By Kapila Gamage, Attorney-at-Law

On 23 September 2015, Dr. Gunadasa Amarasekara filed a case in the District Court of Colombo against the UN, citing the UN’s resident coordinator for Sri Lanka as defendant.  The case has been reported on in a number of newspapers, but many of those reports have contained inaccuracies.  As the instructing attorney in the case, I consider it in the public interest to clarify a few things about this case, since a number of inquiries have already been made about it both by Sri Lankans as well as foreigners.

Accordingly, I shall briefly explain Dr. Amarasekara’s argument in his plaint, the current status of the case, and finally, what in my view are some of the larger ramifications of the case to international law, as well as to Sri Lanka.

THE ARGUMENT IN THE PLAINT

Dr. Amarasekara’s argument in the plaint is as follows.  A close examination of the Human Rights Council resolution A/HRC/25/L.1 (March 2014) reveals that the international investigation against Sri Lanka authorized under paragraph 10 of that resolution is solely based on the recommendation for such an investigation made by the UN High Commissioner for Human Rights, in a series of related reports.

A close examination of the said High Commissioner’s reports reveals that the primary and principal basis for the High Commissioner’s recommendation for an international investigation is evidence contained in the Report of the UN Secretary General’s Panel of Experts on Accountability, released in 2011.

That report was produced for the personal use of the Secretary General, and never placed on the official record of the Human Rights Council, the General Assembly, or any other UN organ.  Furthermore, Sri Lanka never had an opportunity to respond officially and directly to the report before any UN forum.  As such (Dr. Amarasekara argued) the use of the report to authorize various actions against Sri Lanka at the Human Rights Council is ex facie illegal, which means the investigation ultimately authorized is also illegal.

The Human Rights Council is a creation of the UN General Assembly, so the UN is ultimately responsible for the actions of the Council.  Therefore, Dr. Amarasekara was asking the UN’s resident coordinator, on behalf of his principal, to admit in writing that the investigation is illegal, and to apologize for the disgrace and dishonor it has caused Dr. Amarasekara, along with all other citizens of this country.

According to the Constitution of Sri Lanka, the sovereignty of the country is in the people, and inalienable.  That means said sovereignty is shared equally by all citizens of this country, and any imposition on that sovereignty is an imposition on the part of it that resides in each citizen.

Dr. Amarasekara took as self evident that an international investigation against Sri Lanka, conducted against the wishes of a democratically elected government (and at the time the investigation was authorized the government opposed it) is by definition an imposition on the sovereignty of the country.  Therefore, he considered that he had suffered personal disgrace and dishonor, due to the reasons explained in the preceding paragraph.

CURRENT STATUS OF THE CASE

As I mentioned earlier, the case was filed on the 23^rd of September.  In early October, the Ministry of External Affairs had filed a letter with court indicating that Mr. Nandy has diplomatic immunity under Act No. 9 of 1996, and no civil action can be pursued against him.

The plaintiff’s attorney had the case called by motion in early November, at which time Counsel Mr. Dharshan Weerasekera, appearing for Dr. Amarasekara, raised an objection.  He argued that Section 4(1) of Act No. 9 of 1996, which extends the protection of the Act to international organizations, says that when protection is so extended it has to be accompanied by a gazette notification.

The letter submitted by the Ministry did not mention the number or date of the gazette by which the protection of the Act No. 9 of 1996 was extended to the UN.  Therefore (Mr. Weerasekera argued) the letter as it stood was not in proper order for purposes of certifying Mr. Nandy’s immunity.  He requested court to seek a clarification from the Ministry with respect to the gazette in question, and, if no such clarification was provided, to allow an ex parte trial.  Court then set a date for the Order on that request.

That Order was delivered on 12^th December:  Court upheld Mr. Nandy’s immunity, and said no further applications on the case will be allowed.  However, in the last sentence of the Order, court said that for purposes of regularizing” the process by which the fact of Mr. Nandy’s immunity had been conveyed, court was instructing the Secretary of the Ministry to forward the details about the relevant gazette.  So, that’s where the case rests.

LARGER RAMIFICATIONS OF THE CASE

To the best of my knowledge, Dr. Amarasekara’s case is the first time that a private citizen has sued the UN for harm purportedly done to his country.  I understand there is an occasion where a group of Haitians sued the UN, alleging that they had been infected with cholera as a result of some of the UN’s activities in their country.

There, clearly, the harm is not to all Haitians, just the ones allegedly affected.  Dr. Amarasekara’s argument, on the other hand, is that all Sri Lankans were harmed by the UN’s action, and any one of them has a right of action against the UN, an unprecedented position.

In my view, the importance of what Dr. Amarasekara has done is as follows.  One of the disturbing things one sees in international relations today is that the UN is increasingly being used as a tool by certain powerful nations, particularly the United States, to further their particular national and geopolitical goals.

The classic example of the above is the Iraq Invasion, which was launched under the pretext of carrying out a Security Council resolution.  One can add Libya to that list also.  The tactic, to repeat, is to get the UN or one of its subsidiary organs to provide legal cover or a legal imprimatur to an intervention of some sort or another.  The intervention, meanwhile, ends up destroying the country in question.

The point is that, to the citizens of the countries so destroyed, there is at present no way of gaining redress from the UN, since only governments of countries, or designated agencies, are heard at the UN.  Therefore, Dr. Amarasekara’s case focuses attention on a lacuna in international law, namely, there has to be an evolution of the law to allow citizens of countries harmed by the UN to seek redress for such harm, even if their governments are unable, or unwilling, to pursue such matters.

It is well known that law, where it advances, does so very slowly.  If, however, Dr. Amarasekara’s case can get people even thinking about ways of strengthening international law to allow private individuals to hold the UN accountable (where such accountability is warranted) as described above, the case will no doubt have done immense service to humankind.

I shall finally turn to the ramification of the case to Sri Lanka, and this matter can be briefly put as follows.  The Government of Sri Lanka has co-sponsored the resolution A/HRC/30/l.29 (September 2015) that accepts the conclusions of the investigation, and makes recommendations thereon.  So, as matters stand, there’s very little anyone can do to question the veracity of the conclusions of the investigation.

Recall, however that Dr. Amarasekara filed his case on the 23^rd of September.  The aforesaid resolution co-sponsored by the government was adopted on the 30^th of September.  The letter of demand plus other documents were mailed to the UN Secretary General along with the UN Human Rights High Commissioner.  That means, prior to the resolution, it can be established that there is at least one source through which they were made aware that there may be problems with the legality of the investigation.

The UN is the world’s premier international organization, dedicated among other things to ensuring peace and good relations among the various nations.  One must presume that even a hint that the UN may be responsible for an impropriety or injustice will be a matter of concern to the officers of that Organization.  And here was a citizen of a country claiming that the UN has been perpetrating an injustice against his country for upwards of three years.

Was there a minimal duty on the Secretary General, and/or the Human Rights High Commissioner, to take that citizen’s complaint seriously, even for a moment?  And if so, what did they do about it?

The point is this.  If, at some future date, Sri Lanka were to have a different Government, one that chose to question the conclusions of the investigation, it would be possible, in my view, for such a Government to argue that the UN was aware at the time the resolution endorsing the conclusions of the investigation was adopted that there may be problems with the legality of the investigation, and based on that, to agitate again the points raised by Dr. Amarasekara.

In such a situation it might be possible to precipitate (at that future time) an Advisory Opinion on the legality of the investigation.  In short, Dr. Amarasekara’s case may well have set the ground work for a future challenge against the investigation, a challenge designed to undo, if at all possible, at least some of its consequences.  It may be too late by then, but at least the possibility remains.  And that, under the circumstances, may be the most we can hope for at present.

Kapila Gamage can be reached at gamage_kapila@yahoo.com