Mandates of UN High Commissioner for Human Rights

By Neville Ladduwahetty-March 31, 2014 Paragraph 10 and 10 (b) of the US-proposed UN esolution !"# $ "%&"L'(" ev'1 that was passed in )eneva on *ar+h %,- %01.- /re0uests the 1ffi+e of the #igh $o22issioner of #u2an ights (1#$# )3 (b) 4o underta5e a +o2prehensive investigation into alleged serious violations and abuses of hu2an rights and related +ri2es by both parties in Sri Lan5a during the period +overed by the Lessons Learnt and e+on+iliation $o22ission and to establish the fa+ts and +ir+u2stan+es of su+h alleged violations and of the +ri2es perpetuated with a view to avoiding i2punity and ensuring a++ountability- with assistan+e fro2 relevant e6perts and spe+ial pro+edure 2andate holders/ 7uring a 2eeting on *onday between the 1#$# with N)1s- in the sidelines of the %&th session of the $oun+il- *s' Pillay stressed that the 1#$# /has the power to establish an international 2e+hanis2/ to investigate +ri2es- as it falls under the hu2an rights prote+tion 2andate of her offi+e' *s' Pillay is reported to have stated3 /Now apart fro2 +alling for an international investigation- we have interpreted our 2andate to say that the #igh $o22issioner herself has power to investigate a situation/' 8urther2ore- that /4his did +o2e out when we needed legal advi+e to see whether the Se+retary )eneral +an hi2self set up a panel on Sri Lan5a when as you 5now not a single inter-govern2ental foru2 had addressed the issue of the serious +ri2es +o22itted' 1bviously the fa+t that the Se+retary )eneral went again 2eans that we are very +lear that the UN does have these powers- be+ause it falls under the overall 2andate of prote+ting hu2an rights'/ (4a2il )uardian- *ar+h 1,- %01.)'

By *s' Pillay9s own ad2ission- the #igh $o22issioner has /interpreted/ the 2andate of the 1#$# as having the right to investigate alleged violations of hu2an rights' #owever- her /interpretation/ is not good enough for sovereign 2e2ber states to +o2ply' *e2ber states need 2ore than /interpretations/' *e2ber states need une0uivo+al state2ents that have legiti2a+y of the sort of a )eneral !sse2bly resolution' Until then- Sri Lan5a has no alternative but to appeal to the )eneral !sse2bly that +ondu+ting in0uiries into the internal affairs of sovereign states +annot be per2itted based on /interpretations/ by te2porarily-appointed individuals with no a++ountability' See5ing redress by appealing to the UN Se+retary )eneral (UNS)) as to the legiti2a+y of 1#$# 9s /interpretation/ would not serve any 2eaningful purpose :udging fro2 the +ondu+t of the Panel of ;6perts (Po;) appointed by hi2 in violation of his +o22it2ent to the President of Sri Lan5a when a :oint state2ent was signed by the2 in *ay %00<' !fter this latter state2ent- the UNS) stated on *ar+h %010 that3 /4he panel ( a2 establishing will advise 2e on the standards- ben+h2ar5s and para2eters- based on international e6perien+e that 2ust guide any a++ountability pro+ess su+h as the one in the :oint state2ent' Now this panel will report to 2e dire+tly and not to another body/' (nstead of establishing the /standards- ben+h2ar5s and para2eters/ he had +alled for- the UNS) +overtly san+tioned the Po; to +ondu+t a +landestine investigation and lea5 its findings to the publi+' 4he +ondu+t of the 1ffi+e of the UNS) and the i2age of the UN itself has been tainted by this entire episode' Under the +ir+u2stan+es- no 2e2ber state +an hope to rely on the i2partiality and ob:e+tivity of the UN or any of its organs su+h the 1#$# ' 4he 1NL= hope for 2e2ber states is to rely on their own strength in the )eneral !sse2bly' *!N7!4; 18 ;S1LU4(1NS .>"1.1 and ?0"%&1 Spa+e does not per2it the publi+ation of the full te6t of esolution .>"1.1 that establishes the 2andate of the 1ffi+e of the #igh $o22issioner for #u2an ights- and the full te6t of esolution ?0"%&1 whi+h establishes the 2andate of the #u2an ights $oun+il' #owever- a +areful review of its provisions reveals that nowhere in these provisions is there a 2andate given for /investigation/' 4he reason for e6+lusion of su+h a provision 2a5es sense be+ause the 1#$# or any other body +annot +arry out 2ultiple fun+tions that +onfli+t with ea+h other' 8or instan+e- the 1#$# is e6pe+ted to pro2ote and en+ourage respe+t for hu2an rights and 2onitor and report the hu2an rights situation in 2e2ber states while 2aintaining /prin+iples of i2partiality- ob:e+tivity and non-sele+tivity- in the spirit of +onstru+tive international dialogue and +ooperation-/ as stated in the prea2ble of esolution .>"1.1' (f- in addition the 1#$# is also 2andated to +ondu+t /investigations/- the spirit of engage2ent to pro2ote hu2an rights would be +learly +o2pro2ised' !n agen+y whose pri2ary fun+tion is to pro2ote and en+ourage hu2an rights- needs to develop a relationship of understanding and +ooperation with the 2e2ber states@ a relationship that would be severely +o2pro2ised if it were to engage in /investigations/ as well' 4he stated pri2ary fun+tion of pro2oting and en+ouraging hu2an rights would be +o2pro2ised- as has been de2onstrated already in Sri Lan5a9s relationship with the UNS) and 1#$# '

8urther2ore- +onsidering the fa+t that paragraph A (a) of .>"1.1 re0uires the 1#$# to /!nd paragraph A states3 / 8un+tion within the fra2ewor5 of the $harter of the United Nations- the Universal 7e+laration of #u2an ights- other international instru2ents of hu2an rights and international lawin+luding the obligations- within this fra2ewor5- to respe+t the sovereignty- territorial integrity and do2esti+ :urisdi+tion of StatesB/- it is realisti+ally not possible for e6ternal agen+ies su+h as the 1#$# to also investigate violations within +ountries without i2pa+ting on the do2esti+ :urisdi+tion of 2e2ber states' (nvestigating hu2an rights violations by an e6ternal agen+y su+h as the 1#$# as +alled for in the resolution would be no different to investigations relating to internal law and order being +ondu+ted by e6ternal agen+ies without +ausing disrespe+t to the do2esti+ :urisdi+tion of 2e2ber states@ an obvious i2possibility' Si2ilar standards of i2partiality and ob:e+tivity are re0uired by the UN #u2an ights $oun+il' 8or instan+e- paragraph . of esolution ?0"%&1 states3 /7e+ides further that the wor5 of the $oun+il shall be guided by the prin+iples of universality- i2partiality- ob:e+tivity and non-sele+tivity- +onstru+tive international dialogue and +ooperation- with a view to enhan+ing the pro2otion and prote+tion of all hu2an rights B/' 4hese words ring hollow +onsidering the fa+t that the re+ently passed resolution e6pands the s+ope of the 2andate of the 1#$# to authoriCe it to /investigate/ hu2an rights situations in Sri Lan5a with the assistan+e of /e6perts and spe+ial pro+edure 2andate holders/ who- being hand- pi+5ed individuals with dubious loyalties- would not have the i2partiality and the ob:e+tivity to 2eet guidelines set for the 1#$# ' (nstead- their loyalty and a++ountability would be to the 1#$# ' $onse0uently- one +ould be +ertain that out+o2es would be predeter2ined' (f the fates of sovereign states and their +itiCens are per2itted to be deter2ined by su+h individuals it would be the biggest hu2an rights violation of all- as de2onstrated by the highly pre:udi+ed report of the Po; on Sri Lan5a' 4hese +ir+u2stan+es are +oupled with the fa+t that the 1#$# does not have the needed resour+es to be independent and free of pressures and the influen+e of the sour+es that finan+e these /investigations/' 4hus- out+o2es of /investigations/ would inevitably not have the i2print of i2partiality and ob:e+tivity' (n a ba+5ground where investigations are +o2pro2ised due to la+5 of independen+e- as well as these investigations being +arried out by individuals who are biased or have no +redibility- the vulnerability of states are at sta5e' 4he pre+edent set would enable the 1#$# to sele+tively pi+5 a2enable 2e2ber states to report on hu2an rights situations in +ountries and re+o22end that /investigations/ be +ondu+ted to suit the geopoliti+al strategies of Powers that have a fir2 grip on the 1#$# and its wor5ings' 7espite protests by so2e 2e2ber states that the resolution violates the 2andate granted to the 1#$# and the # $oun+il- other representatives of )overn2ents have 2aintained that the 1#$# and the # $oun+il have the 2andate to /investigate/ # violations' 4he very fa+t of a la+5 of +onsensus on this vital issue +onfir2s that the fates of 2e2ber states +annot be per2itted to be left to /interpretations/- but has to be based on 2andates definitively granted by the )eneral !sse2bly'

$1N$LUS(1N esolutions .>"1.1 and ?0"%&1 do N14 in any way definitively grant the 1#$# or the # $oun+il the 2andate to /investigate/ alleged # violations in 2e2ber states' $lai2ing su+h authority based on /interpretation/ by the #igh $o22issioner"UN# $ is una++eptable' Dhat is a++eptable is a )eneral !sse2bly resolution granting su+h authority if su+h is its view' (n the absen+e of su+h a definitive resolution- for the UN# $ to authoriCe the #igh $o22issioner to /investigate/ is in +lear violation of the need for i2partiality and ob:e+tivity 2andated under the +urrent )eneral !sse2bly esolution ?0"%?1' 4here is no 2e+hanis2 for 2e2ber states to appeal or see5 a definitive interpretation as to whether +urrent s+ope of the 2andate as stated in esolutions .>"1.1 and ?0"%?1 authoriCes /investigations/' !ppealing to the UNS) would be a futile e6er+ise +onsidering his unprofessional +ondu+t in the appoint2ent of the Po; who were supposed only to /set standards- ben+h2ar5s and para2eters/ to guide an investigation- but instead +arried out a +landestine investigation and 2ade its findings publi+' (n this va+uu2- the 1#$# has interpreted and arrogated to itself the right to /investigate/ alleged violations in Sri Lan5a' Under the provisions of the resolution the investigative pro+ess would be +ondu+ted by /e6perts and spe+ial pro+edure 2andate holders/' 4hese individuals are a++ountable only to the 1#$# who engages the2' 4o e6pe+t i2partiality and ob:e+tivity fro2 su+h individuals is a vain hope' Sin+e representatives of so2e govern2ents +lai2 that su+h investigative powers have been used previously- it is all the 2ore ne+essary that 2e2ber states band the2selves together to prevent this +ontinued abuse of power based on /interpretations/' Not to a+t is to allow the institution of the UN to be hi:a+5ed by individuals whose +ondu+t does not 2eet the guidelines set by the )eneral !sse2bly' Sin+e the UN )eneral !sse2bly is si2ilar to a Parlia2ent of 2e2ber states- violating its powers is an affront to its very e6isten+e@ a fate that would be no different to the previous $o22ission for #u2an ights that was abandoned due to its ineffe+tiveness through politi+iCation' 4herefore- Sri Lan5a should with the support of the 2e2ber states that opposed the esolutionand those that abstained- engage in a +olle+tive effort to initiate a resolution in the )eneral !sse2bly to deny the 1#$# and the # $oun+il the 2andate to /investigate/ hu2an rights situations in 2e2ber states- be+ause it violates the prin+iple of intervention in 2atters relating to issues of do2esti+ :urisdi+tion- +learly re+ogniCed and e2phasiCed in the UN $harter' (t is i2perative that issues relating to do2esti+ :urisdi+tion should not be left to /interpretations/ by individuals and their handy2en' (f left un+hallenged the banner of hu2an right s would be used
to dis2antle states that stand in the way of fulfilling their /2anifest destiny/'