The ABC of OHCHR

by Dr. Gamini Ilangakoon

The Human Rights Council (HRC) is an inter-governmental body within the United Nations. Its fundamental duty is to protect and promote human rights globally according to the Charter of the United Nations. Under the UN Charter, protecting, promoting and urging respect for human rights of everyone with no discrimination remains its key operation.

UNHRC Headquarters in Geneva Pic: UN Wire

The HRC, as an inalienable affiliation of UN and its associated institutions, structures and procedures which are meant to achieve the above stipulated purposes globally.

All the members of HRC are members of the United Nations and they comprise 47 Member States as at 2015. The membership is granted for a term of three years by the UN General Assembly.

The OHCHR stands for the ‘Office of the High Commissioner on Human rights.’

Modus operandi

The HRC has a powerful and comprehensive human rights mandate. The OHCHR strongly and objectively speaks against human rights infractions in the multitudinous international domains. The very global forum, needed for the identification, highlighting and development responses to contemporaneous challenges of human rights, is provided by the HRC.

OHCHR’s work has three major dimensions: Standard setting. Monitoring and implementation on the ground

The operational activity within the above three realms takes place through the offering of expertise and substantive and secretariat support to different UN human right bodies, when their standard setting and monitoring duties are discharged. The HRC endeavours to ensure that these international human rights standards are implemented on the ground level through greater country involvement and HRC’s field presences.

The HRC associates itself with governments, civil society, domestically operative human right establishments, other UN entities, international organizations, private sector and others.

HRC Resolution on Sri Lanka

There were three resolutions.

The last resolution adopted by HRC relating to Sri Lanka was A/HRC/25/1. It is dated back to March 2014 and was entitled ‘Promoting reconciliation, accountability and human rights in Sri Lanka’. The HRC requested the UN High Commissioner for Human Rights to undertake a comprehensive investigation on alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka, during the period, covered by the LLRC. Besides, it has been asked to establish facts and circumstances of such violations and of the crimes perpetrated to ensure impunity and avoiding accountability.

The High Commissioner was required to present an oral update at the 27th Session of the HRC and a comprehensive report on the investigation at its 28th Session. Accordingly, the OHCHR Investigation on Sri Lanka (OISL), based in Geneva, was established.

The investigation covered the period beginning from February 21, 2002 and ending on the November 15, 2011. This is the time-frame, covered by the LLRC.

Legal foundation

The mandate involves both, the Government of Sri Lanka and the LTTE. It delegated power to undertake the investigation on alleged serious violations and abuses of human rights and related crimes which violate International Law in general and international Human Right and Humanitarian Law in particular.

The legal foundation that underlies the prescribed investigation will comprise all obligations assumed by Sri Lanka under international human rights treaties and those applicable under customary international law. The LTTE is a non-state actor and as such, cannot formally become a party to international human rights treaties. It is now increasingly accepted that non-state groups exercising de fact control over a part of the State’s territory must respect certain human rights obligations of persons in that territory. The investigation mandate also required the investigative team to apply international criminal law to the incidents and events under investigation.

The legal ground, on which the UN Resolution is based, is reflected in Sri Lanka’s engagement in legal reforms, to make the domestic jurisdiction compatible, to the international legal norms and principles contained in the global conventions already ratified. The amendment to the Citizenship Act to enable a child to obtain citizenship through the mother and the adoption of the Domestic Violence Act are two examples.

Besides, Sri Lanka has already accepted the UN’s right of scrutinization and acted in compliance with its international human rights obligations. It is further clarified by Sri Lanka’s long legacy of submitting reports on periodic reviews, to the UNHRC.

It is noteworthy that both the state actors and non-state actors under the international humanitarian law are accountable for transgressions.

In June 2014, the High Commissioner appointed three experts, Martti Ahtisaari, former President of Finland, Silvia Cartwright, former High Court judge of New Zealand, and Asma Jahangir, former President of the Human Rights Commission of Pakistan, to play a supportive and advisory role, as well as independent verification throughout the investigation.

Work methods

To establish the facts and circumstances of alleged violations, abuses and crimes by both parties, the investigative team will conduct a desk review of existing documents and information. In analyzing the information collected, it will seek to corroborate facts and accounts to meet the agreed standard of proof. It will continue to seek to engage with the Government of Sri Lanka, as envisioned in the Council resolution.

The High Commissioner will continue to request the investigative team to have access to the country to meet with Government officials and others, as well as to have access to all relevant documentation.

Any state, individual or organization may submit information in writing to the HRC. The investigative team will take appropriate steps to address witness and victim protection concerns and shall adopt procedures and methods of work to protect such persons during all stages of its work. The resolution mandate strongly requires the Government of Sri Lanka to protect victims and witnesses and others in Sri Lanka, who make contact with the team.

The investigative team will take all measures and precautions to protect the confidentiality of information, including the non-disclosure of the names of individuals in its public reports. At the end of its work, the team will archive all its confidential material according to standard UN procedures.

The investigative team will base its findings on the maxim of “reasonable grounds to believe” as the standard of proof.

The resolution mandate is rooted in the content that there are reasonable grounds to believe that an incident or pattern of violations or crimes occurred, if the team has obtained a reliable body of information, consistent with other obtained information, indicating their occurrence.

Assessment

The investigative team will act in compliance with existing standards. The established content of the standard would require a reliable body of discovered material, to coincide with the material of other verified circumstances of perpetrations.

The team will not make final judgments as to criminal guilt; rather, it would make an assessment of possible suspects that may pave the way for future criminal investigations. The Council in its resolution called upon the Government of Sri Lanka to cooperate with the Office of the High Commissioner for Human Rights in the implementation of the resolution.

Such cooperation entails freedom of movement throughout the territory, unhindered access to all places and establishments, freedom to meet and interview representatives of national, local and military authorities, community leaders, non-governmental organizations and other institutions, and any such person whose testimony is considered necessary for the fulfillment of its mandate as well as free access to all sources of information, including documentary material and physical evidence.

Privileges and facilities

The experts of the investigation shall enjoy the privileges and immunities accorded to experts on mission, under Article IV of the 1948 Convention, on Privileges and Immunities of the UN and the OHCHR staff of the investigation shall enjoy the privileges and immunities of officials under Article V and VII of the Convention. All Governments are reminded of this obligation and invited to ensure facilities are made available for the independent conduct of the investigation.