Shenali D Waduge

At some point in time this question needs to be answered before agreeing to any form of war crimes tribunal. It is a miscarriage of justice if the initial & foundation of the process to deliver justice is legally flawed. Justice should not only be done, but also seen to be done and has to be seen to be believed. However, the case of Sri Lanka and the manner that the UN system has functioned during and in the aftermath of the conclusion of a 3-decade conflict raises some serious legal questions. International legal luminaries and terrorism experts must address and answer this before any war crimes tribunals are created. Until such time the legality of UNSG report being used as basis for investigations is established, Sri Lanka should refuse to implement any form of tribunal.

The most crucial question that fails to grab the attention of the UN/international community or one which they are evading to answer is the key question – Can a report that was personally commissioned by the UN Secretary General Ban Ki Moon be used as the basis for 3 UNHRC Resolutions and 2 investigations and now demanding a war crimes tribunal?

Does that mean a UN Secretary General can take arbitrary action against a UN Member State overruling the UNSC & UNGA? If so what is the role of the UN Security Council or the UN General Assembly? This also leads to the question why ONLY Sri Lanka, why has the UNSG not personally commissioned reports on other conflicts happening all over the world? Is there anything written in the UN system that the UNSC & UNGA take action against some countries and UNSG can on his own take decisions against other countries? Can someone in the UN please answer.

All of the 3 Resolutions at UNHRC in 2012, 2013, and 2014 have been based on the UNSG’s Panel of Expert Report and the UNHRC Heads report which also uses the PoE as the basis for its conclusion on the need to investigate Sri Lanka War Crimes and initiate a War Crimes Tribunal.

Does the UNSG & UNHRC have authority to authorize War Crimes Tribunal when the process leading to such is not authorized or mandated by either the UN Security Council either/or the UN General Assembly?

Can personally commissioned reports of the UNSG which are not officially tabled become the foundation for UNHRC Resolutions & UNHRC Investigations leading to War Crimes Tribunals? Is this in keeping with the spirit of the UN Charter & its objectives?

The PoE was never tabled officially. The GOSL was never given the right to respond. The PoE was leaked to public domain. How can a leaked personal report be used to charge a sovereign UN member nation?

Moreover, there are serious discrepancies in the PoE. If the PoE claimed not to be a fact-finding mission how can it become the basis for 3 resolutions & an OISL investigation?

The PoE besides being a personally commissioned report was tasked to report ONLY on the final stages of the conflict. How can a report covering 3 months of the conflict be used to establish a war crimes tribunal of a conflict that covered 30 years ignoring the criminal acts of violations committed by the LTTE upon innocent civilian victims since 1980s? This was a great miscarriage of justice and clearly evades treating all victims equally.

Crucial to this argument is the joint statement issued by 14 nations including Russia, China, Venezuela and Iran objecting to the report issued by the UNHRC in February 2013.

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”

http://archives.dailynews.lk/2013/03/21/news12.asp

Russia through its UN ambassador even raised objections in the UN Security Council.

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?” http://www.sundaytimes.lk/110501/News/nws_26.html

Can the UNHRC use personally commissioned reports as the basis for Resolutions and Actions against a UN Member state?

The UNHRC head quotes from the UNSG’s report

In June 2010, the Secretary General appointed the Panel of Experts on Accountability in Sri Lanka and offered it as a resource to the Government, and particularly to the Lessons Learnt and Reconciliation Commission.  The Panel, which submitted its report to the Secretary General in April 2011, found credible allegations of potential serious violations of international law committed by the Government of Sri Lanka and by the LTTE.  The Government of Sri Lanka has never afforded any credence or legitimacy to the report of the Panel.”

That the UNHRC head used the UNSG’s personally commissioned report as the basis for UNHRC Recommendation is proven in the UNHRC Head’s report that gives 3 sources:-

1. Secretary General’s Report,
2. LLRC report, and (where in the world do war crimes tribunals take place simply because ALL of the recommendations in the LLRC are not completed? LLRC report was released in Nov 2011 and UNHRC report was released in Feb 2013!)
3. Channel 4 videos (individual violations if any can easily be addressed by military tribunals in Sri Lanka as has happened in the past so long as C4 unedited videos are examined and proof beyond doubt is established)

The biased nature of the former UNHRC head needs to be examined separately primarily on the grounds that her being an ethnic Tamil, the onus was on her to recuse herself from handling Sri Lanka’s case. That her office had been used in a biased and derogatory manner goes without saying.

The March 2013 Resolution has all but concluded the need for a war crimes tribunal ignoring all of the illegalities, bias and discrepancies that have been omitted and ignored.

Noting the High Commissioner’s call for an independent and credible international investigation into alleged violations of international human rights law and international humanitarian law.” (Resolution 2013)

The issue at hand is simple. Sri Lanka ended a terrorist conflict that lasted 30 years. Sri Lanka had every right to take military action against a brutal terrorist outfit that had been banned in 32 countries. Plenty of chances had been given to the LTTE to give up arms and enter the democratic framework. Even during the military effort several appeals were made by both the GOSL & the UN & foreign envoys for LTTE to lay down arms and surrender. They refused. GOSL as a sovereign state is responsible to defend its citizens against armed militant acts by non-state actors.

Whether accesses were committed & by whom becomes secondary especially when the process to establish this is flawed. The crux of the argument is on 19 May 2009 a 30 year terror phase ended, 4 days later UNSG arrived on 23 May 2009 a joint statement issued though it never agreed to any investigation by Sri Lanka. http://www.sinhalanet.net/the-bogus-joint-statement-between-president-of-sri-lanka-and-ban-ki-moon

Pressure forced Sri Lanka to appoint LLRC on 15 May 2010 and barely 3 weeks after in June 2010 UNSG appoints a 3 member team to personally report to him on the last 3 months of the conflict. On 31 March 2011 UNSG’s personal report is in public domain.

http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf though the panel officially hands over the report to UNSG on 12 April 2011. On 25 April 2011 the report appears on the UN News Centre.

https://www.un.org/apps/news/story.asp?NewsID=38187&Cr=Sri+Lanka&Cr1=#.WWCEtRhh21s

The LLRC report is officially submitted to the GOSL on 15 November 2011 and made public on 16 December 2011 after tabling in Sri Lanka’s Parliament.

Therefore, before establishing any war crimes tribunals the most important question that needs to be answered is whether there is a legal basis for a personally commissioned report meant for the eyes of the UNSG ONLY and covering ONLY 3 months of a 30 year conflict, to be used as the foundation for 3 successive UNHRC Resolutions and an UNHRC investigation with the UNHRC extensively quoting the PoE as being the basis for the resolutions and calls for a war crimes investigation.

What is more important is that this personally commissioned report does not have UNSG or UNGA approval and raises the question of the legality of a UNSG unilaterally commissioning war crimes tribunals against a UN Member sovereign state. Please note at this juncture, we are ignoring all of the other biases and conflict of interests that shroud around the resolutions and statements issued by the UNHRC.

Our argument is solely on the legality of a personally commissioned report by the UNSG being used for a war crimes tribunal as it is going to create a precedence and as such before an illegal precedent is being created legal luminaries in the UN and internationally must seriously look at this and provide a legal answer.

Shenali D Waduge