Sri Lankan takes the UN to Court: Immunity Is Not Impunity for Illegalities by UN
Posted on September 27th, 2015
Shenali D Waduge
If the Rule of Law implies that every citizen is subject to the law including law makers themselves, how is it that the UN has given itself immunity through the UN Charter and the Convention on Privileges and Immunities of the UN? If the Convention was meant to deny states from making false charges and spurious prosecutions against the UN why is there no provision to protect member states from being victim to false charges & spurious prosecutions by the UN? What is the legal status when an individual plaintiff files a case against the UN as has currently happened with Dr. Gunadasa Amarasekera taking on the UN for illegal resolutions and investigations? If the UN is the party being alleged of doing wrong who will judge the case put forward by Dr. Amarasekera. Leaving aside a blanket immunity what is more important is the merit of the legal arguments under which the case was filed.
When the UN declares itself immune what does it say about victims’ right to a fair trial?
Just because international organizations and their officials are granted immunity in cases where they act with bias and commit illegalities what is the recourse that can be taken?
Right to a fair trial is a fundamental right and is part of due process though substantive due process accepts that no fundamental right is absolute.
When the UN stands for justice how right is it to incorporate an immunity clause preventing member States from taking it to court? When can the grievances of victims be heard against international organizations connected to the UN and officials who are UN employees using their position to do illegal acts?
The UN : Background to Immunity
- The UN was founded in 1945. In 1946 the Convention on the Privileges and Immunities of the UN set out specific privileges and immunities for the UN & its staff.
- The Convention does not mention specific crimes and
- In 1946 UN had only 300 staff and serves were diplomacy only. Today, the UN comprises over 44,000 staff carrying out multiple missions of varying nature.
- Neither specific crimes nor exceptions to immunity are given in the Convention as the Convention was designed to ensure states would not use false charges or spurious prosecutions against UN staff (what happens when the US staff does the same to Member states?)
- The Convention does give the UNSG to waive immunity (however what if the UNSG himself becomes the wrong doer as in the case of Sri Lanka?)
- Thus how fair is it for the UN & Staff to be immune from any ‘legal process’ when they might be doing wrong knowingly?
Clauses in the Convention:
The immunity of the United Nations is primarily governed by the United Nations Charter and the Convention on Privileges and Immunities of the United Nations (‘The Convention’). According to Article 105 paragraph 1 of the UN Charter: The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.” Whereas the Immunities Convention further provides in its Article II, Section 2, that: The United Nations […] shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity”.
However ‘Experts on Mission’ has not been defined in the Convention and leaves scope for lawyers to explore legal prosecutions.
There are some legal questions unanswered
- Article II, Section 2 of the General Convention affords the UN absolute immunity. What about UN’s obligation to provide alternative modalities to settle individual third-party claims under Article VIII Section 29 of the same Convention which would be applicable to Dr. Gunadasa Amarasekera’s case?
- How can UN’s absolute immunity be reconciled with the UN’s role in promoting and ensuring respect for human rights including the individual’s right for access to justice?
It is the publics right to know if as Dr. Amarasekera rightly says whether the UN & UNSG have committed illegalities knowing that they are immune from legal process. Even if the UN and officials are declared immune it is the merits of the arguments that matter and the onus is on the domestic judges to take up these arguments and give a legal judgement though the conclusion is known to all. Though the conclusion is known beforehand that should not deter the judges from telling the plaintiff that his arguments are correct but that no law in the world can do anything against the UN.
Anyone reading this would realize that we have created a monster out of the UN and from the manner it is now functioning it is all the more clear that the UN is being hijacked and used to advance the geopolitical agendas of bloc nations following neo-liberal policies.
Shenali D Waduge
September 27th, 2015 at 4:54 am
We need a national organisation to protect Lanka and the Sinhalese, with clear objectives of protecting the Sinhalese and Lanka, without strings and other attachments. We have to support this person.
September 27th, 2015 at 5:31 am
THE NAME SHOULD BE CHANGED TO DN (Divided Nation not UN-United nation) because nations are divided instead of united. The whole thing is in mess.Most of the nations do not trust the UN although they are there as members. This UN was started to help each other,to solve each others problems but now they have become puppets of the west and do things as per their advise and wishes which poor nations as well as rich nations dislike there activities and decisions.
After the war the whole world started to respect us for what we did ending a terror and bloodshed from our soil. We were able to eliminate the whole group of terrorists and give our citizens the right to live in peace. After 2009 big powers came to thank the then President and take advise from our war heroes how to beat terrorism and so on. We were very proud of our Sinhala heroes who sacrificed their lives in thousands to save our Motherland. Then Govt did everything to heal the wounds of war from every section of our citizens including Tamils and Muslims. Then Govt didn’t stop there they started to rebuild the nation which was destroyed by the terrorist outfit LTTE. They build roads ,Schools,Hospitals,Govt Offices etc and allowed everyone to walk freely,talk freely and do their day to day businesses without any restrictions. “FREEDOM” at last but unfortunately we lost that freedom on Jan 8th because of ungrateful people we have in this country. You know everything what happened after that. Everything was illegal and traitors running the show with no new expectations for the citizens of Motherlanka. Darker days are ahead.Be alert and be awake.
September 27th, 2015 at 6:59 am
Why is this stupid SL government make use of the US Department of Defense statement exonerating SL government killing civilians. Senali you are good at finding information. Please post the statement and send to GON my3 to use to save our war heros and GOTA, and MR.
September 27th, 2015 at 9:18 am
“Immunity Is Not Impunity for Illegalities…” Shenali
Well that is what it really is. For the UN and for its biggest promoter and sustainer the USA, immunity IS impunity for illegalities.
Let me cite a glaring example involving the ‘holier than all’ the USA. The Geneva report cites the killing of core LTTE top cadre while they were in the act of surrendering themselves to the forces. Let us leave aside the fact that there were no eye witnesses to the event in question. The top LTTE men so described were core terrorists. They were killed in the heat of the battle, a battle ii which no quarter was asked and none given.
Now what about the fate of Osama Bin Laden? Where was he and what was he doing at the time he was killed?
Certainly there was no battle heat when his killing occurred. It occurred several years after the even of which he is ‘reported to have been’ the perpetrator.
He was an old man living in Pakistan, a sovereign country
He was living in a home, not on a battle field
He was not surrounded by fighters. The persons around him were WOMEN and CHILDREN
Now to the manner of his murder. The killers violated Pakistani airspace. They entered his home by air, and shot him inside his home, in front of his wives and children. Then they bundled his body into their space ship, and boldly got out of Pakistani airspace.
Their entry was illegal, their act was murder, in the most dishonourable and disgraceful circumstances…brutal killing of an old man within his home in the presence and before the eyes of wailing women and children and above all…yes ABOVE ALL..
…Before the straining watchful eyes of the PRESIDENT himself and his Secretary of State…watching with the greatest expectancy and GLEE the most brutal murder of this unarmed, old, man within his home in before his wives and children. all occurring before the eyes of the president of the ‘land of the FREE and the home of the BRAVE’.
They still pretend to be brave and are still free… immune and nonpunishable for this loathsome crime with their first hand participation.
Mario Perera
Kadawata
September 27th, 2015 at 10:59 am
Tamils need to return back to Tamil Nadu.
Now after 30 years of war and still accusations by Tamils of Sinhalese abuse on them to the illegal entry of Indian Tamils due to making Tamil an Official language of Sri Lanka it is time that the Tamils go back to Tamil Nadu.
A good deal of Tamils still want Eelam even when they have a homeland in Tamil Nadu. South India or Tamil Nadu will never accept Sinhalese Buddhists to settle there or spread Sinhalese language, culture and religion in Tamil Nadu or South India. So why accommodate the Tamils in Sri Lanka? It would solve many problems for both communities if Tamils stayed in Tamil Nadu and allow Sri Lanka for the Sinhalese.
September 27th, 2015 at 12:17 pm
The UN personnel involved in the Lanka matter must ask the question why it is that Tamil Leaders of Sri Lanka have asked for a Separate State in Lanka from the 1930s !
This is a vial question, a crucial question to ask.
This demand was made in the 1930s, way before any Language issues or the trumped up 1983 Riots, the Vaddukoddai Resolution (1976) & the terrorist group, the LTTE running amok in Lanka for nearly 30 yrs. resulting in the war with them in 2009.
September 27th, 2015 at 1:41 pm
read as ‘vital’
September 27th, 2015 at 1:52 pm
Ben,
We already have one – SL military.
Work with what is available or we can keep dreaming of a MYTHICAL organization that will never be real.
September 27th, 2015 at 1:56 pm
Helaya,
That report only saves SL from the BS genocide charge.
It says there were widespread violations of IHL.
September 27th, 2015 at 4:19 pm
Re Ben’s idea : There are small organisations for the Sinhala people. They ALL need to come together in a crisis under ONE NATIONAL organisation.
It is just that one person at the top who is cornered, such as at present, can ‘upset the whole apple cart’ ?
It is also that Tamil Leaders have been thinking in one direction, with one focus, to form a Separate State since the 1930s and the Sinhala leaders did not take them that seriously, till the LTTE was formed. Also, the JVP with its communist leanings during Cold War times, was a stumbling block, for post-Colonial Lanka.
September 27th, 2015 at 5:14 pm
When the Mahatma was fighting the British Raj for home rule for India he once stated to the British
“you are masters in another man’s house”. Now that applies to those minorities in Sri Lanka who want “Eelam”, who have a homeland in Tamil Nadu and will only demand a human rights investigation on the Sri Lankan Army while shielding those who supported the Tamil Tigers in India to the IPKF. they still call parts of Sri Lanka their “homelands” when it is not. time they left for they are no “masters in another man’s house”
September 27th, 2015 at 5:14 pm
When the Mahatma was fighting the British Raj for home rule for India he once stated to the British
“you are masters in another man’s house”. Now that applies to those minorities in Sri Lanka who want “Eelam”, who have a homeland in Tamil Nadu and will only demand a human rights investigation on the Sri Lankan Army while shielding those who supported the Tamil Tigers in India to the IPKF. they still call parts of Sri Lanka their “homelands” when it is not. time they left for they are now “masters in another man’s house”
September 27th, 2015 at 9:44 pm
Fran,
That will NOT work. UNP and SLFP will BULLDOZE them easily.
The LIST of DEAD patriotic parties.
1. SU
2. JHU
3. NFF
4. Boomiputhra party
5. BJP
6. MEP
The list goes on.
BTW the LARGEST Singhala party is the UNP!!! NOT SLFP. When MPs from small parties in the UPFA are removed, SLFP is small.
After 1977 there was only ONE TIME when the SLFP Singhala MPs were higher than the UNP. That was in 2010-15. At ALL other times UNP had MORE Singhala MPs than SLFP or any other SINGLE party.
Doesn’t it show HOW WEAK you are!! ONLY the military can save you.
September 28th, 2015 at 3:43 am
To respond to Lorenzo- My view is that any take over of power has to be legitimate and democratic. Military takeover is not democratic and it could be harmful and dangerous and they may have no knowlege of dealing with economic problems. Economic problems have to be controlled by economic levers such as interest rate, taxation, grants, policy etc and not by military rules.
September 28th, 2015 at 4:40 am
Lorenzo has given a list of dead parties. Analysis of the cause may indicate, ‘not evolving’, ‘staying still’,’not competitive ‘ as possible causes. Sinhalese may die due to the same reasons.
September 28th, 2015 at 7:16 am
Mario Perera explains a very good point! But they are talking Vedhi Bana and it is a
Naduth Hamudhuruwange, Baduth Hamudhuruwange like situation before us.
Lorenzo, I don’t agree that following two patriotic parties are dead.
NFF and MEP.
True MEP is not pro-active but it is not dead!
NFF is progressing well under efficient leadership of WW. Surely, there’s a lot of potential
for NFF to play a very important role in the future.
September 28th, 2015 at 7:32 am
Thank you Indrajith.
An additional comment on the presumption regarding the surrendering LTTE terror chiefs… the only certainty is that they were found dead with bullet wounds in the raging fire of a do or die battle.
Yet what about the 600 odd policemen who were made to surrender to the LTTE in a totally ‘out of battlefield’ context following a political agreement? They were brutally annihilated.
the first is a presumption while the second is a proven reality.
Yet the first is drummed up to an ear splitting volume while the second is drowned in an eerie silence.
The question is WHY?
We are the bait for the crooked hooks of liars and hypocrites pontificating as angels of light.
Mario Perera
kadawata
September 28th, 2015 at 12:26 pm
You’re welcome, Mario!
And another good point…!
September 28th, 2015 at 12:27 pm
Lorenzo,
Re the UNP being the major Sinhala party : It WAS, till the LTTE came along. The UNP under Ranil’s leadership, let down the country. The SLFP with MR led the way to a war win over terrorist group, the LTTE. The SLFP became the lead Sinhala party. Even some seasoned UNP folk told me that ‘Ranil had ruined the UNP’.
Now the position is to up the Economy after the war. MR was doing that quite well even with the ridiculous War Crimes charge hanging over his govt and the armed forces of Lanka.
However, the UNP led Opposition with Ranil’s clout – the Democratic Union Chairmanship in place – together with CBK & Sirisena, ousted the SLFP high place with two cheated elections. So it is a cheated top place for the UNP – is that a real win ? NO. What respect or regard does the present day UNP earn ? What have they done so far for the country under Ranil ?
For that matter, what have the Tamil leadership combined party, the TNA, ever done for the country ?
Though I still have high respect for the OLD UNP under people like DS and even Dudley, and JRJ, (even though Cold War politics with Indian involvement ruined his tenure), & even Premadasa, I cannot respect or have confidence in the present day UNP under Ranil. Sorry to say, Ranil is NOT the suitable leader for the UNP. A senior, mature person needed for that post.
September 28th, 2015 at 1:46 pm
Ben,
No military rule has ever imposed military rules for the economy. They rely on ECONOMIC LEVERS.
e.g. Singapore (a de facto military rule), Pakistan under Zia (great economic rules better than under democracy!)
Burma and North Korea are FAILURES. Democracy also has failures – Pakistan, Somalia, Zimbabwe, Afghanistan Iraq, Libya, etc.
Don’t be so hung up on democracy. It is JUST ONE governance system introduced to SL in 1931. SL has a history LONGER than that!
September 28th, 2015 at 1:50 pm
Indrajith,
NFF and MEP are somebodies thanks to them contesting under UPFA.
IF they contest alone ONLY WIMAL will be elected.
I AGREE WIMAL, DINESH and UDAYA are the ONLY sensible people in parliament.
But the present system
1. STOPS more of them coming to parliament
2. prevents them from coming to power without compromising and joining with the useless MAJOR party.
3. prevents ANY of them EVER becoming president. It is the president who makes all decisions.
September 28th, 2015 at 1:58 pm
Fran,
NOT TRUE.
In 1989 parliament UNP had more than 118 Singhala seats. Pure SLFP around 60.
1994 although CBK won with the help of MUSLIM CONGRESS – 7 seats, many small parties, UNP crossovers, Thondaman – 5 seats, Devananda – 9 seats, core SLFP was smaller.
2000 SLFP went bust. Small parties took over.
2001 SLFP went to dogs and lost the election.
In 2004 UPFA WON but UNP had MORE SINGHALA MPs than SLFP. 39 UPFA MPs were JVP!!
2010 is the ONLY exception where SLFP had MORE SINGHALA MPs than UNP (after 1977).
2015 again UNP has more SINGHALA MPs than SLFP.
So your logic fails. Despite RUN-NIL’s stupidity, Singhala people have voted for UNP in larger numbers than any other SINGLE party (except 2010).
Doesn’t it show how stupid the system is!!
September 28th, 2015 at 2:01 pm
NO Tamil party has EVER done anything good for the country. And never will.
With NO WAR, MILLIONS of Tamils will vote for UNP at ALL future presidential elections. Singhala voters are DIVIDED. So UNP will always win the presidential election in the future unless war restarts.
GR regretted ending the war. Me too.
September 28th, 2015 at 5:26 pm
Hey Lorenzo, it is the same with all others; see Chaumpaka, Rathana Himi and Arjuna. If they came from their respective parties, UNP for the first two and DP for Arjuna won’t even be elected to the parliament this time. That is why Hela Urumaya which criticized the Yahapalana govt of Ranil until the last moment changed their tune as soon as they came to know Mahindha was given nominations from UPFA.
MEP has a lackadaisical attitude, I don’t know why? But look at NFF? Compared to JVP which is almost 50 years old, gained a considerable achievements during their short history in SL politics. And it’s leader received the highest number of preferential votes received by an opposition MP in the district of Colombo. No only once but twice.It is not merely because he contested from UPFA but also partly due to his own popularity.
One can argue that NFF is a 100% Sinhala, Buddhist party but I don’t blame them for it. Because no one cares for the interests of Sinhala, Buddhists. Both SLFP, UNP and all other parties are trying to appease minorities for the love of their votes and neglect the needs of the Sinhalese. One example is that the previous govt of MR couldn’t resettle all Sinhalese (and Muslims) chased away from Jaffna for the fear of hurting Tamil sentiments.
September 28th, 2015 at 5:34 pm
Lorenzo, “3. 1. prevents ANY of them EVER becoming president.”
Doesn’t matter, their is no need to become the president if you really want to serve the nation.
And being one, does the current President serve the interest of the whole nation impartially?
I think he is trying to help those who helped him to become the president.
“3.2. It is the president who makes all decisions.” Again I don’t think so. Most probably it is Ranil and
Chandrika (behind the curtain) runs the show.
September 29th, 2015 at 1:53 pm
Indrajith,
In NFF only WW is doing well. But what he can achieve is VERY limited.
Even MR DISREGARDED his demands. UNP will totally disregard him or worse.
Maru Sira is an exception in presidency. Other presidents had their own way. Unless a patriot becomes the president, there is NO WAY SL can survive.
The current election system doesn’t allow a PATRIOT to become president in peace time.
September 29th, 2015 at 5:25 pm
Lorenzo, at the end of the day, WW will be the only politicians to be trusted by the majority of this island nation!