DHARSHAN WEERASEKERA

 According to the newspapers, UN Human Rights High Commissioner Rights Zeid Al Hussain is scheduled to arrive in Sri Lanka on the 5^th of February.  The purported purpose of the visit is to urge the Government to finalize the mechanisms to try some of Sri Lanka’s war-time commanders for war crimes, as recommended by his report of September-2015, and endorsed by UNHRC resolution A/HRC/30/L.29.

In my opinion, Zeid has demonstrated by his conduct towards Sri Lanka that he is a law-breaker, a menace to the world (because his actions are causing the United Nations Organization, of which he is a high-ranking official, to continually breach the UN Charter) and thereby a disgrace to his office.

In this article I shall briefly explain the offence that I think the UN is at present being compelled to commit against Sri Lanka, the role that persons such as Zeid play in it, and suggest some things that Sri Lankans can do to ‘greet’ him properly when he gets here.

THE BACKGROUND TO THE OFFENCE

A good place to begin a discussion of the offence that the UN is committing against Sri Lanka is the farewell note penned by departing UN Resident Coordinator Subinay Nandy, and published in The Island of 19 January 206.  Nandy says, inter alia:

‘I was also fortunate to have been working with the UN in Sri Lanka during the last year when the Government re-affirmed its commitment towards meeting its international obligations to the UN system.’

Let’s look at this sentence a bit closely, particularly at the assumption it contains about the relationship between Sri Lanka and the UN.  As far as I know, Sri Lanka does not have an agreement with a ‘UN system.’  Sri Lanka has an agreement with the United Nations Organization, as a result of signing the UN Charter, and that Charter imposes reciprocal obligations on the UN that it has to meet when dealing with its Members.

One of the said obligations, perhaps the most important, is set out in Article 2(7) of the Charter, as follows:  ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter.’

Let’s now turn to the international investigation against Sri Lanka authorized by the Human Rights Council in March-2014.  In my view, there’s a prima facie case that both the process that led to the investigation being authorized (i.e. the preceding resolutions in 2012 and 2013, plus the related reports of the Human Rights High Commissioner) as well as the result of the investigation (i.e. the High Commissioner’s report A/HRC/30/CRP.2 submitted to the Council in September-2015) are compromised.

The constraints of time don’t allow me to go into the above matter in detail, but in brief my argument is as follows.  With respect to the process that led to the investigation, an examination of the resolutions in 2012 and 2013 reveals that the principal basis for the recommendation for an investigation made in those resolutions was the recommendation made in related reports of the High Commissioner.

Meanwhile, an examination of the said High Commissioner’s reports shows that the principal basis for the recommendation for an international investigation made in those reports is the Report of the Secretary General’s Panel of Experts of Accountability in Sri Lanka (POE) released in 2011.  But, that report was produced for the personal use of the Secretary General, and never placed on the record of the Human Rights Council, and Sri Lanka never had a chance to respond to it directly before any UN Organ.

As such, in my view, the Council’s use of the report as a basis for recommending various measures against Sri Lanka is ex facie illegal.  (It should be noted that, when the POE was first released in 2011, the Russian Federation raised objections to it even at the Security Council.  So, there can be no denying that the UN was aware that there may be problems if any UN Organ were to use the POE for official purposes.)

I shall now turn to the result of the investigation, i.e. the High Commissioner’s report A/HRC/30/CRP.2 of September-2015.  In my view, the chief problem with this report is that it has not been subjected to an independent assessment, though it is replete with lies, obfuscations, contradictions and omissions, and so on, which become apparent to anyone even after a cursory perusal of the document.

More to the point, there are two reports commissioned by the Government, the Report of the Lessons Learnt and Reconciliation Commission (LLRC), and the Paranagama Commission, the latter of which included international legal experts such as Sir Desmond De Silva and Professor David M. Crane, who had been consultants for the UN in other war crimes investigations, that a case for war crimes against the Sri Lankan State (i.e. a case for ‘Command responsibility’) cannot be made.

It should be noted that the High Commissioner’s report A/HRC/30/CRP.2 is the only UN-endorsed report thus far to suggest that Sri Lanka as a State committed war crimes.  Under the circumstances, it seems to me the least the Human Rights Council could have done before endorsing the High Commissioner’s recommendations was to subject the report to an independent assessment to test the veracity and credibility of his evidence.

THE OFFENCE

The Human Rights Council may argue that because the Government co-sponsored resolution A/HRC/30/L.29 it vitiates the need for an assessment such as the one mentioned above.  But, the question is, ‘Even if the UNHRC didn’t have to subject the High Commissioner’s report to an independent assessment before taking action on it, was there a duty of the UN (i.e. the General Assembly) to conduct such an assessment, because of obligations stemming from the UN Charter, particularly Article 2(7)?’

In my view there was, and my argument is briefly as follows.  The argument is derived from a principle of Criminal Law accepted in most civilized countries, namely, where a very serious offence is concerned, a plea of guilty by the accused at the very start of the trial is not sufficient for a conviction.  The judge must satisfy himself or herself that the accused, one, understands the gravity of what he (the accused) is about to do, and two, the accused has not been tricked or coerced into pleading guilty.

If the judge has the slightest suspicion with respect to the said matters, he or she can order the prosecution to prove the charge beyond a reasonable doubt, irrespective of the plea of guilty by the accused.  In the law of Sri Lanka, this is taken a step further.  For a charge of murder, the judge has the discretion to refuse a plea of guilty and to order the prosecution to proceed with its case (Criminal Procedure Code, Section 197 as amended).

I consider that the above principle, mutatis mutandis, is applicable even in the field of international law, because it is essentially a means of safeguarding an accused where, by his own act, either through ignorance or compulsion, he is about to do grave harm to his own interests.

It seems to me reasonable that, if an individual accused of a crime can enjoy this safeguard, there is even greater need for that safeguard to be available to a nation, where the actions of certain officials threaten the sovereignty of the nation, and the citizens of the nation, who ultimately suffer the consequences of the said actions, have not been consulted nor had an opportunity to provide input with respect to the actions in question.

To cut to the chase, the Government has co-sponsored resolution A/HRC/30/L.29, which, let us suppose, is equivalent to a plea of ‘guilty’ to the High Commissioner’s charges.  The UN Organization, however, has an abiding relationship with the nation of Sri Lanka, which includes the obligation not to interfere in the internal affairs of this or any other country.

The High Commissioner’s recommendations entail interfering in the internal affairs of this country:  I take as self evident that the setting up of judicial mechanisms to try the citizens of this country for wrongs purportedly done during an internal conflict is an interfering in the internal affairs of this country, if, as I mentioned earlier, there’s a prima facie case that the recommendation for such mechanisms was compromised (not just the recommendation but the entire process that led to the investigation).

Under the circumstances, in my view, there was an obligation on the UN, irrespective of the Government’s  plea of ‘guilty,’ to subject the High Commissioner’s report to an independent assessment before allowing the UNHRC to take any actions against Sri Lanka based on that report.  Therefore, by allowing or rather tolerating the UNHRC’s actions, the UN is breaching the UN Charter.

THE ROLE THAT PERSONS SUCH AS ZEID PLAY IN THE OFFENCE MENTIONED ABOVE

If some wrong is being by the UN or in its name, it is the responsibility of the relevant officials to inform the General Assembly of these matters.  Persons such as Zeid and Ban Ki Moon are some for the highest officials in the UN.  They have been intimately involved in what has happened to Sri Lanka at the UNHRC.  Zeid, with his report, is now more intimately involved than even Mr. Moon.

If these persons had the slightest suspicion that something wrong was being done to Sri Lanka, they had a duty to inform the General Assembly about what was going on, and to request the GA to take the necessary action.  In this case, they did nothing, which means they are ultimately responsible for the UN’s aforesaid offence against Sri Lanka and against the Charter.

Zeid might argue that either he or his predecessors have checked with their lawyers and the latter have said that everything that has been done to Sri Lanka is by the book and above board.  In my view, that defence is unacceptable.  It is the same defence that George W. Bush the former American President tried with respect to the charge that his people had engaged in torture.

He got a lawyer at the Justice Department to write a memo re-defining the word ‘torture’ so that it excluded everything that the Americans were doing, and then said, in effect, ‘We don’t ‘torture’’  No one other than the Americans bought Bush’s defence.  The proper forum to go to if anyone wants a ruling on whether Americans were guilty of torture, with regard to any particular case, is the US Supreme Court.

To turn to Zeid, if he had any doubts whether the actions taken against Sri Lanka at the UNHRC were lawful or not, the proper forum to go to is the International Court of Justice (ICJ) the official court of the UN.  He could have asked for an advisory opinion from the Court, or got the General Assembly to request such an opinion, and resolved all his doubts.

Given the larger ramifications of the UNHRC’s actions against Sri Lanka, for instance, the precedent they set for similar actions to be taken against other countries, an advisory opinion on the legality of the said actions would have been a good idea, particularly because it would have got the Court to interpret Article 2(7).  So, why didn’t Zeid or even Mr. Moon, take advantage of the opportunity?

To repeat, the claim that they checked with their lawyers is not enough:  persons such as Zeid and Moon are ultimately responsible for the UN’s continuing breach of its obligations to Sri Lanka under the Charter.

THE CONSEQUENCES OF THE OFFENCE

I anticipate among other things the following two results.  As soon as there’s a change of government in Sri Lanka (and obviously change is inevitable in politics, as in all things), if the Government that comes to power decides to reject resolution A/HRC/3/L.29, it will immediately request a series of advisory opinions of the ICJ.

The ICJ  has the discretion to decide whether or not it will take up any particular question, but if the Court takes up even one of the Government’s questions, and interprets Article 2(7), and if according to that interpretation some or all of the UNHRC’s actions against Sri Lanka are deemed to be beyond the scope of the said Article, then, if I may borrow an American expression, ‘All hell will break loose.’

It will mean that all measures that flow from resolution A/HRC/30/l.29 will be nullified, which will include any mechanisms to pursue charges based on the High Commissioner’s report, and any judgments or sentences handed down by such mechanisms.  That in turn means that ways will have to be found for the UN to compensate Sri Lanka for damage that may have been done as a result of the said resolution and its related measures.

The second result I anticipate, related to the first, is that a series of lawsuits will be filed under the civil law, by persons accused before the said mechanisms, against the officials, both foreign and local, who helped design those mechanisms.  The basis of the cases will be that the officials had a duty of care to ask basic questions about the legality of the mechanisms before proceeding to set them up.

These cases will embroil the officials in question in litigation for years, and, if they lose, they will have to pay millions of rupees in compensation.  In short, the UN’s continuing breach is compounding a situation that might someday shake the UN, and also Sri Lankan domestic law, to its very foundations, and all this because persons such as Zeid don’t seem to have the guts to seek  rudimentary clarifications from the ICJ even at this late stage.  This is the man, then, who is set to visit out fair shores on 5^th February.

RECOMMENDATIONS

I shall limit myself to just one recommendation.  I am sure that there will be protests and demonstrations when Zeid arrives.  The message conveyed at these protests should be coordinated and focused, and aimed at the international audience.  In my view, the battle that patriotic Sri Lankans now face is to convince a sizable segment of the international audience that an injustice has been done, and continues to be done, to this country.

I believe the only way to do the above is to focus the message on the specific provision of law that is being breached.  So, to that end, people should make placards that say simply: ‘2(7)’.  When international observers, including the international press that will be traveling with Zeid, and Zeid himself see this, they’ll first ask, ‘What does that mean?’  and some assistant or other will inform them that it refers to Article 2(7) of the UN Charter.  Nothing more need be said.

I recommend a variation on the above also, namely, someone should have T-shirts made with the logo, ‘2(7)’ on the front and the text of the Article in English and Sinhala in the back.  Then, wherever Zeid goes, for instance along his route, people should wear these T-shirts and stroll, or just stand around.  I’m sure it’ll have Zeid climbing the walls.

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of two books:  The UN’s Relentless Pursuit of Sri Lanka (2013), and, The UN’s Subversion of International Law:  The Sri Lanka Story (2015)