SL co-sponsorship of UNHRC resolution Time is ripe to invoke SC on legality :Darshan Weerasekara

• We submitted counter response to OISL report 
• It can be done in terms of Article 129 of Constitution
• UN process against SL started after security forces defeated LTTE

Attorney-at-Law Darshan Weerasekara, who supports those working against the UNHRC resolution on Sri  Lanka, speaks about the process that led to the current situation. He is the one who drafted a counter response to the UN High Commissioner’s report on Sri Lanka. Excerpts of an interview with him: 

QHow do you look at the process that led to the adoption of the UNHRC resolution 30/1 on Sri Lanka in October 2015?

On May 19, 2009, the armed forces defeated the LTTE. That was the beginning of the process. The very same day, 17 nations led by Germany asked for a special session in the United Nations Human Rights Council (UNHRC) to discuss whether the Sri Lankan Government committed serious crimes during the last phase of the war. That session was held on May 26 and 27, 2009, during which the said 17 nations introduced a resolution saying they believed Sri Lanka committed war crimes and that an international investigation was needed. 

Then, Sri Lanka, with the assistance of another group of nations, introduced a counter resolution. It congratulated Sri Lanka for bringing the war to an end and lauded the efforts taken by the government to resettle its people. It basically said, “Keep up the good work!” 

It was also tabled. The second resolution was adopted as more nations supported it at that time. However, it was absolutely disappointing to see some Sri Lankans endorsing war crimes took place. But the resolution was something different. 

Later, the then UN Secretary General Ban Ki-moon commissioned three experts to investigate the allegations and give him a detailed report -- which was called the Panel of Experts or Darusman report -- on the accountability in Sri Lanka. The report said there were many allegations claiming Sri Lankan forces committed war crimes. The charge is that the State, not individuals, is collectively responsible for war crimes. It is a system crime. The Darusman report is the first of its kind that has some connection to the UN claiming these types of crimes happened. The report came out in 2011 and later that year, it was indirectly submitted to the UNHRC. It became the basis for another resolution on Sri Lanka in February 2012. This resolution said there was a report in place that war crimes were committed. They requested the government of Sri  Lanka to probe such purported offences. The UNHRC passed the said resolution in March 2012. This was the beginning of a series of resolutions that ended in 2015. Since 2012, the United States submitted resolutions every year in March sessions of the UNHRC -- each time claiming the government did not investigate these offences. Finally in 2014, they tabled the resolution 25/1 authorizing such investigations on the basis that Sri Lanka did not carry out any investigation. The resolution authorized the UN High Commissioner for Human Rights to undertake a comprehensive investigation into purported violation of the international humanitarian law and the human rights law. The High Commissioner undertook the investigation in August of 2014 and ended it in March 2015. It is called the OISL report. 

It is the only report authorized directly by a UNHRC resolution to probe purported crimes. 

As a citizen, I can read this report. When I perused it, I found serious problems. Citizens of this country never got a chance to present arguments. No matter what we say, the government has already agreed and committed to this resolution. The citizens were deprived of the opportunity to present the other side. The UNHRC never gave a chance to counter position to the charges levelled against this country

QYou countered the OISL report and worked out your own report instead. What are the main areas you touched upon? 

The OISL report said there was evidence that the State, meaning a chain of command, committed crimes. These are system crimes and not accusations of individual crimes. This falls into a special category. It has eight charges -- four on the international humanitarian law and four on the human rights law. This report was released on September  16, 2015. The Sri Lankan Government was given this report ten days earlier. On a date close to when it was released, Sri  Lanka accepted this report. There is no evidence, whether or not, the government assessed it. That is to see whether the charges are proved or not. This report is a low-standard of proof. The government has accepted its conclusion though. The people of Sri  Lanka got to read this document on September 15, 2015. By September 29 that year, the government co-sponsored this very controversial resolution 30/1, which, in its paragraph 1, accepts without reservation the conclusion of the OISL report. Nobody challenged the report because Sri Lanka  co-sponsored it. The resolution was adopted by consensus. The government said it would implement the report. 

QHow prudent is this action by the Sri Lankan Government? 

That is the question. As a citizen of Sri  Lanka, I have personally benefitted from the armed forces defeating the LTTE. Today, I can live with peace and security in this country and enjoy the rights and privileges guaranteed by our Constitution. If one says the armed force committed war crimes, where is proof? 

In this case, proof is contained in the very specific report -- the only one authorized by the UNHRC. As a citizen, I can read this report. When I perused it, I found serious problems. Citizens of this country never got a chance to present arguments. No matter what we say, the government has already agreed and committed to this resolution. The citizens were deprived of the opportunity to present the other side. The UNHRC never gave a chance to counter position to the charges levelled against this country. 

QHow difficult will it be for a future government to get rid of this dilemma? 

As I said earlier, the OISL report was tabled in September 2015. It was never subjected to any assessment. At the time Sri  Lanka co-sponsored the resolution 30/1 in October 2015, the government, in its hands, had a very good domestic report by the Lessons Learnt and Reconciliation Commission (LLRC).  Also, there were six reports commissioned by international experts to analyze whether the Sri Lankan security forces could have committed war crimes. They are all professionals. One of them is Sir John Homes, the Head of British Special Forces. He has said the security forces fought the war according to the highest standards of professionalism. That is his opinion. A person of such calibre is accepted in the House of Lords. 

There is no evidence of system crimes according to these reports. The LLRC said there was evidence that some individuals had been involved in such crimes. There are seven isolated instances. They told the government to probe. They are very clear that no system crime happened. If the government accepted it, it should have some reasons for it. The government should have some reasons to believe that the LLRC report and other experts’ reports were wrong. The government cannot act like regular people. It has to follow some procedure. To the best of my knowledge, there is no such written assessment done by this government. What is the government’s basis for accepting the conclusions of the OISL report? 

In our country, the only institution authorized to interpret the Constitution is the Supreme Court. Various others like ex-diplomats, ministers and advisors can say whatever they want. They can say the co-sponsorship is legitimate. Lawyers can also say it is legitimate or illegitimate. But the conclusive opinion that matters must come from the Supreme Court. The only person who can request for such an opinion from the Supreme Court is the President in terms of Article 129

If any future government is to challenge this report, they should go back to that original co-sponsorship. Then, it has to get an assessment by a competent authority whether the co-sponsorship is lawful or not. 

In our country, the only institution authorized to interpret the Constitution is the Supreme Court. Various others like ex-diplomats, ministers and advisors can say whatever they want. They can say the co-sponsorship is legitimate. Lawyers can also say it is legitimate or illegitimate. But the conclusive opinion that matters must come from the Supreme Court. The only person who can request for such an opinion from the Supreme Court is the President in terms of Article 129. 

It says, “If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it.”  

I submit to you that the act of the government by co-sponsoring the resolution that might place Sri Lanka in a position of certain obligation to the UNHRC and thereby the international community almost in perpetuity is of public importance. This is perhaps the perfect occasion that would have called for the invocation of Article 129 to get a definitive opinion. 

QEarlier, you submitted a counter-response to this resolution. What is the response from the UNHRC? 

We put out this report last year. It assessed the eight charges in the OISL report. We said they were unsubstantial. We have filed this report. We have continuously asked the UNHRC to give us a response but we did not get any. 

We said in March this year that the UNHRC, permitting to adopt this resolution, had done irreparable damage. We asked the UNHRC to look into it. We filed that petition in March. Until now, we have not had a response. The important point is that the petition has not been dismissed either. This complaint procedure has been adopted by other countries to complain against their own governments. Petitioners in this petition have done an unprecedented job. They have used the petition to complain against the UNHRC itself. If there were any technical problem in the procedure we adopted, they could have dismissed it. It has been six months by now. There is no such dismissal. Have we raised significant legal issues which the UNHRC is facing difficulty with? 

The Darusman report is the first of its kind that has some connection to the UN claiming these types of crimes happened. The report came out in 2011 and later that year, it was indirectly submitted to the UNHRC. It became the basis for another resolution on Sri Lanka in February 2012. This resolution said there was a report in place that war crimes were committed. They requested the government of Sri  Lanka to probe such purported offences

In June, the United States, the longtime stalwart, left the UNHRC in a huff accusing it of being a cesspool of political bias. Now, the council is under the spotlight. The UNHRC has to show the world that it is not something the US claimed it to be. In our case, petitioners have said the way the UNHRC treated Sri Lanka  was unfair and unjust. All these resolutions were sponsored by the United  States. If the US sponsors a resolution and calls the UNHRC a cesspool, then all these resolutions will be discredited. 

We cannot take advantage of this situation because our government co-sponsored the resolution. The council is under pressure now to show the world that it is not biased. 

QThe President said he would make some alternate suggestions. What is your view?

Without knowing what the proposals are, I could not venture into anything. All I can say is what I told earlier. There is a question on the conduct of the government in co-sponsoring the resolution in October 2015. The issue is whether it is lawful or not. That question has to be answered.  

In June, the United States, the longtime stalwart, left the UNHRC in a huff accusing it of being a cesspool of political bias. Now, the council is under the spotlight. The UNHRC has to show the world that it is not something the US claimed it to be. In our case, petitioners have said the way the UNHRC treated Sri Lanka was unfair and unjust. All these resolutions were sponsored by the United  States. If the US sponsors a resolution and calls the UNHRC a cesspool, then all these resolutions will be discredited