THE GENEVA TRAP: Can private citizens help devise an escape-route?
Posted on March 4th, 2014

Dharshan Weerasekera

‘Flawed UN Strategy’
A reply to Vernon Boteju (Senior Attorney at Law)

UN Human Rights High Commissioner Navi Pillay’s long-awaited report on Sri Lanka is finally out. In it, she does exactly what I predicted in a paper published a few weeks ago in the Foreign Policy Journal, (“The UN’s Sri Lanka Strategy and its implications for international law”) to wit: whereas up to March-2013 the primary and principal basis for allegations of war crimes against the Government was the Report of the Secretary General’s Panel of Experts (POE) of March 2011, the High Commissioner is now introducing entirely new sources of evidence, including the Channel 4 videos, and recommending that international investigations be initiated to investigate these new allegations, plus the POE’s allegations.

Supreme Court complex

The advantage in this strategy is that, no matter what the Government says to the new allegations, Sri Lanka’s critics can still pass a resolution authorizing or recommending international investigations, if they have enough votes. Presumably, the critics, led by the United States, are confident they can muster the requisite votes. So, the Geneva trap is set. Is there any way to foil this plan? I have always been of the view that the option of seeking an advisory opinion at the International Court of Justice (ICJ) offers a way out. The Government, however, may be reluctant to raise the spectre of an advisory opinion at this particular point in time, due to geopolitical as well as domestic realities it has to face.

Given this situation, is there anything that private citizens, and organizations consisting of friends of Sri Lanka, can do to help protect what they feel are the long-term interests of this country, including its sovereignty and territorial integrity? I believe there is, and I believe the following three options are worth considering. I emphasize, however, that these options are only suggestions, “thought experiments” if you will, to encourage further discussion and research into these important issues, rather than definitive recommendations. The three options are:

1) The complaint procedures of the Human Rights Council

In my view, Sri Lanka’s strongest argument when it comes to resisting resolutions against it at the Human Rights Council is the fact that the reports, documents or materials on which allegations of war crimes have been leveled against it have never been filed officially with the Council, and Sri Lanka has never been given an opportunity to officially respond to them. This is an ex facie violation of Sri Lanka’s rights under General Assembly resolution 60/251, the “Charter” of the Human Rights Council, which mandates, among other things, that the work of the Council shall be guided by the principles of “constructive international dialogue and cooperation.”

In order to have “constructive dialogue” of any sort, international or otherwise, it is necessary that the participants be acquainted with all sides of the issue that is the subject of the “dialogue.” In Sri Lanka’s case, accusations of war crimes have been leveled, but the reports, documents and materials on which those accusations are based have not been placed officially on record, so Sri Lanka has not had a chance to go before the Council and tell its side of the story. (Certainly Sri Lanka has been able to file replies to the accusations informally, but that is not the same as responding officially, and in front of the Council.) Under these circumstances, no “constructive international dialogue” is possible.

As for “cooperation,” if a member continually requests that they be given an opportunity to respond officially to the accusations being made against them, and the Council continues to pass resolutions against that member without in any way trying to accommodate the request, it is hardly a situation of “cooperation”: in fact it is the very antithesis of “cooperation.”

More important, one can make a very good case that the Council in its actions on Sri Lanka is violating the latter’s rights under the UN Charter also. The UN Charter, it should be recalled, is the primary basis of international law, and the supreme document from which the Human Rights Council itself derives authority. The Council is obliged to defer to the UN Charter in all matters that involve the rights and privileges of UN members.

The UN Charter makes it abundantly clear that its overarching purpose is to develop harmony and friendly relations between nations, whether in maintaining international peace and security, in achieving universal peace, or in solving common problems of an economic, social, cultural or humanitarian character. For instance, Article 1(4) says explicitly that the Organization is to be “a centre for harmonizing the actions of nations in the attainment of these common ends.” To turn to some of the principles that undergird the UN, one of the primary principles is set out in Article 2(1), which says, “The Organization is based on the principle of the Sovereign equality of all its members.”

Does the treatment accorded Sri Lanka at the Human Rights Council comport with either the purpose of developing harmony and friendly relations among nations, or the principle of the “Sovereign equality” of all nations? I don’t think so. The Council’s conduct in denying Sri Lanka an opportunity to respond officially to accusations being made against it, on an equal footing with its accusers, engenders, in my view, not harmony, but disharmony, acrimony, suspicion and distrust, and is at its very essence a rejection of the principle of the sovereign equality of all nations!

My point is that, if such flagrant wrongs are being committed, it may be possible to resort to the Complaint Procedures of the Human Rights Council. Private individuals and organizations can lodge complaints under these procedures. Needless to say, the complaint itself may not get taken up, but the very fact of having made the complaint would put the issue on the official “record” of the Council, which would make it easier to agitate on the issue later, if needed.

2) The inherent jurisdiction of the ICJ

Inherent jurisdiction is a revered concept in the English Common Law, now almost universally recognized. In essence, inherent jurisdiction is the doctrine that a superior court can intervene in the proceedings of a lower court or tribunal in order to prevent a gross miscarriage of justice, for instance, where the court perceives there has been a grave abuse of process or of justice in the aforesaid proceedings.

The ICJ, it should be recalled, is the principal judicial organ of the United Nations. As such, it is the highest judicial forum in the world, and perhaps can rightly be called the very sanctum of international law, especially with respect to guarding the integrity of the UN Charter.

If, as I have suggested, flagrant and egregious wrongs are being committed against Sri Lanka at the Human Rights Council, an institution set up under the authority of the UN Charter, it is an abuse of the Charter itself, and therefore naturally a matter of concern to the ICJ. Under the ICJ Statute, however, only countries can be parties in disputes before the Court (or, in the case of advisory opinions, also certain authorized UN Organs). Private individuals, organizations, or groups cannot under normal circumstances seek solace of the court.

My idea is that, under the extraordinary circumstances prevalent with respect to Sri Lanka at present, an organization or group of persons invoke the inherent jurisdiction of the Court by informing the Court in writing of what is going on in the Council with respect to Sri Lanka, and requesting the Court to look into the matter.

I believe the following observation of the Court in the Nuclear Tests case indicates not only that the court is cognizant of its inherent powers, but may be receptive to appeals that invoke it. In that famous case, the court said, “By virtue of an inherent jurisdiction which the court possesses qua judicial organ, it has to first examine a question which it finds to be essentially preliminary, namely the existence of a dispute for, whether or not the Court has jurisdiction in the present case, the resolution of that question could exert a decisive influence on the continuation of these proceedings.” (New Zealand v. France, 1974,

It may be that the Court will refrain from even looking at the petition in the instant case, but I am sure the Court will at least write back acknowledging receipt of the petition, and give some reason as to why it can’t be taken up. The fact of the reply would make the petition a part of the official record of the ICJ, and thus also of the UN, and would be helpful if, at some future date, the Government decides to ask the Court for an advisory opinion on the matter in question, and Sri Lanka’s critics raise a preliminary objection that Sri Lanka did not assert its rights at the proper time.

3) The inherent jurisdiction of the Sri Lanka Supreme Court

My idea is that a citizen would be able to invoke the inherent jurisdiction of the Sri Lanka Supreme Court and ask the Court to issue a declaration or recommendation to the Government to seek an advisory opinion of the ICJ before accepting or implementing any recommendations concerning international investigations made in a Human Rights Council resolution.

Article 3 of the Sri Lanka Constitution clearly states, “In the republic of Sri Lanka sovereignty is in the people.” If “sovereignty is in the people,” it means every single citizen shares equally in that sovereignty, and any imposition, compromise or diminution of the country’s sovereignty is an imposition, compromise and diminution of the sovereignty of the individual citizen, thus making the citizen an interested party in the transaction.

In my view, international investigations on Sri Lanka constitute an attempt to impose on, compromise, and diminish the sovereignty of this country, among other things, especially in the following manner. If one looks closely at the High Commissioner’s report of February 24, 2014 (A/HRC/25/23), the report on which a resolution against Sri Lanka at the upcoming March sessions of the Council will be based, one sees that the report cites concerns with respect to alleged violations of humanitarian law (i.e. acts done during the last stages of the war) and also ongoing human rights violations, including “continuing militarization,” “compulsory land acquisition (particularly in the North and East),” attacks on religious minorities, and so on.

It is not clear whether the High Commissioner’s recommendation for international investigations is limited to the humanitarian law issues only, or whether they are to involve some of the human rights issues also: at any rate, a resolution could be phrased in a manner that includes those human rights issues.

If an international team of investigators is inserted into Sri Lanka, a team controlled in some fashion or other by Sri Lanka’s critics, it would be an easy enough thing to get that team to conclude or to insinuate in their final report that Sri Lanka is a horrible place in terms of human rights, especially for minorities, and out of the minorities, specifically for the Tamils, because their “areas” are being “militarized,” Tamil lands being subjected to compulsory acquisition,” and so on. In short, it would be an easy enough thing for the team to make a pronouncement or an insinuation that the Tamils of Sri Lanka are a people under occupation, of some sort or another.

If an international panel with UN backing were to make such a pronouncement or insinuation, it would provide very substantial grounds for separatist elements within this country, aided by their supporters in the Diaspora, to move for a separate state by invoking the concept “self determination” under international law.

In this regard, it should be noted that it is generally accepted in international jurisprudence that a right to “self determination” under international law exists in three types of situations: one, where a “people” is governed as part of a colonial empire, two, where a “people” is subject to alien subjugation, domination and exploitation, and three, possibly where a “people” is completely denied any meaningful access to government to pursue their political, economic, cultural and social development. (See, Reference re Secession of Quebec (1998) 2SCR 217)

A pronouncement or insinuation by an international panel that Tamil “areas” are being “militarized,” that Tamil lands are being confiscated, and so on, can obviously be used by separatists as a basis to claim that Tamils in this country are being systematically subjugated and exploited, that their lives are being made unbearable, and thereby to gain international endorsement for a demand for “self determination” under international law as per the second and third scenarios sketched above.

In this regard, I would be remiss if I did not mention the remark of TNA leader Mr. R. Sampanthan in 2012, on the occasion of the 14th National Convention of the ITAK. He said, “The current practices of the international community may give us an opportunity to achieve, without the loss of life, the soaring aspirations we were unable to achieve by armed struggle.” (Address of R. Sampanthan at 14th National Convention of ITAK in Batticaloa, May 27, 2012)

In short, an international endorsement of a pronouncement or insinuation by an international panel that the Tamils of Sri Lanka are an oppressed and subjugated minority is precisely the foundation on which separatist elements can begin their final push to divide this country.

To return, my point is that if the above is one of the possible outcomes of a resolution authorizing or recommending international investigations, it is a matter that strikes at the very heart of this country’s sovereignty, and a matter of which the Supreme Court can take cognizance. A citizen of this country, as an interested party, could petition the Court to use its inherent jurisdiction and look into the matter, and, if the Court in its wisdom deems the danger real, to recommend to the Government not to allow any international investigations until an advisory opinion is first obtained from the ICJ.

So, those are three things that I think private citizens and organizations can do to help protect the long-term interests of this country. I reiterate that these ideas are offered only as fuel for discussion and debate: I would be happy to be corrected if I’m wrong in any of the ideas sketched above, happier if anyone can extend and refine them, and happiest if my brief discussion here inspires a reader to offer entirely new, and better, ideas.

Dharshan Weerasekera is an Attorney-at-Law. He is the author of, The UN’s Relentless Pursuit of Sri Lanka, and the need for effective counter-measures.

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2 Responses to “THE GENEVA TRAP: Can private citizens help devise an escape-route?”

  1. Lorenzo Says:

    Latest on UNHRC.

    USA and EU trying to EXPEL Russia, China, Cuba and Saudi from UNHRC saying their election violates ARTICLE 8 of UNHRC which allows the expulsion of a member accused of GROSS human rights violations.

    In 2011 Libya was expelled.

    This is totally unacceptable and DICTATORIAL.

    Bust the bloody UNHRC and its racist Tamil head.

  2. S de Silva Says:

    Thank you Dharshan for your legal insight into the ‘legal options’ available for SL. Hope the legal eagles of the GoSL have had your observations and care onsidering same – S deSilva – London

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