the grounds of detention and to respect the rights to equality and non-discrimination in the administration of justice, and to a fair trial, as provided for by international law, including international human rights law, and, as applicable, international humanitarian law and international refugee law” and “Stresses the importance of ensuring access to justice and accountability, and calls upon States to ensure that any person who alleges that their human rights or fundamental freedoms have been violated by measures taken or means employed to counter terrorism or violent extremism conducive to terrorism has access to justice, due process and an effective remedy, and that victims of human rights violations and abuses receive adequate, effective and prompt remedy and reparations, which should include, as appropriate, restitution, compensation, rehabilitation and guarantees of non-repetition as a fundamental basis of any strategy to counter terrorism and violent extremism conducive to terrorism.”

Perhaps Sri Lanka’s Commission of Human Rights will take note.

IMF and Human Rights

The Resolution on Sri Lanka welcomes the staff level agreement between the IMF and the government. Yet in the Sri Lankan parliament, the government claims that there is no agreement yet, even though it may come as news to the IMF team which concluded their discussion in Colombo recently with a media briefing. Perhaps the Resolution ought to hold off on congratulating the government on that one since the government itself is claiming that they have failed to reach an agreement yet.

The Opposition has continued its calls for a transparent process in which parliament is given access to the contours of what was widely believed was a staff level agreement. The government is resisting those calls, with the Speaker claiming that the President is not in possession of any signed agreement which when finally presented to Cabinet, will be discussed in parliament. This is filibustering, clearly to postpone revealing more bad news to the people under severe economic strain. Why would the government care if not for electoral reasons?

This whole pile of economic garbage fell on the people due to government mismanagement, inefficiency and corruption. And yet, these people who couldn’t manage to steer the country safely through the recent storms are hoping to design a recovery package without any review by parliament, in time to prevent further exacerbation.

This administration has been referred to as the ‘40 thieves’ in the story of Ali Baba on more than one occasion on social media, to popular cheers, showing little confidence in their ability to implement any such plans, including privatization of state enterprises. They are sitting atop a massive public service for sure. Given the irregularities in the government financial statements discovered by its own Auditor General, I’d suggest that they move the vast majority into the Auditor General’s Office, empower him to prosecute the criminally corrupt, also using the Office of The High Commissioner for any resources and training, and more importantly, start proceedings to recover the stolen assets with the help that they have offered in the resolution. Sri Lankan people have every reason to critically support this draft resolution, for most of its content.

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Are economic crimes none of their business?



By Sanja De Silva Jayatilleka

Foreign Minister Ali Sabry, addressing the United Nations Human Rights Council (UNHRC) in Geneva last week said in no uncertain terms that any reference to ‘economic crimes’ was beyond the Human Rights Council’s mandate:

“It is observed that the UN Acting High Commissioner for Human Rights has tabled a report on Sri Lanka that makes extensive reference to economic crimes. Apart from the ambiguity of the term, it is a matter of concern that such a reference exceeds the mandate of the Office of the United Nations High Commissioner for Human Rights (OHCHR).”

To be fair, it is probably the new Foreign Minister’s first time at the Council. The Council has thus far been primarily concerned with matters such as the conduct of the armed forces during the last stages of Sri Lanka’s war with the LTTE.

The term ‘Economic Crimes’ was included in relation to Sri Lanka at the Council for the first time, and introduced in the report of the High Commissioner on the Human Rights Situation in Sri Lanka on the first day of the ongoing sessions. It was an unfamiliar allegation, and rightly so, up until now.

Equal Rights

The UNHRC Mandate which was challenged by Foreign Minister Sabry, was decided by the well-known United Nations General Assembly Resolution 60/251. The Preamble of the Resolution recalls in addition to the Universal Declaration of Human Rights, “the International Covenant on Economic, Social and Cultural Rights and other human rights instruments and reaffirms that all human rights are indivisible, interrelated, interdependent and mutually reinforcing.” It also states that they should be treated in an “equal manner”, “on the same footing” and “with the same emphasis”.

In the Operative paragraphs, UN Resolution 60/251 emphasizes the point further by stating that the Council is responsible for all human rights “without distinction of any kind“.

It was clearly established at the very inception of the Council that Economic, Social and Cultural Rights were human rights and it had the responsibility to review any violations of those rights with equal concern as that of other human rights. Sri Lanka is a state party to the International Covenant on Economic Social and Cultural Rights. The Covenant recognizes that:

“In accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights…”

I’d say the UNHRC and the OHCHR added two and two together and came up with an accurate four, in deciding that economic rights are definitely within their purview and indeed that they were obliged to review any violations of the said rights.

If it looks like a crime…

But has a violation of that right occurred? The bulk of the Sri Lankan public would give a resounding yes, never mind the technicalities. If things don’t improve, they are likely to do so louder and clearer in the form of an ‘Aragalaya’ before long. Regular repression and arrests of protesters have done little to discourage a people who have seen their livelihoods disappear together with their rice and vegetables due to government policies. No legalistic quibble will prevent a starving people from holding their leaders accountable for the povertization of the country (not to mention bankrupting its Central Bank) in the midst of regular warnings by economic experts.

The Sri Lankan state knew of its commitment internationally to ensure the welfare of the people and the upholding of all their human rights when it signed up to the Covenant on Economic, Social and Cultural Rights.

Article 11 of the Covenant starts with the recognition of the citizens’ economic rights, especially right to food:

“1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.”

However, under the Gotabaya Rajapaksa presidency, production methods were not improved but destroyed. An extremely consequential decision such as the overnight and complete banning of chemical fertilizer in a country that had farmed with chemical fertilizer for decades, whose farmers had been encouraged to do so by successive governments, whose soil was long oriented for farming in that manner, surely counts as an economic crime especially when the effects of this and other policy decisions have resulted in malnutrition among a large segment of the children of the country while a large percentage of the adult population are unable to afford three meals a day.

Speaking to ABC Australia, a UNICEF representative had said of Sri Lanka that “seven out of 10 families are cutting down their food intake to mitigate the crisis… Accordingly, those who were having three meals had decreased to two, while those who were eating two meals had declined it to one. “

UNICEF had further stated that “1.7 million children in Sri Lanka…are at risk of dying from malnutrition-related causes…While Sri Lanka has the second-highest rate of acute malnutrition among children under five-years in South Asia, at least 17% of children are suffering from chronic wasting, a disease that carries the highest risk of death.”

There’s a hole in the Budget

This sudden plunge wasn’t due to a great flood, a drought, a war, or freak accident like a meteor hitting us dead centre. We were a middle-income country, until several policy decisions, now internationally described as economic crimes, were perpetrated on the people. This is certainly no international conspiracy to discredit Sri Lanka. If only the allegation had no basis in fact! All we would have had to do then is summarily deal with the Office of the High Commissioner and the Council in the strongest terms and go back to our middle-income lives.

Lived experience currently dictates otherwise. A once thriving country is now avowedly bankrupt. One has only to review the Auditor General’s report on Public Debt control 2018-2022 to confirm that the government was in dereliction of its financial responsibilities in addition to other misdeeds, such as corruption.

For a while, the government didn’t even know how much they owed their international creditors, according to the international press. The Auditor General’s report tabulates several millions in hidden debts which were not properly recorded in the accounts of the Ministry of Finance. The Auditor General recommends that the “Central Bank of Sri Lanka should take steps to verify the accuracy of information on foreign debts other than international sovereign bonds contained in the reports obtained through the Commonwealth Debt Reporting and Management System …maintained by the Ministry of Finance.”

How big and deep is the hole we are in? Apparently, we have no way of knowing!

The Auditor General felt the need to include the following in his recommendations:

“Borrowings should be made within the maximum borrowing limits set under the Appropriation Act and the Active Liability Act (Reference: Paragraph 2.2.3) …”

“Adequate and necessary disclosures should be made in compliance with the Accounting Standards so that an accurate understanding of the overall debt liability of the Government can be obtained through the use of Financial Statements of the Government.”

“In obtaining commercial loans at higher interest rates from the foreign financial institutions or market by the government or on government guarantees, limiting of taking those loans only to projects which will generate income in future by investing those funds and decide to take those loans after carrying out a formal cost benefit analysis.”

The general public would be under the impression that this sort of basic advice would have been given in 1949, when the Central Bank was first established, not in the 21st century to a middle-income country with no dearth of qualified accountants. Now in receipt of some assurance of IMF assistance, this system which operated in the dark, hurtling towards disaster, isn’t sure if it should reveal the details of its agreed programme for any kind of review.

Throwing more light on the state of financial mismanagement, the Auditor General had recommended that action should be taken to include “all information that should be contained in the budget, the economy and the financial position report to be presented to Parliament in terms of the Fiscal Management (Responsibility) Act, No.3 of 2003”.

What does this mean? That Parliament, which ought to bear responsibility for financial decisions, had less than complete information when they voted for the various decisions. It also recommends to the Finance Ministry that it identifies “the significant variations in certain information in the annual report of the Ministry of Finance and the public financial information contained in the Financial statements of the Government” and to correct them accordingly.

The primary Ministry responsible for handling the country’s finances had huge holes in its accounts but had no idea they were there, nor what they might be.Wagging his finger right in its face, the Auditor General admonishes the Ministry of Finance that realism should play a role in its estimates of Revenue and also its expenditure.

The Ministry seems to have bypassed parliament altogether when they realized their mistakes and made adjustments, without the approval of parliament, which was blissfully unaware that they would be held responsible for things they didn’t do. Thus perhaps, the recent chant of the people that all 225 should go! One hopes that the Auditor General’s recommendation that a mechanism be developed to obtain approval of Parliament when wrong figures previously presented are revised, has now been implemented.

Neither caring nor sharing

The OHCHR has naturally recommended that any international financial agreements should be evaluated for their impact on human rights. The IMF itself has insisted that corruption vulnerabilities should be minimized. Not a ringing endorsement of either the officials or the politicians involved. All in all, none of these paints a reassuring picture of a government which knows what it’s doing, or is apologetic for past mistakes. It just helped itself to a massive cabinet which is reportedly scheduled to expand amidst an unprecedented cash crunch.

The people of this country, especially its youth who have most to lose, either ran for the door or toughed it out at the Aragalaya and threw an administration out, armed only with desperation. There’s evidently more suffering to come, and the new President is determined that people shouldn’t protest about it. He has dusted off legislation that the state promised the UN will be subject to a moratorium, and is busily arresting protesters under the Prevention of Terrorism Act. Armed with a majority in parliament, the government is unlikely to change course. The people will be grateful that in Geneva, the UNHRC seems to care enough to hold the government responsible.

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