The Questionable Legality of the UNHRC’s Adoption of a Co-sponsored Resolution on Sri Lanka
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🕐 2022-03-20 07:01:34
Part-II
Dharshan Weerasekera
Part 5: Circumstantial evidence of pressure to co-sponsor
In this section, I briefly discuss: a) statements by Council members at previous sessions where they said that Sri Lanka was being subjected to a politicized process and b) evidence that there was disagreement over resolution 30/1 within the GOSL itself prior to the co-sponsorship and draw the relevant inferences.
Statements by Council members
In May 2011, when the Report of the Secretary General’s Panel of Experts was released, Russia raised objections to it at the Security Council. A reporter for a local newspaper asked the then Russian Ambassador to Sri Lanka Vladimir P. Mikaylov on what grounds the objections had been made and he replied,
On the grounds that it was not a U.N. report. On the grounds that it was not done in accordance with the regulations and the procedures of the U.N. 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?
Then, both 2013 and 2014, significant numbers of Council-Members expressed strong disapproval to what was been done to Sri Lanka saying that they considered it to be a violation of the Council’s core principles. For instance, in March 2013, a group of fourteen nations including China, Russia, Venezuela and Iran issued a joint statement objecting to a report that the High Commissioner has tabled as support for the March 2013 Resolution on Sri Lanka. They said inter alia:
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 technical assistance, by making substantive recommendations and pronouncements. These recommendations are arbitrary, intrusive and of a political nature.”
Also, at the 2014 Session of the UNHRC, just after the vote on Resolution 25/1 which authorized the international investigation on Sri Lanka, Ambassador Dilip Sinha, the Head of Delegation for India said inter alia:
It has been India’s firm belief that adopting an intrusive approach that undermined national sovereignty and institutions is counter-productive….Moreover, any external investigative mechanism with an open-ended mandate to monitor national processes for protection of human rights in a country is not reflective of the constructive approach of dialogue and cooperation envisaged by U.N. General Assembly resolution 60/251 that created the HRC in 2006, as well as UNGA resolution 65/281 that reviewed the HRC in 2011.”
Meanwhile, Ambassador Zamir Khan of Pakistan had even harsher words for resolution 25/1. He said inter alia:
No self-respecting country would agree to the intrusive measures advocated in this resolution, in particular Operative Paragraph 10 of the resolution is inconsistent with the principles and purposes of the U.N. Charter which calls for respecting the sovereignty and territorial integrity of States….This resolution is about politics and not human rights. It is also a crass example of hypocrisy and double-standards.”
Resolution 25/1 was adopted with 23 voting in favor, 12 against and 12 abstentions. These are just a few examples. There are many others.
Disagreement within the GOSL
Following the adoption of resolution 30/1, President Sirisena on a number of occasions publicly stated that he will never permit the establishment of Special Courts to try Sri Lanka’s soldier’s for war crimes, an express provision of resolution 30/1 (para 6). The Prime Minister also expressed similar sentiments, saying inter alia that Special Courts are not politically feasible.
Accordingly, as a matter of inevitable inference, it follows that the delegate who approved the Council passing resolutions bringing in such measures could not have been properly mandated to do so by the President. If Special Courts are not politically feasible because of the constitutional change they would require, it is incomprehensible why the President/ Government/Council delegate would co-sponsor a resolution that expressly calls for such courts unless the President and the delegate were under improper political pressure.
In sum, prior to or shortly after the adoption of resolution 30/1 there was information in the official record of the U.N. as well as the public domain that suggested that the attention being brought on Sri Lanka by the U.S. and its allies may be politically motivated. It was incumbent on the Council, given its duty to always act with objectivity, impartiality and non-selectivity to act on such information. In these circumstances, a reasonable course for the Council to have taken was to assess the OISL report to ensure that the basis for the proposed actions against Sri Lanka was sound. And yet, this was not done. This is further proof that, the Council’s adoption of resolution 30/1 is inconsistent with Article 2(7) of the U.N. Charter.
Part 7: The Charges of War Crimes and other Crimes against Sri Lanka
In this section, I summarize the arguments made in the Factual Appraisal. This will help readers who may be totally unfamiliar with the charges that the UNHRC has been leveling against Sri Lanka to gain a basic idea of what they are as well as quality of the evidence that has been adduced in support of them. This will also be helpful to such readers to better judge whether the charges in question warrant being pursued through country-specific resolutions or could be addressed through other means available to the Council such as the Universal Periodic Review and Special Procedures. The OISL report levels eight charges, four on international humanitarian law and four on international human rights law. I shall take each in turn.
Purported violations of Humanitarian Law
Indiscriminate shelling of the No-Fire-Zones
The charge is that, the Sri Lankan army indiscriminately shelled the “no-fire-zones” which had been designated as havens for civilians trapped in the conflict-areas and thereby killed tens of thousands of civilians. The best rebuttal to the charge is that objective assessments of the numbers of civilians killed during the last phase—from the government census bureau, the U.N. country report for May 2009 and extrapolations from satellite images of grave sites in the relevant areas carried out by the American Academy of Sciences—indicate that a relatively small number of persons roughly 8000 (this includes the roughly 5000 LTTE cadres) was killed.
It is accepted that, nearly 300,000 were initially trapped in the conflict areas. That means roughly 10% of the civilians known to have been trapped in the relevant area was killed and that number given the intensity of the fighting during the last phase is not consistent with a scenario of an army indiscriminately shelling the no-fire-zones but rather one where, if civilians were killed it was the result of collateral damage.
Shelling of Hospitals
The charge is that, the Sri Lankan army shelled hospitals in the conflict-zone. The best rebuttal to the charge is that the army may have shelled buildings that used to be hospitals but the civilians in the relevant areas had by that time been evacuated. Furthermore, there is abundant evidence in documents cited by the OISL report itself that the LTTE used hospitals as cover and also fired from inside and well as near such structures. These factors are relevant in assessing whether any shelling of hospitals if such was done was part of a justified return of fire by the Sri Lankan army.
Denial of Humanitarian Assistance
The charge is that, the Government carried out a deliberate policy of depriving civilians trapped in the conflict zone of food and medicine. The best rebuttal to the charge is that the supply of humanitarian assistance to the conflict-zone during the last phase of the war was coordinated by a mechanism, the Consultative Committee on Humanitarian Assistance (CCHA) that included representatives from all of the U.N. agencies in Sri Lanka along with the ambassadors from the United States, European Union, Japan and others.
The minutes of the CCHA are available and they indicate that the foreign delegates were full of praise for the Government’s efforts in transporting food and medicine to the conflict zone during the relevant period. At one meeting in late January 2009, then U.N. country representative for Sri Lanka Mr. Neil Buhne is heard to say that the Government’s efforts deserve a “gold medal.” The OISL panel has failed to consider this and other such exculpatory evidence in coming to its conclusions about the Government’s purported deliberate policy of deprival of humanitarian assistance to civilians.
Deliberate Killings
The charge is that, the Sri Lankan armed forces carried out numerous deliberate killings during the last phase of the war and these killings were part of a strategy of war and can be attributed to the chain of command including the civilian leadership at the time. In support of this claim the OISL has discussed four so-called “emblematic cases.” The best rebuttal to the charge is that, in none of the said cases is there is a clear indication that the killings in question were even carried out by members of the Sri Lankan armed forces (for instance, it is plausible that the killings could have happened in cross-fire, or by LTTE’ers dressed in SLA uniforms and so on).
Furthermore, the OISL panel has adduced absolutely no evidence to suggest that the killings were part of an organized strategy of war formulated or carried out with the knowledge and consent, whether direct or tacit, of the chain of command including the civilian leadership.
Purported violations of International Human Rights Law
Deprivation of Liberty
The charge is that, following the end of the war, the Sri Lankan security forces began a systematic campaign of unlawful arrests including so-called “white van” abductions of critics of the Government. The primary evidence adduced by the OISL panel for this charge is that, in a series of interviews given by senior police officers to a local business magazine, they claim that just after the war the Defence Ministry began a practice of hosting regular meetings of senior officers of all the branches of the security forces.
From the context, it is clear that the meetings in question were in order to improve cooperation and sharing of information among the different branches of the security forces especially in regard to anti-terror operations. To make a long story short, from the fact that senior commanders of the Sri Lankan security forces met frequently at the Defence Ministry, the panel concludes that they met in order to coordinate unlawful activities including “white van” abductions, an absurd leap in logic.
Enforced Disappearance
The OISL panel states that, in 2014 Sri Lanka recorded the second highest number of complaints of enforced disappearances in the world and based on this insinuates that Sri Lanka is one of the world’s worst offenders in regard to enforced disappearance. The flaw in the panel’s reasoning is that there can be a difference between the number of complaints of disappearances and actual or verified disappearances.
At the time of the OISL investigation, the Government had a domestic mechanism—the Paranagama Commission (1st Mandate)—investigating all disappearances from January 1983 – May 2009. The Commission took direct testimony from the relatives of missing persons and compiled a database of roughly 20,500 complaints. Following the change of government in January 2015, the Commission was disbanded and replaced with the Office of Missing Persons.
However, the database of the Commission was forwarded to the OMP. At the time, the Commission’s investigative unit was investigating 441 complaints. Ten of these, which included recording over 900 statements, had been completed. In all ten, the alleged “disappeared” was found to be alive and well and living under a different name either in Sri Lanka or abroad.
If the OISL panel had concerns over enforced disappearances in Sri Lanka, it had at its disposal the means with which to come to an objective and informed conclusion as to the magnitude or lack thereof of the problem by either investigating a number of the complaints in the Paranagama Commission’s database or having the OMP investigate them to see if the trend suggested by the initial findings holds true. This was not done. And yet the panel accuses Sri Lanka of being one of the world’s worst offenders.
Torture
The charge is that, the Sri Lankan security forces regularly torture detainees. The best rebuttal to the charge is that, the OISL’s claims are based on the testimony of anonymous witnesses and the infirmities generally associated with reliance on such witnesses, namely that they may be testifying in order to gain some benefit, for instance a financial reward or political asylum, applies here.
Meanwhile, the International Committee of the Red Cross (ICRC) has access to prisons and other detention centers in Sri Lanka for purposes of monitoring them. For instance, the 2009 ICRC Annual Report states that ICRC officers visited 34,423 prisoners out of whom 13,490 were being individually monitored. There is not the slightest indication that, the panel interviewed ICRC officers who have visited Sri Lankan prisons and who might have documents and notes related to such visits to get their views on the treatment and condition of prisoners in Sri Lanka before coming to its conclusions on the purported prevalence of torture of prisoners in the country.
Sexual Violence
The charge is that, the Sri Lankan security forces have been engaging in systematic sexual violence against civilians. However, just as with the allegations of torture, these are also based on anonymous complainants, and therefore the infirmities discussed earlier apply here as well.
Such, then, are the charges. In my opinion, on the humanitarian law issues the OISL has completely failed to establish a case while on the human rights issues, it is difficult to see why they cannot be pursued through the Universal Periodic Review along with Special Procedures. One might ask at this stage what might be the possible motive for the U.S. and its allies to pay so much attention to Sri Lanka at the UNHRC. In order to answer that question, it is necessary to briefly discuss the evolving geopolitics of the Asia-Pacific region to which I turn next.
Part 7: Geopolitics
The geopolitical backdrop to the events leading up to the co-sponsorship of resolution 30/1 is the so-called “Pivot to Asia” by the U.S. starting in late 2011. The Pivot, loosely defined, is a policy determination by the Obama Administration that the future prosperity and security of the U.S. depended to a large extent on developments in Asia and a decision to dedicate American resources into extending and consolidating American influence over that region. For instance, when introducing the policy in a key speech before the Australian Parliament Mr. Obama said:
As President, I have, therefore, made a deliberate strategic decision—as a Pacific nation the United States will play a larger and long-term role in shaping this region and its future.
The above policy was continued during the Trump years. Meanwhile, all indications are that it will be followed, perhaps in an even more intense manner, by the Biden Administration given the fact that most of the key foreign policy strategists and advisors of the Obama Administration are now part of Mr. Biden’s inner circle.
The Pivot has set the U.S. on a collision course with China, Asia’s traditional “Superpower” for the obvious reason that the U.S. cannot have its way in Asia as long as China remains strong. Asa result, China has become the U.S.’s main rival in the Asia-Pacific region if not the whole world. For instance, Robert D. Blackwill and Ashley J. Tellis, two eminent scholars of American Foreign policy state in a paper for the Council on Foreign Relations in 2015:
Of all nations—and in most conceivable scenarios—China is and will remain the most significant competitor to the United States for decades to come. China’s rise thus far has already bred geopolitical, military and ideological challenges to U.S. power, U.S. allies and the U.S.—dominated international order, It’s continued, even if uneven, success in the future would further undermine U.S. national interests….the need for a more coherent response to increasing Chinese power is long overdue.
I can now turn to Sri Lanka. Thomas Shannon, a U.S. Undersecretary of State while on a visit to Sri Lanka in 2015 said:
Your nation sits at the crossroads of Africa, South Asia and East Asia….Our wonderful U.S. Ambassador here my good friend Atul [Keshap] has recounted to me his amazement at seeing, from the ramparts of the old Dutch Fort in Galle, the countless ships that sail past Sri Lanka along the sea lanes between the Straits of Hormuz and the Straits of Malaca. Forty percent of all seaborne oil passes through the former, and half the world’s merchant fleet capacity sails through the latter. To put it simply, the stability and prosperity of the entire world is dependent on the stability of these energy and trade routes. And Sri Lanka is at the center of this.
The above sentiments are representative of the sentiments of U.S. policymakers in general about Sri Lanka. Meanwhile, starting around 2009 (i.e. during the tenure of President Mahinda Rajapaksa) China began pouring huge amounts of money and other resources into various development projects including freeways and harbours leading to concerns among the U.S. and its allies that Sri Lanka was becoming unduly close to China. In these circumstances, it is plausible that the U.S. would seek to gain a degree of influence and indirect control over Sri Lanka in order to advance the goals of the Pivot and also by extension to prevent China from gaining a foothold in the island.
The fall of Mahinda Rajapaksa in January 2015 and the rise to power of Maithripala Sirisena (as President) and Ranil Wickremasinghe (as Prime Minister) paved the way from 2015 – 2019 for an unprecedented engagement between the U.S. Government and that of Sri Lanka. To give just a few examples, starting in January itself the Government handed over the formulation of the entire economic “growth policy” of the country to an official flown in from the U.S. Treasury Department. The former Prime Minister Ranil Wickremasinghe during his testimony at the Bond Scam hearings is heard to say, “He [the American] gave us this system.”
The Government also overhauled the finance laws including the tax law with the help of IMF advisors introduced by the Americans. Meanwhile, the Americans and their allies the British undertook the task of “reforming” the Sri Lankan security forces. This involved the U.K. giving Sri Lanka a “grant” of 6.6 million pounds with a condition that a British military attaché was to be stationed within the security forces to oversee the disbursal of the funds. The Americans also helped develop a contingent of Marines in the Sri Lanka Navy capable of being deployed with the U.S. Marines. The list goes on.
Therefore, starting in January 2015, the U.S. Government had begun to steadily increase its capacity to influence the internal policy decisions of the Sri Lankan Government including by introducing foreigners into key Ministries and other institutions. So, this is the context in which the co-sponsorship happened. It is relevant when considering not just whether the GOSL con-sponsored resolution 30/1 under pressure but also the continuing developments regarding Sri Lanka at the UNHRC. The resolutions undoubtedly provide the U.S. and its allies the external leverage (i.e. through the UNHRC) to influence internal changes including constitutional changes in Sri Lanka.
Part 7: An Inquiry into the Legality of Resolution 46/1
In this section, I turn to Resolution 46/1 which was tabled by a group of nations led by the U.K, Germany, Canada and others and adopted by the Council on or about 23rd March 2021. The resolution calls for the full implementation of resolution 30/1. Moreover, paragraph 6 of the resolution states:
[The Council] Recognizes the importance of preserving and analyzing evidence relating to violations and abuses of human rights and related crimes in Sri Lanka with a view to advancing accountability and decides to strengthen in this regard the capacity of the Office of the High Commissioner to collect, consolidate, analyze and preserve information and evidence and to develop possible future strategies of accountability processes for gross violations of human rights and serious violations of international humanitarian law in Sri Lanka, to advocate for victims and survivors and to support relevant judicial and other proceedings, including in Member States with competent jurisdiction.
In my view, the above paragraph (and by extension the resolution) is illegal. My argument in a nutshell is that paragraph6 introduces procedures that are not envisioned in the UNHRC’s founding statutes, UNGA resolution 60/251 of UNHRC resolution 5/1 and therefore are ultra vires of the powers of the Council. To explain this a bit further:
I have explained earlier that, Paragraph 4 of UNGA resolution 60/251 states that the Council shall be guided by the principles of “objectivity, impartiality, non-selectivity…and constructive international dialogue.” Meanwhile, paragraph 5(e) of the said resolution establishes the Universal Period Review to enable the Council to assess the human rights record of its members in a fair and equal manner. The paragraph states inter alia:
[The Council shall] Undertake a universal periodic review, based on objective and reliable information of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States; the review shall be a cooperative mechanism, based on an interactive dialogue with the full involvement of the country concerned and with consideration given to its capacity-building needs.
To turn to UNHRC resolution 5/1, Section 1 of the Annex to the resolution sets out detailed operating procedures for the Universal Period Review. It states that the basis of the review is: a) the U.N. Charter, b) The Universal Declaration of Human Rights, c) Human Rights instruments to which a State in party, and d) Voluntary pledges and commitments made by States. Meanwhile, Section 2 states:
In addition to the above and given the complementary and mutually interrelated nature of international human rights law and international humanitarian law, the review shall take into account applicable humanitarian law.
From the above, it is clear that the framers intended that the Universal Period Review should look into possible violations of human rights law as well as humanitarian law.
The crucial idea in paragraph 5 (e) of resolution 60/251 is that the UPR is to be a cooperative mechanism with full involvement of the country concerned. This does not mean that, the UNHRC cannot investigate a country without its consent. For instance, it can be done through Special Rapporteurs, but here again the nation concerned has recourse to the Council if it has a complaint.
Neither resolution UNGA 60/251 nor UNHRC resolution 5/1 explicitly prohibits resort to country-specific resolutions. However, given the guiding principles set of in para 4 and the instructions for the UPR in paragraph 5 (e) and also the broad scope of the UPR as envisioned in UNHRC resolution 5/1, it follows that if the Council resorts to a country-specific resolution it should be for a crisis of a magnitude and urgency that cannot be addressed through the UPR or Special Procedures. Otherwise, it makes no sense to have the UPR and Special Procedures.
It is also reasonable to suppose that, whether or not a crisis of a magnitude and urgency that cannot be addressed through the UPR is a question of fact that must be decided by the Council prior to authorizing any action based on a country-specific resolution. Now, let’s turn to paragraph 6 of resolution 46/1. I draw the reader’s attention to the following. The paragraph:
Enables the Office of the High Commissioner to establish an investigative mechanism to “collect, consolidate, analyze and preserve” information and evidence relating to possible violations of international human rights law and international humanitarian law.
Enjoins the High Commissioner to develop “possible future strategies of accountability”
Calls on the High Commissioner to “support relevant judicial and other proceedings including in Member States with competent jurisdiction.”
In these circumstances, firstly, if cooperation and constructive international dialogue are a sine qua non for the work of the Council, it is impossible to justify the investigative unit set up by paragraph6 because it can function without the cooperation of the country concerned and moreover without constructive international dialogue because such dialogue can only take place if the findings of the unit are reported to the Council and there is no requirement for the High Commissioner to do so.
Secondly, the General Assembly by resolution 60/251 has delegated the task of protecting and promoting human rights worldwide to the Human Rights Council. By necessary implication, any new procedure for pursuing the said mandate and this includes “possible future strategies of accountability” would have to be generated by the Council collectively; it cannot be delegated to some other entity. Otherwise, it would violate the universally accepted maxim, “Delegatus non potestdelegare” (Delegated power cannot be delegated.) Since paragraph 6 gives the High Commissioner the sole discretion to devise “future strategies of accountability” in regard to Sri Lanka, it violates the said maxim also. Meanwhile, since the “future strategies” are intended exclusively for Sri Lanka, it violates the principle of non-selectivity as well.
Thirdly, according to the wording of paragraph 6 there is nothing to prevent the High Commissioner from forwarding the “information and evidence” gathered by the investigative mechanism directly to judicial and other proceedings in Member States (including, one must presume, in the States that tabled resolution 46/1). The word used is, “support.” Meanwhile, nowhere in paragraph 6 does it state that the evidence collected by the investigative unit has to be submitted to the Council.
I have already explained that, the OISL report was never discussed and debated before the Council prior to the adoption of resolution 30/1. Meanwhile, there is no evidence that the sponsors of resolution 46/1 ever submitted to the Council a report to establish that a crisis of a magnitude and urgency that cannot be handled by the UPR or Special Procedures exists in Sri Lanka. Therefore, paragraph 6 now allows the High Commissioner to submit purported evidence of war crimes and other crimes in Sri Lanka directly to ongoing or future judicial proceedings in Member States and also “develop future strategies for accountability” for the said crimes without ever establishing before the Council that Sri Lanka has done anything to deserve such treatment.
To digress a moment, if Member States including the sponsors of resolution 46/1 wish to conduct investigations against Sri Lanka they are free to do so. However, if they wish the UNHRC to endorse the findings of such investigations, reason suggests that they should first submit the findings in question to the Council where Sri Lanka has a right of reply. Moreover, the “evidence” in question could be debated and discussed by Council-Members.
Finally, and most ominously, since the charges in question relate to criminal offences, members of Sri Lanka’s armed forces as well as civilian leaders who oversaw the war could potentially be arraigned before courts in various foreign countries including in the sponsors of resolution 46/1 where they would face hostile environments as well as enormous personal expense to mount a defence without having a chance to challenge the evidence against them at its source, i.e. the High Commissioner’s Office. Furthermore, they would be deprived of the chance of having their Government reply to these charges before the Council, thereby perhaps eliminating the need for further proceedings. All of this is ex facie contrary to the letter as well as spirit of the founding statutes and therefore illegal.
Part 7: The Case for a Referral for an Advisory Opinion
Today, the world needs the U.N. more than ever as a forum where the various nations can meet and resolve their problems amicable and also, through organs such as the UNHRC, to ensure that the fundamental freedoms of individuals are protected. However, the U.N. can do this only if it is seen as credible. The citizens of the various nations, especially weak nations, must have the assurance that if their country is hauled up for scrutiny at the U.N. that their respective governments have a meaningful chance to defend the interests of the country.
The above entails that, the government of a country being scrutinized must be able to call on its accusers/critics to establish their charges according to objective standards and if it can be shown that the proof falls short of accepted standards to hold them to account. If the citizens of a nation—especially of weak nations—cannot have this assurance, then Article 2(7) of the Charter which prohibits undue interference in the internal affairs of nations is null and void and of no practical import.
I have argued in this paper that, with the UNHRC’s adoption of resolution 30/1 on Sri Lanka, precisely the above situation has come about. For the convenience of the reader, I summarize again what has happened to Sri Lanka:
Sri Lanka had successfully ended a civil war and there were allegations that the Government may have committed war crimes during the last phase of that war.
A special session of the UNHRC was held in order to decide whether to pursue the said allegations and at the end of that session the Council passed a resolution that congratulated the Government on bringing the war to an end an there was no mention at all about war crimes.
In spite of this, the Secretary-General commissioned a panel of experts to look into the allegations of war crimes and the final report of the said panel—which said that war crimes may have been committed—was forwarded indirectly to the UNHRC in order to anchor a resolution calling for an international war crimes investigation.
That initial resolution was then expanded at subsequent sessions until a resolution authorizing the investigation in question is finally adopted.
When the final report of the said investigation were released—a report that concluded that sufficient evidence exists to indicate that war crimes and other serious crimes were committed—the Council adopteda resolution co-sponsored by Sri Lanka and incorporating all of the recommendations in the report.
The report itself was never discussed or debated at the Council prior to adoption of the resolution because the country most affected by the adverse finding had in effect chosen to accept the finding and the recommendations on how to remedy it.
It is clear that, the initial allegations against the Government have never been established to an acceptable standard of proof before the Council. In sum, the Council has developed a process to target a country and thereby gain the means of intervening in the internal affairs of such country including pushing for constitutional amendments without ever having to prove or establish the initial charges which purportedly warrants the intervention in question.
The beauty of the tactic is that, once the final resolution is implemented it does not matter if at a later date it is discovered that the initial charges were baseless or false. Since the policy-gals behind the resolution are a fait accompli, it would make no sense for the citizens of the targeted country, even if they were aggrieved by what had been done to their country, to go back and try to hold accountable the persons and parties responsible for misleading the Council in regard to the initial charges. If this tactic is accepted at the U.N. it would render Article 2(7) nugatory.
Fortunately, the framers of the U.N. Charter have seen to it to devise a powerful institution capable of addressing precisely these types of situations, namely, the International Court of Justice whose statute accompanies the U.N. Charter. Article 65 of the Statute of the International Court of Justice (ICJ) states:
The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request,
Questions upon which the advisory opinion of the court is asked shall be laid before the court by means of a written request containing an exact statement of the question upon which an opinion is required and accompanied by all documents likely to throw light upon the question.
It is not in dispute that, Sri Lanka as a member of the U.N. is obliged to comply with the Charter along with all relevant international law including human rights law as well as humanitarian law as applicable. However, the U.N. also has an obligation to abide by its obligations to the members and this must include scrupulous adherence to all of the provisions of the Charter including Article 2(7) and the prohibition on interfering in the internal affairs of nations.
To digress a moment, it is well to recall that the invasions of Iraq and Afghanistan which have led to so much death and suffering in those countries along with extended consequences to the rest of the world were justified or rationalized by reference to certain resolutions of the U.N. Therefore, one never knows where resolutions can end.
I pointed out that, resolution 30/1 recommends constitutional changes for Sri Lanka. If these changes are pushed through without adequate reflection or genuine consent of the people of Sri Lanka and it ends in destabilizing the country or causing some other grave harm, can the High Commissioner, the Secretary-General or any of the other U.N. officials who may prepare the reports or other analysis to urge action against Sri Lanka indemnify the citizens of Sri Lanka against such damage?
Therefore, the citizens of Sri Lanka have a right to expect the U.N. and its subsidiary organs to strictly honor the safeguard provided in Article 2(7) of the Charter. So do the citizens of the various nations, especially weak nations, against whom the tactic developed in regard to Sri Lanka no doubt can and will be used sooner or later.
In these circumstances, it is in the interests of the citizens of the various nations and also friends of the U.N. in general to demand of the High Commissioner for Human Rights or the Secretary-General that they seek an advisory opinion of the ICJ on whether the UNHRC’s adoption of resolutions 30/1 and 46/1 is consistent with the U.N. Charter along with the other relevant statues if there are any further attempts to keep Sri Lanka on the agenda at the UNHRC through country-specific resolutions related or stemming from issues connected to resolution 30/1.
The moment a request for an advisory opinion is made, the court is obliged to forward the related question to all the members of the U.N. in order for them to provide input on the matter. Therefore, the various members will present their perspectives on it, which will be determined amongst other things by how the question effects their particular national interests. This will result in as comprehensive a treatment as possible of the different permutations of the question—i.e. the different ways in Article 2(7) can be or has been exploited—which in turn will ensure that the court’s judgment will cover all those angles.
By referring the matter to the ICJ, the High Commissioner or the Secretary-General would also be doing the whole world an enormous favor because it would at long last trigger a definitive interpretation of Article 2(7) of the Charter. To my knowledge, in the 70-plus years that the U.N. has been in existence there has never yet been a definitive interpretation of Article 2(7). Such an interpretation whether it is ultimately in favor of Sri Lanka or otherwise will be invaluable for rebuilding the credibility of the U.N. Among other things, it would provide weak nations as firm a foundation as can reasonably be expected to vindicate their rights under Article 2(7) before the court as well as other venues in the years to come.
Conclusion
I have in this paper explained that, the UNHRC’s adoption of resolution 30/1 of October 2015 and the subsequent resolution 46/1 of March 2021 is inconsistent with the provisions of Article 2(7) of the U.N. Charter along with the Council’s founding statutes. Article 2(7) is a principle of the U.N. Charter. If a principle that underpins an organization is destroyed then inevitably the organization is also destroyed. It is up to the citizens of the various countries—especially weak countries—along with friends of the U.N. and in general all those who wish for an international order predicated on stability, predictability and above all adherence to the rule of law to decide whether they should do something about this situation.
Copyright, Dharshan Weerasekera, August 2021.
[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.
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