Through UN office in Colombo/ By post/email
25th April, 2011
Dear Sir,
Report of the purported Panel of Experts to advise you on the alleged war crimes in Sri Lanka during the last phase of the war ended in May 2009
I am a Member of Parliament representing the United National Party, the main opposition in the Parliament. I write this in my capacity as a President's Counsel (Senior Lawyer) and a citizen of Sri Lanka. ( My C.V. is annexed hereto for your perusal)
I have learnt that the said purported Panel of Experts appointed by you has submitted a report to you in which serious allegations are levelled against the Head of the State and Armed Forces of Sri Lanka. I am aware of only a limited summary of it through the publication in the media and I reserve my right to make a comprehensive representation on contents thereof, once I get an opportunity to read the entire report supposedly of about 200 pages.
more01. I make these limited representations to enlighten you on matters which we are concerned with and the illegality, illegitimacy and unenforceability of the said report. At the commencement I wish to remind you of the prime objectives of the Charter of the United Nations which was signed on 26th June 1945 in St. Francisco, U.S.A.-and came into operation on 24th October 1945. The preamble of it reads thus;
* "United Nations is determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
* to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
* to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
* to promote social progress and better standard of life in larger freedom.
02. Article 01.1. reads as follows;
To maintain international peace and security and to that end: to take effective collective measures for the prevention and removal of threats to peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means and in conformity with the principle of justice and international law, adjustments or settlement of international disputes or situations which might lead to a breach of the peace.
Article 01.02 states that to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of people; and to take other appropriate measures to strengthen universal peace.
Article 02.1 categorically states that the organisation is based on the principle of the sovereign equality of all it's members.
03. Article 24 of the Charter empowers Security Council to take certain action on the matters referred to therein; It reads thus;
In order to ensure prompt and effective action by the United Nations for the purpose of maintaining international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
04. Article 34 states that Security Council may investigate any dispute or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.
05. You as the Secretary-General and all member countries are aware that;
a) Sri Lanka as a country with a sovereign equality fought against the most brutal, horrendous and gruesome LTTE, a terrorist group, which was internationally branded as one of the world's most dreadful terrorist organisations.
b) Sri Lanka fought the longest ever terrorist war for a continuous period of over 33 years. (from 1976 to 2009)
c) Although few friendly countries extended their support, Sri Lanka had to do it on her own in the absence of any substantial support from international organisations or institutions or from any country.
d) Even in such trying circumstances, Sri Lanka successfully concluded the war against terrorism debunking the belief of most of the powerful nations that the LTTE was an organization which was invincible. But we had to do it at the cost of lives of about 30,000 of legitimate armed personnel, about 30,000 innocent civilians including women, children, infants, religious dignitaries, etc, constituting over 20,000 people including armed personnel disabled, rendering about 20,000 widows, leaving in the lurch over 40,000 children as orphans.
e) The devastating impact it had on the economy of the country was enormous during the last 3 decades.
06. You have to admit that you (either you or your predecessors in the office of Secretary-General of UN, as the case might have been) did not take any preventive measures which ought to have been taken to resist or mitigate the calamity and the catastrophe that befell Sri Lankan nation throughout the period of last three decades, except for issuing periodical press releases in a lackadaisical way insisting that both warring parties should refrain from violence. You turned a Nelsonian eye and deaf ears to the multitude of requests made by the Sri Lankan Governments throughout. Your provable omissions and commissions constitute a serious indictment upon you as you have failed or ignored either intentionally or otherwise to perform your duties to achieve the goal of maintaining international peace as enunciated in the Charter of the United Nations under which you are empowered to hold the office of Secretary General.
07. It was incumbent upon you to have given a serious thought to the endeavours of the successive Sri Lankan Governments and their concerted efforts to resolve the conflicts and entered into a series of politically negotiated pacts and accords. (Please see the list annexed marked A)
08. In the said backdrop and under the following legal provisions your decision to appoint a so called Panel of Experts, to obtain a report from it and to publish such a report is illegal and illegitimate per se and it amounts to a gross violation of the Charter 6f the United Nations on the following amongst other grounds;
a) Sri Lanka is not a signatory to the Rome Statute of the International Criminal Court which came into operation on 01st July 2002 and therefore you have no jurisdiction to initiate any action on the internal affairs of Sri Lanka including alleged incidents during the period of the final phase of the war against terrorism which concluded in May 2009.
b) Article 39 of the Charter empowers only Security Council to determine the existence of any threat to peace and what measures to be taken. Articles 39 and 40 read as follows;
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
Article 40
In order to prevent an aggravation of the situation, the Security Council may, before making recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.
Security Council of U N which has the inalienable sole and exclusive authority to take decisions on member countries has not taken any decision up to date nor, given any direction to you to take any initiative regarding Sri Lanka.
c) Article 29 of the Charter empowers inalienable and sole authority to the Security Council to establish any subsidiary organs as deem necessary for the performance of it's function.
Article 34 empowers the Security Council to investigate any dispute or any situation which might lead to any international friction or give rise to a dispute.
Security Council neither, has set up such an organ or given any such direction for you to set up or investigate. That power of the Security Council cannot delegate and in fact has not been delegated to you.
d) Your powers as the Secretary-General of U N is defined -in Article 99 and you as the Chief Administrative Officer are empowered to bring to the attention of the Security Council any matter which in your opinion may threaten the international peace and security. But you have not been empowered to take any initiatives on your own or to set up any organ including any panel of experts to advise you or for otherwise.
e) Without prejudice to that, if your position is correct that it was a panel to advise you, it is crystal clear that you have breached Article 100 of the Charter of the United Nations which reads thus;
Article 100 (1)
In the performance of their duties the Secretary General and the staff shall not seek or receive instructions from any government or from any other authority external to the organization. They shall refrain from any action which might reflect on their positions as international officials responsible only to the organization.
Article 100 (2)
Each member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.
If it is a panel to advise you, you have no right whatsoever and under no circumstances to deliver its reports to anybody or any party or publish it in any territory.
f) In any event your purported panel of experts' report is against all the principles and norms of natural justice including the principle of audi altered partem.
By appointing a panel and publishing a purported report adverse to the sovereignty of Sri Lanka you have made serious and blatant breaches of the Charter of the United Nations. By your conduct you have virtually arrogated to yourself the powers of the Security Council of the United Nations.
While the misunderstanding and distrust among communities diminishing and when the pall of gloom is fading away, your initiative to appoint a panel and publish a report adverse to Sri Lanka will negate all meaningful efforts, thereby throwing everything into disarray. Any disruption of the stabilizing efforts to foster good relations among communities, and to revive the economy of the country have to be attributed to you and you will be held responsible for the possible calamitous situations likely to occur in the future in Sri Lanka.
My patriotic conscience prompts me to seek a very early appointment with you, with a heart free from any malice or rancour, to discuss this issue adroitly on the basis of top priority. This interview is sought with all due respect to you and with your unsullied dignity fully appreciated by me.
In view of the urgency of this issue an interview at your earliest convenience is sought which will be mutually beneficial to our country and the United Nations.
Thanking you
Yours faithfully
Wijeyadasa Rajapakshe
Courtesy - The Island
