The UNHRC resolution – it gets curiouser and curiouser

| by Dr. Ruwantissa Abeyratne

" 'Curiouser and curiouser!' Cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English)” - Alice in Wonderland, Lewis Carroll.

( March 27, 2012, Montreal, Sri Lanka Guardian) For those who have not undergone the rigours of Latin in the classroom as I did, the term Caedo Ergo Sum means I kill, therefore I am. Last week, the world was trying to come to terms with how a single, lonely man was able to take an entire country hostage for nearly a week. Mohamed Merah, a French national of Algerian descent opened fire on Jewish children in the French town of Toulouse, apparently on a mission to murder soldiers and Jewish children. He then holed up in an apartment for quite some time causing a standoff with a substantial segment of French police and military. To kill innocent bystanders in the most coldblooded manner imaginable was to Merah the raison d’être for his existence. There is no doubt that anyone who crossed his path at the time he was murdering the children would have met the same fate, whether they were Afghans or Zambians, Buddhists or Muslims.

Most terrorists including suicide bombers attack a target, not minding that others in the vicinity who may have nothing to do with the target would perish. This is called collateral damage.

Putting this fundamental concept into perspective with what went on in Geneva on 22 March 2012 at the UNHRC, there are two curious clauses in the Resolution adopted against Sri Lanka. One is “Noting with concern that the report (of the LLRC… parenthesis added) does not adequately address serious allegations of violations of international law”. The other, and more disturbing is: “Requests the Government of Sri Lanka to present, as expeditiously as possible, a comprehensive action plan detailing the steps that the Government has taken and will take to implement the recommendations made in the Commission’s report, and also to address alleged violations of international law”.

What is curious here is that it is a fundamental principle of law that a crime has to be proved by the person who alleges it, and until a crime is proven beyond reasonable doubt the person accused of such crime is presumed innocent. The fact that the Resolution does not allude to proven crimes but simply “alleged violations of international law” brings to bear the fundamental requirement that, in order to make a responsible international statement, one must know what these violations are or be told what they are in specific terms.

The only references to “credible allegations” (and credible allegations are not sufficient to prove a violation) against the Sri Lankan Government can be seen in what is now called the Darusman Report. The Report states: “The Panel’s determination of credible allegations reveals a very different version of the final stages of the war than that maintained to this day by the Government of Sri Lanka. The Government says it pursued a “humanitarian rescue operation” with a policy of “zero civilian casualties”(in other words no collateral damage whatsoever – my parenthesis)…in stark contrast, the Panel found credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE some of which would amount to war crimes and crimes against humanity…

“Specifically the Panel found credible allegations associated with the final stages of the war. Between September 2008 and 19 May 2009, the Sri Lanka Army advanced its military campaign into the Vanni using large-scale and widespread shelling, causing large numbers of civilian deaths (again, an allegation of causing collateral damage…my emphasis)…the Government systematically shelled hospitals on the frontlines…”

The word “credible” in the Oxford English Dictionary is defined as “believable or worthy of belief…convincing”. It falls far short of the legal requirement of proof which has to be adduced by the person making the “credible” statement.

Now consider this bizarre situation with another Resolution which recognizes that an injustice has been committed and resolves to seek corrective measures. The UN Security Council, in its first action on South Africa, adopted Resolution 134 deploring the policies and actions of the South African government in the wake of the killing of 69 peaceful African protesters in Sharpeville by the police on 21 March. The Council called upon the government to abandon its policies of apartheid and racial discrimination. This is clear enough. There were no calls to address allegations against South Africa.

More recently, the United Nations Security Council in its resolution 1973 condemned the gross and systematic violation of human rights, including arbitrary detentions, enforced disappearances, torture and summary executions in Libya, along with acts of violence and intimidation committed by the Libyan authorities against journalists, media professionals and associated personnel, and also considered that the widespread and systematic attacks then taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity, and accordingly prescribed the actions to be taken against the regime. There was no mention of “allegations”. These are clear, unambiguous, direct statements of fact.

As I mentioned in one of my earlier articles quoting Stephen Shaw, “one must be alive to the dangers in ascribing legal value to everything that emanates from the Assembly. Resolutions are often the results of political compromises and arrangements and, comprehended in that sense, never intended to constitute binding norms. Great care must be taken in moving from a plethora of practice to the identification of legal norms”. Non binding instruments form a special category that is sometimes referred to as “soft law” which is definitely not law in the sense of enforceability.

I must hasten to add that my views expressed above are by no means an endorsement of innocence or guilt on the part of any player in the Resolution. As a public commentator burdened with a legal education I merely followed the maxim “Omnia praesumuntur rite esse acta (all things are presumed to be acted upon in the proper manner).