Commonwealth hamstrung to fight abuse in Sri Lanka

This post was contributed by Frederick Cowell, a lecturer and researcher in international law in Birkbeck’s School of Law. This article first appeared on The Conversation.

The list of crimes alleged to have been perpetrated by brothers Mahinda and Gotabhaya Rajapaksa – respectively the president and defence minister of Sri Lanka – are truly horrifying. During the last few months of the civil war in 2009, the Sri Lankan army was alleged to have deliberately shelled civilian areas and since the ceasefire, as the Sri Lanka justice campaign has detailed, there have been numerous extrajudicial killings and incidents of torture.

Rather than being treated as international pariahs, though, the Rajapaskas are hosting the Commonwealth Heads of Government Meeting this week, attended by representatives of more than 40 governments from around the world.

Since 1965 the Commonwealth has been an independent intergovernmental organisation, with its own headquarters and secretariat. From 1971 it took a leading role in facilitating negotiations over ending white minority rule in Southern Africa.

Sincere commitments at the organisational level, however, did little to affect the Commonwealth’s membership. Military regimes and dictatorships were prominent members of the Commonwealth throughout the 1980s. When the Commonwealth broadened its focus to the protection of human rights with the passage of the 1991 Harare Declaration, committing Commonwealth member states to the protection of “fundamental human rights” and democracy, it was clear a more robust enforcement mechanism was needed if the declaration was to have any meaningful effect.

Suspension is easy

Article 3 of the 1995 Millbrook Action Programme allows states to be suspended from the organisation when they were clearly “in violation” of the Harare Principles, “particularly in the event of an unconstitutional overthrow of a democratically elected government”. This was the first instrument of its kind and was a radical move. At the time the UN Human Rights Commission didn’t even have an instrument for suspending serial human rights abusers or illegal governments.

In 1995 Nigeria became the first country to be suspended from the Commonwealth after General Abache’s regime rejected the results of the 1993 elections and went onto commit series of human rights abuses including the execution of activist Ken Saro Wiwa. This was followed by the suspension of Pakistan in 1999 and Fiji in 2000, both following military coups.

The Millbrook action programme also allowed the appointment of ad-hoc groups of high level officials. Zimbabwe was suspended from the Commonwealth in 2002 after a troika of officials, including then Australian prime minister John Howard, concluded Robert Mugabe’s re-election that year had been “marred by a high level of politically motivated violence”. This led to Zimbabwe withdrawing from the organisation a year later. The most recent suspension was Fiji in 2009 after the government refused to accept a domestic court ruling that a 2006 coup was illegal.

Human rights play second fiddle

The focus of the Commonwealth Ministerial Action Group (CMAG), the decision making body of the Commonwealth, has been largely on the overthrow of democratically elected governments. This has led to the relative relegation of the protection of human rights, effectively turning Article 3 into an anti-coup instrument. And even as an anti-coup instrument, it has been applied inconsistently. When Maumoon Abdul Gayoom took power unconstitutionally in the Maldives in February 2012, CMAG issued a statement urging the government to hold fresh elections, but little action has been taken since.

It is also increasingly unclear what suspension is actually for. Fiji has been suspended for nearly four years, during which time it has made scant progress towards returning to constitutional government. Fiji’s government has covered the shortfall in development aid it suffered by receiving aid from China.

Anti-coup instruments have been adopted in several other international and regional organisations including the African Union. The problem is that they can easily become mechanisms that protect governments rather than human rights.

An anti-coup mechanism is also a barrier to gaining international recognition for a new government that comes to power through a coup. This can help deter future coups, which benefits exiting governments. This is why the Millbrook Action plan has received so much support from Commonwealth members. Commonwealth states have resisted attempts to create an independent Commonwealth Human Rights Commissioner, meaning that the decision to suspend states still rests with diplomats from member states.

The situation in Sri Lanka has split opinion among Commonwealth governments about the best way to respond to the human rights abuses taking place in Sri Lanka. Until a strong independent mechanism is brought in to assess suspension, Sri Lanka will remain a Commonwealth member, despite the atrocities that occur on its soil.

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