“Legally, as it stands now, there are only victims of Srebrenica and no perpetrators. But the whole of the UN machinery is set up to fix responsibility. The UN has now advanced beyond its limited Charter to acquire the new legal instrument of Responsibility to Protect (R2P) – a principle that makes it obligatory for UN to accept responsibility like any other member state for its failure to protect. Then how can UN abandon its responsibility to protect refugees who had gathered at an UN-designated “safe haven” flying the UN flag? Can the global policeman of human rights escape scrutiny and responsibility for violating its own principles and international humanitarian law?”
(September 14, Melbourne, Sri Lanka Guardian) In a shocking move made in a Dutch Court last week, the UN has claimed immunity for its actions in Srebrenica – the UN “safe haven” which turned a blind eye to the only known European genocide since World War II. This attempt to deny and override its own principles has serious consequences to the moral authority of the UN, particularly when it comes to laying down the law to its member states.
UN stands out from other organizations as the peak centre which has institutionalized the conscience of the world concerned with human rights abuses. Its primary responsibility is to uphold its own charter on human rights established to protect people facing genocide, political persecution, forcible conscription of under aged children etc. The UN cannot disown its responsibility for acts committed by its representatives, acting in UN-authorized missions, waving its flag as the champion of human rights.
Neither the UN nor UN-authorized missions have the right to claim immunity by pretending to be above international humanitarian law. It is against all principles of natural justice.
The role of the UN in Srebrenica raises questions about its fundamental duties and responsibilities. In the summer of 1995, Muslims persecuted by Bosnian Serbs gathered in Srebrenica, a small town designated as a “safe haven” by the UN Security Council. About 400 Dutch soldiers were assigned as peacekeepers by the UN to safeguard the besieged Muslims. On July 11, 1995 it fell into the hands of Bosnian Serbian soldiers with the least resistance from the Dutch soldiers.
Records reveal that the Bosnian Serb forces loaded thousands of Muslim men and boys into vehicles which transported them for execution under the very noses of the UN forces. Their bodies were thrown into mass graves. It is estimated that 8,000 Muslim refugees were massacred. It is the only known European genocide since World War II.
Last month about 6,000 relatives sued both the UN and the Dutch government in a District Court in The Hague. In its defence the United Nations claimed immunity. Last week the Court held that the UN cannot be held responsible because immunity is written into its founding charter.
"The court .. has no jurisdiction to hear the action against the United Nations” and the Court concluded that “in international law practice the absolute immunity of the UN is the norm and is respected."
Axel Hagedorn, a lawyer for the "Mothers of Srebrenica" who lodged the case representing some 6,000 survivors of the massacre, said: "The court ruled that the UN has immunity, even if a genocide has happened, and that is in our opinion exactly what you can't accept," he said.
Hagedorn argued that the court should have overruled UN immunity because of the extreme circumstances of the case – the first genocide in Europe since the Genocide Convention was drawn up in the aftermath of the Holocaust. "You have to change the jurisdiction on this, because otherwise you accept genocide."
The “Mothers of Srebrenica” are expected to appeal the decision. The case could go to the European Court of Human Rights.
Christian Science Monitor reported: “The UN did not appear in court for a preliminary hearing June 18, and officials did not respond to requests for comment. Bert-Jan Houtzagers, an attorney representing the Dutch government, declined comment, issuing a written statement: "The Netherlands and the United Nations are firmly of the opinion that the court has no jurisdiction. On the basis of international law, the United Nations enjoys in the territory of its Members such privileges and immunities as are necessary for the fulfillment of its purposes." But in an interview before the ruling, Hagedorn, said political pressure should not be allowed to interfere with justice. "If you do not even allow [the case to go to court], you are saying that you have international organization that is above the law. Genocide does not fall under immunity."
UN and its designated representatives maintaining a military presence in a territory under its protection cannot wash its hands off that lightly. More so because UN has admitted that it failed to protect the Muslims of Srebrenica from mass murder. However, none of its officials was held responsible. The responsibility of the Dutch forces – its general was filmed drinking with the Bosnian commanders – has also been a controversial issue. When this issue reached boiling point in Holland in 2002, the entire Dutch government resigned. Later the Dutch government awarded the Dutch UN peacekeepers an insignia in December 2006. This naturally angered the relatives of the victims who called it a “humiliating decision” and held protest rallied in The Hague and in the Bosnian capital, Sarajevo.
Legally, as it stands now, there are only victims of Srebrenica and no perpetrators. But the whole of the UN machinery is set up to fix responsibility. The UN has now advanced beyond its limited Charter to acquire the new legal instrument of Responsibility to Protect (R2P) – a principle that makes it obligatory for UN to accept responsibility like any other member state for its failure to protect. Then how can UN abandon its responsibility to protect refugees who had gathered at an UN-designated “safe haven” flying the UN flag? Can the global policeman of human rights escape scrutiny and responsibility for violating its own principles and international humanitarian law?
Srebrenica is not the only case in which the UN had played its disingenuous and duplicitous role. Crimes committed by the UN are mounting on a scale that cannot be ignored any longer. It has developed a tendency to act with impunity because it is protected not by the law or morality but by power politics of unilateral and multilateral forces which are bigger than the UN. It is indeed depressing to watch UN officials and its peacekeepers marching into conflict-ridden zones pompously, proclaiming its right to occupy the high moral ground, and then marching out leaving the victims of its failed policies in a condition far worse than in the time they arrived. Peacekeepers, peacemakers, and UN allied agencies, mainly NGOs, are indulging in dubious roles which question the moral relevance of the UN as a principled institution with powers to intervene as a healing force in this troubled world. No doubt, this touch-me-not role of this supra-national body has serious consequences to international law as well.
As seen in the Srebrenica case that came up in District Court in The Hague neither the Dutch state nor the UN is prepared to accept responsibility. Where does this leave the victims? What is the legal or moral force that gives immunity to UN when its agents acting under Security Resolutions fail to uphold the basic principles for which it was set up?
A whole range of questions arise out of UN playing the role of Pontius Pilate. Take the case of the 600,000 Iraqi children (UNICEF figures) who died as a result of the naval cordon thrown round Iraq to enforce the oil embargo on Saddam Hussein. Innocent children have died and no one in the UN to date has been asked to account for it. The UN has appointed a Special Representative for Children and Armed Conflict, Ms. Radhika Coomaraswamy. But she is silent as an Egyptian mummy. Of course, she can argue that this happened before her time. But, as a lawyer, she should also know that there is no statue of limitation for crimes against humanity.
Besides, fixing responsibility on those guilty is a part of the “name and shame” game played by the UN. When Ms. Coomaraswamy was heading the International Centre for Ethnic Studies – her base in Sri Lanka pursuing politicized research promoting the partisan agenda of the Tamil separatists – she was quick to point the finger at the Sri Lanka state for the tragic events of 1983 when the lunatic fringe went on the rampage. So why is she now backward in coming forward to fix the blame on the UN, particularly after she teamed up with the International Crisis Group headed by Gareth Evans to institutionalize the principle of responsibility to protect (R2P)? Where does the responsibility to protect begin and end? What action will she and Gareth Evans take now in the light of judgment of the Dutch Court on Srebrenica?
Leaving that aside for the moment, consider the recent report presented by UK charity Save the Children which has exposed children being sexually abused by peacekeepers and aid workers in parts of the world affected by conflict.
According to the report the silence that surrounds the abuse is almost as shocking as the abuse itself.
A BBC summary of the report said that children as young as six years old are being abused, raped and exploited by the very people who are supposed to be looking after them.
“A 13-year-old girl near the Ivory Coast town of Moule described how 10 UN peacekeepers gang-raped her in a field near her home and left her bleeding, trembling and vomiting on the ground.
No action has been taken against the soldiers.
The report also found that aid workers have been sexually abusing both boys and girls.
The head of Save the Children in Ivory coast, Heather Carr, says the majority of abuses are unpunished or not reported because the victims are too scared or powerless to speak out.”
These unacceptable and disturbing trends of the UN lead to the obvious question: who is going to police the policeman? Of course, it should be conceded that the UN does not have a mighty army to enforce its will. But at the same time the UN should not be seen as another mad dog barking at the moon. What it lacks in military power can be balanced by its moral authority. To achieve this, the UN must act cautiously without rushing into places where angels fear to tread.
Take the case of Sri Lanka where a democratically elected is waging a war against a terrorist regime run by a fascist leader persecuting, torturing and eliminating Tamil dissidents who refuse to follow his brand of vindictive and racist politics. Secretary-General Ban Ki Moon has intervened to remind “all concerned” about the “principle of proportionality and selection of targets…..” in the ongoing war. Presumably, this reminder is intended to give directions to “all concerned” about protecting the people caught in the middle of a war. Quite contrary to the reminder of the Secretary-General his representative in Colombo, Gordon Weiss, told the Sunday Times that “they (UN) were not there to advice people on which direction they should move”. This leaves the Tamil people in the grip of the Tamil Tigers who are using them as a human shield. Isn’t Gordon Weiss aware of this plight? If not why is he there as Ban Ki Moon’s representative?
It is agreed that the UN doesn’t have the power to direct the movement of people in any given situation. But it is also agreed that the UN has a moral responsibility to offer advice to the people to find safe havens. That is an essential part of its responsibilities to protect the people. In any given crisis situation where the lives of people are in serious danger it is the prime duty of authorities to advice the people on how to find safety. The paid task of Gordon Weiss is to collect relevant information and in collaboration with others working in the field give the best advice to the UN and also to the likely victims of the impending crisis. It is up to the people to accept the advice or not.
The UN somehow gets its knickers twisted each time it shakes a leg in Sri Lanka. When Kofi Annan was visiting the tsunami-hit areas he gratuitously went out of his way to convey his condolences to a mere Tiger “lieutenant” (Kausalyan) who was waylaid and killed by a rival Tamil group in the east. What degree of “proportionality” did he apply in making this partisan statement? Where and when did a UN official convey their sympathies to even a commander of the Security Forces? Or is the UN “proportionality” reserved only for Tiger agents?
Kofi Annan was offering his condolences to a “lieutenant” in the gang of Tigers forcibly recruiting children and committing gross violations of human rights. Ms. Radhika Coomaraswamy told the 8th meeting of the Security Council Working Group on Children and Armed Conflict held in New York City on May 10, 2007 that this gang was “a repeat offender who has been on the secretary-general’s list of violators for four years.” So did the Secretary-General apply any kind of moral or legal “proportionality” when he offered his condolences to war criminals committing crimes against humanity? Is that his job? In any case, what did UN gain by it other than boosting the image of political criminals who are on the list of the Secretary-General?
Ban Ki Moon did not come to the office of Secretary-General with a tainted history like that of Kurt Waldheim, who was an officer in Hitler’s notorious SS. Nor is he linked to scandals like oil-for-food deals. His role is to lift the UN from its failed past. If he is to leave a mark the UN has to do much better than what it did in Srebrenica. He would do himself and the UN a great service if he applies the principle of proportionality in the right direction, with the required quantum of force, to save the victims of terror, torture, persecution and arbitrary execution.
He could do that only if his minders who draft his press releases get acquainted with the principles of proportionality applied by the Sri Lankan government in waging a war to end the war. UN officials should be told that the principle of “proportionality” is non-existent in the violent politics of Velupillai Prabhakaran, the leader of Tamil Tigers, who stands accused by leading Tamil leaders, including Mr. V. Anandasangaree, a UN peace-award-winning activist, of killing more Tamils than all the other forces put together.
Prabhakaran’s hit list – from Rajiv Gandhi to the Tamil leadership – confirms incontrovertibly that he was never guided by the principles of “proportionality” Nor is his suicide bombing which targets civilians indiscriminately a fine example of “proportionality” or “selective targeting”. Clearly, Ban Ki Moon’s bland pieties bear no relevance to the grim realities faced by the victims of his violence.
All this demands that the UN must get its act together. It can’t act as the CEO of human rights by mouthing principles that are totally out of proportion to the ground realities. Nor can it shy away from its responsibilities by claiming immunity. Ban Ki Moon has a huge task ahead of him. He can begin by applying the principles of “proportionality” to assess objectively the plight of the victims of a needless war perpetuated by one man for his glory instead of equating a democratically elected state with that of a regime which is still on the Secretary-General’s list of political criminals who refuse to put down their arms and join meaningfully in peace negotiations recommended in his press release.
(H.L.D.Mahindapala: Editor, Sunday and Daily Observer (1990 - 1994). President, Sri Lanka Working Journalists' Association (1991 -1993). Secretary-General, South Asia Media Association (1993 -1994). He has been featured as a political commentator in Australian Broadcasting Corporation, Special Broadcasting Services and other mainstream TV and radio stations in Australia.) - Sri Lanka Guardian
(September 14, Melbourne, Sri Lanka Guardian) In a shocking move made in a Dutch Court last week, the UN has claimed immunity for its actions in Srebrenica – the UN “safe haven” which turned a blind eye to the only known European genocide since World War II. This attempt to deny and override its own principles has serious consequences to the moral authority of the UN, particularly when it comes to laying down the law to its member states.
UN stands out from other organizations as the peak centre which has institutionalized the conscience of the world concerned with human rights abuses. Its primary responsibility is to uphold its own charter on human rights established to protect people facing genocide, political persecution, forcible conscription of under aged children etc. The UN cannot disown its responsibility for acts committed by its representatives, acting in UN-authorized missions, waving its flag as the champion of human rights.
Neither the UN nor UN-authorized missions have the right to claim immunity by pretending to be above international humanitarian law. It is against all principles of natural justice.
The role of the UN in Srebrenica raises questions about its fundamental duties and responsibilities. In the summer of 1995, Muslims persecuted by Bosnian Serbs gathered in Srebrenica, a small town designated as a “safe haven” by the UN Security Council. About 400 Dutch soldiers were assigned as peacekeepers by the UN to safeguard the besieged Muslims. On July 11, 1995 it fell into the hands of Bosnian Serbian soldiers with the least resistance from the Dutch soldiers.
Records reveal that the Bosnian Serb forces loaded thousands of Muslim men and boys into vehicles which transported them for execution under the very noses of the UN forces. Their bodies were thrown into mass graves. It is estimated that 8,000 Muslim refugees were massacred. It is the only known European genocide since World War II.
Last month about 6,000 relatives sued both the UN and the Dutch government in a District Court in The Hague. In its defence the United Nations claimed immunity. Last week the Court held that the UN cannot be held responsible because immunity is written into its founding charter.
"The court .. has no jurisdiction to hear the action against the United Nations” and the Court concluded that “in international law practice the absolute immunity of the UN is the norm and is respected."
Axel Hagedorn, a lawyer for the "Mothers of Srebrenica" who lodged the case representing some 6,000 survivors of the massacre, said: "The court ruled that the UN has immunity, even if a genocide has happened, and that is in our opinion exactly what you can't accept," he said.
Hagedorn argued that the court should have overruled UN immunity because of the extreme circumstances of the case – the first genocide in Europe since the Genocide Convention was drawn up in the aftermath of the Holocaust. "You have to change the jurisdiction on this, because otherwise you accept genocide."
The “Mothers of Srebrenica” are expected to appeal the decision. The case could go to the European Court of Human Rights.
Christian Science Monitor reported: “The UN did not appear in court for a preliminary hearing June 18, and officials did not respond to requests for comment. Bert-Jan Houtzagers, an attorney representing the Dutch government, declined comment, issuing a written statement: "The Netherlands and the United Nations are firmly of the opinion that the court has no jurisdiction. On the basis of international law, the United Nations enjoys in the territory of its Members such privileges and immunities as are necessary for the fulfillment of its purposes." But in an interview before the ruling, Hagedorn, said political pressure should not be allowed to interfere with justice. "If you do not even allow [the case to go to court], you are saying that you have international organization that is above the law. Genocide does not fall under immunity."
UN and its designated representatives maintaining a military presence in a territory under its protection cannot wash its hands off that lightly. More so because UN has admitted that it failed to protect the Muslims of Srebrenica from mass murder. However, none of its officials was held responsible. The responsibility of the Dutch forces – its general was filmed drinking with the Bosnian commanders – has also been a controversial issue. When this issue reached boiling point in Holland in 2002, the entire Dutch government resigned. Later the Dutch government awarded the Dutch UN peacekeepers an insignia in December 2006. This naturally angered the relatives of the victims who called it a “humiliating decision” and held protest rallied in The Hague and in the Bosnian capital, Sarajevo.
Legally, as it stands now, there are only victims of Srebrenica and no perpetrators. But the whole of the UN machinery is set up to fix responsibility. The UN has now advanced beyond its limited Charter to acquire the new legal instrument of Responsibility to Protect (R2P) – a principle that makes it obligatory for UN to accept responsibility like any other member state for its failure to protect. Then how can UN abandon its responsibility to protect refugees who had gathered at an UN-designated “safe haven” flying the UN flag? Can the global policeman of human rights escape scrutiny and responsibility for violating its own principles and international humanitarian law?
Srebrenica is not the only case in which the UN had played its disingenuous and duplicitous role. Crimes committed by the UN are mounting on a scale that cannot be ignored any longer. It has developed a tendency to act with impunity because it is protected not by the law or morality but by power politics of unilateral and multilateral forces which are bigger than the UN. It is indeed depressing to watch UN officials and its peacekeepers marching into conflict-ridden zones pompously, proclaiming its right to occupy the high moral ground, and then marching out leaving the victims of its failed policies in a condition far worse than in the time they arrived. Peacekeepers, peacemakers, and UN allied agencies, mainly NGOs, are indulging in dubious roles which question the moral relevance of the UN as a principled institution with powers to intervene as a healing force in this troubled world. No doubt, this touch-me-not role of this supra-national body has serious consequences to international law as well.
As seen in the Srebrenica case that came up in District Court in The Hague neither the Dutch state nor the UN is prepared to accept responsibility. Where does this leave the victims? What is the legal or moral force that gives immunity to UN when its agents acting under Security Resolutions fail to uphold the basic principles for which it was set up?
A whole range of questions arise out of UN playing the role of Pontius Pilate. Take the case of the 600,000 Iraqi children (UNICEF figures) who died as a result of the naval cordon thrown round Iraq to enforce the oil embargo on Saddam Hussein. Innocent children have died and no one in the UN to date has been asked to account for it. The UN has appointed a Special Representative for Children and Armed Conflict, Ms. Radhika Coomaraswamy. But she is silent as an Egyptian mummy. Of course, she can argue that this happened before her time. But, as a lawyer, she should also know that there is no statue of limitation for crimes against humanity.
Besides, fixing responsibility on those guilty is a part of the “name and shame” game played by the UN. When Ms. Coomaraswamy was heading the International Centre for Ethnic Studies – her base in Sri Lanka pursuing politicized research promoting the partisan agenda of the Tamil separatists – she was quick to point the finger at the Sri Lanka state for the tragic events of 1983 when the lunatic fringe went on the rampage. So why is she now backward in coming forward to fix the blame on the UN, particularly after she teamed up with the International Crisis Group headed by Gareth Evans to institutionalize the principle of responsibility to protect (R2P)? Where does the responsibility to protect begin and end? What action will she and Gareth Evans take now in the light of judgment of the Dutch Court on Srebrenica?
Leaving that aside for the moment, consider the recent report presented by UK charity Save the Children which has exposed children being sexually abused by peacekeepers and aid workers in parts of the world affected by conflict.
According to the report the silence that surrounds the abuse is almost as shocking as the abuse itself.
A BBC summary of the report said that children as young as six years old are being abused, raped and exploited by the very people who are supposed to be looking after them.
“A 13-year-old girl near the Ivory Coast town of Moule described how 10 UN peacekeepers gang-raped her in a field near her home and left her bleeding, trembling and vomiting on the ground.
No action has been taken against the soldiers.
The report also found that aid workers have been sexually abusing both boys and girls.
The head of Save the Children in Ivory coast, Heather Carr, says the majority of abuses are unpunished or not reported because the victims are too scared or powerless to speak out.”
These unacceptable and disturbing trends of the UN lead to the obvious question: who is going to police the policeman? Of course, it should be conceded that the UN does not have a mighty army to enforce its will. But at the same time the UN should not be seen as another mad dog barking at the moon. What it lacks in military power can be balanced by its moral authority. To achieve this, the UN must act cautiously without rushing into places where angels fear to tread.
Take the case of Sri Lanka where a democratically elected is waging a war against a terrorist regime run by a fascist leader persecuting, torturing and eliminating Tamil dissidents who refuse to follow his brand of vindictive and racist politics. Secretary-General Ban Ki Moon has intervened to remind “all concerned” about the “principle of proportionality and selection of targets…..” in the ongoing war. Presumably, this reminder is intended to give directions to “all concerned” about protecting the people caught in the middle of a war. Quite contrary to the reminder of the Secretary-General his representative in Colombo, Gordon Weiss, told the Sunday Times that “they (UN) were not there to advice people on which direction they should move”. This leaves the Tamil people in the grip of the Tamil Tigers who are using them as a human shield. Isn’t Gordon Weiss aware of this plight? If not why is he there as Ban Ki Moon’s representative?
It is agreed that the UN doesn’t have the power to direct the movement of people in any given situation. But it is also agreed that the UN has a moral responsibility to offer advice to the people to find safe havens. That is an essential part of its responsibilities to protect the people. In any given crisis situation where the lives of people are in serious danger it is the prime duty of authorities to advice the people on how to find safety. The paid task of Gordon Weiss is to collect relevant information and in collaboration with others working in the field give the best advice to the UN and also to the likely victims of the impending crisis. It is up to the people to accept the advice or not.
The UN somehow gets its knickers twisted each time it shakes a leg in Sri Lanka. When Kofi Annan was visiting the tsunami-hit areas he gratuitously went out of his way to convey his condolences to a mere Tiger “lieutenant” (Kausalyan) who was waylaid and killed by a rival Tamil group in the east. What degree of “proportionality” did he apply in making this partisan statement? Where and when did a UN official convey their sympathies to even a commander of the Security Forces? Or is the UN “proportionality” reserved only for Tiger agents?
Kofi Annan was offering his condolences to a “lieutenant” in the gang of Tigers forcibly recruiting children and committing gross violations of human rights. Ms. Radhika Coomaraswamy told the 8th meeting of the Security Council Working Group on Children and Armed Conflict held in New York City on May 10, 2007 that this gang was “a repeat offender who has been on the secretary-general’s list of violators for four years.” So did the Secretary-General apply any kind of moral or legal “proportionality” when he offered his condolences to war criminals committing crimes against humanity? Is that his job? In any case, what did UN gain by it other than boosting the image of political criminals who are on the list of the Secretary-General?
Ban Ki Moon did not come to the office of Secretary-General with a tainted history like that of Kurt Waldheim, who was an officer in Hitler’s notorious SS. Nor is he linked to scandals like oil-for-food deals. His role is to lift the UN from its failed past. If he is to leave a mark the UN has to do much better than what it did in Srebrenica. He would do himself and the UN a great service if he applies the principle of proportionality in the right direction, with the required quantum of force, to save the victims of terror, torture, persecution and arbitrary execution.
He could do that only if his minders who draft his press releases get acquainted with the principles of proportionality applied by the Sri Lankan government in waging a war to end the war. UN officials should be told that the principle of “proportionality” is non-existent in the violent politics of Velupillai Prabhakaran, the leader of Tamil Tigers, who stands accused by leading Tamil leaders, including Mr. V. Anandasangaree, a UN peace-award-winning activist, of killing more Tamils than all the other forces put together.
Prabhakaran’s hit list – from Rajiv Gandhi to the Tamil leadership – confirms incontrovertibly that he was never guided by the principles of “proportionality” Nor is his suicide bombing which targets civilians indiscriminately a fine example of “proportionality” or “selective targeting”. Clearly, Ban Ki Moon’s bland pieties bear no relevance to the grim realities faced by the victims of his violence.
All this demands that the UN must get its act together. It can’t act as the CEO of human rights by mouthing principles that are totally out of proportion to the ground realities. Nor can it shy away from its responsibilities by claiming immunity. Ban Ki Moon has a huge task ahead of him. He can begin by applying the principles of “proportionality” to assess objectively the plight of the victims of a needless war perpetuated by one man for his glory instead of equating a democratically elected state with that of a regime which is still on the Secretary-General’s list of political criminals who refuse to put down their arms and join meaningfully in peace negotiations recommended in his press release.
(H.L.D.Mahindapala: Editor, Sunday and Daily Observer (1990 - 1994). President, Sri Lanka Working Journalists' Association (1991 -1993). Secretary-General, South Asia Media Association (1993 -1994). He has been featured as a political commentator in Australian Broadcasting Corporation, Special Broadcasting Services and other mainstream TV and radio stations in Australia.) - Sri Lanka Guardian
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