WHAT CHANCE DOES AN INDIVIDUAL CITIZEN HAVE AGAINST THE UNITED NATIONS:  AN UPDATE ON DR. GUNADASA AMARASEKARA’S CASE
Posted on December 21st, 2015

By Kapila Gamage, Attorney-at-Law

On 23 September 2015, Dr. Gunadasa Amarasekara filed a case in the District Court of Colombo against the UN, citing the UN’s resident coordinator for Sri Lanka as defendant.  The case has been reported on in a number of newspapers, but many of those reports have contained inaccuracies.  As the instructing attorney in the case, I consider it in the public interest to clarify a few things about this case, since a number of inquiries have already been made about it both by Sri Lankans as well as foreigners.

Accordingly, I shall briefly explain Dr. Amarasekara’s argument in his plaint, the current status of the case, and finally, what in my view are some of the larger ramifications of the case to international law, as well as to Sri Lanka.

THE ARGUMENT IN THE PLAINT

Dr. Amarasekara’s argument in the plaint is as follows.  A close examination of the Human Rights Council resolution A/HRC/25/L.1 (March 2014) reveals that the international investigation against Sri Lanka authorized under paragraph 10 of that resolution is solely based on the recommendation for such an investigation made by the UN High Commissioner for Human Rights, in a series of related reports.

A close examination of the said High Commissioner’s reports reveals that the primary and principal basis for the High Commissioner’s recommendation for an international investigation is evidence contained in the Report of the UN Secretary General’s Panel of Experts on Accountability, released in 2011.

That report was produced for the personal use of the Secretary General, and never placed on the official record of the Human Rights Council, the General Assembly, or any other UN organ.  Furthermore, Sri Lanka never had an opportunity to respond officially and directly to the report before any UN forum.  As such (Dr. Amarasekara argued) the use of the report to authorize various actions against Sri Lanka at the Human Rights Council is ex facie illegal, which means the investigation ultimately authorized is also illegal.

The Human Rights Council is a creation of the UN General Assembly, so the UN is ultimately responsible for the actions of the Council.  Therefore, Dr. Amarasekara was asking the UN’s resident coordinator, on behalf of his principal, to admit in writing that the investigation is illegal, and to apologize for the disgrace and dishonor it has caused Dr. Amarasekara, along with all other citizens of this country.

According to the Constitution of Sri Lanka, the sovereignty of the country is in the people, and inalienable.  That means said sovereignty is shared equally by all citizens of this country, and any imposition on that sovereignty is an imposition on the part of it that resides in each citizen.

Dr. Amarasekara took as self evident that an international investigation against Sri Lanka, conducted against the wishes of a democratically elected government (and at the time the investigation was authorized the government opposed it) is by definition an imposition on the sovereignty of the country.  Therefore, he considered that he had suffered personal disgrace and dishonor, due to the reasons explained in the preceding paragraph.

CURRENT STATUS OF THE CASE

As I mentioned earlier, the case was filed on the 23rd of September.  In early October, the Ministry of External Affairs had filed a letter with court indicating that Mr. Nandy has diplomatic immunity under Act No. 9 of 1996, and no civil action can be pursued against him.

The plaintiff’s attorney had the case called by motion in early November, at which time Counsel Mr. Dharshan Weerasekera, appearing for Dr. Amarasekara, raised an objection.  He argued that Section 4(1) of Act No. 9 of 1996, which extends the protection of the Act to international organizations, says that when protection is so extended it has to be accompanied by a gazette notification.

The letter submitted by the Ministry did not mention the number or date of the gazette by which the protection of the Act No. 9 of 1996 was extended to the UN.  Therefore (Mr. Weerasekera argued) the letter as it stood was not in proper order for purposes of certifying Mr. Nandy’s immunity.  He requested court to seek a clarification from the Ministry with respect to the gazette in question, and, if no such clarification was provided, to allow an ex parte trial.  Court then set a date for the Order on that request.

That Order was delivered on 12th December:  Court upheld Mr. Nandy’s immunity, and said no further applications on the case will be allowed.  However, in the last sentence of the Order, court said that for purposes of regularizing” the process by which the fact of Mr. Nandy’s immunity had been conveyed, court was instructing the Secretary of the Ministry to forward the details about the relevant gazette.  So, that’s where the case rests.

LARGER RAMIFICATIONS OF THE CASE

To the best of my knowledge, Dr. Amarasekara’s case is the first time that a private citizen has sued the UN for harm purportedly done to his country.  I understand there is an occasion where a group of Haitians sued the UN, alleging that they had been infected with cholera as a result of some of the UN’s activities in their country.

There, clearly, the harm is not to all Haitians, just the ones allegedly affected.  Dr. Amarasekara’s argument, on the other hand, is that all Sri Lankans were harmed by the UN’s action, and any one of them has a right of action against the UN, an unprecedented position.

In my view, the importance of what Dr. Amarasekara has done is as follows.  One of the disturbing things one sees in international relations today is that the UN is increasingly being used as a tool by certain powerful nations, particularly the United States, to further their particular national and geopolitical goals.

The classic example of the above is the Iraq Invasion, which was launched under the pretext of carrying out a Security Council resolution.  One can add Libya to that list also.  The tactic, to repeat, is to get the UN or one of its subsidiary organs to provide legal cover or a legal imprimatur to an intervention of some sort or another.  The intervention, meanwhile, ends up destroying the country in question.

The point is that, to the citizens of the countries so destroyed, there is at present no way of gaining redress from the UN, since only governments of countries, or designated agencies, are heard at the UN.  Therefore, Dr. Amarasekara’s case focuses attention on a lacuna in international law, namely, there has to be an evolution of the law to allow citizens of countries harmed by the UN to seek redress for such harm, even if their governments are unable, or unwilling, to pursue such matters.

It is well known that law, where it advances, does so very slowly.  If, however, Dr. Amarasekara’s case can get people even thinking about ways of strengthening international law to allow private individuals to hold the UN accountable (where such accountability is warranted) as described above, the case will no doubt have done immense service to humankind.

I shall finally turn to the ramification of the case to Sri Lanka, and this matter can be briefly put as follows.  The Government of Sri Lanka has co-sponsored the resolution A/HRC/30/l.29 (September 2015) that accepts the conclusions of the investigation, and makes recommendations thereon.  So, as matters stand, there’s very little anyone can do to question the veracity of the conclusions of the investigation.

Recall, however that Dr. Amarasekara filed his case on the 23rd of September.  The aforesaid resolution co-sponsored by the government was adopted on the 30th of September.  The letter of demand plus other documents were mailed to the UN Secretary General along with the UN Human Rights High Commissioner.  That means, prior to the resolution, it can be established that there is at least one source through which they were made aware that there may be problems with the legality of the investigation.

The UN is the world’s premier international organization, dedicated among other things to ensuring peace and good relations among the various nations.  One must presume that even a hint that the UN may be responsible for an impropriety or injustice will be a matter of concern to the officers of that Organization.  And here was a citizen of a country claiming that the UN has been perpetrating an injustice against his country for upwards of three years.

Was there a minimal duty on the Secretary General, and/or the Human Rights High Commissioner, to take that citizen’s complaint seriously, even for a moment?  And if so, what did they do about it?

The point is this.  If, at some future date, Sri Lanka were to have a different Government, one that chose to question the conclusions of the investigation, it would be possible, in my view, for such a Government to argue that the UN was aware at the time the resolution endorsing the conclusions of the investigation was adopted that there may be problems with the legality of the investigation, and based on that, to agitate again the points raised by Dr. Amarasekara.

In such a situation it might be possible to precipitate (at that future time) an Advisory Opinion on the legality of the investigation.  In short, Dr. Amarasekara’s case may well have set the ground work for a future challenge against the investigation, a challenge designed to undo, if at all possible, at least some of its consequences.  It may be too late by then, but at least the possibility remains.  And that, under the circumstances, may be the most we can hope for at present.

Kapila Gamage can be reached at [email protected]

9 Responses to “WHAT CHANCE DOES AN INDIVIDUAL CITIZEN HAVE AGAINST THE UNITED NATIONS:  AN UPDATE ON DR. GUNADASA AMARASEKARA’S CASE”

  1. stanley perera Says:

    My heart felt thanks go to Dr. Gunadasa Amerasekera, Kapila Gamage and all other persons involved. It is a shame that our own fellows like the big eyes from Matara is persuing his personal agenda to take the revenge from MR and GR. This ES domba will rot in hell for what he is doing. My sincere thanks also goes to MR and Gota. God saves my patriotic Sri Lankans. Those people including the writer who punished MR are now realising that no one in the present MS and RW government can be patriotic like MR and GR. North North and the East all the time is a public nuisance to the Sri Lankans. The writer raises a question from the racist North and East “whose fault is that they are suffering? Didn’t the southerners suffer to their eye balls? Why only the North and North and East only? BLOODY AMERICANS MIND YOUR OWN BUSINESS. I WANT YOU F AND B P OFF. DADDY LONG LEGS PLEASE DON’T GIVE UP YOUR PATRIOTISM FOR A FEW AMERICAN DOLLARS. THAT FAT SLOB IS GREESING YOUR PALM. DON’T TRUST THOSE YANKEE DOODLES FOR A MINUTE. THEY ARE NOW PLANNING AND INTERFERING INTO INTERNAL AFFAIRS OF SRI LANKA UNTILL EELAM IS SETTLED.

  2. LANKAPUTHRA Says:

    Stanley, good comment. Kapila Gamage is an attorney as stated. What they have not realized is ELLAM is now the constitution. Muslim OBAMA is now going to make Trincommelee a US Naval Base. If you got a chance to view the Video clip Tissa Vitharan gave, No One can stop it. It is the people who should protest at US consulate in Colombo. It is not happening. Amuda protest was very good. I do not know what you could do from Australia?

  3. helaya Says:

    Well said Stanley. I agree with you 100%. Patriot sri lnkan must rally around DR. Amarasekera and start protesting this demonstration non-sop.

  4. Sarath W Says:

    Nandy and Banki Moon are just pawns in the game, servants of the powerful western countries. They depend on USA for their big US $ salaries and other perks. The traitors Siri sena, Ran nil and poofter Uva Mangala must take the full blame for betraying the country. Every patriotic Sri Lankan must be grateful to people like Dr Amarasekara and Mr Kapila Gamage for their courage and dedication for the country and protecting the honour of the Sri Lankan state and it’s citizens.

  5. Fran Diaz Says:

    Dear Dr Amarasekera, Kapila Gamage, Dharshan Weerasekera, and all other great Patriots,

    Thank you a thousand times for standing for JUTICE & PEACE in Sri Lanka. We all agree with you totally in this defense action.
    Our thoughts and prayers with you in the front lines for the absolute success of this case, a must win for all sane minded Lankans.

    We echo Dr Amarasekera’s sentiments wholeheartedly when he says to the UN Rep : “to admit in writing that the investigation is illegal, and to apologize for the disgrace and dishonor it has caused Dr. Amarasekara, along with all other citizens of this country.

    We ourselves have been subjected to untold humiliation during our travels abroad just because we are Sinhala/Buddhists, and have been accused of HR violations with great cruelty toward Lanka Tamils.

    This is a fight for Justice & Peace for ALL in Lanka, not only for the Sinhala community.

    ————-

    The Root Causes that makes Tamil Leaders nutty about Separatism through Terrorism must be exposed to the whole world. That Tamil Leaders demanded a Separate State for Tamils from the 1930s is a self explanatory story of their intentions. The Tamil People of Lanka have been constantly misled by Tamil Leaders of Lanka and Tamil Nadu. At the Roots of the problem is the Caste system which has thrown up over 15 MILLION Tamils of DALIT ORIGIN. THESE POOR PEOPLE ARE SUBJECT TO ATROCITIES IN TAMIL NADU. This terrible injustice has gone on for some 3,000 yrs. Sri Lanka is NOT RESPONSIBLE FOR THIS TRAGEDY.

    After the 1983 trumped up RIOTS, it has been made out to the whole world that Sri Lanka is responsible for the Tragedy that has befallen the Tamils of Dalit origin, whether they are in Lanka or Tamil Nadu !! This is the BIG LIE THAT PUSHES THE SEPARATISM THROUGH TERRORISM AND OTHER MEANS.

    Cold War politics have tied up with the Tamil Separatism through Terrorism and other means. And that is how the UN has surreptitiously entered the tragic story.

    CBK & RW are damaged people and quite unsuited to handle such a complex problem. Pres Sirisena is too weak and the GoSL as at present, quite dead through Bribes & Fear. In one of the recent talks by a concerned citizen, it was revealed that Mr Sampanthan (TNA) had ‘gifted’ a car to Anura Kumara – what more shame now on the earlier tough stand patriotic JVP with present broken & bribed leadership.

    All other Patriotic Forces must now act at every level possible to prevent a senseless break up of Lanka via the UN agencies and “pimping powers” acting for ex-colonists who are waiting for land and power grabs off Lanka.

  6. LANKAPUTHRA Says:

    No one can help Mother Lanka until MUSLIM OBAMA goes away in 2017

  7. Cerberus Says:

    Sri Lanka owes a great debt of gratitude to Dr. Amarasekera for drawing the world attention to this issue. I sincerely hope that the UN will take note and take steps to correct the anomalies in the system.

  8. Sooriarachi Says:

    In this material world there are more stooges and opportunists than patriots and gentlemen.
    Those with money and power will always win as we have seen the pathetic performance of the so called UN Human Rights organisation. Nevertheless we must support those having the courage to challenge unfair or illegal actions by UN agencies, which are meant to be neutral and especially protect the rights of powerless nations like Sri Lanka. Its not happening!

  9. Fran Diaz Says:

    Right thinking and sane Lanka leaders will have to solve the problem of Tamil Separatism & Terrorism (which leads to internal wars and acute dissent, where foreign organisations are allowed/feel free to interfere) from within Lanka itself. It seems pointless to depend on outside sources to do so, as such sources appear to make matters worse.

    The tea plantations and other labor intensive projects have invited Tamil illegal migrants into Lanka from huge millions of Dalit Tamils in Tamil Nadu. Such folk likely see Lanka as a far better place to migrate to than live on in caste ridden TN.
    Lanka will have to think long term and remove the Tamil language as an O&N language. Most of the problems of Separatism/Terrorism will be solved by this one act.

    Sri Lanka has enough Labor to serve her needs. Tea plucking can be done through tea plucking machines as done in many countries, even in hilly areas using the the smaller machines. Such a machine replaces up to 4 workers.

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