DHARSHAN WEERASEKERA

Zeid Al Hussein the UN Human Rights High Commissioner arrived in Sri Lanka on the 6^th of February and I’m told he’ll be here for four days.  A visit by the UN High Commissioner for Human Rights to any country for even a day is surely be a big deal, since a person of his standing must have hundreds of requests for visits, and there are obviously so many hot-spots in the world at any given time that it must be difficult to decide where his presence can do the most good.

To have the HC visit Sri Lanka for four days means we are a top priority for him.  Under the circumstances, it is reasonable to suppose that as soon as he got here he would make an official statement about the purpose of his visit, and what exactly he expects to accomplish at the end of it.  It is also customary to give a press conference.  To my knowledge, there has not yet been an official statement about the exact purpose of his visit, or what he expects at the end of it; neither has there been a press conference.

In fact, Zeid’s camp is eerily silent.  It’s almost as if he’s not even here, or rather, in hiding.  Why?  What is he (or his handlers) afraid of?  In my view, there’s a very good reason Zeid is as quiet as a mouse:  the top brass at the UN have told him to keep his mouth shut, and his head down, because his presence in Sri Lanka is now a liability to the UN.  I shall explain below just two of the ways why I think this is the case.

First, the UN has begun to realize that if something illegal was done to Sri Lanka at the Human Rights Council (with the complicity of OHCHR) the fact that Sri Lanka may have acquiesced in the said illegality (by co-sponsoring a resolution) doesn’t obviate the UN’s responsibility to independently investigate the illegality in question, and take remedial measures if necessary.

If and when there’s a change of government in Sri Lanka, and if the new government decides to request an advisory opinion of the International Court of Justice on the legality of the actions taken against Sri Lanka at the Human Rights Council, every one of the High Commissioner’s official statements will be potential evidence in that future case.  Meanwhile, if the court rules in Sri Lanka’s favour, not just the UNHRC but the UN will have to answer, because the UNHRC is ultimately subject to the UN.

So, it is best to keep Zeid on a tight leash to make sure he doesn’t compromise himself or the Organization.  Second, it takes only a moment’s reflection to see that the only real reason for a four-day visit by the HC is to finalize matters related to the hybrid courts to try some of Sri Lanka’s war-time commanders for war crimes, as recommended by his report of September-2015 to the Human Rights Council, a recommendation subsequently reiterated by him to the Council on 30^th September 2015.

Here’s what he said to the Council by video-link on 30^th September 2015:

‘I welcome the Government’s commitment, made before this Council, to investigate these violations and ensure accountability….The unfortunate reality, however, is that Sri Lanka’s criminal justice system is not currently equipped to conduct an independent and credible investigation into allegations of this breath and magnitude….This is why I have recommended the establishment of an ad hoc hybrid special court, integrating judges, prosecutors, lawyers and investigators, mandated to try notably war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defence office and witness and victims protection program.  In a highly polarized environment, such a mechanism is essential to give all Sri Lankans, especially victims, confidence in the independence and impartiality of the process.’ (Statement by UN High Commissioner for Human Rights Zeid Ra’ad Al Hussien  via videolink to the Human Rights Council, 30 September 2015, www.ohchr.org)

So, to repeat, the only way a four-day visit makes sense is if it is to oversee the setting up of these mechanisms—for instance to participate in the signing of some agreement by the Government officially launching them—and then leaving in triumph.  The problem is that the Government has realized that setting up hybrid mechanisms or in fact any type of special mechanism to try Sri Lankans requires making changes to the Constitution.

If push comes to shove, the Government can muster the necessary 2/3 majority to pass the necessary enabling legislation to set up the aforesaid mechanisms, but the matter is not as simple as that.  Any attempt to change the Constitution means the matter will go before the Supreme Court.

Once it goes to the Supreme Court, a lot of things can go wrong.  For instance, the Court might order that, before a ruling can be given, an independent assessment of the High Commissioner’s Report of September-2015 be done, to test the veracity of the HC’s evidence, and thereby to find out if there’s a need for the proposed special courts to begin with.

In my view, the above is the worst-case scenario for the UN, because if an independent assessment of the High Commissioner’s report of September-2015 is done, the whole world will see that the HC’s report is a complete farce:  the HC has absolutely no case against the Government.  If Zeid has no case, then the question arises as to how the UN could have let matters go so far.

It should be emphasized that the HC’s report is the only UN-endorsed report thus far to argue that a case for war crimes against Sri Lanka as a State (i.e. a case for ‘Command responsibility’) can be made.  The UN can only act on the basis of recommendations made in official documents.  Therefore, to the extent there is a demand for hybrid courts or special courts to try Sri Lanka’s war-time commanders the only basis for such demands is the HC’s report.

To make a long story short, the UN knows the game is up, and the last thing it wants is people asking embarrassing and inconvenient questions from Zeid at this stage.  Zeid thought he could land in this country, lord it over us, and then leave like a conquering Caesar.  He’s now going to leave like a whipped dog, with his tail between his legs.

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)