{"id":46201,"date":"2015-07-27T09:21:57","date_gmt":"2015-07-27T15:21:57","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=46201"},"modified":"2015-07-27T02:08:18","modified_gmt":"2015-07-27T09:08:18","slug":"sri-lankan-attorney-mulls-legal-action-against-the-unhrc-sri-lanka-investigation","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2015\/07\/27\/sri-lankan-attorney-mulls-legal-action-against-the-unhrc-sri-lanka-investigation\/","title":{"rendered":"SRI LANKAN ATTORNEY MULLS LEGAL ACTION AGAINST THE UNHRC SRI LANKA INVESTIGATION"},"content":{"rendered":"

Shenali Waduge<\/em><\/span><\/h2>\n

Attorney Dharshan Weerasekera has written to the President of the United Nations General Assembly enumerating certain concerns he has with the UNHRC’s Sri Lanka investigation, and indicating that if these concerns are not addressed he will explore ways of gaining redress through domestic law.<\/p>\n

The following is the full text of the letter:<\/p>\n

Mr. Sam Kahamba Kutesa
\nPresident of the United Nations General Assembly
\nUnited Nations Secretariat
\n405 East 42nd Street
\nNew York, NY 10017<\/p>\n

REQUESTING YOUR HELP TO ADDRESS A GRAVE INJUSTICE BEING\u00a0PERPETRATED AGAINST SRI LANKA BY THE HUMAN RIGHTS COUNCIL<\/strong><\/span><\/p>\n

I am a citizen of Sri Lanka.<\/p>\n

Since 2012, the Human Rights Council has adopted three resolutions against Sri Lanka\u00a0on the subject of accountability\u201d for violations of humanitarian law and human rights\u00a0law allegedly committed during the civil war that ended in May 2009.<\/p>\n

The resolution in March 2014 authorized an investigation into the aforesaid alleged\u00a0violations, to be carried out by the Office of the High Commissioner for Human Rights\u00a0(OHCHR).<\/p>\n

I have evidence to show that certain irregularities and\/or illegalities were committed both\u00a0in the manner the respective resolutions were pursued at the Council, as well as the way\u00a0the investigation was finally authorized in March-2014.<\/p>\n

The aforesaid evidence is contained in four essays, three of which were originally\u00a0published in the well-respected online magazine, Foreign Policy Journal.\u00a0 Two of those\u00a0essays were subsequently posted on the website of the Peace Palace Library, the\u00a0prestigious library attached to The Hague.<\/p>\n

I re-published the aforesaid four essays in two books, the first (The UN\u2019s Relentless\u00a0Pursuit of Sri Lanka, and the need for effective counter-measures) in 2013, and the\u00a0second (The UN\u2019s Subversion of International Law:\u00a0 The Sri Lanka Story) in 2015.<\/p>\n

(I have taken the liberty to forward two copies of the said books along with this letter, for\u00a0your convenience.)<\/p>\n

In the course of my research over the past three years, I found that, one, the call for an\u00a0international investigation was based on the High Commissioner\u2019s recommendation in a\u00a0series of reports in 2013 and 2014, and two, the basis for the High Commissioner\u2019s\u00a0aforesaid recommendation was the recommendation for an international investigation\u00a0made in the Report of the Secretary General\u2019s Panel of Experts (POE) in 2011.<\/p>\n

1\u00a0The POE was a document produced for the Secretary General\u2019s personal use, and not to\u00a0be submitted in any official capacity to the General Assembly, the Human Rights\u00a0Council, or any other U.N. organ.<\/p>\n

The POE, however, was submitted indirectly to the Human Rights Council, and went on\u00a0to become the basis for the call for an international investigation by the Council, in 2012,\u00a02013 and 2014.<\/p>\n

The POE, since it was not an official document, was never placed on the record at the\u00a0Human Rights Council, and Sri Lanka never had an opportunity to respond to it directly\u00a0and officially before that body.<\/p>\n

In the circumstances, the Council\u2019s use of the POE as its principal basis for authorizing\u00a0an international investigation against Sri Lanka is illegal.<\/p>\n

If my surmises above are correct, the investigation is illegal, and Sri Lanka has been\u00a0subjected\u2014indeed continues to be subjected\u2014to a grave injustice at the Human Rights\u00a0Council.<\/p>\n

Since the Human Rights Council is a creation of the U.N. General Assembly, the\u00a0responsibility for the aforesaid injustice ultimately rests with the General Assembly itself.\u00a0The basic problem I have at present is as follows:\u00a0 given the grave injustice that I\u00a0consider the UNHRC has committed against Sri Lanka as described herein-before, as a\u00a0citizen of Sri Lanka, I have no venue at the U.N. where I can have my grievance heard.<\/p>\n

In contrast, a country that considers itself wronged by the U.N. can take up the matter at\u00a0the International Court of Justice (ICJ) by requesting an Advisory Opinion.<\/p>\n

Meanwhile, to turn to the Human Rights Council, its Complaint Procedure facility under\u00a0Resolution 5\/1 allows persons and parties to bring to the attention of the Council grave\u00a0violations of human rights taking place within a country.\u00a0 But, this facility does not allow\u00a0complaints to be brought that deal with wrongs the U.N. may have committed against a\u00a0country.<\/p>\n

Thus, to repeat, to the best of my knowledge, there is no forum or venue, within the U.N.\u00a0where an individual citizen harmed in some way or other by U.N. action against his or\u00a0her country, can have their complaints heard and legally adjudicated.<\/p>\n

In my view, there is a lacuna in international law in respect to the above matter.\u00a0I am willing to concede that the Founders of the U.N. did not envision a situation where\u00a0the U.N. would have to answer to complaints by individual citizens of its member\u00a0countries.<\/p>\n

2\u00a0The U.N., as originally conceived, was primarily a mechanism to facilitate universal\u00a0peace:\u00a0 thus, it was intended as a forum where the Governments of countries (or other\u00a0designated agencies) could be heard, and not individuals with personal complaints.<\/p>\n

In my view, the fact that only Governments (or other designated agencies) can be heard at\u00a0the U.N. does not mean that, where the U.N.\u2019s actions touch the lives of individual\u00a0citizens of particular countries adversely, those citizens ought not to have any means of\u00a0redress.<\/p>\n

I am a firm believer in the legal maxim:<\/p>\n

Ubi jus, ibi remedium (Equity will not suffer a wrong without a remedy) \u00a0I also take as self-evident that, changes in circumstances often necessitate corresponding\u00a0advances in the law.<\/p>\n

Thus, I am now compelled to turn to you, to ask for your help in finding a venue or a\u00a0forum where I can have my grievance heard within the U.N., or, in the event there is no\u00a0such forum, your advice on how I can go about initiating changes in the relevant law, to\u00a0make possible the creation of such a forum.<\/p>\n

I must inform you further that, if I cannot find a suitable venue or forum as discussed\u00a0above, I shall explore ways to gain redress from the U.N. through the domestic laws of\u00a0my country.<\/p>\n

I should like to tax your patience with regard to one final matter, to wit:\u00a0 explain briefly\u00a0why you should take an interest in what has happened to Sri Lanka at the UNHRC\u00a0independently of the personal request I have made above.<\/p>\n

In my view, the U.N., for all its faults, remains the best means through which the nations\u00a0of the world can maintain a modicum of peace among themselves, and also protect and\u00a0promote human rights.\u00a0 For this reason, it is imperative that the U.N. not only continue as\u00a0an institution, but be strengthened.<\/p>\n

It is a fact, however, that no institution can remain viable for long, if the public loses faith\u00a0in it.\u00a0 Unfortunately, there is a growing perception among many people, particularly in\u00a0the developing world, that the U.N. has become a tool of certain powerful nations, i.e. an\u00a0institution that, advertently or inadvertently, allows itself to be used for purposes of\u00a0furthering the national or geopolitical goals of those powerful nations.<\/p>\n

The best example of the type of incident that fosters the above perception is the invasion\u00a0of Iraq by the United States in 2003, under the pretext of implementing a Security\u00a0Council resolution.\u00a0 I shall not repeat here the sordid history of that unfortunate episode.<\/p>\n

Suffice it to say almost all experts on the subject, including Americans, now admit that\u00a0the case for war against Iraq, as presented by its advocates, particularly the United States\u00a0and Great Britain, was based on obfuscations, fabrications, and outright lies.<\/p>\n

3 \u00a0I shall now turn to the investigation against Sri Lanka.\u00a0 In my view, the case for the Sri\u00a0Lanka investigation is also characterized by obfuscations, fabrications, and at times\u00a0outright lies, though not in as grand a scale as in Iraq.<\/p>\n

More ominous, high U.N. officials, including the Secretary General and the High\u00a0Commissioner, have pushed the investigation in what appears to be a biased and partisan\u00a0way.<\/p>\n

I shall indicate just two instances of the above.<\/p>\n

    \n
  1. a) When the POE was being compiled, a number of newspapers in Sri Lanka\u00a0reported that certain Tamil Diaspora elements had produced sample letters<\/li>\n
  2. containing various allegations against the Government, and got their supporters to\u00a0submit those letters to the Panel via e-mail.\u00a0 Some of the letters themselves were\u00a0also published.\u00a0 (See, How Moon Panel Gathered \u2018War Crimes\u2019 Info Revealed,\u201d\u00a0Shamindra Ferdinando, The Island, 20 April 2012)<\/li>\n<\/ol>\n

    To my knowledge, no attempt was made by the Panel, or the Secretary General, to\u00a0pursue the above allegations.\u00a0 Meanwhile, all materials related to the POE,\u00a0including the evidence on which the Panel relied to come to its conclusions, have\u00a0been sealed for 20 years (on the Secretary General\u2019s orders).\u00a0 So, no one can\u00a0check whether in fact the evidence the Panel considered includes sample letters of\u00a0the type described above.<\/p>\n

      \n
    1. b) When the OHCHR investigation was launched in August 2014, OHCHR\u00a0announced that the public had till 30 October 2014 to make submissions.\u00a0 In\u00a0November, the Government alleged that it had arrested a person who had in his\u00a0possession 6 complaint forms signed in blank, to be completed later with\u00a0fabricated eye witness\u201d reports and submitted to OHCHR.<\/li>\n<\/ol>\n

      The Government also alleged that the aforesaid suspect had revealed he was\u00a0working under the supervision of an individual with close connections to a\u00a0conglomerate of Tamil Political Parties, which conglomerate was one of the most\u00a0vociferous local advocates of the investigation.<\/p>\n

      The Government alleged further, that the suspect had revealed he was told by his\u00a0handlers to inform potential \u2018witnesses\u2019 they would receive monetary\u00a0compensation from the U.N. for their testimony.\u00a0 (See, Media Statement by the\u00a0Ministry of External Affairs, 5 November 2014, www.mea.gov.lk<\/a>)<\/p>\n

      To my knowledge, the OHCHR made no attempt to follow-up the Government\u2019s\u00a0allegations.\u00a0 Instead, the High Commissioner issued a vehement statement\u00a0accusing the Government of an insidious\u201d attempt to subvert the investigation.\u00a0The High Commissioner said, inter alia:<\/p>\n

      4\u00a0Since the end of the conflict in 2009, Sri Lanka has continued to obstruct any\u00a0independent investigation despite the persistent, compelling and widespread\u00a0allegations that possible serious international crimes were committed by both\u00a0sides during the conflict in Sri Lanka.\u201d\u00a0 (See, Zeid condemns persistent\u00a0disinformation designed to discredit UN investigation on Sri Lanka,\u201d 7 November\u00a02014, www.ohchr.org<\/a>)<\/p>\n

      I wish to draw your attention to two points.\u00a0 First, nowhere in the High\u00a0Commissioner\u2019s statement does he explicitly deny that the OHCHR, either\u00a0directly or indirectly, offered money for testimony.<\/p>\n

      Second, the High Commissioner seems to have made up his mind that the\u00a0allegations against the Government have merit.\u00a0 Note, he uses the word\u00a0compelling\u201d in relation to the allegations against the Government and the LTTE.<\/p>\n

      (Let\u2019s forget about the LTTE for a moment, because, even if it is eventually found\u00a0that they committed war crimes, there is no longer anyone to punish, since all the\u00a0main LTTE leaders were killed during the war.\u00a0 So, the High Commissioner\u2019s\u00a0statement actually applies only to the Government.)<\/p>\n

      The point is that the word compelling\u201d entails a subjective and normative\u00a0judgment.\u00a0 How can the High Commissioner decide that the allegations against\u00a0the Government are compelling\u201d before the investigation is complete?<\/p>\n

      Presumably, it is the task of the investigation to decide if the allegations are\u00a0compelling or not.<\/p>\n

      One should also recall that the High Commissioner\u2019s office is tasked with\u00a0overseeing the investigation, which means, among other things, the evidence that\u00a0the Investigating Panel reviews is collected by persons hand-picked by the High\u00a0Commissioner.<\/p>\n

      If the High Commissioner, at the very out-set of the investigation, has decided the\u00a0allegations against the Government are compelling, what are the chances the\u00a0Panel will conclude anything different, even if we presume the Panel is\u00a0completely independent?<\/p>\n

      When one considers matters such as the above, in the context of what is known about the\u00a0goings-on in the run-up to the Iraq war, it is difficult to avoid the suspicion that\u00a0something untoward has been done to Sri Lanka at the UNHRC.<\/p>\n

      (It does not help, meanwhile, that the United States and Great Britain, the two\u00a0countries\u2014the same two \u2018suspects\u2019 if you will\u2014behind the Iraq war, are behind the call\u00a0for the Sri Lanka investigation also!)<\/p>\n

      5.In short, to the extent that members of the general public, especially outside Sri Lanka,\u00a0learn the facts about the Sri Lanka investigation, it puts the spotlight, once again, on the\u00a0credibility of the United Nations.<\/p>\n

      Sri Lanka is just one country.\u00a0 How many other countries are being subjected to similar\u00a0treatment, or will be in the future?\u00a0 How many blows to its credibility can the U.N. take\u00a0before people lose faith in the Organization completely?\u00a0 And when that happens, as I\u00a0mentioned earlier, is there any reason for the U.N. to continue in existence at all?<\/p>\n

      Therefore, I believe it is incumbent on you to take an interest in what has happened to Sri\u00a0Lanka at the UNHRC, quite independently of my personal request for help in finding a\u00a0venue or forum within the U.N. where I can have my particular grievances about the\u00a0investigation heard.<\/p>\n

      I shall thank you in advance for your kind attention to this matter.<\/p>\n

      Dharshan Weerasekera<\/p>\n

      Copies To:<\/p>\n

      1) Mr. Ban Ki Moon, Secretary General of the United Nations<\/p>\n

      2) Prince Zeid Ra\u2019ad Al Hussein, United Nations High Commissioner for Human<\/p>\n

      Rights<\/p>\n

      3) Mr. Joachim Rucher, President of the Human Rights Council<\/p>\n

      4) His Lordship Justice Ronny Abraham, President of the International Court of<\/p>\n

      Justice<\/p>\n

      5) Mr. Maithripala Sirisena, President of Sri Lanka<\/p>\n","protected":false},"excerpt":{"rendered":"

      Shenali Waduge Attorney Dharshan Weerasekera has written to the President of the United Nations General Assembly enumerating certain concerns he has with the UNHRC’s Sri Lanka investigation, and indicating that if these concerns are not addressed he will explore ways of gaining redress through domestic law. The following is the full text of the letter: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[47],"tags":[],"class_list":["post-46201","post","type-post","status-publish","format-standard","hentry","category-shenali-waduge"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/46201","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=46201"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/46201\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=46201"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=46201"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=46201"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}