Columns

A Sri Lankan Attorney has written to the United Nations General Assembly alleging that the 2014 UN Human Rights Council resolution calling for an international war crimes investigation on Sri Lanka is illegal, and seeking a venue at the UN where he can have his grievance heard.  If he cannot find such a forum he says he will seek redress from the UN through Sri Lanka’s domestic laws.

A grave injustice at the HRC                                                                                                          In his letter to Sam Kahamba Kutesa, President of the UN General Assembly, Attorney Dharshan Weerasekera says he has “evidence to show that certain irregularities and/or illegalities were committed both in the manner the respective resolutions were pursued at the Council, as well as the way the investigation was finally authorized in March-2014.”  If his surmises are correct he argues that Sri Lanka has been, and continues to be, subjected to ‘a grave injustice at the HRC.’ Since the HRC is a creation of the U.N. General Assembly, the responsibility for this injustice ultimately rests with the General Assembly itself, he asserts.

To the best of his knowledge he says “there is no forum or venue, within the U.N. where an individual citizen harmed in some way or other by U.N. action against his or her country, can have their complaints heard and legally adjudicated.”

Weerasekera expresses concern that while he believes the UN is still the best means to maintain peace and promote human rights in the world, there is a risk that the public will lose faith in it as a result of such perceived injustices. “Unfortunately, there is a growing perception among many people, particularly in the developing world, that the U.N. has become a tool of certain powerful nations, i.e. an institution that, advertently or inadvertently, allows itself to be used for purposes of furthering the national or geopolitical goals of those powerful nations.”

Elections and the war crimes report

The report of the UN Rights Chief’s war crimes investigation on Sri Lanka authorized by HRC resolution 25/1 in Geneva last year is to be formally presented at the HRC’s next sessions due to start mid-September. According to reports President Maithripala Sirisena is to receive a preview copy of the report within a few days of the August 17 general election.  This is likely to be the first political hot-potato that the newly elected government will have to face. Yet the manifestos of neither the ruling UNP nor Opposition UPFA dwell on this impending issue at any great length.  This is possibly because it is not the kind of issue that would add steam to an election campaign. Any categorical statement is likely to raise more questions than offer vote-winning answers.

The UNP’s election manifesto asserted that any inquiry into alleged war crimes will be within the framework of Sri Lanka’s domestic law. On the Opposition’s stance, Dr Dayan Jayatilleka who was largely responsible for the UPFA manifesto’s section on foreign policy, told a Foreign Correspondents’ Association forum that the UPFA rejected the OHCHR investigation. He pointed out that it was a domestic conflict that did not spill over or threaten the peace outside the country’s borders.

Origins in UNSG’s Panel of Experts Report

Briefly, this is how Weerasekera argues his case for the illegality of the resolution and bias in the Sri Lanka war crimes investigation, in his letter to the UNGA (the full text of which was seen by the Sunday Times):

Weerasekera says his research revealed that 1) The call for an international investigation was based on the High Commissioner’s recommendation in a series of reports in 2013 and 2014 and 2) The basis of the High Commissioner’s call was a recommendation for an international investigation made in the Report of the Secretary General’s Panel of Experts (POE) in 2011. His letter to the General Assembly says:

“The POE was a document produced for the Secretary General’s personal use, and not to be submitted in any official capacity to the General Assembly, the Human Rights Council, or any other U.N. organ. The POE, however, was submitted indirectly to the Human Rights Council, and went on to become the basis for the call for an international investigation by the Council, in 2012, 2013 and 2014.The POE, since it was not an official document, was never placed on the record at the Human Rights Council, and Sri Lanka never had an opportunity to respond to it directly and officially before that body. In the circumstances, the Council’s use of the POE as its principal basis for authorizing an international investigation against Sri Lanka is illegal.”

Obfuscations, fabrications and outright lies

An example Weerasekera cites for the possible loss of public faith in the UN, is the 2003 invasion of Iraq by the US under the pretext of implementing a Security Council resolution.  Most experts including Americans now admit that “the case for war against Iraq, as presented by its advocates, particularly the United States and Great Britain, was based on obfuscations, fabrications, and outright lies” he says.  The Sri Lankan investigation is also in his view “characterized by obfuscations, fabrications, and at times outright lies, though not in as grand a scale as in Iraq.” He alleges that high UN officials including the Secretary General and High Commissioner have “pushed the investigation in what appears to be a biased and partisan way.” The two instances he mentions are as follows (quote):

1. a) When the POE was being compiled, a number of newspapers in Sri Lanka reported that certain Tamil Diaspora elements had produced sample letters

2. containing various allegations against the Government, and got their supporters to submit those letters to the Panel via e-mail.  Some of the letters themselves were also published.  (See, “How Moon Panel Gathered ‘War Crimes’ Info Revealed,” Shamindra Ferdinando, The Island, 20 April 2012)

To my knowledge, no attempt was made by the Panel, or the Secretary General, to pursue the above allegations.  Meanwhile, all materials related to the POE, including the evidence on which the Panel relied to come to its conclusions, have been sealed for 20 years (on the Secretary General’s orders).  So, no one can check whether in fact the evidence the Panel considered includes sample letters of the type described above.

1. b) When the OHCHR investigation was launched in August 2014, OHCHR announced that the public had till 30 October 2014 to make submissions.  In November, the Government alleged that it had arrested a person who had in his possession 6 complaint forms signed in blank, to be completed later with fabricated “eye witness” reports and submitted to OHCHR.

The Government also alleged that the aforesaid suspect had revealed he was working under the supervision of an individual with close connections to a conglomerate of Tamil Political Parties, which conglomerate was one of the most vociferous local advocates of the investigation.

The Government alleged further, that the suspect had revealed he was told by his handlers to inform potential ‘witnesses’ they would receive monetary compensation from the U.N. for their testimony.” (unquote)

No attempt to follow up

Weerasekera says the OHCHR made no attempt to follow up the Government’s allegations. Instead the High Commissioner issued a vehement statement accusing the Government of an “insidious” attempt to subvert the investigation. He quotes the High Commissioner saying, inter alia:

“Since the end of the conflict in 2009, Sri Lanka has continued to obstruct any independent investigation despite the persistent, compelling and widespread allegations that possible serious international crimes were committed by both sides during the conflict in Sri Lanka.”  (See, “Zeid condemns persistent disinformation designed to discredit UN investigation on Sri Lanka,” 7 November 2014, www.ohchr.org)

Drawing attention to two points with regard to this statement Weerasekera argues:

“First, nowhere in the High Commissioner’s statement does he explicitly deny that the OHCHR, either directly or indirectly, offered money for testimony. Second, the High Commissioner seems to have made up his mind that the allegations against the Government have merit.  Note, he uses the word “compelling” in relation to the allegations against the Government and the LTTE. (Let’s forget about the LTTE for a moment, because, even if it is eventually found that they committed war crimes, there is no longer anyone to punish, since all the main LTTE leaders were killed during the war.  So, the High Commissioner’s statement actually applies only to the Government.) The point is that the word “compelling” entails a subjective and normative judgment.  How can the High Commissioner decide that the allegations against the Government are “compelling” before the investigation is complete? Presumably, it is the task of the investigation to decide if the allegations are compelling or not.”

Noting that the evidence reviewed by the Investigating Panel is collected by persons hand-picked by the High Commissioner, he asks:

“If the High Commissioner, at the very out-set of the investigation, has decided the allegations against the Government are compelling, what are the chances the Panel will conclude anything different, even if we presume the Panel is completely independent?”

Something untoward has been done

Considering the events in the run-up to the Iraq war Weerasekera suggests “it is difficult to avoid the suspicion that something untoward has been done to Sri Lanka at the UNHRC.”

He concludes by saying that to the extent that the general public, especially outside Sri Lanka, learn the facts about the Sri Lanka investigation, it puts the spotlight on the issue of the UN’s credibility. “Sri Lanka is just one country.  How many other countries are being subjected to similar treatment, or will be in the future?”

Along with his letter to the UNGA president he has submitted two books with four essays which he says contain the evidence to support his claim that the 2014 HRC resolution is illegal, and the OHCHR investigation biased. His letter to the President of the General Assembly is copied to Ban Ki Moon – UN Secretary General,  Zeid Ra’ad Al Hussein – UN High Commissioner for Human Rights,  Joachim Rucher – President of the Human Rights Council, Justice Ronny Abraham – President of the International Court of Justice and Maithripala Sirisena – President of Sri Lanka.

When the first US-led HRC resolution against Sri Lanka was passed in 2012 Dharshan Weerasekera was one of the first to comprehensively critique it in an article published in ‘Foreign Policy Journal’ in April 2012. In that piece titled ‘UNHRC resolution against Sri Lanka – What it really means” he argued that the resolution allowed the US to launch an assault on the very foundations of International Law. He said this was part of a little-discussed new direction in US foreign policy.