By Dharshan Weerasekera
LankaWeb.com
December 31, 2013
There has been renewed interest in a paper of mine published in
Foreign Policy Journal in March 2013, titled, “The Illegality of UN Secretary General Ban Ki Moon’s approach to Sri Lanka,”
[1] (see Shenali Waduge, “Dharshan Weerasekera exposes Sri Lanka’s External Affairs Ministry’s deficient legal work,”
Lankaweb,
29 Nov. 2013). In that paper I argued that the Secretary General
exceeded his authority in commissioning the Report of the Panel of
Experts on Accountability in Sri Lanka, which report subsequently served
as the basis for two resolutions passed against this country at the
United Nations Human Rights Council.
I recommended that one of the principal remedies open to Sri Lanka
was to petition the International Court of Justice for an Advisory
Opinion on the legality of the aforementioned report. If the court
deemed the report illegal, it would make all subsequent measures based
on that report, including the two resolutions, illegal, and of no effect
in law. A number of people have asked me to clarify certain matters
with respect to the original recommendation. In particular, they have
asked three basic but practical questions: Who can file the type of
petition I’m suggesting? What is the procedure involved? What are some
of the specific questions of law that can be asked in the instant case?
I believe it is important to answer the above questions, at least in a
perfunctory way, because it is becoming clearer by the day that a legal
challenge may be the only concrete option Sri Lanka has to save its
neck at the upcoming March-2014 sessions. Navi Pillay has all but
promised that she will push for independent war crimes investigations
against this country at the aforementioned sessions. Mr. David Cameron
(no doubt also speaking for his friends the Americans) has promised the
same thing.
[2]
Finally, in an ominous development, the European Parliament, by
resolution, has indicated that it might be time for independent
investigations.
[3]
To repeat, Sri Lanka’s critics are gearing up to give this country
the thrashing of a lifetime at the March-sessions. It is vital that Sri
Lanka have remedies that give it tangible leverage in the international
arena, and a pending legal challenge at the ICJ will most definitely
give Sri Lanka such leverage. I shall therefore take each of the
aforementioned questions in turn.
i) Who can file the petition?
The most important question with respect to my suggestion that Sri
Lanka petition for an Advisory Opinion at the ICJ, is whether a country
can file such a petition, without going through a UN organ. Some people
have said that there may be a problem with this matter, because both
the ICJ Statute and the UN Charter, in the relevant provisions, do not
explicitly say that a country, acting on its own, can file for an
advisory opinion.
For instance, Article 65(1) of the ICJ statute says,
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.
[4]
It appears that the provision above contemplates that the request for
an advisory opinion must come from an organ of the UN, and there is no
indication that a country, acting on its own, can file the petition.
When one looks at the UN Charter, meanwhile, Article 96 says this:
(a) The General Assembly or the Security Council may request the
International Court of Justice for an advisory opinion on any legal
question.
[5]
(b) Other organs of the United Nations and specialized agencies,
which may at any time be so authorized by the General Assembly, may also
request advisory opinions of the Court on legal questions arising
within the scope of their activities.
[6]
So, the Charter specifically designates the General Assembly and the
Security as the principal organs that can ask for advisory opinions, and
says that the General Assembly may authorize any other UN organ to also
ask for advisory opinions. In practice, the General Assembly, the
Security Council, the Economic and Social Council, UNESCO, International
Fund for Agricultural Development, and others, have made requests for
advisory opinions. That still doesn’t solve our problem: Can Sri
Lanka, as a country, file the petition? To my knowledge, it’s never
been done before, but I believe it is possible.
The authority for a country to petition for an advisory opinion comes
from a statute enacted subsequent to the Charter, namely, the
“Convention on Privileges and Immunities of the United Nations,” adopted
by the General Assembly on 13 February 1946. Section 30 of this
convention says:
If a difference arises between the United Nations on the one hand and
a Member on the other hand, a request shall be made for an advisory
opinion in accordance with Article 96 of the Charter and Article 65 of
the Statute of the court.
[7]
So, clearly, a Member can file the petition without having to go
through a UN organ. Sri Lanka can therefore file this petition on its
own.
ii) Procedure
I shall briefly discuss the procedure involved in obtaining an
advisory opinion, and also tackle an important question, namely, whether
it would be sufficient for the request to come purely from the
President. The basic procedure for advisory opinions is set out in the
Statute of the Court, as well as the Rules of the Court. In essence,
there are three steps involved: first, an official letter to the court
requesting the advisory opinion; second, general notification by the
court to all UN Members, and third, special notification by court to
selected Members and Organizations, plus the setting of dates for return
of written submissions, as well as oral arguments.
Article 65(2) of the ICJ Statute handles the first issue above and
says that the questions upon which the advisory opinion is sought are to
be laid before the court by way of a written request “containing an
exact statement of the question upon which the opinion is requested,”
and is to be accompanied by a dozier containing all documents “likely to
throw light on the question.”
[8]
Article 66(1) handles the second issue, and says that the moment the
court receives a request for an advisory opinion the court is to inform
all Members of the UN that such a request has been made.
[9]
Article 66(2) of the ICJ Statute addresses the third issue above, and
says that the moment the court receives a request for an advisory
opinion, the court is to make a special and direct communication to
select Member States and Organizations the court considers might be able
to provide information on the question that the court has to answer.
The court is to set the deadline for the return of submissions by the
aforementioned States and Organizations, and also set a date for oral
arguments, if necessary.
[10]
I’ll next turn to the important question I referred to earlier.
Since a country filing for an advisory opinion is unprecedented, who
would actually sign the letter making the request? In other words,
would it be sufficient if the President were to make the request through
Sri Lanka’s official UN representative in Geneva?
This is a thorny issue. Article 104 of the Rules of the Court says:
All requests for advisory opinions shall be transmitted to the court
by the Secretary General of the United Nations, or, as the case may be,
the chief administrative officer of the body authorized to make the
request.
[11]
In my view, the President of a country can be considered its “chief
administrative officer” for the purposes of the above Article, and
should be able to make the request. I feel, however, that it is wise to
be a bit careful at this stage. For instance, one of the initial
concerns the court will have is that if it accepts a petition sent by a
leader of a country acting in a personal or unilateral capacity, it will
open the floodgates for leaders of countries to file for advisory
opinions at the drop of a hat: the court will be literally swamped with
requests for advisory opinions, and will not be able to get any other
work done. No court in the world will be happy with such a predicament.
In my opinion, given the unprecedented nature of the case, Sri Lanka
should play it safe. If the Government is going to file this case, it
should first obtain a Parliamentary Resolution. That resolution would
assert the need for an advisory opinion, and ask the President to
forward the request to the ICJ. The Parliament consists of the
representatives of the People: a resolution in Parliament asking for an
advisory opinion is therefore the equivalent, in a very real sense, of
the entire country asking for the advisory opinion.
Under the above circumstances, when the President makes his request
to the court, he will be able to cite the resolution, and in effect say
that he is conveying a request made by the people of Sri Lanka as a
whole. I do not think the court will decline such a request. So much,
then, for procedure. Let’s now move to the most important issues: the
questions that ought to be submitted to the court.
iii) What are the questions that ought to be asked in the instant case?
To the best of my knowledge, there are no set criteria for the types
of questions that can be submitted for advisory opinions. A perusal of
past questions reveals that they cover issues ranging from the broad and
profound, to the mundane and technical. Just to give some examples,
two of the most famous recent cases have been, one, where the General
Assembly requested the court to give an opinion on whether, one, the
unilateral declaration of Independence by the provisional Government in
Kosovo was in accordance with international law (2008)
[12],
and two, where the General Assembly requested an opinion on the legal
consequences of the wall being built by Israel in the Occupied
Palestinian Territories (2003)
[13].
A petition filed in 1953, meanwhile, was for an opinion on whether
the General Assembly could on any ground refuse to honor an award of
compensation made by the United Nations Administrative Tribunal.
[14]
In short, as I said, the legal issues considered run the gamut from the
profound to the mundane and technical. The only constant seems to be
that the questions have to be pure questions of law, and not of fact.
With that background, I shall present my suggestions for the
questions that ought to be asked, and then briefly discuss them. (I
emphasize that the following are merely suggestions and not definitive
formulations.
The reader can suggest better and more refined
questions.) In any event, here is my choice for a set of questions:
1) Having regard to the United Nations Charter, any other relevant
document, and the record, did the Secretary General commit a
fundamentally illegal act when he commissioned the Report of the Panel
of Experts on Accountability in Sri Lanka?
2) If the answer to question (1) above is in the affirmative, what is the legal status of resolutions
A/HRC/19/L.2/Rev.1 and
A/HRC/22/L.1/Rev.1 passed with respect to Sri Lanka at the Human Rights Council?
3) If the answer to question (1) is in the negative, what is the
scope of Article 2(7) of the United Nations Charter? Article 2(7) says,
Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the members to
submit such matters to settlement under the present Charter.
Who determines if an intervention has taken place, and if so, are there remedies available to the nation so interfered with?
I shall now briefly comment on the above questions, with special
regard to possible tactics the UN’s lawyers might use to tackle them.
The first question is obviously the most important. I believe this is
also where Sri Lanka can make the strongest case. The constraints of
time don’t allow me to discuss in detail everything that is wrong with
the Secretary General’s report, (I have sketched the main problems in my
essay, “The Illegality of UN Secretary General Ban Ki Moon’s approach
to Sri Lanka,” and refer the reader to that essay.) My point here is
simply that, I believe the UN’s lawyers will not try to defend the
report either: I think its easier for them to concede that the
Secretary General exceeded his authority in commissioning the report,
and then to try and defend his actions.
They have two choices: one, they can argue that the Secretary
General did what he did for a good cause, i.e. in the interests of
justice, for the sake of human rights, out of compassion, and so on. Or
two, they can argue that whatever problems the report may have,
including its possible illegality, it ought not to impact the two
resolutions that have been passed against Sri Lanka, because the report
was only an insignificant factor in the overall decision-making process
at the UNHRC that led to the passage of the two resolutions. Sri
Lanka’s lawyers will therefore have to find ways to counter these to
“defences.”
Let’s move to the second question. I believe the real battle will be
fought over this second question: i.e. “If the report is illegal,
what happens to the resolutions?” As I have said, the UN’s lawyers will
say from the outset that the Secretary General’s report is
“insignificant” a “redundancy,” and so forth, and that it in no way
played any role in the decision-making at the UNHRC that led to the
resolutions. When they are shown the actual references and citations to
the report in the record, they will say those references don’t mean
anything because those references are only a minor part of a larger set
of other sources of evidence which influenced the UNHRC in its
deliberations over the resolutions.
Sri Lanka’s lawyers therefore have to make an air-tight case that the
Secretary General’s report was not an incidental or insignificant
factor, but in fact the
sole basis for those resolutions, at
least with respect to certain important matters contained in them, such
as the demand for war crimes investigations. I believe that, in
addition to whatever argument Sri Lanka’s lawyers generate to establish
the aforementioned case, they will have to be prepared to cite every
single instant that the Secretary General’s report was cited
anywhere
in official UN discussions or documents up to the passage of the
March-2013 resolution, so that the court can get a sense of the true
influence of the report.
Let’s move to the third question. Needless to say, if the court gets
to the point of answering the third question, it means Sri Lanka would
have “lost” the case, in the sense that the court would have already
decided that the Secretary General’s report is legal. In my view,
however, morally speaking, Sri Lanka cannot really “lose” this case.
Even if the court rules that the SG’s report is legal, and hence the
resolutions valid, Sri Lanka will be in no worse position than it is in
now: i.e. on the verge of having a resolution authorizing war crimes
investigations from being passed against it. At most, Sri Lanka would
have been able to stall or postpone this result by a few months. Sri
Lanka, however, would have shown the world that it will not take abuse
lying down, and that it is willing and able to take the fight to the
critics. That’s a moral victory.
On the other hand, if the court gets to the point of answering the
third question, and answers it, that also is a tremendous moral victory,
because it entails an advance for international law, particularly with
respect to a long-overdue interpretation of Article 2(7). One of the
biggest problems one sees in international relations today is the
tendency among certain powerful nations to intervene in the internal
affairs of weaker nations, and to try to do it under the facade of
international law, and often using facilities and mechanisms provided by
the United National itself.
For instance, if we think about the run-up to the Iraq Invasion, the
first thing that the Coalition led by the United States that was urging
the invasion tried to do was to get a UN resolution authorizing the
invasion. (Of course, they did not get one, and invaded anyway, but to
this day the only legal justification for the invasion, albeit tenuous,
is that there was at least one resolution
[15] in favour of some sort of meddling in Iraq.)
My point is this: to the best of my knowledge, the International
Court of Justice, the principal legal organ of the UN, has not had an
opportunity to comment on the general practice of interventions such as
the above, especially with respect to protections weak nations may have
under Article 2(7) to resist such interventions, or at any rate to gain
compensation in the event of such interventions. If Sri Lanka files its
case, it will be a marvelous opportunity for the court to give a
definitive and extended legal assessment with respect to these issues,
and this in turn will be of immense help to those nations that, now and
in the future, face the prospect of such interventions.
For the above reasons, I believe the Government should waste no more
time. It should pick its team of lawyers and other experts and set them
to work preparing the case, and, most important, set the machinery
working with respect to getting the Parliamentary Resolution alluded to
earlier, which will call on the President to request the Advisory
Opinion in question.
Dharshan Weerasekera is an Attorney-at-Law practicing in Sri Lanka. His book, The UN’s Relentless Pursuit of Sri Lanka, was published in July 2013.
[2]
Mr. Cameron has reportedly said, “Let me be very clear, if an
investigation is not completed by March, then I will use out position at
the UN Human Rights Commission and call for a full, credible and
international inquiry,” (Neville Ladduwahetty, “The Channel 4
“Documentary,”
Daily News, 29 November 2013)
[3]
In Clause No. 3 of the resolution, the EU Paliament, “Calls on the Sri
Lankan Government to further implement the LLRC panel’s recommendations,
and for a proper, full, transparent and impartial investigation of the
many outstanding allegations and concerns arising from a conflict that
saw numerous war crimes and other violations committed by both sides,”
(European Parliament resolution on situation in Sri Lanka, 2013/2982
(RSP), 10-12-2013,
www.europarl.europa.eu
[4] ICJ Statute, Article 65(1)
[5] UN Charter, Article 96(1)
[7] Convention on the Privileges and Immunities of the United Nations, 13 February 1946, Section 30
[8] ICJ Statute, Article 65(2)
[9] ICJ Statute, Article 66(1)
[10] ICJ Statute, Article 66(2)
[11] Rules of the Court, Adopted on 14 April 1978, Article 104
[12]
Compatibility or otherwise with international law of the unilateral
declaration of Independence by the Provisional Government in Kosovo,
2008
[13] Legal consequences of the wall, 2003
[14] Effect of award of compensation by UN Administrative Tribunal, 1953
[15] For example, Security Council Resolution 1441, passed in 2002
