{"id":58192,"date":"2016-08-30T23:47:48","date_gmt":"2016-08-31T05:47:48","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=58192"},"modified":"2016-08-30T16:40:49","modified_gmt":"2016-08-30T23:40:49","slug":"ban-ki-moon-visits-sri-lanka-o-joy","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/08\/30\/ban-ki-moon-visits-sri-lanka-o-joy\/","title":{"rendered":"BAN KI MOON VISITS SRI LANKA:\u00a0 O JOY!"},"content":{"rendered":"

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

According to the newspapers, UN Secretary-General Ban Ki Moon is scheduled to arrive in Sri Lanka on the 31st<\/sup> August 2016.\u00a0 It is important for the citizens of this country to take a moment and reflect on the type of man that is about to visit the country.<\/p>\n

I won\u2019t pretend to be an expert on Mr. Moon\u2019s conduct towards other countries, but I have made a bit of a study of his conduct towards Sri Lanka over the past five years, and I can say with some confidence that in that time he has consistently helped certain interested parties in the United Nations Human Rights Council (UNHRC) to violate international law in relation to this country.<\/p>\n

I have discussed the above ideas in some detail in three articles published in Foreign Policy Journal<\/em> and available online,[1]<\/a> and refer the reader to those articles for more details. But here, for convenience, I shall highlight just two occasions where, over the past five years, Mr. Moon through acts of commission or omission has helped breach international law as aforesaid.<\/p>\n

1)\u00a0\u00a0\u00a0\u00a0\u00a0 COMMISSIONING OF THE PANEL OF EXPERTS REPORT<\/strong><\/p>\n

On 23rd <\/sup>May 2009, less than a week after the end of the war, Mr. Moon visited Sri Lanka, and at the end of that visit issued a Joint Statement with then President Mahinda Rajapaksa.\u00a0 The last sentence of that Joint Statement said:<\/p>\n

\u2018The Secretary-General underlines the importance of an accountability process to address violations of international humanitarian law and human rights law.\u00a0 The Government will take measures to address those grievances.\u2019[2]<\/a><\/p>\n

A reasonable interpretation of those two sentences, whether literally or in relation to the other passages in the Statement, must be that the Government has agreed to address grievances (i.e. purported violations) if such violations in fact occurred, which is to say, whoever alleges that violations occurred must first establish a prima facie<\/em> case with regard to such allegations (i.e. the allegations must be prima facie<\/em> credible<\/em>).<\/p>\n

However, in late-2010, Mr. Moon commissioned a Panel of Experts to produce a report on violations of humanitarian law and human rights committed<\/em> by the GOSL.\u00a0 The terms of reference of the POE states:<\/p>\n

\u2018In a Joint Statement of the Secretary-General and the President of Sri Lanka issued at the conclusion of the Secretary-General\u2019s visit to the country on 23rd<\/sup> May 2009, the Secretary-General underlined the importance of an accountability process to address violations of international humanitarian and human rights law committed<\/em> during military operations between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam.\u00a0 The President of Sri Lanka undertook to take measures to address those grievances.\u2019[3]<\/a><\/p>\n

Clearly, Mr. Moon has interpreted the President\u2019s statement to mean that the GOSL has admitted that violations were in fact committed<\/em>.\u00a0 Then, taking that as a basis, ostensibly to inform himself as to whether the GOSL has complied with its undertaking to address the violations, he commissioned the POE.<\/p>\n

The POE, to repeat, was commissioned for the SG\u2019s personal use:\u00a0 it was not a document that was ever requested officially by either the UN General Assembly or the UNHRC.\u00a0 It was, however, subsequently submitted indirectly to the UNHRC and went on to be the basis for three resolutions against Sri Lanka, calling for an international investigation to pursue violations of humanitarian law and human rights law allegedly committed during the last phase of the war.<\/p>\n

Since the POE report was not an official document of the UNGA or the UNHRC, it was not filed of record at either of those venues.\u00a0 Therefore, Sri Lanka did not have an opportunity to respond officially to the POE either at the UNGA or the UNHRC, or for that matter at any UN organ.\u00a0 Under the circumstances, using such a document as a basis for taking action against a country is ex facie<\/em> illegal.<\/p>\n

In my view, Mr. Moon as head of the UN had ample means to stop the above process, either by informing the UNHRC of the impropriety that was being carried on, or taking steps to place the POE on the official record at the UNGA or the UNHRC and inviting the GOSL to officially respond to it.\u00a0 He did not do so.\u00a0 Therefore, in my view, he is party to the \u2018crime.\u2019<\/p>\n

2)\u00a0\u00a0\u00a0\u00a0\u00a0 OISL REPORT<\/strong><\/p>\n

The culmination of the series of resolutions against Sri Lanka that the US tabled at the UNHRC starting in 2012 was the March-2014 resolution, A\/HRC\/25\/L.1, which authorized an international investigation into violations of humanitarian law and human rights law allegedly committed during the war and its immediate aftermath.\u00a0 The task was entrusted to the UN High Commissioner for Human Rights.<\/p>\n

The final report of that investigation, the OISL report (also called the OHCHR report) was released to the public on 16th<\/sup> September 2015, one week before the US tabled yet another resolution, this one co-sponsored by Sri Lanka, at the UNHRC.<\/p>\n

The said resolution accepted without qualification the conclusions and recommendations of the OISL report, and was subsequently adopted, without discussion and debate by the rest of the Council (primarily because Sri Lanka, the party most affected by the resolution had co-sponsored it) on 29th<\/sup> September 2016.<\/p>\n

The OISL report is a 260-page document, and at the time it was released to the public to the best of my knowledge a Sinhala translation of it was not provided.[4]<\/a>\u00a0 It is unreasonable to suppose that one week is sufficient for the vast majority of people in Sri Lanka, whose native tongue is Sinhala, to read and understand a document of that length, discuss among themselves its conclusions and recommendations, and decide whether the allegations made in the report are prima facie<\/em> credible.<\/p>\n

Therefore, as a general matter, the vast majority of people in Sri Lanka did not have an opportunity to challenge the GOSL\u2019s co-sponsorship of the resolution, by recourse to available law, including Writs.<\/p>\n

In my view, Mr. Moon is indirectly responsible for the above injustice because, as a person who since 2009 had taken a personal interest in the goings-on in Sri Lanka with respect to accountability, he should have taken measures to ensure that a Sinhala translation of the OISL report was provided, along with sufficient time for the people to peruse the document, before it was brought up before the UNHRC.<\/p>\n

But that is not the main problem as far as Mr. Moon and the OISL report are concerned.\u00a0 The problem is this:\u00a0 even a cursory perusal of the OISL report reveals that it is full of defects, i.e. lies, obfuscations, failures to consider exculpatory evidence, and so on, which make it very difficult for a reasonable person to conclude that the reports central allegation, namely, that the State<\/em>\u2014as opposed to individual soldiers\u2014committed war crimes (i.e. that a case for \u2018command responsibility\u2019 can be made) is credible.<\/p>\n

I have discussed the above matter in two articles\u2014\u2018The OCHRC investigation on Sri Lanka:\u00a0 A Brief Analysis,\u2019[5]<\/a> and \u2018A Rebuttal to the OHCHR Report, 1,\u2019[6]<\/a> both published in Lankaweb.com<\/em>, and refer the reader to those articles for more details, but I\u2019ll just cite one example of a blatant lie that can be found in the report.<\/p>\n

One of the OISL\u2019s claims is that the LTTE never used hospitals for military purposes, i.e. as places from which to launch attacks, or to store weapons.\u00a0 For instance, on page 152 of the report, it says:<\/p>\n

\u2018OISL received no information to indicate that Government run or other hospitals and ambulances were used by the LTTE for military purposes.\u2019[7]<\/a><\/p>\n

The above statement is contradicted by admissions made just two paragraphs later, as follows:<\/p>\n

\u2018However, the information gathered by OISL indicates that there are reasonable grounds to believe that the LTTE launched attacks from close proximity of hospitals.\u2019[8]<\/a><\/p>\n

Clearly, the OISL has defined \u2018military purposes\u2019 to mean firing from inside<\/em> hospitals or other civilian installations, and not in proximity<\/em> to such locations also, a distinction that no reasonable person will accept, in the context of a battle.<\/p>\n

But even if we leave that issue aside, note that, the OISL says it received \u2018no information to indicate\u2019 that the LTTE fired from inside<\/em> hospitals.\u00a0 On page 171 of the report, however, there is a footnote which references the POE.\u00a0 (If the authors of the OISL refer to the POE in a footnote, it means they had the document, and whatever information was contained in that document, at hand when the OISL was being written).<\/p>\n

In the POE, meanwhile, one finds this:<\/p>\n

\u2018From February 2009 onwards, the LTTE started point-blank shooting of civilians who attempted to escape the conflict-zone\u2026. It also fired artillery in proximity to large groups of internally displaced persons (IDP\u2019s) and fired from, or stored military equipment near, IDP\u2019s or civilian installations such as hospitals.\u2019[9]<\/a><\/p>\n

So, one, the OISL has defined \u2018military purposes\u2019 to mean firing from inside<\/em> hospitals or other civilian installations and excluded firing from the proximity of such installations, a distinction that is difficult to accept; and two, has conveniently forgotten the clear evidence in the POE (evidence that OISL staff clearly had in their possession at the time the OISL was being written) that, even in the above case, the LTTE did in fact fire from inside<\/em> hospitals:\u00a0 either way, its mendacity of a very high order.<\/p>\n

Mr. Moon has been advocating accountability in Sri Lanka since 2009, and it is unreasonable to suppose that he has not perused the OISL report, the only official UN report to suggest that the State may have committed war crimes, i.e. that a case for \u2018command responsibility\u2019 can be made with respect to such crimes.<\/p>\n

If he perused the OISL report, it is impossible to suppose that he failed to detect blatant lies such as the one pointed out above, along with other serious violations of the most rudimentary rules of evidence, which any fifteen-year-old can be expected to detect, with a little attention.\u00a0 The fact that Mr. Moon has been silent, and certainly not taken any steps to assign a Special Rappateur to investigate the report, means again, in my view, he is complicit in the \u2018crime.\u2019<\/p>\n

I can go on, but will stop here due to the constraints of time.\u00a0 The point is this.\u00a0 Over the past five years, Mr. Moon has demonstrated repeatedly that he is on the side of the enemies of Sri Lanka, and, to the extent those enemies have been represented in the UNHRC, has helped them violate international law with respect to Sri Lanka in order to further their interests.<\/p>\n

I shall close by quoting from a very interesting assessment of Mr. Moon, and the UN Secretariat under his command, by Inga-Brit Ahlenius, the highly-respected former head of the UN Office of Internal Oversight Services.\u00a0 In July 2010, just prior to resigning from her post, she submitted an official End of Assignment Report to the Secretary-General, where she said, inter alia<\/em>:<\/p>\n

\u2018However, my conclusion is rather that you have in fact abdicated from the core role\u2014or rather never assumed it\u2014as conferred upon the Secretary-General in the United Nations Charter; to be the CAO, to assume the responsibility to manage and lead the Secretariat.\u00a0 It is obvious to me that you see your role as distinct from <\/em>the Secretariat and above the Secretariat<\/em>, some sort of President.\u00a0 You have instead assumed a role representing<\/em> the organization in a ceremonial sense, stepping on red carpets and reading out loud what others around you wrote, but not embodying<\/em> the organization in virtue of enlightened and experienced leadership, perceived and felt as strong, conveying a message integrated in and created in your own mind\u2026.\u2019<\/p>\n

\u2018I regret to say that the Secretariat now is in a process of decay.\u00a0 It is not only falling apart into silos\u2014the Secretariat is drifting, to use the words of one of my senior colleagues.\u00a0 It is drifting into irrelevance.\u00a0 The absence of strategic guidance and leadership manifests itself not only through failure to bring about change and reform of the Organization; it also manifests itself as a sort of an \u2018adhocracy\u2019; disintegrated and ill thought through \u2018reforms\u2019 are launched without adequate analysis and lack of understanding and a holistic view.\u2019[10]<\/a><\/p>\n

The above remarks are highly pertinent to Sri Lanka, because, at least from what I\u2019ve been able to observe of Mr. Moon\u2019s conduct towards this country over the past five years, such conduct proves Ms. Ahlenius\u2019 assessment\u2014particularly the charge that Mr. Moon has turned the UN Secretariat into an \u2018Adhocracy<\/em>\u2019\u2014to the letter.<\/p>\n

Such then is the man who will land on our shores on August 31st<\/sup>.\u00a0 The politicians and assorted hoi polloi will no doubt fete him like a conquering hero.\u00a0 The vast majority of the citizens of this country, however, especially the Sinhala-Buddhists, will have to stomach the entire unbearable farce as it unfolds over the next two or three days, and grin and bear it.\u00a0 As I said:\u00a0 O Joy!<\/p>\n

Dharshan Weerasekera is an Attorney-at-Law.\u00a0 He is the author of three books:\u00a0 The UN\u2019s Relentless Pursuit of Sri Lanka (Stamford Lake 2012)<\/em><\/strong>, The UN\u2019s Subversion of International Law (Iresma 2015)<\/em><\/strong>, and the latest, which will be in bookstores shortly, The Relevance of American Constitutional Principles to Solving Problems of Governance in Sri Lanka.<\/em><\/strong><\/p>\n

[1]<\/a> \u2018The UNHRC resolution against Sri Lanka:\u00a0 What it really means,\u2019 (www.foreignpolicyjournal.com<\/a>, 18 April 2012); \u2018The Illegality of UN Secretary-General Ban Ki Moon\u2019s Approach to Sri Lanka,\u2019(www.foreignpolicyjournal.com<\/a>, 19 March 2013); \u00a0and \u2018The UN\u2019s Sri Lanka Strategy and its Implications for International Law\u2019 (www.foreignpolicyjournal.com<\/a>, 4 February 2014)<\/p>\n

[2]<\/a> Joint Statement by UN Secretary-General, Government of Sri Lanka, 23 May 2009, www.un.org<\/a><\/p>\n

[3]<\/a> Report of the Secretary General\u2019s Panel of Experts of Accountability in Sri Lanka, March 2011, page 2 www.un.org<\/a><\/p>\n

[4]<\/a> A Sinhala translation has now been provided, and posted on an \u00a0OHCHR website, but after the initial damage was done.<\/p>\n

[5]<\/a> 29 September 2015<\/p>\n

[6]<\/a> 15 January 2016<\/p>\n

[7]<\/a> A\/HRC\/30\/CRP.2, page 152, paragraph 772<\/p>\n

[8]<\/a> Ibid, page 152, paragraph 774<\/p>\n

[9]<\/a> POE, page iii<\/p>\n

[10]<\/a> Inga-Brit Ahlenius, Under-Secretary General for Oversight Services, End Of Assignment Report<\/em>, 14 July 2010, pages 48-49, www.humanrightsvoices.org<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

DHARSHAN WEERASEKERA According to the newspapers, UN Secretary-General Ban Ki Moon is scheduled to arrive in Sri Lanka on the 31st August 2016.\u00a0 It is important for the citizens of this country to take a moment and reflect on the type of man that is about to visit the country. I won\u2019t pretend to be […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12,7,106],"tags":[],"class_list":["post-58192","post","type-post","status-publish","format-standard","hentry","category-forum","category-terrorism","category-106"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/58192","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=58192"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/58192\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=58192"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=58192"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=58192"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}