{"id":51880,"date":"2016-02-07T22:22:22","date_gmt":"2016-02-08T04:22:22","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=51880"},"modified":"2016-02-07T14:40:19","modified_gmt":"2016-02-07T21:40:19","slug":"zeids-deafening-silence","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/02\/07\/zeids-deafening-silence\/","title":{"rendered":"ZEID\u2019S DEAFENING SILENCE"},"content":{"rendered":"

DHARSHAN WEERASEKERA<\/strong><\/em><\/span><\/h2>\n

Zeid Al Hussein the UN Human Rights High Commissioner arrived in Sri Lanka on the 6th<\/sup> of February and I\u2019m told he\u2019ll be here for four days.\u00a0 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.<\/p>\n

To have the HC visit Sri Lanka for four days means we are a top priority for him.\u00a0 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.\u00a0 It is also customary to give a press conference.\u00a0 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.<\/p>\n

In fact, Zeid\u2019s camp is eerily silent.\u00a0 It\u2019s almost as if he\u2019s not even here, or rather, in hiding<\/em>.\u00a0 Why?\u00a0 What is he (or his handlers) afraid of?\u00a0 In my view, there\u2019s a very good reason Zeid is as quiet as a mouse:\u00a0 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.\u00a0 I shall explain below just two of the ways why I think this is the case.<\/p>\n

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\u2019t obviate the UN\u2019s responsibility to independently investigate the illegality in question, and take remedial measures if necessary.<\/p>\n

If and when there\u2019s 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\u2019s official statements will be potential evidence in that future case.\u00a0 Meanwhile, if the court rules in Sri Lanka\u2019s favour, not just the UNHRC but the UN will have to answer, because the UNHRC is ultimately subject to the UN.<\/p>\n

So, it is best to keep Zeid on a tight leash to make sure he doesn\u2019t compromise himself or the Organization.\u00a0 Second, it takes only a moment\u2019s 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\u2019s 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 30th<\/sup> September 2015.<\/p>\n

Here\u2019s what he said to the Council by video-link on 30th<\/sup> September 2015:<\/p>\n

\u2018I welcome the Government\u2019s commitment, made before this Council, to investigate these violations and ensure accountability\u2026.The unfortunate reality, however, is that Sri Lanka\u2019s criminal justice system is not currently equipped to conduct an independent and credible investigation into allegations of this breath and magnitude\u2026.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.\u00a0 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.\u2019 (Statement by UN High Commissioner for Human Rights Zeid Ra\u2019ad Al Hussien\u00a0 via videolink to the Human Rights Council, 30 September 2015, www.ohchr.org<\/a>)<\/p>\n

So, to repeat, the only way a four-day visit makes sense is if it is to oversee the setting up of these mechanisms\u2014for instance to participate in the signing of some agreement by the Government officially launching them\u2014and then leaving in triumph.\u00a0 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.<\/p>\n

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. \u00a0Any attempt to change the Constitution means the matter will go before the Supreme Court.<\/p>\n

Once it goes to the Supreme Court, a lot of things can go wrong.\u00a0 For instance, the Court might order that, before a ruling can be given, an independent assessment of the High Commissioner\u2019s Report of September-2015 be done, to test the veracity of the HC\u2019s evidence, and thereby to find out if there\u2019s a need<\/em> for the proposed special courts to begin with.<\/p>\n

In my view, the above is the worst-case scenario for the UN, because if an independent assessment of the High Commissioner\u2019s report of September-2015 is done, the whole world will see that the HC\u2019s report is a complete farce:\u00a0 the HC has absolutely no case against the Government.\u00a0 If Zeid has no case, then the question arises as to how the UN could have let matters go so far.<\/p>\n

It should be emphasized that the HC\u2019s report is the only<\/em> UN-endorsed report thus far to argue that a case for war crimes against Sri Lanka as a State<\/em> (i.e. a case for \u2018Command responsibility\u2019) can be made.\u00a0 The UN can only act on the basis of recommendations made in official documents.\u00a0 Therefore, to the extent there is a demand for hybrid courts or special courts to try Sri Lanka\u2019s war-time commanders<\/em> the only<\/em> basis for such demands is the HC\u2019s report.<\/p>\n

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.\u00a0 Zeid thought he could land in this country, lord it over us, and then leave like a conquering Caesar.\u00a0 He\u2019s now going to leave like a whipped dog, with his tail between his legs.<\/p>\n

Dharshan Weerasekera is an Attorney-at-Law.\u00a0 He is the author of two books:\u00a0 The UN\u2019s Relentless Pursuit of Sri Lanka (2013), and The UN\u2019s Subversion of International Law:\u00a0 The Sri Lanka Story (2015)<\/em><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

DHARSHAN WEERASEKERA Zeid Al Hussein the UN Human Rights High Commissioner arrived in Sri Lanka on the 6th of February and I\u2019m told he\u2019ll be here for four days.\u00a0 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-51880","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/51880","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=51880"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/51880\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=51880"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=51880"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=51880"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}