It should also be noted that with respect to food convoys, the POE attempts a rather blatant obfuscation. On page 20 of the report (para 78) it says, of UN and WFP[31] food convoys, “The first convoy entered the Vanni on 3 October 2008. In total 11 convoys went into the Vanni over the period of 5 months, delivering a total of 7,435 metric tons of food, which was not enough to maintain the civilian population.”[32] But these, to repeat, were UN/WFP convoys. But there is not a single mention of the ICRC and the Government food convoys that went parallel to the UN/WFP convoys, and in fact continued long after the latter stopped. Thus, the POE comes to the conclusion that the civilians were deprived of food and medicine purely on the basis of the food and medicine transported by the UN, and entirely ignores the food and medicine transported by the Government and the ICRC. It is on this type of “evidence” that the POE wants the world to decide on important questions such as whether Sri Lanka committed war crimes.
So, where does all this leave one? It leaves one with only one conclusion: The Secretary General has not made a prima facie case for war crimes, or rather, he simply has no case. And yet he persists in his dogged quest for “accountability,” most importantly, without giving Sri Lanka any opportunity to respond. Why? What gives him the right or the authority to do this—or rather, does he have a right or authority to do this? These questions naturally lead one to query his culpability under the law, to which I turn next.
Part 2: Secretary General’s Culpability
To assess the Secretary General’s culpability, it is first necessary to consider his own stated reasons (or those given by his experts) for his actions; second, any other reasons that can be inferred from his statements or those of his experts; and finally, any reasons other than those that can be inferred from his or his experts’ statements that can nevertheless be helpful in explaining his actions. In this section, I consider each of these matters. My argument, in brief, is as follows. The Secretary General’s stated reasons for his actions is a purported agreement he reached with the Sri Lankan President during a visit to the island in late May 2009, just after the war. On close examination, however, this agreement does not empower or authorize the Secretary General to pursue the types of actions he has pursued, namely, to place himself in the position of being a sort of “monitor” of the accountability process in Sri Lanka. This therefore deprives the Secretary General of the primary legal basis for his actions.
His only other option, if he wants to legally justify his actions, is to resort to Article 99 of the UN Charter, which grants the Secretary General a certain amount of discretion to bring various matters to the attention of the Security Council. In my view (and I will explain the reasons later), the Secretary General can’t resort to the above option, either, in this instance, which means that he has absolutely no legal basis for his actions. One could stop there. The fact, however, that he has continued his actions despite having no legal basis for them raises the prospect, in certain very interesting ways, that he has also violated Article 100 and Article 2(7) of the UN Charter. Article 100 prescribes that the Secretary General and the UN staff will not allow themselves to be influenced in their duties by any “external authority to the Organization,” and Article 2(7), one of the most important Articles in the entire Charter, prohibits the UN from interfering in the internal affairs of nations. Again, I will explain all this in greater detail later, but first, let’s turn to the Secretary General’s own stated reasons for his actions.
a) The Secretary General’s stated reasons
The legal basis explicitly given by the Secretary General (or his experts) for his actions is a purported agreement between him and the Sri Lankan President reached during a visit to the island just after the war. This is indicated in the terms of reference of both of the Secretary General’s reports. I shall quote the relevant portions. Incidentally, these portions are important for another reason also: they confirm that the two reports were commissioned purely on the initiative of the Secretary General, and not, for instance, at the request of the General Assembly, the Security Council, or any such official organ.
The relevant portion of the first report’s terms of reference read as follows:
In a Joint Statement of the Secretary General and the President of Sri Lanka issued at the conclusion of the Secretary General’s visit to the country on 23 May 2009, the Secretary General underlined the importance of an accountability process to address violations of international humanitarian and human rights law committed during military operations between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). The President of Sri Lanka undertook to take measures to address these grievances. At this time and against this back ground,
1) The Secretary General has decided to establish a panel of experts to advise him on the implementation of the said commitment to the final stages of the war.
2) The purpose of the panel shall be to advise the Secretary General on the modality, applicable standards and comparative experience relevant to the fulfillment of the joint commitment to an accountability process, having regard to the nature and scope of alleged violations.[33]
The terms of reference of the second report state:
The Secretary General’s Internal Review Panel (the Panel) was set up pursuant to Article 4B of the report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka.[34]
The above passages establish beyond any doubt that the reports were commissioned entirely on the Secretary General’s initiative, and that the legal basis for the POE report (itself the anchor for the second report) is the purported agreement with the President. This purported agreement, therefore, is a very important document.
Before turning to the aforementioned document, it is necessary to highlight two further points: first, if one goes back to the lead paragraph of the terms or reference of the first report, it seems that the Secretary General’s understanding was that the Government was admitting or accepting that violations of humanitarian law were, in fact, committed during the last stages of the war. The relevant sentence says, “The Secretary General underlined the importance of an accountability process to address violations of international humanitarian and human rights law committed during military operations between the Government of Sri Lanka and the LTTE” (emphasis added). The word “committed” is not qualified in any way, for instance as “allegedly committed,” or “may have been committed,” or some such phrase.
Second, if one goes to subsection 2 of the terms of reference of the same report, it indicates that the Secretary General’s understanding was that there was a joint commitment to accountability. A “joint commitment” obviously entails that the Secretary General would be in a position to monitor the accountability process, to give assistance to it, and so on. What one has to look for when examining the agreement, then, is whether it actually bears out the above two interpretations on the Secretary General’s part.
So, let’s look at the agreement itself. I quote at length. (The document consists of 12 paragraphs, and I quote the last seven.) I have numbered the paragraphs, to help with the subsequent analysis.
1. President Rajapaksa and Secretary-General Ban Ki-moon discussed a series of areas in which the United Nations will assist the ongoing efforts of the Government of Sri Lanka in addressing future challenges and opportunities.
2. With regard to IDPs [Internally Displaced Persons], the United Nations will continue to provide humanitarian assistance to the IDPs now in Vavuniya and Jaffna. The Government will continue to provide access to humanitarian agencies. The Government will expedite the necessary basic and civil infrastructure as well as means of livelihood necessary for the IDPs to resume their normal lives at the earliest. The Secretary-General welcomed the announcement by the Government expressing its intention to dismantle the welfare villages at the earliest, as outlined in the Plan to resettle the bulk of IDPs and call for its early implementation.
3. The Government seeks the cooperation of the international community in mine clearing, which is an essential prerequisite to expediting the early return of IDPs.
4. The Secretary-General called for donor assistance towards the Common Humanitarian Action Plan (CHAP) jointly launched by the Government of Sri Lanka and the United Nations, which supports the relief, shelter and humanitarian needs of those in IDP sites.
5. President Rajapaksa and the Secretary-General recognized the large number of former child soldiers forcibly recruited by the LTTE as an important issue in the post-conflict context. President Rajapaksa reiterated his firm policy of zero tolerance in relation to child recruitment. In cooperation with the United Nations Children’s Fund (UNICEF), child-friendly procedures have been established for their “release and surrender” and rehabilitation in Protective Accommodation Centres. The objective of the rehabilitation process presently underway is to reintegrate former child soldiers into society as productive citizens. The Secretary-General expressed satisfaction on the progress already made by the Government in cooperation with UNICEF and encouraged Sri Lanka to adopt similar policies and procedures relating to former child soldiers in the north.
How could he lieing after all this tamils poured their blood
Those who get weapons end with weapons,.
Like Israel, Sri Lanka is the subject of selective outrage on the part of certain countries, organizations and individuals. Yes, the Sinhalese and the Sri Lankan government have done some wrong things, but one one has to wonder how much thought Secretary General Moon and other Sri Lanka critics have given to the millions of Syrians and Sudanese and Congolese and Iraqi Sunni Muslims and Christians and Egyptian Christians and Bahraini Shiite Muslims and others in this world, would jump at the chance to change places with the poor, oppressed Sri Lankan Tamils?
I would agree with this comment to the extent that I think Sri Lanka like Israel is being selectively targeted. Unlike Sri Lanka, however, Israel has an unquestioning backer and patron in the United States, the most powerful nation in the world, which has allowed Israel to do more or less anything it pleased to the Palestinians, and get away with it. I suspect that if Sri Lanka had the US as a patron, there would be no talk of UN resolutions against this country today, even if Sri Lanka had actually committed the acts that the critics allege it committed. (I have argued, of course, that Sri Lanka didn’t commit those acts, at least as far as can be seen from the evidence so far adduced by the Secretary General.) That’s the irony in this whole affair. The point I’m trying to highlight in the essay is that what we need to do is to strengthen international law so that every nation—Sri Lanka, Israel, or anyone else—can expect equal treatment if they are to be condemned or censored by the international community, meaning that if they are to be condemned or censored, the basic protections and procedures laid down in the law must be adhered to without fail. That way, every nation can expect its actions to be judged by the standards of the law, and not according to who that nation’s “friends” are, i.e. whether or not that nation has a powerful patron or backer willing to endorse or underwrite those actions.
Sir as citizen of Pakistan I request you to. Tell imran khan to leave Pakistan immediately because he is attacking the prliament of Pakistan ,prime minister house , president house he says that he is going to hang the honourable prime minister creating law and order situation in Pakistan which is dangerous for the democracy in Pakistan
Darshan! You have written a great logical article with real facts.
Ban Ki Moon was foreign minister of Korea in 2004. He became an obedient servant to Washington for his influence to send South Korean troops to Iraq to support American, British and Australian led invasion. Invading a sovereign nation is a war crime.
Appointed an invader, human right violator and a war criminal to U.N secretary general post itself a biggest debacle of the U.N.O. and Ban Ki Moon transformed U.N.O as present day East India Company to Anglo Americans.
Ban Ki Moon’s era is the most disastrous period of U.N.O. The NATO, South Korea and 32 countries at this moment involve in war crimes in Afghanistan. Same NATO gang invaded Libya and massacred Libyan president on cold blood to take control of petroleum resources. This is also a war crime. Moon never opened his mouth on these crimes.
Under Ban Ki Moon’s East India Company, there aren’t a civilized law but the law in the jungle is the international law. Present world control by an international mafia gang NATO and the god father is U.S.A.
There are some notorious war crimes in recent history. Hitler and German’s holocaust, American’s Hiroshima/ Nagasaki mass destruction, British’s Dresden Aerial bombing, American’s Vietnam Orange substances and My Lai war crimes and Kashmir’s Indian war crimes are few. Compare to these crimes why Mr. Ban Ki Moon worried about 3000 tamil tiger militia’s death. Even on this 3000 we don’t know how many have gone to other countries as refugees. A known tamil tiger supporter smuggled his son (a LTTE cadre) first and later daughter and wife (both were in LTTE militia camp) to a pacific country in early 2009 as political refugees.
NO ONE EULS CEYLON GENOCIDE OF OWN PEOPLE.
Why not Ban Ki try U.S and India for war crimes oh do not forget the war crimes starts with British
Oh no no!! the inventors of the word war crimes and the International Court have decided to start in a reverse alphabetical order so Sri Lanka comes first oh damn what about Zimbabwe yes dear you have forgotten
Don’t worry darling (Says America) we will call Mugabe after Rajapakse but remember you will go first you are ‘B’ritain and I am ‘A’ merica and this business f Iraq, Afgan , Japan Australia all pre 2009 and we have lost the records
Darshan,
What is this “mumbo jumbo” essay you are writing! You are trying very hard to cover a whole pumpkin in a plate of rice.
Good luck.
Ban Ki Moon is too late and he was wrongly advised during war by his own corrupt official incharge for it. UN had failed in its mandate and mission in SRI Lanka due to its corrupt official incharge for the region, by name MR.Vijay Nambiar, from corrupt Indian bureaucracy. His collusion with sri Lankan counter part Gothapaya Rajapaksh enabled and resulted in silent GENOCIDE OF Tamils. possibly without outside worlds knowledge. Now the worms started to come out. let see what happens next, because whole worlds watches what happens to the perpetrators. If this Tamils GENOCIDE in Sri Lanka is pardoned, there are countries waiting to wipe out its own indigenous origin minority peoples. like BURMa, MaLaYSIa, BaNGaLaDESH,PaKISTaN,CHINa, SERBIa, RUSSIa,aFKHNISTaN,PHILLIPINES,INDONESIa, Iran, Saudi arabia and numerous african counties. lets see justice prevails or fails.