The joint statement between Sri Lanka and the secretary general of the United Nations
| by Dr Ruwantissa Abeyratne
( April 20, 2013, Montreal, Sri Lanka Guardian) In May 2009, consequent upon its victory over the Liberation Tigers of Tamil Eelam, the Sri Lanka Government invited the Secretary General of the United Nations Ban Ki-Moon to visit the country. The visit entailed for the Secretary General numerous visits to camps which housed hundreds of thousands of internally displaced persons. After these visits of the Secretary General, both the President of Sri Lanka and the Secretary General issued what was called a “Joint Statement” which stated in the final paragraph, which was inserted at the behest of United Nations Officials, as follows:
“Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances”.
One of the measures taken by the Sri Lankan Government in this regard was to establish the Lessons Learnt and Reconciliation Commission (LLRC) and the Secretary General, for his part established a Panel of Experts (not to be confused with a Commission of Inquiry) which was charged with advising the Secretary General of the implementation by Sri Lanka of the commitment as per the Joint Statement. Included in the Panel’s mandate was provision of advice to the Secretary General on the modalities, applicable international standards and comparative experience in the context of fulfillment of the objectives of the Joint Statement and an accountability process.
This brings to bear the need to inquire into the role of the Secretary General. Article 99 of the Charter of the United Nations provides that the Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security. Here it must be noted that the mandate given to the Secretary General is limited to international peace and security.
Under the Charter, the Secretary General has neither the authority nor the powers to influence the Security Council or a member State. He can give a legal opinion to the Council. An important provision of the United Nations lies in Article 2(7) of the Charter which provides that nothing contained in the Charter would authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state. It further states that Members of the United Nations are not required to submit such matters to settlement under the Charter; but that this principle would at the same time not prejudice the application of enforcement measures under Chapter Vll of the Charter which addresses the issue of action to be taken by the Security Council to threats to the peace, breaches of the peace and acts of aggression.
Therefore any internal issue within a member nation of the United Nations is, ipso facto beyond the jurisdiction of the United Nations. The only exception to this principle is where, in exceptional circumstances the Security Council can interpret action taken by the Secretary General as promoting international peace, which in turn would circumvent Article 2(7). One such example was when U Thant sent observers to the border in the 1963 Yemeni civil war to prevent border infiltration The Security Council found that the matter was not purely internal and therefore within UN's competence.
In the ultimate analysis therefore, the Secretary General has to act strictly within the moral precincts of the United Nations Charter which promotes international peace. Perez de Cuellar once observed that, the aim of traditional diplomacy was often limited to a stable balance of power and, whether the balance conformed to justice was of a lesser concern. He went on to say that peace as envisaged by the UN Charter is a just peace and the Secretary General should have no part in any diplomatic deal or undertaking which ignores the principles of the Charter or relevant pronouncement of the competent organs of the UN.
The Panel of experts appointed by the Secretary General for the aforesaid purpose of reporting on the implementation of the commitment of Sri Lanka as reflected in the Joint statement comprised of Marzuki Darusman, a former attorney general of Indonesia, Steven Ratner, a professor of law at University of Michigan and Yasmin Sooka, Executive Director of the Foundation of Human Rights in South Africa. Unlike expert commissions appointed by the Secretary General which could engage in investigations of fact finding, the Darusman Panel lacked the mandate to investigate facts, as explicitly stated by the Secretary General - that the panel was in fact not a commission of inquiry.
The Panel worked for approximately nine months, and produced its Report prepared from information gathered about the conduct of the war and allegations, purely based on their credibility. These allegations and other information were received primarily through a publicly established email address which had yielded 4000 communications from over 2300 senders in 2010. The Panel decided to ascribe credibility to an allegation and treat it serious enough to be included in its Report if it was the view of the Panel that there was reasonable basis to believe that the underlying act or event had occurred.
On this basis the Panel concluded in its Report that there were credible allegations that the Government of Sri Lanka had killed civilians through wide spread shelling; shelled hospitals and other humanitarian objects; denied humanitarian assistance; and violated human rights of victims and survivors of the conflict which included internally displaced persons and LTTE cadres. The Panel also found credible foundation to claim that the LTTE for its part had used civilians as human buffers; killed civilians who attempted to flee from LTTE control; used military equipment in the proximity of civilians; recruited children as combatants; used forced labour; and subjected or coerced civilians to engage in suicide attacks.
Based on these conclusions the Panel reported to the Secretary General that Sri Lanka had an unequivocal duty to investigate the alleged facts as identified through the Panel’s report on the basis of “truth, justice and reparations”. The Panel also recommended that the Secretary General create an independent international mechanism to monitor any Sri Lankan investigations, investigate allegations and serve as a repository of records. The Panel qualified this recommendation with the caveat that such a mechanism should take into consideration genuine domestic attempts at investigations.
One would neither doubt the integrity of the Report nor that of the three highly respected Panel members. However, for purposes of argumentation, one could claim that all that the Government of Sri Lanka agreed to was to address grievances pertaining to violations of international humanitarian and human rights law. Did such an undertaking include what was subjectively deemed to have been considered credible by a Panel which was not even mandated to investigate facts? Would an email address open to the public be able to sift the genuine from the false claims?
Steven R. Ratner, one of the members of the Darusman Panel, in his au fait article in the American Journal of International Law (October 2012, Volume 106, No 4 at 795) entitled “Accountability and the Sri Lankan War makes this final comment: “Nearly four years after the war, the Sri Lankan accountability process has finally been set in motion, but in a sense, it has barely begun. The majority within the Human Rights Council that the United States cobbled together for the March 2012 Resolution may dissipate over time. In the end, States may emphasize other important aspects of national reconciliation within Sri Lanka and may no longer push the question of accountability. It may well be that a full and fair examination by the Sri Lanka Government of the State’s own conduct and that of its adversary will need to await electoral developments some years down the road”.
