#40 The G|O Briefing, February 18, 2021

The HRC faces a credibility test - And so does Washington it reengages with Geneva - Plus a renewed momentum to promote human rights in business

This is an onsite, slightly edited republication of the complete G|O Briefing newsletter

Today in The Genva Observer, as it meets virtually next week for its 46th Session, the Human Rights Council (HRC) faces a serious credibility test. Will it finally be able to make Sri Lanka accountable for the alleged war crimes and crimes against humanity committed during its civil war? It is urgent. Almost twelve years after the end of the conflict, the conditions are ripe for a return to violence, warns the UN and human rights organizations, given the increasing recurrence of grave human rights violations.

The US will also be tested as it reengages with the Council, writes human rights expert Peter Splinter. Will the US go beyond words and lead by example by confronting its own challenges, and particularly systemic racism, he asks? Both pieces are below.

And finally, in today’s Geneva Observer, Zurich-based tax and finance lawyer Pamela Woreth sees encouraging signs and actions in the promotion of human rights in the business world. She offers actionable proposals in that pursuit.

The last hope for Sri Lanka’s civil wars victims?

Published on January 27, 2021, the latest report on Sri Lankaby the UN Human Rights Office of the High Commissioner (OHCHR) makes for desolate and indignant reading. It is an urgent call to action, or more aptly, an imperative one as it forces the international community to confront what some have called its complacency in the face of egregious human rights violations. Sri Lanka is not an isolated example. But what makes its case particular today is that, after the previous government committed to pursuing accountability for alleged war crimes and crimes against humanity committed by both sides during its civil war, the current government has entirely abandoned these efforts. "Sri Lanka remains in a state of denial about the past, with truth-seeking efforts aborted and the highest State officials refusing to make any acknowledgment of past crimes,"the UN report concludes, adding "the current Government has proactively obstructed or sought to stop ongoing investigations and criminal trials to prevent accountability for past crimes."

The situation is not only unacceptable per se; it also is dangerous, the UN and human rights advocates argue, for the same conditions that ignited the civil war at the time may well be present again.

UN Human Rights High Commissioner Michele Bachelet denounced "a deepening and accelerating militarization of civilian government functions," noting that "the President has appointed at least 28 serving or former military and intelligence personnel to key administrative posts." Some of the appointees include high-ranking military officers implicated in alleged war crimes and crimes against humanity.

"The UN High Commissioner's report highlights Sri Lanka's egregious record of complete impunity for appalling crimes and very disturbing developments under the Rajapaksa administration." -John Fisher, Human Rights Watch

For Pablo de Greiff, former UN Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence, Sri Lanka appears to have missed a ''historic opportunity'' to build a long-lasting and sustainable peace. In 2015, under Resolution 30/1 of the Human Rights Council, the previous Sri Lankan government agreed to work towards truth and reconciliation."Nothing has hindered the transitional justice programme in Sri Lanka more than lack of commitment on the part of the Government, which was not only slow in terms of design and implementation, but which wavered in its messaging and ultimately has failed up to this point to take full ownership of the process," de Greiff recently declared.

For John Fisher, Geneva director of Human Rights Watch, "the UN High Commissioner's report highlights Sri Lanka's egregious record of complete impunity for appalling crimes and very disturbing developments under the Rajapaksa administration." "The Human Rights Council has given Sri Lanka every opportunity to address these issues over many years, and now greater international involvement is needed to help protect vulnerable groups and hold those responsible for grave international crimes to account," he said in a statement following the release of High Commissioner Bachelet's report.

Similarly, former High Commissioner Navi Pillay recently called for the Council  "to make a drastic departure from its customary complacency over the failures of the Sri Lankan government and hold it to account for its non-compliance with HRC resolutions." Navi Pillay was UN High Commissioner for Human Rights at the time of the end of the civil war in 2009. Her tenure ended in 2014.

According to press reports, in a 20-page rebuttal sent to the High Commissioner, the Sri Lankan government refuted all the accusations, calling the document "speculative, presumptive," and  based "on unsubstantiated opinions."

The hope to move forward now hinges on a draft resolution circulated among the Council’s 47 members by the Core Group on Sri Lanka, which comprises Canada, Germany, Montenegro, North Macedonia, and the UK. The text promotes reconciliation, accountability, and human rights in Sri Lanka.

Consultations and discussions among members on this critical resolution are mostly taking place virtually.

The Council's 46th Session will also be entirely virtual due to the pandemic. "This will undoubtedly be a challenge. Face-to-face meetings let you interpret and immediately react when negotiating; this is the essence of diplomacy," remarks a seasoned Western ambassador in Geneva. But also notes that "there is also a positive element in this session being virtual." "Heads of state and governments will be able to attend, and high-level engagements in human- rights diplomacy are important."

The Core Group resolution will be presented on February 24, and will be followed by an interactive session. The debate will take place with all the permanent members of the UN Security Council (P5) present. While the US will have observer status at the session, there is hope among the resolution sponsors and supporters that Washington's return might help deliver the majority required to adopt the resolution.

"US leadership is particularly needed for one of the council’s most prominent agenda items: accountability for gross human rights violations committed in Sri Lanka. (...)The United Nations Human Rights Council session starting Feb. 22—the first of President Joe Biden’s term—offers an important opportunity to show that “America is back” on the world stage to uphold universal rights and the rule of law."writes Ambassador Stephen J. Rapp who served as the US Ambassador-at-Large for War Crimes Issues under the Obama administration.

At the time of writing, we understand that the resolution enjoys the support of 19 or 20 countries. "But it is still early. The text has not been widely circulated yet," a senior diplomat outside of the Core Group tells The G|O.

While fully supportive of the resolution, some knowledgeable voices on Sri Lanka hope that should the resolution be adopted, its supporters and the UN will actively pursue its implementation. "Resolution 30/1 was, unfortunately, an example of a resolution that did not translate into many changes on the ground. The reasons for that are complicated. Given political forces in Sri Lanka, it is not a given that 30/1 could have been fully implemented, but I am not convinced that sufficient efforts were made on the ground" one source told The G|O.


America’s Re-engagement with the Human Rights Council: Remember Resolution 43/1

By Peter Splinter

The decision of the USA to re-engage with the UN Human Rights Council (HRC) announced on 8 February 2021 has been welcomed in many quarters. That announcement gave some sense of the USA’s priorities for its engagement with the Council.  Now there is considerable curiosity and speculation about what specifically the USA will do in the Council, initially as an observer in 2021 and eventually as a member if it seeks and wins election to the Council for a term starting in 2022.

The priorities mentioned by Secretary of State Blinken on 8 February included reform of the HRC’s agenda, its membership, and focus—including its disproportionate focus on Israel. He also noted the role of the Council in shining a spotlight on countries with the worst human rights records and in promoting fundamental freedoms, including the freedoms of expression, association and religion as well as the fundamental rights of women, girls, LGBTQI+ persons and other marginalized communities. It is foreseeable that there will also be many specific issues and country situations that arise in the course of events or the Council’s regular deliberations that will capture the USA’s attention.

The USA must also be ready to engage actively on genuine human rights issues that reflect the concerns and priorities of other stakeholders. There is one such issue currently before the Council which will pose particular challenges for the USA.  That is the follow up to the urgent debate at the 43rd session of the HRC in June 2020 on racially inspired human rights violations, systemic racism, police brutality and violence against peaceful protests. Hardly any country welcomes close critical examination of its own human rights record in the HRC beyond the Universal Periodic Review, which covers all UN member states. The urgent debate initiated by the African Group in June 2020 was in large part focussed on racism and police brutality in the USA. When the Trump Administration, acting outside the Council, could not prevail on other states to remove all references to the USA in the consensus resolution 43/1 adopted following the urgent debate, it treated that resolution as if it were an unsatisfactory outcome in a global beauty contest and summarily dismissed it as a reflection of the Council’s hypocrisy.

The racism and police brutality that led to the urgent debate on 17 June 2020 have a long history that predated the Trump presidency, and they continue to exist beyond that presidency.

The US Chargé d’Affaires for the US Mission to the UN informed the HRC on 8 February that President Biden’s America is committed to making strides to end them.

As part of that effort, the USA must resist the inevitable domestic pressures to contain and minimise the reporting mandate of the High Commissioner for Human Rights under resolution 43/1 and to turn off uncomfortable discussion in the HRC about racism and police brutality in the USA. It must also resist pressures to endeavour to have the High Commissioner’s report, scheduled for delivery to the Council at its 47th session in June 2021, placed on a shelf to gather dust, like too many other reports to the Council that are taken nowhere and change nothing.

How the USA deals with the process launched with resolution 43/1 will speak volumes about how it intends to engage with the Human Rights Council. It will go a long way to demonstrating whether in the Council the United States is, in the words of President Biden, prepared to “lead not merely by the example of [its] power but by the power of [its] example.” If the USA undercuts or seeks to terminate the Council’s discussion of racism and police brutality that was launched in June 2020, it will harm its own credibility and influence, and it will undercut its ability to roll back the influence that China and other authoritarian governments were able to expand in its absence.

The poisonous lasting influence of “Trumpism” in US domestic politics will impose serious constraints on how the Biden administration can approach human rights in the UN. Nonetheless, the follow-up to resolution 43/1 need not be an exercise in American self-flagellation. The USA has often demonstrated that it can be imaginative and sophisticated in overcoming polarisation to constructively address difficult issues in the HRC. It needs to do that again by engaging with Council members and observers genuinely concerned about racism and police brutality. In this way, it can identify and promote constructive, practical and effective contributions for the Council to make to address racially discriminatory and violent practices by law enforcement agencies against Africans and people of African descent, wherever those practices take place.

As the USA looks for its own way to engage with the process established in resolution 43/1, it should actively engage and consult representatives of American civil society

In the Council it should also do what it can to ensure that civil society representatives from other countries marred by racism and police brutality can contribute to finding ways to address those affronts to human dignity in their countries.

Resolution 43/1 is about racism and police brutality in the USA and in other countries across the world. It is not about the USA or other countries.  It is a resolution about human rights violations common to many countries, which recognises that those violations are carried out in many “small places, close to home.” One can reasonably expect that the High Commissioner’s report will identify many countries damaged by racism and police brutality—each in its own way. Treating the implementation of resolution 43/1 as a process to address a common problem, manifested in different ways in different countries, offers opportunities for constructive engagement to reduce racism and related police brutality globally.

Some will argue—whether in good faith or merely to score political points—that the USA should not expose itself to criticism by China, Russia and other states with very poor human rights records. They will say that doing so would undermine the influence of the USA in the HRC and beyond. However, genuine readiness to engage forthrightly about human rights shortcomings is a demonstration of strength. The persistent refusal of certain states to acknowledge and discuss their shortcomings testifies to their weakness. They have no moral power in their example.

The constructive implementation of resolution 43/1 and the recommendations of the resulting report of the High Commissioner for Human Rights should be among the top priorities of the USA as it re-engages with the Human Rights Council.

*Peter Splinter is a Geneva-based human rights experts.

A new momentum to promote human rights in business

By Palema Woreth*

By promoting accountability for human rights violations in legally binding instruments and by maintaining geopolitical stability, multilateral initiatives such as the EU’s 2020-24 action plan on human rights and democracy and other neighborhood policies could be used as cornerstones to achieving a successful transition, argues our contributor.

Upon announcing the Davos Manifesto 2020, Klaus Schwab, Founder and Executive Chairman of the World Economic Forum, declared:

“Business has now to fully embrace stakeholder capitalism, which means not only maximizing profits but using their capabilities and resources in cooperation with governments and civil society to address the key issues of this decade. They have to actively contribute to a more cohesive and sustainable world.”

In this context, doing business in high-risk or conflict-affected countries poses particular challenges. Globalized economies are increasingly concerned about trading in commodity-dependent countries, with armed conflicts being indirectly funded through cash flows generated by foreign investments. More broadly, trading in areas or regions experiencing violent conflicts or transitioning to peace, where political and social instability prevail and/or human rights, political and civil liberties abuses are reported increases complexity for firms, particularly when it concerns resource-rich emerging countries.

Over the last decade, significant diplomatic, legal and operational progress have been achieved toward the “renaissance” of the concept of human rights as a subject of concern for business partners. In Europe, this paradigm shift has now become law as the EU Global Human Rights Sanctions Regime (EUGHRSR) finally entered into force in December 2020—a very significant milestone that went largely unnoticed because of the COVID-19 crisis and the marathon run to finalize Brexit.

Until now, efforts to defend and promote human rights have been mostly left to business on a voluntary basis. They have been mainly achieved through enhanced sector-specific due diligence and reporting (minerals and fossils fuels), international soft laws, including the OECD Guidelines for Multinational Enterprises, the United Nations Guiding Principles on Business and Human Rights, and initiatives from civil society.

The current renewed push does involve sustained and coordinated action between governments, business stakeholders, and civil society. Democracies and free market economies are already redefining their models. The last few months have seen an unpreceded performance in ESG funds, which focus on investments with a positive environmental (E) or social (S) record and solid governance (G). Sustainable finance is thus likely to stimulate the post-COVID economic recovery and play a role in the promotion of human rights.

This also explains a renewed attention on companies operating in particularly sensitive contexts and sectors, namely businesses involving trading and financial transactions. Some concrete proposals that would promote human rights through sustainable investments are being circulated.

Trading in financial instruments

Proposal 1: Extended Collateral Eligibility

The offer of sustainable financial products might not always meet the investor risk profile. But in this context, extending the eligibility of collateral by increasingly accepting sustainable financial instruments is likely to positively impact human rights.

Proposal 2: Enhanced Transparency in Over-the-Counter Markets

In their first post-2008 financial crisis summit, the G9 members pledged to reform over-the-counter derivatives markets to improve their transparency, prevent market abuse and reduce systemic risks. Yet, OTC markets and, more specifically, OTC derivative markets still generate transactions with insufficient data quality and transparency.

Underlying assets might include commodities from high-risk or post-conflict areas where there lacks proper due diligence carried out by a commodity exchange or the existence of compliance requirements set by industry standards—leaving it voluntary for diligent providers, distributors, or issuers. In addition, derivatives used for hedging exposures might hedge physical trade flows in high-risk or post-conflict areas without proper due diligence.

In this context, EMIR and Dodd-Frank Act mandatory reporting on derivatives could be the base for reporting on certain OTC derivatives with underlying commodities from specifically high-risk or post-conflict areas.

Investments and Project Finance involving Recalcitrant Countries

As per pillar one of the United Nations Guiding Principles on Business and Human Rights (UNGPs), States should protect and promote human rights.

In December 2020, the EU Global Human Rights Sanctions Regime (EUGHRSR) entered into force. It is a more targeted regime in comparison with the current EU country sanction lists as it has a global scope and expressly foresees the prohibition for EU persons to make funds or economic resources available, directly or indirectly, to the listed perpetrators of serious human rights violations and abuses, including States (aka, “recalcitrant countries”).

However, considering the oversight required and the potential negative impact on the population working in commodity-dependent countries, investment boycotts, divestments, or loan restrictions in countries with evident human rights violations might not be efficiently applicable in the short term and on a large scale. Mandatory requirements and an ad-hoc withholding tax could offer remedial measures.

Proposal 1: Mandatory Reporting Requirements

Reporting requirements could cover promissory notes, structured financial products, and private placements involving recalcitrant countries and counterparties listed in the EUGHRSR.

Proposal 2: Ad Hoc Withholding Tax

A withholding tax levied on earnings generated by shareholders and private lenders financing significant public projects initiated or controlled by recalcitrant countries might be dissuasive.

It would promote fair competition by creating a level playing field with other investors and lenders targeting sustainable investments. In addition, it could be a funding source for the awaited Business and Human Rights Treaty being discussed by the UN, as it could fuel the international fund for victims.

A country rating could be based, amongst other parameters, on:

- the ratification of international treaties on human rights,

- adhesion to the Rome Statute,

- sanctions and applications filed before the European Court of Human Rights,

- Environmental, Social, and Governance metrics (ESG).

Economic Resilience, Multilateralism, and the Emergence of a “Public Order Among Neighboring Countries”

In international relationships, the growing call for strengthening resilience through supply chain diversification and environmental transitions might lead to new geostrategic partnerships and reinforce a realpolitik, negatively impacting the UNGPs’ goals.

By promoting accountability for human rights violations in legally binding instruments and by maintaining geopolitical stability, multilateral initiatives such as the EU’s 2020-24 action plan on human rights and democracy and other neighborhood policies could be used as cornerstones to achieving a successful transition.

*Pamela Woreth is a tax and financial lawyer.  She holds a degree in European Business Law from La Sorbonne and Leicester Universities.

Today's Briefing: Philippe Mottaz - Jamil Chade -

Edited by: Paige Holt