This point, plus the one previously discussed, indicate that the Secretary General’s legal advisors also recognized that though as a general matter he had the authority to resort to Article 99, in this particular instance, he didn’t have that option open. (In my view, they probably told him that if he wanted to pursue an “accountability” agenda in Sri Lanka, he had to find some other way to justify it, which he promptly did.) In any event, the point is that for whatever reason, a recourse to Article 99 was never made, and the Secretary General chose to base his actions purely on the agreement with the President.
So, what does all this mean? As we have seen, Article 99 offers the only way for the Secretary General to engage in activities other than those entrusted to him by the General Assembly, the Security Council, and the Trusteeship Council. For reasons discussed earlier, that option is not open to him in this instance, and in any event, he himself has chosen not to use it. As we have also seen, the agreement with the President is not an independent contract that gives the Secretary General any special powers to monitor Sri Lanka with respect to the accountability process. That means only one thing: the Secretary General has absolutely no legal basis for his actions. Technically, I suppose the “charge” would be that he is exceeding his powers under Article 99.
One could stop there: if the Secretary General has no legal basis for his actions, or is exceeding the powers granted to him by the Charter, he can be held accountable just on those grounds. As I said earlier, however, I believe that an argument can also be made that he is violating Articles 100 and 2(7). So, let’s turn briefly to that now.
c) Violations of Articles 100 and 2(7)
I shall start with Article 100. First, here is what it says:
1) In the performance of their duties the Secretary General and the staff shall not seek or receive instructions from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.
2) Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary General and the staff and not to seek to influence them in the discharge of their responsibilities.
My argument as to the Secretary General possibly violating the above Article, especially 100(1), is based on a process of elimination, and draws inspiration from a very famous principle in the criminal law of England, also for the most part operative in Sri Lanka. The principle is called the Ellenborough Principle, and what it says is that where a strong prima facie case is made against an accused, and it is in the power of the accused to explain away certain suspicious circumstances or events that tie him to the offence, and he either refuses or fails to explain those away, an inference of guilt can be drawn against him. So, here is my argument.
We have already seen that the Secretary General has absolutely no legal basis for his actions. Is there any other way he can justify, if not excuse, his actions? Can he justify his actions, for instance, on moral grounds? For instance, a reader might be inclined to say something like this: “If high Sri Lankan officials committed war crimes during the last stages of the war, they ought to be held accountable—what does it matter if, in pursuing justice, the Secretary General cuts some corners, or takes some liberties, with ‘procedure’?” I am perfectly willing to agree with this sentiment: if anyone is guilty of war crimes, the interests of justice demand that they be held accountable, and they ought not to be able to get away by exploiting “procedure,” technicalities, loopholes, or any other thing.
This is where the long discussion I undertook in the first section of this essay becomes relevant. As I tried to show in that section, it is not clear that the types the of war crimes the Secretary General is alleging were committed by the Sri Lankan side in the last stages of the war, or at any rate the Secretary General has not produced a prima facie case that such crimes were committed. If the Secretary General cannot make a prima facie case for war crimes, he does not have a moral right to continue making accusations of such crimes. In fact, it seems to me the reasonable and fair thing for him to do under the circumstances is to stop making accusations, or busy himself in collecting some evidence with which he can present a prima facie case at some future date, and make his accusations at that time.
I can think of only one other ground that might help explain—certainly not justify, but explain—the Secretary General’s actions: personal sentiment or attachment to Sri Lanka. But I cannot see how Sri Lanka would evoke any special personal sentiment or attachment on the part of the Secretary General. For instance, he is not a Sri Lankan, and, as far as I know, he has no relatives or kith or kin who are Sinhalese or a Tamil, the two parties most affected by the conflict. To my knowledge, he has also not sojourned in Sri Lanka for any extended period of time. His visits to Sri Lanka have been for official purposes, certainly not long enough to induce him to grow any more fond of this country than any other country where he has probably sojourned for equal amounts of time, including, perhaps, Honduras and the Congo, the places I mentioned in the last segment, or any number of other places that I’m sure the reader can name.
We are thus left with a very curious situation. To begin with, the Secretary General does not have any legal basis for his actions. He also does not have a moral justification for those actions. In the meantime, as I have suggested just now, there is not even a personal ground that one can point to that at least helps explain those same actions. So, why does he continue to engage in them? In my view, there can be only one reason: he is being pressured by interested parties. And this immediately triggers Article 100.
To revert to the Ellenborough Principal, as I mentioned earlier, it says that where a strong prima facie case is made against an accused, and it is in the power of the accused to explain away certain suspicious circumstances and events that tie him to the offence, and he refuses or fails to explain those away, an inference of guilt can be drawn against him. I think it is impossible to ignore, when one takes into account all of the possible reasons that can help explain the Secretary General’s actions in this case, that a strong suspicion arises that he is bowing to outside pressure. The ball is in his court: the onus is on him to explain his actions. I cannot help but feel that unless he explains himself, one has no choice but to draw an adverse inference against him with regard to the matter I have discussed. I shall leave it at that.
Finally, to turn to Article 2(7), here is what it says:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter.
My argument is that, one, the Secretary General is violating the above Article by the very fact that he is continuing his actions despite having no legal basis for them, and two, that his actions can set the stage for other countries to meddle in Sri Lanka’s internal affairs, which in turn would make those actions complicit in such meddling, and thus amount to a violation of the above Article.
With respect to the first, as Article 2(7) makes clear, the UN is prohibited from meddling in affairs that fall principally “within the domestic jurisdiction of members.” Is this prohibition absolute? Clearly, it isn’t—because if that were the case a country could close its doors to the world and carry out massacres and genocidal campaigns to its heart’s content, and the world would be helpless to do anything about it. It would be absurd to suggest that the UN Charter was intended to countenance such a state of affairs.
But then how does one make sense of the prohibition in Article 2(7)? In my view, there’s only one way to do this, and that is to say that if the UN were to meddle in the internal affairs of a nation, it would have to be for the most compelling of reasons, for instance, because the internal situation in question involved demonstrable violations of international law, or had the potential to flare into a larger conflagration and drag in other nations, thus causing an international crisis. In my view, “accountability” issues in Sri Lanka at present cannot be brought under either of these categories.
Of course, there is no statute of limitations on war crimes: if the Secretary General or anyone else were to uncover compelling evidence of such crimes in the future, they can always bring their charges before the Security Council or any other relevant organ of the UN, and the relevant organ can recommend appropriate action at that time. But continuing to commission report after report on Sri Lanka, with “war crimes” as the theme, is uncalled for. Sri Lanka, it should be remembered, was the scene of nearly thirty years of civil war. The most important task now is for the different ethnic groups in the country, especially the Sinhalese and the Tamils, to mend fences as best they can and get on with their lives. In my view, continuing to open old wounds is not a help but a hindrance to this process of reconciliation and mending of fences: it is an interference in the internal affairs of this country, and thus, ipso facto, a violation of Article 2(7).