{"id":50388,"date":"2015-12-21T15:48:48","date_gmt":"2015-12-21T21:48:48","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=50388"},"modified":"2015-12-21T08:48:16","modified_gmt":"2015-12-21T15:48:16","slug":"what-chance-does-an-individual-citizen-have-against-the-united-nations-an-update-on-dr-gunadasa-amarasekaras-case","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2015\/12\/21\/what-chance-does-an-individual-citizen-have-against-the-united-nations-an-update-on-dr-gunadasa-amarasekaras-case\/","title":{"rendered":"WHAT CHANCE DOES AN INDIVIDUAL CITIZEN HAVE AGAINST THE UNITED NATIONS:\u00a0 AN UPDATE ON DR. GUNADASA AMARASEKARA\u2019S CASE"},"content":{"rendered":"

By Kapila Gamage, Attorney-at-Law<\/strong><\/em><\/span><\/h2>\n

On 23 September 2015, Dr. Gunadasa Amarasekara filed a case in the District Court of Colombo against the UN, citing the UN\u2019s resident coordinator for Sri Lanka as defendant.\u00a0 The case has been reported on in a number of newspapers, but many of those reports have contained inaccuracies.\u00a0 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.<\/p>\n

Accordingly, I shall briefly explain Dr. Amarasekara\u2019s 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.<\/p>\n

THE ARGUMENT IN THE PLAINT<\/strong><\/p>\n

Dr. Amarasekara\u2019s argument in the plaint is as follows.\u00a0 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.<\/p>\n

A close examination of the said High Commissioner\u2019s reports reveals that the primary and principal basis for the High Commissioner\u2019s recommendation for an international investigation is evidence contained in the Report of the UN Secretary General\u2019s Panel of Experts on Accountability, released in 2011.<\/p>\n

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.\u00a0 Furthermore, Sri Lanka never had an opportunity to respond officially and directly to the report before any UN forum.\u00a0 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<\/em> illegal, which means the investigation ultimately authorized is also illegal.<\/p>\n

The Human Rights Council is a creation of the UN General Assembly, so the UN is ultimately responsible for the actions of the Council.\u00a0 Therefore, Dr. Amarasekara was asking the UN\u2019s 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.<\/p>\n

According to the Constitution of Sri Lanka, the sovereignty of the country is in the people, and inalienable.\u00a0 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.<\/p>\n

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.\u00a0 Therefore, he considered that he had suffered personal disgrace and dishonor, due to the reasons explained in the preceding paragraph.<\/p>\n

CURRENT STATUS OF THE CASE<\/strong><\/p>\n

As I mentioned earlier, the case was filed on the 23rd<\/sup> of September.\u00a0 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.<\/p>\n

The plaintiff\u2019s attorney had the case called by motion in early November, at which time Counsel Mr. Dharshan Weerasekera, appearing for Dr. Amarasekara, raised an objection.\u00a0 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.<\/p>\n

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.\u00a0 Therefore (Mr. Weerasekera argued) the letter as it stood was not in proper order for purposes of certifying Mr. Nandy\u2019s immunity.\u00a0 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<\/em> trial.\u00a0 Court then set a date for the Order on that request.<\/p>\n

That Order was delivered on 12th<\/sup> December:\u00a0 Court upheld Mr. Nandy\u2019s immunity, and said no further applications on the case will be allowed.\u00a0 However, in the last sentence of the Order, court said that for purposes of regularizing\u201d the process by which the fact of Mr. Nandy\u2019s immunity had been conveyed, court was instructing the Secretary of the Ministry to forward the details about the relevant gazette.\u00a0 So, that\u2019s where the case rests.<\/p>\n

LARGER RAMIFICATIONS OF THE CASE<\/strong><\/p>\n

To the best of my knowledge, Dr. Amarasekara\u2019s case is the first time that a private citizen has sued the UN for harm purportedly done to his country.\u00a0 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\u2019s activities in their country.<\/p>\n

There, clearly, the harm is not to all<\/em> Haitians, just the ones allegedly affected.\u00a0 Dr. Amarasekara\u2019s argument, on the other hand, is that all<\/em> Sri Lankans were harmed by the UN\u2019s action, and any one of them has a right of action against the UN, an unprecedented position.<\/p>\n

In my view, the importance of what Dr. Amarasekara has done is as follows.\u00a0 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.<\/p>\n

The classic example of the above is the Iraq Invasion, which was launched under the pretext of carrying out a Security Council resolution.\u00a0 One can add Libya to that list also.\u00a0 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.\u00a0 The intervention, meanwhile, ends up destroying the country in question.<\/p>\n

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.\u00a0 Therefore, Dr. Amarasekara\u2019s 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<\/em>, to pursue such matters.<\/p>\n

It is well known that law, where it advances, does so very slowly.\u00a0 If, however, Dr. Amarasekara\u2019s 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.<\/p>\n

I shall finally turn to the ramification of the case to Sri Lanka, and this matter can be briefly put as follows.\u00a0 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.\u00a0 So, as matters stand, there\u2019s very little anyone can do to question the veracity of the conclusions of the investigation.<\/p>\n

Recall, however that Dr. Amarasekara filed his case on the 23rd<\/sup> of September.\u00a0 The aforesaid resolution co-sponsored by the government was adopted on the 30th<\/sup> of September.\u00a0 The letter of demand plus other documents were mailed to the UN Secretary General along with the UN Human Rights High Commissioner.\u00a0 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.<\/p>\n

The UN is the world\u2019s premier international organization, dedicated among other things to ensuring peace and good relations among the various nations.\u00a0 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.\u00a0 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.<\/p>\n

Was there a minimal duty on the Secretary General, and\/or the Human Rights High Commissioner, to take that citizen\u2019s complaint seriously, even for a moment?\u00a0 And if so, what did they do about it?<\/p>\n

The point is this.\u00a0 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.<\/p>\n

In such a situation it might be possible to precipitate (at that future time) an Advisory Opinion on the legality of the investigation.\u00a0 In short, Dr. Amarasekara\u2019s 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.\u00a0 It may be too late by then, but at least the possibility remains.\u00a0 And that, under the circumstances, may be the most we can hope for at present.<\/p>\n

Kapila Gamage can be reached at gamage_kapila@yahoo.com<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s resident coordinator for Sri Lanka as defendant.\u00a0 The case has been reported on in a number of newspapers, but many of those reports have contained inaccuracies.\u00a0 As the instructing […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12,47],"tags":[],"class_list":["post-50388","post","type-post","status-publish","format-standard","hentry","category-forum","category-shenali-waduge"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/50388","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=50388"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/50388\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=50388"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=50388"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=50388"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}