By Chandra Kumarage –
‘Oh, what a tangled web we weave when first we practice to deceive.’ Walter Scott, Marmion.
‘When one with honeyed words but evil mind persuades the mob, great woes befall the State,’ Euripedes, Orestes.
The government of Sri Lanka has again used Parliament to adopt a resolution rejecting the appointment by the OHCHR to probe the human rights violations including war crimes alleged to have been committed by the Armed forces of the GOSL during the last phase of the war with the LTTE in April-May 2009.
The resolution states, ‘To demonstrate its commitment to protecting democracy and human rights and protect the people’s democratic rights and human rights, the government will undertake to conduct impartial investigations into the following incidents and submit a report to Parliament within three months and bring those responsible for the incidents to justice.’
On the face of it is very clear that the whole resolution is irrelevant in the context of the powers of the President and the cabinet. No resolutions in Parliament are necessary to conduct impartial investigations. The investigating arm of the Sri Lanka police is quite capable of conducting such investigations. Furthermore, the President has power to appoint Presidential Commission of Inquiry under the Presidential Commission of Inquiry Act. There have been many such Commission inquiries but the whole world knows about the outcome of those inquiries. What this resolution is endevouring in the final analysis is the same thing — to appoint a panel or commission of inquiry.
In fact President Rajapaksa promised in the joint statement with Ban Ki-moon the UNSG in May 2009 to hold such an inquiry to probe all human rights and humanitarian law violations alleged to have been committed during the war with the LTTE. The government first appointed the LLRC and was not able to convince the international community, as it failed even to fully implement the recommendations of that LLRC. Then it appointed a military commission of inquiry ex-parte which cleared the armed forces of any violations of the law.
The government was requested many a time thereafter by the international community to probe the alleged violations through a transparent and impartial inquiry. What the government did right through was hedging and deceiving the international community. Now the international community is saying in Neitzsche’s words , “I am not upset that you lied to me, I am upset that from now I can’t believe you.” Deception is the brand name of the government of the Rajapaksa brothers, and professorG.L. Pieris is its brand ambassador. Deception, it must be said, has a short life span which could bring disaster at the end. Their latest product under that brand name is this parliamentary resolution.
The 54 nation African Union displeased with the decision to indict incumbent heads of African states by the ICC requested the UN Security Council to defer the trials against African leaders including Uhuru Kenyatta and William Ruto, President and Vice President respectively of Kenya, but to no avail. Last September Kenya’s Parliament passed a voice vote to withdraw from the ICC. The vote is symbolic and non-binding like the resolution recently adopted by the Sri Lankan Parliament; only the Kenyan government can decide to withdraw from the ICC, and it will have no effect on the trials of Kenyatta and Ruto. Interestingly, the vote was carried out by the majority in Parliament which Kenyan voters put into office in March 2013, the same time they voted for Kenyatta and Ruto who were under indictment by the ICC. The parliamentary election campaign had played up the idea that the West was meddling in Kenyan affairs. The Rajapaksa regime too is playing up this issue for its upcoming elections, more particularly to deceive the Sri Lankan voters in a Presidential election.
It is universally accepted that the UN Charter which came into force on 14 October, 1945 signifies that rights of human beings were a matter of international law since a stated purpose of the founding of the UN was to achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction to race, sex, language, or religion. Despite its many shortcomings the UN
Charter recognized formally that human rights have an international dimension and are no longer solely a matter falling within the exclusive jurisdiction of a state.
According to Article 26 of the Vienna Convention on the Law of Treaties (VCLT), every treaty is binding on the parties to it, and must be performed by them in good faith. This principle laid down in the above article is the most fundamental principle in the law of treaties. Its importance is underlined by the fact that it is enshrined in the preamble to the UN Charter. This seminal principle of international law is that pact sunt servanda or the idea that international agreements are binding on the parties to them. The law of treaties vests inexorably upon this principle since the whole concept of binding international agreements can only vest upon the presupposition that such instruments are commonly see as possessing that quality. Similarly the Westphalian concept of ‘state sovereignty’ has been narrowed in proportion to the extent of international legal obligations.
Sri Lanka is a state party to the Human Rights Council which is a UN Charter based important institution and it has been actively participating in its activities. When several resolution were moved against Sri Lanka on the alleged human rights violations and war crimes allegations it never denounced them stating that those resolutions were outside the mandate of the UN Human Rights Council. Once Sri Lanka was even able to turn tables against one of those resolutions and make it a resolution in its favour. It spent millions of rupees of Sri Lankan people’s money to campaign and lobby against the UNHRC Resolution. Now that the UNHRC is going to implement the duly adopted resolution the government is taking up various objections, including questioning of the legality and the Council’s power to adopt such resolutions. What if the government was able to defeat the resolution? Obviously no country or international body will accept this duplicitous attitude of the Sri Lankan state vis a vis its international legal obligations and international relations.
Going on a collision course with international human rights bodies will not auger well for the government of Sri Lanka. Nothing a country does in its domestic jurisdiction, except the holding of an impartial and transparent Inquiry and the punishing of the perpetrators, will result in the reversal of the UN Human Rights Council’s process which has already begun. The panel appointed by the UN Human Rights Commissioner will start their inquiry outside Sri Lanka if they are not allowed to come to Sri Lanka. Once, when the evidence is recorded and the findings of the panel are submitted to the Commissioner, the Commissioner will intimate the Secretary General of the UN (UNSG) of necessary action.
The Secretary General has wide powers in such a situation. He can make a further request to the government of Sri Lanka to act according to the findings of the Human Rights Council. In the event of non-compliance by the GOSL, the SG can recommend even economic and political sanctions against Sri Lanka which could affect the entire populace of the country. There could even be unilateral sanctions and trade embargoes by individual countries and groups of them. The removal of the GSP facility several years ago by the European Union is a classic example. Many foreign producers of exports shifted their operation to Bangladesh and Vietnam as a result of it. The GOSL should keep in mind that most of our exports go either to North America and Western Europe, not to China or Russia.
The UNSG also has power under Articles 99 and 100 of the UN Charter to refer the matter to the UN Security Council. The Security Council has power under the Rome Treaty to pass a resolution to refer the findings of the Human Rights Council to the International Criminal Court. Any member country of the Security Council has the power to veto such a resolution and if the veto is so used the resolution ends there. In the event the matter goes so far, Sri Lanka can hope that its great allies China and Russia will use their vetoes against such a resolution. But there is a saying that there are no permanent friends and foes in politics and it is more valid in international politics. Every state is more concerned with their national interest over and above that of others. Libya, for example, was a greater friend of Russia and China than Sri Lanka. But when the Security Council introduced a resolution to refer Col. Muammar Gaddafi and his son to the International Criminal Court (ICC) for war crimes and other crimes committed against Libyan people both countries expressed their opposition but when the vote was taken none of them were present and the resolution was adopted unanimously. The International Criminal Court issued process but Gaddafi was extra-judicially killed by some groups in the country before his arrest, and his son is now in ICC custody awaiting trial.
Some pundits opine that since Sri Lanka is not a State party to the Rome Treaty which constituted the ICC no Sri Lankan could be taken before the ICC on war crimes or any other crimes listed in the Rome Statute. The UNP leader Ranil Wickremesinghe is one of them. He may not be aware of the fact that even though both Libya and Sudan are not State parties to the Rome Treaty, heads of States of both countries – Gaddafi and Omar Basir, and even Gaddafi’s son–have been indicted by the ICC on a referral made by the UN Security Council. It is high time that Mr. Wickremesinghe brushed up his international criminal law, he himself being a lawyer, and more particularly, a strong future presidential aspirant.
While ousted leaders like Yogoslav strongman Slobodan Milesovic and former Liberian President Charles Taylor have faced international justice in the past, it is unprecedented for such ranking suspects as Uhuru Kenyatta and William Ruto of Kenya and Omar al Basir of the Sudan to stand trial at an international tribunal while still in office. What is certain and clear is that international criminal justice is gradually developing itself into a mandatory jurisdiction from which there will be no escape. Brand ambassadors of the Rajapaksa regime will find it impossible to sell deception, the product of their regime to the international community for long.
*K.D.C. Kumarage – Attorney at Law , JPUM , Convenor, Lawyers for Democracy