From 2012-2019 the United Nations Human Rights Council adopted a series of resolutions on Sri Lanka calling for accountability for war crimes and other crimes purportedly committed during the war against the Liberation Tigers of Tamil Eelam (LTTE) that ended in May 2009.  This article challenges the traditional narrative regarding the resolutions—i.e. that it was a well-intentioned effort by the sponsoring nations, especially the United States and its allies—to foster peace and reconciliation in Sri Lanka and instead argues that in pursuing the resolutions the UNHRC has violated the fundamental principles of the United Nations Charter as well as the Council’s own founding documents.  The author contends that, through the resolutions in question the United States and its allies have developed a series of innovative tactics to enable them to intervene in the internal affairs of weak nations by using the UNHRC as a conduit.  It is in the interest of the friends of the United Nations and in general all persons who value the rule of law in international affairs to know about what has happened so that they can advocate for the relevant reforms in order to prevent the United Nations from losing its credibility any further.  

Key Words:  Sri Lanka, civil war, UNHRC resolutions, U.N. Charter, Article 2(7), international law, human rights law, Article 28 of the Universal Declaration of Human Rights 

From 2012 – 2019, the United Nations Human Rights Council adopted a series of resolutions on Sri Lanka calling for accountability for war crimes and other crimes allegedly committed during the last phase of the war against the LTTE which ended in May 2009.  The climactic resolution in the series—resolution 30/1 of October 2015—was co-sponsored by the Government of Sri Lanka.  However, in March 2020, the Government of President Gotabhaya Rajapaksa (elected to office in November 2019) unilaterally withdrew from the co-sponsorship.  Meanwhile, at the UNHRC’s 46th session in March 2021 a group of nations led the U.K., Germany, Canada and others adopted a new resolution calling for the full implementation of resolution 30/1.

To digress a moment, from 2012-2014, I published three essays in the Foreign Policy Journal where I discussed certain procedural violations that I thought the UNHRC had committed in the course of adopting the initial resolutions in the series mentioned above. There is evidence that, the essays have been of some help to Sri Lankans in assessing the initial resolutions.  For instance, in November 2020 a report based on the essays was filed of record in the Sri Lankan Parliament. The present essay continues and concludes the discussion begun in the earlier essays.

Here, I take up two issues that to my knowledge no one has commented on to date, to wit: a) is the Council’s adoption of resolution 30/1 which was co-sponsored by Sri Lanka the nation adversely affected by it consistent with the provisions of Article 2(7) of the Charter? and b) is the Council’s adoption of resolution 46/1, in particular paragraph 6 which authorizes the Office of the High Commissioner to establish an investigative mechanism to collect and consolidate information and evidence of war crimes purportedly committed during the war and also develop “future strategies for accountability” consistent with the provisions of Article 2(7) of the U.N. Charter along with relevant provisions of the Council’s founding statutes, U.N. General Assembly resolution 60/251 and UNHRC resolution 5/1 (“Institution-building in the Human Rights Council”)?

I answer “no” to both questions.  In regard to the first, my argument is that there is no evidence that the UNHRC ever established to a satisfactory standard of proof that the alleged war crimes ever took place.  Therefore, to uphold the notion of a co-sponsored resolution would set a precedent for interested parties to level unsubstantiated allegations against a country and based on such claims (which go unchallenged because of the co-sponsorship) get a resolution passed which allow them to intervene in the internal affairs of the targeted country including constitutional issues that go far beyond the scope of the original allegations.In effect, it is to get the “victim” to acquiesce in the wrong being committed against it.  

It makes a mockery of Article 2(7) of the U.N. Charter which I argue is intended among other things to protect the weak nations against the strong.  In regard to the second, my argument is that if Resolution 46/1 is upheld it would set a precedent for coalitions of interested nations to target a country for special attention at the UNHRC without the agreement or consent of such country.  This is completely contrary to the principles of the UNHRC set out in its founding statues.  These principles include “cooperation” and “constructive international dialogue.”

The purpose of this paper, is to acquaint international readers with the above matters and argue for the need for members of the public to call on the High Commissioner or the U.N. Secretary-General to seek an advisory opinion of the International Court of Justice (ICJ) if there are further efforts to keep Sri Lanka on the agenda at the UNHRC.  This is because, there is now a potential for Sri Lanka to be continually targeted by coalitions of powerful nationsthat are capable of mustering majorities at the Council.  Therefore, they can impose their will on this small nation without the latter being able to put up a meaningful defence. 

Such a situation is inconsistent with the purposes of the United Nations Organization which was founded among other things to foster amity and friendship among the nations not discord and acrimony.  It is also contrary to the fundamental principles of international law a key one of which is the principle of Natural Justice that enjoins one to “hear the other side.”  

The larger issue that Sri Lanka’s experience at the UNHRC highlights is the tension between, on the one hand, the need of Governments to combat rebellions, insurgencies and other such threats to domestic peace and on the other the need for the U.N. to monitor such occasions to ensure that there are no abuses.  It is not in dispute that, Governments have committed atrocities in the name of “national security.”  However, it has become apparent in recent years as shown in Iraq, Afghanistan, Libya and elsewhere that the U.N.’s monitoring role is also prone to exploitation and abuse and powerful nations have got the U.N. to endorse various interventions including “regime change” operations under the pretext of protecting or advancing human rights.

In this context, a definitive interpretation of Article 2(7) would be one of the best ways to help rebuild the credibility of the U.N. system because, first, it would guide U.N. organs when they are asked to endorse various interventions in the future and second, it will make it much easier for the ‘victims” to challenge interventions that they consider illegitimate.  On the subject of U.N. reform in general, the following observation of Professor Richard Falk the renowned expert on international law as well as the U.N. is highly pertinent:

To simplify matters, reformist energies need to be understood in relation to two overriding goals:  amore legitimate United Nations and a more effective United Nations.  The Organization, in general, will operate more legitimately and appear to be doing so in relation to three standards of assessment:  a) acting in accordance with the U.N. Charter, including its broad principles and objectives, 2) achieving representativeness in relation to the peoples of the world, particularly on the Security Council and operating in a manner that embodies democratic practices of participation, transparency and accountability, 3) moving toward political independence in relation to the most powerful geopolitical actors in the world, which will depend on the avoidance of “double standards” in regard to circumstances of conflict and emergency and staffing its bureaucracy with international civil servants who possess integrity and competence.

If Sri Lanka’s experience at the UNHRC can trigger a definitive interpretation of Article 2(7) leading to relevant reforms in the U.N. system it would undoubtedly be a benefit to the entire world.  The paper consists of 9 parts where I discuss:  1) the facts of the Sri Lankan case,2) the intention behind Article 2(7), 3) the legal obligations that Sri Lanka may have assumed in co-sponsoring resolution 30/1 and the legal obligations on the Council when adopting a co-sponsored resolution, 4) the key procedural violation committed by the UNHRC when adopting resolution 30/1, 5)  circumstantial evidence of pressure to co-sponsor resolution 30/1, 6) the charges of war crimes and other crimes against Sri Lanka and rebuttals to same,7) the evolving geopolitics of the Asia-Pacific region, 8)  an inquiry into the legality of resolution 46/1 and 9) the case for a referral for an advisory opinion.

I have discussed the facts at length in the three essays mentioned earlier and refer the reader to them for more details, but for those who may be completely unfamiliar with Sri Lanka’s experience at the UNHRC I summarize below the main events. They are as follows.On 19th May 2009 the Sri Lankan armed forces decisively defeated the Liberation Tigers of Tamil Eelam (LTTE) and brought to an end a civil war that had been raging in the country for over thirty years.  On the same day, a group of 17 nations led by Germany called for a Special Session of the UNHRC to inquire into what they claimed were possible war crimes committed during the last phase of the war.

The session was held from 26 – 27 May 2009.  Meanwhile, a second group of nations consisting primarily of nations from the Global South tabled a counter-resolution which congratulated the Government on bringing the war to a successful end, commended the post-war reconstruction, resettlement and de-mining efforts undertaken by the government and encouraged the Government to keep up the good work.  This resolution was eventually adopted by the Council.

Soon afterwards, in August 2009, then U.N. Secretary-General Ban Ki Moon on his personal initiative appointed a panel of experts to advise him on whether war crimes had been committed during the last phase of the war.  The final report of the panel—the Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka (POE)—concluded that sufficient allegations existed to indicate that crimes attributable to the chain of command and thereby the State were committed and recommended that these should be investigated and if found to be true the perpetrators punished.

Meanwhile, in April 2010, the Sri Lankan Government launched its own domestic mechanism—the Lessons Learnt and Reconciliation Commission—to look into the war crimes allegations.  The Commission in its final report concluded that there was no evidence of crimes attributable to the State but said that crimes by individual soldiers or offices might have happened.  The Commission identified seven incidents where it considered such crimes may have happened and recommended that these be investigated.

However, in March 2012, the POE (i.e. the Secretary-General’s report) was submitted indirectly to the UNHRC and became the basis for a U.S.-sponsored resolution on Sri Lanka which called for an international investigation.  This initial call was repeated and expanded in subsequent resolutions in 2013 and finally in March 2014.   By resolution 25/1 of March 2014, the Council authorized the investigation in question. The High Commissioner thereon appointed a 3-member panel to conduct the investigation and in August 2014 they set to work.

Their final report—the OISL Report (OHCHR investigation on Sri Lanka)—was released to the public on 16th September 2015 and concluded that “system crimes” attributable to the State had been committed and recommended that the perpetrators be tried and punished.  An advance copy of this report had already been sent to the Government about a week earlier and on 15th September 2015 (a day before the report was released to the public).  The Government by Note Verbale UN/HR/1/30 thanked the Council for the report and accepted its conclusions without challenge.

To digress a moment, to the best of my knowledge the GOSL has not published an official analysis or rebuttal to the OISL report to this day..  However, in March 2017, I produced such an analysis titled, “A Factual Appraisal of the OISL Report:  A Rebuttal to the Allegations against the Armed Forces” where I showed that the evidence in the OISL report is riddled with problems, characterized among other things by lies, contradictions, obfuscations and a failure to consider exculpatory evidence.   

With the help of a number of local and expatriate organizations this document was handed over to UNHRC officials both in Colombo as well as Geneva.  So, the UNHRC is aware of this document.  Meanwhile, a revised and updated version of the document was published in March 2020 by a reputed Sri Lankan publisher.  So it is very much in the public domain.  (I provide a summary of the arguments in the Factual Appraisal in Part 6 of the present paper)   

To return, the OISL report is the sole basis for resolution 30/1 because, among other things:  a) Paragraph 1 of the resolution specifically mentions the report, b) there are only two references to reports in the entire resolution, both occur in para 1 and they are to the OISL report and the 18-page redacted version of that report tabled at the Council by the High Commissioner, and c) the recommendations in the resolution exactly mirror the recommendations in the OISL report.

On or about 1st October 2015, the delegate purporting to represent the Government of Sri Lanka co-sponsored the resolution and subsequently the resolution was adopted by the Council without a vote.  The Government at the time was that of Maithripala Sirisena who came to power in January 2015 after defeating Mahinda Rajapaksa during whose term the series of UNHRC resolutions began.  The Rajapaksa Administration had consistently opposed the resolutions.

I will explain in parts 4 and 5 of the present paper that: a) there is no evidence that the contents of the OISL report was ever assessed or evaluated by the Council prior to adoption of resolution 30/1 and b) among other things, at the time of adoption of the resolution there was disagreement within the Government about the co-sponsorship.

The Council reviewed the progress of the implementation of resolution 30/1 in March 2017 and March 2019 and on both occasions the delegate purporting to represent the Government re-affirmed the co-sponsorship.  Meanwhile, in November 2019, the present President—Gotabhaya Rajapaksa—took over the reins of power after defeating Mr. Sirisena.  In March 2020, at the UNHRC’s 43rd session, the new Government withdrew from the co-sponsorship.

Finally, in March 2021, a group of nations led by the U.K., Germany, Canada and others tabled resolution 46/1 on Sri Lanka which was subsequently adopted by the Council.  As mentioned earlier, Paragraph 6 of the resolution enables the Office of the High Commissioner to set up an investigative mechanism to “collect, consolidate, analyze and preserve” information and evidence of war crimes and also “develop possible future strategies of accountability.” The first question is, whether the Council’s adoption of resolution 30/1 of October 2015 is lawful.  I argue that it is not, because of the following reasons.  

Part 2:  The Intention behind Article 2(7)

Leland M. Goodrich and Edward Hamro, two eminent scholars of the U.N., inCharter of the United Nations:  Commentary and Documents  argue that the intention of the framers in introducing Article 2(7) into the Charter was toavert the possibility that powerful nations might use the Organization as a means of putting undue pressure on weak nations in regard to their internal affairs.  

They support the above argument by citing, a) the amendment proposed by the Sponsoring Governments at the United Nations Conference in San Francisco which moved the original provision [i.e. in regard to non-interference in the internal affairs of nations] as formulated in the Dumbarton Proposals for Paragraph 7, Chapter VIII to Chapter II (Principles) which made it a governing principle for the Organization and b) an amendment proposed by Australia to the proposal of the Sponsoring Governments which further restricted the authority of the Organization.  For instance, they say:

[On the other hand] there were many delegations, including the Australian, who believed that the new proposal did not go far enough, in that while it adequately safeguarded the position of the Security Council which would be in a position to exercise the veto, it did not sufficiently protect the smaller nations against pressure that might be brought to bear in connection with wholly domestic matters….Back of the Australian amendment was a fear that the Security Council, when faced with a threat of force or an actual violation of the peace, might make recommendations under Paragraph 2 (later Article 39 of the Charter) with respect to domestic matters and exercise strong pressure to secure their acceptance.  In fact, it was argued that the proposals as they stood might place a premium on the threat or use of force.  The Australian amendment provided for the further limitation of the exception to enforcement measures under Section B (Chapter VII of the Charter).

For the purposes of this paper, I shall take as a premise that the above is the generally accepted view of reputable scholars of the U.N. as to the intention behind Article 2(7).

Part 3:  The legal obligations on Sri Lanka as well as the UNHRC in respect of a co-sponsored resolution

In this section, I address two questions:  a) “What are the legal obligations that Sri Lanka might have assumed in co-sponsoring resolution 30/1?” and b) “What are the legal obligations that might operate on the UNHRC when adopting a co-sponsored resolution?”  I shall take each in turn.

Legal obligations on Sri Lanka

Before one can discuss the legal obligations that Sri Lanka might have assumed in co-sponsoring resolution 30/1 one must first decide what is the legal status of a resolution of the U.N. or its subsidiary organs, i.e. is it legally binding on the related members?  Some commentators in Sri Lanka have argued that U.N. resolutions other than Security Council resolutions are not legally binding and only morally binding because there are no means of enforcing such resolutions. However, in my view, a duly adopted resolution of the U.N. or its subsidiary organs is legally binding because of the following reasons.

First, reasonable inferences that can be drawn from Articles 2(1), 2(2) and 2(5) of the U. N.Charter.  It is to be noted that, all these provisions are principles of the Organization.  Article 2(1) states:

The Organization is based on the principle of the sovereign equality of all its Members

All members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

Article 2(5) states:

All members shall give the United Nations every assistance in any action it takes in accordance with the present Charter.

Articles 2(2) and 2(5) enjoin the members to cooperate in advancing the goals of the organization.  It would be fair to say that cooperation is a sine qua non for the work of the U.N. and its subsidiary organs.  Meanwhile, Article 2(1) states that all members of the Organization are sovereign equals.  Among equals, the only way to decide what should be done is by the democratic principle, i.e. the voice of the majority must prevail.  A resolution is a formal expression of the wishes of a majority of the members of an organization at a given time.

If a country takes up the position that it will obey a resolution only when it is convenient to do so, it cannot expect others to follow its wishes on occasions where it sides with the majority.  This destroys the basis for cooperation in the organization and thereby potentially the organization itself.  One must presume that, there is a legal as opposed to merely moral obligation on the members of an organization not to engage in conduct that can potentially destroy the organization of which they are part.  It necessarily follows that, a resolution is legally binding on the members if they intend on continuing to be members of the Organization.

Second, to turn specifically to the UNHRC, Paragraph 9 of the UNHRC’s Charter states:

[Members] elected to the Council shall uphold the highest standards in the promotion and protection of human rights, shall fully cooperate with the Council and be reviewed under the universal periodic mechanism during their tenure of membership.

The injunction that members shall “fully cooperate” with the Council imposes an imperative obligation on the members—in addition to the ones deriving from the U.N. Charter discussed earlier—to do their utmost to facilitate the work of the Council.  Since resolutions are a recognized ways in which the Council carries on its work, there is a legal obligation on the members to honor resolutions.

Third, and this relates specifically to the contention of some commentators that U. N. resolutions other than Security Council resolutions are not legally binding because there are no means of enforcing such resolutions it should be noted that there is nothing to prevent members from cooperating in devising such measures to address specific situations.  For instance, to take the UNHRC, paragraph 8 of the UNHRC Charter states:

The Council may suspend the membership of a country for habitual violation of human rights.

A persistent refusal to honor the wishes of the Council can arguably be considered as a habitual violation of human rights since the Council’s mandate is to promote and protect human rights worldwide.  Therefore, it would be possible for the Council to suspend the membership of a country if it persistently refuses to honor the terms of a resolution which means that a resolution of the UNHRC could be considered as legally binding if the criteria for deciding if a resolution is legally binding or not is that there should be a means of enforcement.

For the above reasons, the resolutions of the U. N. and its subsidiary organs must be considered as legally binding.  I can now turn to the question, “What are the legal obligations that Sri Lanka might have assumed by co-sponsoring resolution 30/1?”  To the best of my knowledge, resolution 30/1 is the first time in the history of the U.N. that a country adversely affected by a resolution has co-sponsored such resolution.  So, this is unchartered territory.

However, if a resolution of the U.N. or its subsidiary organs is legally binding on the members of the related organ, it necessarily followsthat a co-sponsored resolution would be doubly binding on the co-sponsoring nation because it is done after an adverse finding has been made against the said nation.If cooperation among the members is a sine quo non for the functioning of an Organization then a member that admits anadverse finding has a greater obligation to address the concerns of the other members regarding the finding in question.

In these circumstances, it follows that in co-sponsoring resolution 30/1 the then Government of Sri Lanka assumed a serious legal obligation to comply with the terms of the resolution which means that the Council can hold successor Governmentsaccountable if they withdraw from the co-sponsorship withoutgood reasons.

Legal Obligations on the UNHRC when adopting a co-sponsored resolution

The next question is, “Given what we know about the intention behind Article 2(7) of the U.N. Charter, what are the obligations on the Council when it adopts a resolution co-sponsored by a nation against which there is an adverse finding (in this case, war crimes and other crimes purportedly committed by such nation)?”In my opinion, just as there is a legal obligation on the co-sponsoring nation to comply with the terms of the resolution there is a corresponding obligation on the Council to adopt the resolutiononly after the strictest evaluation and assessment of the adverse finding in question regardless of the co-sponsoring nation’s acceptance of it.  This is because of the following reasons.

First, the obligations imposed by its two founding statutes, UNGA resolution 60/251 and UNHRC resolution 5/1 (“Institution-building in the Human Rights Council.”)  I quote below some of the relevant sections.  For instance, preambular paragraphs 8, 9 and 10 of Resolution 60/251 state:

Recognizing the work undertaken by the Commission on Human Rights and the need to preserve and build on its achievements and to redress its shortcomings,

Recognizing also the importance the importance of ensuring universality, objectivity and non-selectivity in the consideration of human rights issues, and the elimination of double standards and politicization,

Recognizing further that the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings.

Meanwhile, Operative Paragraph 4 of Resolution 60/251 states:

Decides further that the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue ad cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.

Finally, Chapter 5 of Resolution 5/1 (Institution Building in the Human Rights Council) titled, “Agenda and Framework for Program of Work,” starts with a list of “Principles.”  They are:

Universality, Impartiality, Objectivity, Non-selectivity, Constructive dialogue and cooperation, Predictability, Flexibility, Transparency, Accountability, Balance, Inclusive/comprehensive, Gender perspective, Implementation and follow-up decisions.

It is crystal clear that, there is an obligation on the UNHRC to always be objective and impartial in its official dealings which necessarily entails that if the Council intends on taking action against a particular nation based on an adverse finding the Council must assess and evaluate the finding objectively and impartially prior to proceeding with the action in question.

Second, there is a connection between Article 2(7) and human rights which means that if the Council has reasonable grounds to believe that its actions regarding a particular nation have the potential to impinge on Article 2(7) there is an obligation on the Councilto subject the basis for the action to the strictest possible evaluation and assessment regardless of whether or not the government of the targeted nation has chosen to accept the basis in question.  My argument in regard to this matter is briefly as follows.Article 28 of the Universal Declaration of Human Rights states:

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

It is reasonable to suppose that, in order for human rights to thrive and prosper it is imperative that the rule of law be honored throughout the world.  The U.N. Charter is one of the central pillars of international law.  Therefore, in order for human rights to prosper the U.N. Charter has to be honored and respected.  In these circumstances, the phrase “international order” in Article 28 of the Universal Declaration must be interpreted to mean a world where the U.N. Charter is honored and respected.

The above assertion gains support from the interpretation given to Article 28 by a number of well-known scholars of the Universal Declaration who see a connection between Article 28 and a) the existence of an Organization such as the U.N. that can provide overarching guarantees of human rights independently of national mechanisms and b) the reference to “rule of law” in the Preamble of the Declaration.  For instance, Josh Curtis and Shane Darcy of the National University of Ireland Galway have said:

The rationale for the inclusion of Article 28 seems to have been to emphasize that no particular existing national order could be favored, and that the full realization of rights and freedom was also dependent on a certain international order.  Malik himself [Ambassador Charles Malik of Lebanon who drafted Article 28] later explained his understanding of the provision that “the declaration should clearly set forth the rights of mankind to have a United Nations a world organization, as well as a social order, in which the rights and freedoms could be realized.”  The organization was already in existence while the Declaration was being drafted, and perhaps the idea was that it would have a more prominent role to play in the protection of human rights.

Also,

Both the social and international order should be based on the rule of law, mention of which is made in the Universal Declaration’s preamble.

If the intention behind Article 28, as conceived by its draftsman, was inter alia to permit the U.N to play a more prominent role in protecting human rights, and if both the social and international order as envisioned in Article 28 are to be based on the rule of law, it necessarily follows that in order to achieve the objectives of the Universal Declaration, which include the full realization of Article 28, one must respect the U.N. Charter, the legal basis of the U.N.

Therefore, a breach of any provision of the U.N Charter or of any of the other aforesaid statutes, by the U.N organization or any of its subsidiary organs can be considered a breach of an individual’s rights in the circumstances specified above.  I can now turn to the case of a co-sponsored resolution. In the case of a co-sponsored resolution, what happens in effect is that a nation against which there has been an adverse finding accepts such finding along with the Council’s recommendations as how to address it.  It goes without saying that, it is possible to gain an admission or prevent a challenge through coercion, intimidation and other such means.

Recall that, the intention behind Article 2(7) is to prevent the possibility of the U.N. system being used or exploited by powerful nations in order to unduly interfere in the internal affairs of weak nations.  The Government of a country co-sponsors a resolution at a given time.  However, the citizens of such country must live with the consequences of the co-sponsorship including continued interference by the Council in the internal affairs of their country long after the Government that co-sponsored the resolution is gone.

It would beabsurd to suppose that the UNHRC, the world’s premier organ mandated to promote and protect human rights could lightly deprive the citizens of a country of the protection they would normally enjoy under Article 2(7) just because a particular Government at a particular time may choose to take that path.  In these circumstances, it follows that the UNHRC has an obligation to the citizens of the co-sponsoring nation, in contradistinction to the Government of such nation, to adopt the resolution only after the strictest possible assessment and evaluation of the adverse finding that has given rise to the resolution in question.

The next question is, whether the UNHRC subjected the OISL report to a meaningful assessment prior to adoption of resolution 30/1.  I argue that they did not and I turn to that matter next.  

It was expected that, the OISL report would provide cogent reasons to justify the Council’s conduct towards Sri Lanka.  However, the Factual Appraisal has shown that, the OISL report is seriously flawed.  It is reasonable to suppose that, if either the UNHRC or the GOSL subjected the OISL report to a rudimentary assessment they too will have uncovered the facts uncovered by the Factual Appraisal, and perhaps even more incriminating things.  However, this was not done and in this section I shall provide incontrovertible documentary evidence as to that fact.

The proof that the Council failed to subject the OISL report to a rudimentary assessment is found in the official record of the proceedings of the 30th Session.  The relevant portion states that the High Commissioner made a statement via video and presented a redacted (18-page) version of the OISL report, which was followed by a discussion on the implementation of resolution 25/1 i.e. the resolution that authorized the OISL investigation.  There is not a word about discussing the OISL report let alone about debating it or subjecting it to an interactive dialogue.

As proof of this, I present below representative passages from the official account of the proceedings of the UNHRC at its 22nd (March 2013), 30th (September 2015) and 34th (March 2017) Sessions.  At each of these the High Commissioner tabled reports on Sri Lanka:  A/HRC/22/38 in February 2013; A/HRC/30/CRP.4 (the OISL report) and its 18-page summary A/HRC/30/61) in September 2015; and A/HRC/34/20 in March 2017.

The following is from the Report of the Human Rights Council on its 22nd Session:

“66. At the 45th meeting, on 20 March 2013, the Deputy High Commissioner for Human Rights introduced the country-specific reports submitted under agenda item 2 (A/HRC/22/17/Add.1, Add.2 and Corr.1 and Corr.2, Add.3 and Corr.1, A/HRC/22/18, A/HRC/22/38 and A/HRC/22/48).”

“67. At the same meeting, on the same day, the representatives of Bolivia (Plurinational State of), Colombia, Cyprus, Guatemala, Iran (Islamic Republic of) and Sri Lanka made statements as the States concerned.”

“68.  During the ensuing general debate on the country-specific reports of the High Commissioner and the Secretary-General submitted under agenda item 2 at the same meeting, on the same day, the following made statements”

The following is from the report on its 34th Session:

“48. At the 54th meeting, on 22 March 2017, the High Commissioner for Human Rights presented the report of the United Nations High Commissioner for Human Rights on the progress made in the implementation of Human Rights Council resolution 30/1, on promoting reconciliation, accountability and human rights in Sri Lanka, under item 2.”

 “49. At the same meeting, the Deputy Minister of Foreign Affairs of Sri Lanka, made a statement as the State concerned.”

“50. During the ensuing interactive dialogue, at the same meeting, the following made statements and asked the High Commissioner questions.”

Contrast the above two with the following, from the 30th Session:

“46. At the 37th meeting, on 30 September 2015, the United Nations High Commissioner for Human Rights made a statement by video message to present the report prepared by OHCHR on promoting reconciliation, accountability and human rights in Sri Lanka (A/HRC/30/61), pursuant to Council decision at its organizational meeting, held on 16 February 2015, to defer the consideration of the report until its thirtieth session.  In accordance with Council resolution 25/1, the presentation was followed by a discussion on the implementation of that resolution.”

“47. At the same meeting, the representative of Sri Lanka made a statement as the State concerned.”

“48. During the ensuing discussion, at the 37th and 38th meeting, on the same day, the following made statements and asked the Deputy High Commissioner for Human Rights questions”.

I assert that, these entries show overall that at the 37th Meeting held on 30th September 2015 the Council discussed only the implementation of the resolution; there is not a word about discussing the report.Further, the Report that the High Commissioner presented to the Council – i.e. A/HRC/30/61 – is the 18-page summary of the OISL report.  Therefore, almost inevitably, the Council must not have discussed and may not have been able to discuss the full-length version at the 37th and 38th meetings mentioned in paragraph 48 of the HRC report.

It should be noted that, the High Commissioner’s reports in 2013 and 2017, indeed all such reports other than the OISL report, were routine productions where the High Commissioner had been requested by the Council to report on the progress (or lack thereof) of the GOSL in implementing the various resolutions.

But, the OISL report is the result of an investigation specifically ordered by the Council to provide a definitive answer to the question that had vexed the Council since 2012, to wit:  whether the allegations of war crimes and other crimes being leveled by Sri Lanka’s critics were true, i.e. could be substantiated with requisite evidence.   And yet, when the report came out, it seems the Council never discussed it, or was never given a chance to discuss it.

In sum, the resolution was adopted without the charges ever being proved to a satisfactory standard.  The resolution included recommendations for changes to the Sri Lankan Constitution.  If such constitutional changes had been made and there were adverse effects later on, the Sri Lankan people could not have held the U.N. liable for such harm because by co-sponsoring Sri Lanka had in effect acquiesced in what had been done to it.  

If we accept that, the intention behind Article 2(7) of the U.N. Charter is to protect weak nations from strong ones, then what has happened with the adoption of resolution 30/1 which was co-sponsored by Sri Lanka the country adversely affected by it is that any protection that Sri Lankan citizens could have expected from Article 2(7) has been completely nullified.  The conclusion is inescapable that, the adoption of resolution 30/1 is inconsistent with Article 2(7).  This conclusion is further bolstered by the considerations to which I turn next.

[The views expressed are those of the author and do not necessarily reflect the policy or position of The Security World.]

Dharshan Weerasekera is a Sri Lankan lawyer. At present, he is the Head of Department of the Legal Unit of the Eastern Province Provincial Council of Sri Lanka. He was born and raised in Sri Lanka but educated in the United States, at the University of California at Berkley and also the University of Iowa. He later returned to Sri Lanka and attended the Sri Lanka Law College. He has worked briefly at the Sri Lankan Defence Ministry. He is the author of four books.