A PETITION TO BRING TO YOUR ATTENTION THE CONTINUING VIOLATION OF THE PRINCIPLES OF THE UNITED NATIONS CHARTER AND THE UNHRC CHARTER BY THE UN HIGH COMMISSIONER FOR HUMAN RIGHTS VIS A VIS UNHRC RESOLUTION 30/1 ON SRI LANKA
Posted on September 28th, 2017

Rear Admiral (Rtd) Dr. Sarath Weerasekera Federation of National Organizations Mr. Sunil Chandrakumara Co-President Global Sri Lankan Forum

 

28th September 2017

Mr. Joaquin Alexander Maza Martelli

President of the Human Rights Council

Office of the United Nations High Commissioner for Human Rights (OHCHR)

Palais de Nations

Geneva 10, Switzerland

Sir,

A PETITION TO BRING TO YOUR ATTENTION THE CONTINUING VIOLATION OF THE PRINCIPLES OF THE UNITED NATIONS CHARTER AND THE UNHRC CHARTER BY THE UN HIGH COMMISSIONER FOR HUMAN RIGHTS VIS A VIS UNHRC RESOLUTION 30/1 ON SRI LANKA

  1. The present petition follows the two petitions we filed in June 2017, in which we endeavored to document the unfair, unjust and unreasonable conduct of the High Commissioner with respect to UNHRC resolution 30/1 of September 2015.
  2. The citizens of Sri Lanka have no recourse in law against the High Commissioner, because of his diplomatic immunity. Further, the present Government of Sri Lanka has co-sponsored resolution 30/1, which means that the Government cannot be relied on to object to the High Commissioner’s conduct either.
  3. Therefore, the only hope for Sri Lankans aggrieved by the High Commissioner’s actions is to acquaint you with what is happening, and also to place on record the related matters, so that in the event a future GOSL were to withdraw the co-sponsorship of resolution 30/1, we can take advantage of the full range of diplomatic and legal means including a possible Advisory Opinion of the International Court of Justice, to seek redress for the harm that the aforesaid resolution has caused us.
  4. In the present petition we focus on the High Commissioner’s opening statement at the 36th Session of the UNHRC. We draw your attention to the following remarks where he referred specifically to Sri Lanka, to wit:

In the North, protests by victims indicate their growing frustration over the slow pace of reforms. I encourage the Government to act on its commitment in Resolution 30/1 to establish transitional justice mechanisms, and to establish a clear timeline and benchmarks for the implementation of these and other commitments.

This should not be viewed by the Government as a box-ticking exercise to placate the Council, but as an essential undertaking to address the rights of all its people. The absence of credible action in Sri Lanka to ensure accountability for alleged violations of international human rights law and international humanitarian law makes the exercise of universal jurisdiction even more necessary.”[1]

  1. With respect to the reference to Universal Jurisdiction, we state categorically that the High Commissioner has no right to recommend that Universal Jurisdiction be applied against Sri Lanka, because of the following reasons:
  • In order to recommend Universal Jurisdiction, the High Commissioner must first establish, even at the minimum standard of ‘reasonable grounds to believe,’ that war crimes were committed in Sri Lanka.
  • In March 2014, the Human Rights Council authorized the High Commissioner to undertake an investigation in order to see whether war crimes were committed in this country during the last phase of the war, and the High Commissioner filed the final report of that investigation, the OISL report, in September 2015.
  • The standard of proof of the OISL report is ‘reasonable grounds to believe,’[2] the lowest standard of proof known in the law, nevertheless a standard.
  • Sir Geoffrey Nice QC and Rodney Dixon QC, two of six international experts retained by the GOSL to analyze a previous UN-related report on Sri Lanka – The Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka – which also followed the ‘reasonable grounds to believe’ standard, discuss at length the law relating to the aforesaid standard. Their remarks are pertinent to the present discussion, and briefly are as follows.  They say, inter alia:

It should be noted that international courts and tribunals have confirmed that the ‘reasonable basis to believe’ standard – if that is what the Panel had in mind – is the lowest evidentiary standard of proof. The standard does, nevertheless, require that there exists a proper foundation of identifiable evidence on which to form a reasonable belief that crimes have been committed…

      The ‘reasonable basis to believe’ standard is used at the ICC to determine whether an investigation should be launched and if any persons should be charged as a result of this investigation. Although this standard does not require that the available evidence lead only to one conclusion, it does demand that there is sufficient reliable and verifiable evidence available to establish the criminal responsibility of an individual’ which can result in charges being brought and the person losing her/his liberty through arrest and detention pending trial.

      The ICC held that the Chamber must be satisfied that there exists a sensible or reasonable justification” for the allegations after evaluating the available information provided by the Prosecutor”. The ICC has emphasized that the ‘reasonable basis to believe’ standard must be viewed in light of its purpose and the context in which it operates – to prevent the Court from proceeding with unwarranted, frivolous, or politically motivated investigations that could have a negative effect on its credibility.”[3]

  • In March 2017, we produced a detailed analysis of the evidence in the OISL report, titled, ‘A Factual Appraisal of the OISL report: A Rebuttal to the Allegations against the Armed Forces,’ where we showed that the OISL report is full of lies, contradictions, and obfuscations, and is further compromised by a total failure to consider exculpatory evidence.
  • Copies of the ‘Factual Appraisal’ (Volume 2 of the ‘Factual Appraisal’ consists of the six reports of the internationally renowned experts on humanitarian law mentioned in paragraph ‘iv’ above) were handed over to the UN Resident Coordinator in Sri Lanka, the OHCHR and also the Sri Lankan Presidential Secretariat. These documents were also handed over to your office in June 2017 along with our two petitions.
  • The OHCHR has acknowledged receipt of the documents but to this day has not responded to the substance of the arguments made in those documents, which prompts us to conclude that the OHCHR has now accepted those arguments.
  • In short, the High Commissioner has thus far failed to establish with a proper foundation of reliable and verifiable evidence that war crimes were ever committed in Sri Lanka.
  • It should be noted that, the High Commissioner was mandated by the Council to carry out a comprehensive investigation, and given adequate resources and time to fulfill such task.  To the best of our knowledge, he has not said anywhere that the resources and time made available to him were inadequate.
  • It should be noted further that, Paragraph 4 of the UNHRC Charter (General Assembly resolution 60/251) specifically states inter alia:

[The work of the Council] shall be guided by the principles of universality, impartiality objectivity and non-selectivity[4]

  1. We reiterate that, if after nearly an year-long investigation, with all the resources of the UNHRC and related parties at his disposal, the High Commissioner cannot establish at the minimum standard of ‘reasonable grounds to believe’ that war crimes were committed in Sri Lanka, he does not have the right to suggest that Universal Jurisdiction be applied against this country.
  2. We assert that, the only ‘objective’ and ‘impartial’ thing for any reasonable person to do under the aforesaid circumstances is to cease and desist from continuing to level accusations of war crimes against Sri Lanka.
  3. We next draw your attention to the call made in Paragraph 16 of resolution 30/1 for constitutional reform in Sri Lanka.

 

  • The High Commissioner in his statement before the Council on 11th September 2017 insinuates that the Government is either dragging its feet with respect to implementing resolution 30/1, or worse, is misleading the Council, i.e. engaging in a mere ‘a box-ticking exercise to placate the Council.’ We presume that the High Commissioner’s call that implementation of resolution 30/1 be expedited includes a call to expedite the constitutional reforms also.
  • With respect to constitutional reform in Sri Lanka, it is imperative that you become aware of the following facts, if you are not already:
  • The Government initiated a constitutional reform process in March 2016, and it is almost at its final stage. On 21st September 2017, the Constitutional Steering Committee released an interim report.  All that remains is for the Parliament to debate the interim report and to authorize a final report and/or a Constitutional Proposal.
  • However, there are serious questions over the legality of the aforesaid process, and in any event, it is being conducted against the wishes of the majority of the people of the country. (In June 2017, along with our petitions, we filed a paper explaining among other things why the present constitution-making process is probably illegal, and also giving a brief overview of the general political situation in the country, which we hoped would be helpful in providing the background details and necessary context for assessing the ongoing constitutional reform process.  For your convenience, we are filing a revised version of that paper along with the present petition.)
  • The strongest evidence that the constitution-making process is being conducted against the wishes of the people is that the Government keeps postponing Local Government and Provincial Council elections indefinitely.
  • The Government has a 2/3 majority (or very close to one) as a result of a coalition between the UNP[5] and the SLFP[6] dubbed the ‘National Government.’[7] The Government needs a 2/3 majority in order to have any hope of proceeding with constitutional changes.
  • If Local Government Polls or Provincial Council elections are held today and the SLFP or the UNP were to lose badly, it would send the strongest possible signal to the UNP’ers and SLFP’ers in Parliament about the mood of the public towards the Government, and it would shatter the coalition.
  • Therefore, the Government cannot afford to hold either the Local Government polls or the Provincial Council elections.
  • After postponing Local Government Polls for nearly two years under the flimsiest of pretexts, the Government finally amended the Local Government elections law, and now has a new and seemingly ‘legal’ pretext to keep postponing those elections.[8] We need hardly point out that, if what is important is the franchise of the people, LG polls could have been held according to schedule under the old law, and changes if any made for future elections.
  • What about the Provincial Council Elections? In late August 2017, the Government tried to amend the Constitution in order to postpone the Provincial Council elections.  However, this backfired when in Mid-September the Supreme Court ruled that any such amendment required a referendum of the People.
  • So, the Government has now abandoned the aforesaid amendment and instead pushed though a different amendment (using the Government’s 2/3 majority) to let the Provincial Governors assume the powers of the Provincial Councils when the terms of those Councils come to an end. By doing this the Government has now ensured that the Provincial Council elections will also not be held for the foreseeable future.
  • The implications of the above situation are not lost on the people of Sri Lanka, and anyone else who cares to assess these events in the light of common sense, reason and historical experience, including the experience of other countries in similar circumstances.
  • The editors of The Island, one of Sri Lanka’s leading English newspapers, have summed up the sentiments of many people in this country about the aforesaid events. They say, inter alia:

Given the detestable manner in which the ‘yahapalanaya’ [Good Governance] government is weakening democratic systems for self-advancement, one fervently hopes that the country will be able to ward off anarchy and the much-revered ballot box, which has saved the country’s democracy even during bloody uprisings and a protracted war, won’t be relegated to a cobwebbed corner of the National Museum.”[9] 

  • We hope the above sentiments will be useful to you in understanding what is happening in this country at present.
  • In short, the truth is that the constitutional reform process – the process recommended by resolution 30/1 which the High Commissioner appears to value so much, and which he says must be expedited – is being carried out and in fact is predicated on the destruction of the last vestiges of the democratic rights of the Sri Lankan people, purportedly for the purpose of advancing those very rights!
  • The High Commissioner is statutorily enjoined to protect and promote human rights anywhere in the world if he finds such rights being endangered or trampled on. Isn’t the steady and inexorable destruction of the democratic rights of an entire people of a country a matter of concern to him?
  • Is it possible that the High Commissioner is unaware of what is happening in Sri Lanka? We hardly think so, because the UN including the OHCHR has plenty of representatives resident in Colombo.  Furthermore, the High Commissioner has been sending Special Rapporteurs to Sri Lanka every six months or so since the adoption of resolution 30/1, and such individuals are fully capable of relaying to the High Commissioner the details as to what is happening here.
  • So, there is no other interpretation to put on the High Commissioner’s conduct towards Sri Lanka vis a vis resolution 30/1 other than that he is being unfair, unjust, unreasonable, and acting in violation of the principles of both the UN Charter and the UNHRC Charter.

Under the circumstances, we humbly request that you:

  1. Advise the High Commissioner to adhere as strictly as possible, both in letter as well as spirit, to the principles of the UN Charter, the UNHRC Charter and also the OHCHR Charter, in his dealings with Sri Lanka.
  2. Encourage the High Commissioner to be especially mindful of Paragraph 4 of the UNHRC Charter in his dealings with Sri Lanka.
  3. Permit a delegation of Sri Lankan professionals, clergy and academics led by us to brief you and the Council on the present situation in Sri Lanka.
  4. Impose a moratorium on any further actions taken on Sri Lanka by the UNHRC or OHCHR pursuant to resolution 30/1, until the OISL report is subjected to an official assessment either by the Council, or the UN General Assembly.
  5. Initiate the necessary steps to produce an official assessment of the OISL report as set out in Paragraph ‘d’ above.
  6. Take the necessary steps to obtain an official response to the ‘Factual Appraisal of the OISL report,’ submitted by us.

Respectfully,

  1. Rear Admiral (Rtd) Dr. Sarath Weerasekera
  2. Sunil Chandrakumara

Copies to:

  1. UN Secretary-General
  2. President of the International Court of Justice

[1] Opening Statement at the 36th session of the UNHRC, UN High Commissioner for Human Righs Zeid Ra’ad Al Hussein, 11th sepyember 2017, www.ohchr.org

[2] ‘Terms of reference,’ OISL report, Annexes

[3] The related paper is included in Volume 2 of the ‘Factual Appraisal of the OISL Report,’ we submitted to your office in June 2017

[4] General Assembly resolution 60/251, www.ohchr.org

[5] United National Party

[6] Sri Lanka Freedom Party

[7] The events leading up to the forming of the ‘National Government’ are described in the attached paper.

[8] This matter is explained in more detail in the attached paper.

[9] ‘Of that cobwebbed, dusty ballot box,’ Editorial, The Island, 23rd September 2017

4 Responses to “A PETITION TO BRING TO YOUR ATTENTION THE CONTINUING VIOLATION OF THE PRINCIPLES OF THE UNITED NATIONS CHARTER AND THE UNHRC CHARTER BY THE UN HIGH COMMISSIONER FOR HUMAN RIGHTS VIS A VIS UNHRC RESOLUTION 30/1 ON SRI LANKA”

  1. helaya Says:

    Thank you Rear Admiral for your patriotic work. You are really a good citizen of Sri Lanka. Our president and PM trying to scarify war heroes and you and other patriots working tirelessly to bring justice to our heroes. Thanks again.

  2. Hiranthe Says:

    Great Job Sir,,

    We salute you for being a true son of mother Lanka RA Sarath Weeresekara.

    Thank you GSLF for making it possible and also giving all the support to RA Sarath.

    Your contribution will go into the history of SL

  3. Fran Diaz Says:

    Our grateful thanks to Rear Admiral Sarath Weerasekera & Team for this great service to our Motherland, Sri Lanka.

    SECURITY issues and UNITARY status of the country of paramount importance to Sri Lanka.
    Sri Lanka has to have Laws in place for this purpose, and follow through of such Laws.

    It is the Democratic Right of the People, the citizens of Sri Lanka, to do so.

    As such, Resolution 30/1 should be scrapped.

    ——–

    It is important to note that America, INDIA & Sri Lanka are all earlier colonised countries.
    ALL earlier colonised countries in the world ought to be specially protected through the Law of their Land & the UN, to ensure that they are not re-colonised.
    Guided and helped, yes, but not re-colonised.

    To this end, the ILLEGAL 13-A (imposed under Duress by INDIA in 1987), must be removed.
    INDIA appears to try to protect herself at her Southern end by virtual take over of neighbor Sri Lanka.

  4. Ananda-USA Says:

    Our sincere thanks and gratitude goes to Rear Admiral (Rtd) Dr. Sarath Weerasekera and Mr. Sunil Chandrakumara for organizing and submitting this PETITION on behalf of ALL PATRIOTIC Sri Lankans who love our Motherland!

    Sinhalayeni …..

    Let each of us echo Harry Belafonte’s words to pledge our fealty to our own resplendant island in the sun ….

    This is my island in the sun where my people have toiled since time began.
    I may sail on many a sea, but her shores will always be home to me.
    Oh my island in the sun, willed to me by my father’s hand.
    All my days I will sing in praise of your forests, waters and your shining sands.

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