This paper is an update to a previous paper of mine published in Foreign Policy Journal in March 2013, titled, “The illegality of UN Secretary General Ban Ki Moon’s approach to Sri Lanka”. In that paper, I argued that the Secretary General had exceeded his authority in commissioning a certain report on Sri Lanka, which report was later submitted indirectly to the United Nations Human Rights Council (UNHRC) and served as the basis for two resolutions passed against this country by the Council, calling among other things for international investigations into alleged war crimes committed during the last phases of the war.
I recommended that one of the principal remedies now open to Sri Lanka was to petition the International Court of Justice (ICJ) for an Advisory Opinion on the legality of the aforementioned report. If the court deemed the report illegal, all subsequent measures based on that report, including the two aforementioned resolutions, would become illegal, and of no effect in law. I provide this update now, because there has been a change in strategy on the part of Sri Lanka’s critics at the UN, which I believe makes it more imperative than ever to file the aforementioned lawsuit.
The change in strategy is this: previously, the “accountability” campaign was primarily and principally based on allegations of war crimes contained in the Secretary General’s report; since September 2013, it is based on the purported reneging by Sri Lanka on promises to investigate the allegations made in the Secretary General’s report, along with certain allegations highlighted in the Lessons Learnt and Reconciliation Commission (LLRC) report, as well as two videos produced under the auspices of a private TV station (Channel 4) in England.
I believe the advantage to Sri Lanka’s critics in this change is this: If, as I suggest, the primary and principal basis for the accountability campaign right up to March 2013 is the Secretary General’s report, it means that the campaign is on fundamentally shaky ground. The March 2013 resolution, meanwhile, mandates that the High Commissioner submit a written report on Sri Lanka to the Council in March 2014, to be followed by a general discussion, and a possible vote on yet another resolution. Sri Lanka’s critics are now in a position to pass a resolution that authorizes war crimes investigations against Sri Lanka, if they can muster enough votes.
The key, however, is that they can’t make explicit references to the Secretary General’s report in any of the official documents or discussions that precede the resolution, because it would “taint” the resolution, and make it easier for Sri Lanka to mount legal challenges to it. The change in strategy makes it possible for them to do this. It shifts the burden onto Sri Lanka to justify or defend why it didn’t investigate the various allegations against it and allows the critics, in the discussions that precede any future resolution authorizing war crimes investigations, to focus all attention on this country’s inadequacies in pursuing allegations, rather than on whether those allegations were worth pursuing to begin with. In other words, it puts the critics in a position to basically indict Sri Lanka for war crimes, without giving this country a chance or an official forum to challenge the credibility of the allegations being leveled against it.
The purpose of this paper is to acquaint members of the public, particularly international readers, with this change in strategy, and to draw out its implications. The paper consists of three parts. In Part One, I repeat my argument from the previous paper about the weaknesses of the Secretary General’s report; In Part Two, I establish that the Secretary General’s report was in fact the primary and principal basis for the accountability campaign prior to the change in strategy; and in Part Three, I explain the change in strategy, and discuss its implications.
Though the paper is intended primarily for a Sri Lankan audience, it is relevant to a wider international audience also. The remedy that I am suggesting—i.e. a country filing for an advisory opinion of the International Court of Justice—has never been attempted before. If successful, it would lead to an advance in international law, as well as an increase in the power of the ICJ, two things sorely needed today.
In this regard, it should be noted that just prior to the March 2013 resolution, a group of fourteen nations including Russia, China, Venezuela, and Iran, made a joint statement expressing their dismay and frustration at what was being done to this country. In particular, they objected to a report that had been issued by the High Commissioner’s office in February 2013 to guide the discussions that were to be held on Sri Lanka during the March sessions. Among other things, they said,
We note that the objective of resolution 19/2 was to mandate the OHCHR to provide, in consultation with and the concurrence of the government of Sri Lanka, advice and technical assistance on implementing the said resolution….We are of the view that in the report A/HRC/22/38 the High Commissioner has clearly exceeded her mandate of reporting on the provision of assistance, by making substantive recommendations and pronouncements. These recommendations are arbitrary, intrusive and of a political nature.
My point is that, if in the future the sort of treatment that Sri Lanka has had to endure is meted out to another country (as no doubt will come to pass sooner or later), that country will also have little protection beyond the sympathy of its friends, and perhaps expressions of frustration and dismay, as above. If my remedy is proved valid, it will give teeth to the International Court of Justice to hold the UN accountable, and will be a powerful tool in the hands of the friends of international law, along with those nations that might become the focus of the UN’s undue “attentions” in future years, to resist those impositions, and in the process also help and preserve the norms and institutes of international law.
Part One: The Secretary General’s report and its main weaknesses
With respect to the main weaknesses of the Secretary General’s report, I believe I have made a reasonable and substantial case in my previous paper, “The illegality of UN Secretary General Ban Ki Moon’s approach to Sri Lanka,” and, in the interests of time, will refer the reader to that paper. In brief, I made two points in that paper: first, that the report failed to make a prima facie case with regard to any of the allegations of violations of humanitarian law it levels at the Government; second, that the Secretary General exceeded his authority in commissioning the report, and hence that the report was illegal.
In my view, the report’s factual weaknesses make it a thoroughly unsuitable document on which to base any further actions with respect to the accountability issue. The report’s illegality, meanwhile, ensures that it not only cannot be used to sustain the accountability campaign, but any action or measure based on it also becomes illegal. As I mentioned earlier, I refer the reader to that previous paper, if he or she is interested in the details of the argument.
The reader, however, need not take just my word that the Secretary General’s report is a thoroughly compromised document. When the Secretary General first announced that he would commission the report, international law experts and senior diplomats in a number of prominent countries expressed grave concerns about the dangerous precedent the Secretary General was about to set.
Russia, through its UN Ambassador, even raised objections in the Security Council. A leading Sri Lankan newspaper, the Sunday Times, in an interview with then Russian Ambassador to Sri Lanka Vladimir P. Mikaylov, asked the Ambassador about the aforementioned objections. The interviewer asked him point blank, “On what grounds were the objections made?” The Ambassador replied:
On the grounds that it was not a UN report. On the grounds that it was not done in accordance with the regulations and the procedures of the UN. From the very beginning it was told that the report was purely for the Secretary General. So if it was for the Secretary General why did they have to publish it?
I believe that, with respect to the first task, i.e., establishing that the Secretary General’s report is a liability, not much more need be said.