Moon report breached UN Charter - Wijeyadasa Rajapakshe MP

By Shanika SRIYANANDA

One of Sri Lanka's top legal experts claimed that United Nations Secretary General, Ban ki-Moon has violated the UN Charter by appointing non-UN staffers to advise him on the alleged war crimes in Sri Lanka during the final phase of the end battle against the LTTE terrorism.

UNP Parliamentarian and President's Counsel Wijeyadasa Rajapaksha in an interview with the Sunday Observer said by appointing a panel and publishing a purported report adverse to the sovereignty of Sri Lanka the UNSG has committed serious and blatant breaches of the UN Charter and by his conduct he has virtually arrogated to himself the powers of the UN Security Council.

"He has seriously violated the principles of natural justice", he said.

He has written to the UNSG: "While the misunderstanding and distrust among communities is 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,".

Rajapaksha, the former chairman of the Committee on Public Enterprises (COPE) and a legal expert who drafted the UPFA Constitution said that the government should diplomatically handle the issue to convince the UN's superpowers and also its Human Rights Council.

Excerpts of the interview:

Q: You have written to the UNSG on his panel report. What is your analysis of the report ?

A: At the time I wrote to the UNSG, I had not seen the full report and its correspondence. I only knew that the UNSG had appointed a panel to advise him but later with further developments I had realized that they had gone beyond that. I had the suspicion that they were going to explore beyond their scope and according to the way the UNSG and some of the officials were arguing with the Sri Lankan government, I knew that it would be something definitely adverse to us. Therefore, I pointed out the illegality, illegitimacy and unenforceability of the report on six legal grounds and the appointment of the panel. I also wanted to point out to the Secretary General that on these legal grounds this report has no validity.

Q: Can you explain those legal ground that make the report invalidity?

A: I explained to him that Sri Lanka as a sovereign equality fought against the most brutal, horrendous and gruesome terrorist group, the LTTE which was internationally branded as one of the world's most dreadful terrorist organisations. We fought the longest ever terrorist war for over 33 years. Although a 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.

In such a trying situations, Sri Lanka successfully concluded the war against the LTTE terrorist while even some of the most powerful countries too believed that the LTTE was invincible. We had to do it at the cost of the lives of about 30,000 security forces personnel and about 30,000 innocent civilians including women, children, infants and religious dignitaries. Over 20,000 became disabled with around 20,000 widows and 40,000 child orphans.

I explained to him that Ban ki-Moon's predecessors did not take any preventive measures which ought to have been taken to resist or mitigate the calamity and the catastrophe that befell Sri Lanka for over three decades. They only issued periodical press releases. He turned a Nelsonian eye and deaf ears to the multitude of requests made by the Sri Lankan governments.

The main legal point is that Sri Lanka is not a signatory to the Rome Statute of the International Criminal Court which came into operation on July 1, 2002. If the UN wants to investigate an internal affair of a particular country, especially to prosecute on the violation of human rights or commission of war crimes, they have to act on the Rome Statute. The country concerned should be a party to the Statute.

As Sri Lanka is not a signatory to the Statute, the UNSG has no jurisdiction to initiate any action on the internal affairs of Sri Lanka including the alleged incidents during the final phase of the war gainst terrorism, concluded in May 2009.

In terms of the Articles 39 and 40 of the UN Charter the decision on the measures to be taken is only with the Security Council and this power cannot be delegated to anybody or person.

Thirdly Article 100 of the UN Charter, precludes the UNSG from getting any assistance of any government or any person and he shall also not solicit any support in the way of advice or otherwise. It says that they should refrain from any action which might reflect on their positions as international officials responsible only to the Organization. Although he has appointed a three member committee, none of them are staff members of the UN. Here the impartiality of the organization is lost.The members of this panel are outsiders. Though he had been restrained by the Statute, he had done this and it is a pure violation of the UN Charter.

Q: Don't you think the panel report should have been kept confidential as it is the final report meant to advise him?

A: Yes, it is a gross violation of principles of natural justice. I have explained these to him pointing to some of the Articles and especially his failure to adhere to the principles of natural justice. Even in a small robbery case the affected party should be assured of the opportunity to be heard but he has violated this golden rule of the natural justice. If somebody is going to make a report and publish the affairs of Sri Lanka, he should definitely adhere to the principles of natural justice before releasing the report. He should have heard Sri Lanka about what we have to say on those alleged human rights violations. He has not done that and also not followed any of the legal requirements.

We came to know about the contents and the correspondence only after the report was released. The UNSG's team is called the expert panel to advise him. Advice is given on various grounds but such advice cannot be a public document. The advice should always be treated as confidential and whatever the document in the form of advice should be a confidential document.

An open document cannot be an advice. Professionals can be sued if their professional advice if leaked. Similarly, if your family doctor violates the professional ethics you can sue him. Therefore, the panel report to advise the UNSG cannot be internationally published. By the release of the report to the media even prior to handing over to the UNSG, shows the ulterior motive of the parties involved in it. It is evident that they wanted to tarnish the image of Sri Lanka and paint Sri Lanka as a barbaric country.

The other factor is that even if it is a body to advise him, it cannot come to any conclusion on factual matters. If ten or hundred people died in the war, it is matter for investigation and not a matter of opinion. Even if there is evidence to claim that we have killed civilians during the war, this panel has not been given any authority to investigate.

When you look at the report it appears not only they tried to investigate but also complained about such incidents. They claim that they have credible evidence. In the absence of an investigation how they can have evidence. They don't know whether the sources of evidence from which they got the information are credible or otherwise.

In some evidence there is no substance. For example, they accused Sri Lankan military for killing civilians in widespread shelling. They also claim that Sri Lankan Army advanced in its military campaign in Wanni using heavy weapons like multi barrels, rocket launches and other large artillery causing large numbers of casualties. They have made specific remarks on over hundreds of incidents. How does this panel know about these incidents and who really came to collect evidence. On the face of it, it shows that the report is illegal.

Q: What do you propose to the government to convince the UN that this document is illegal and violated its own Charter?

A: The government must make diplomatic approaches especially to the members of the Security Council, which consists of 15 member states. We should have professionals for this and not the ordinary appointees in the foreign missions who don't have professional skills but only the political affiliations. They will muddle these serious issues due to their poor skills in handling matters professionally and diplomatically.

Q: Since the panel was not appointed by the UN with a mandate from the majority of its member states and it is also a report by a panel to advise the UNSG, can it be called a UN report?

A: Some people have claim that it is not the UNSG's report but the Darusman report.

Darusman has no authority to issue a report as he is not a UN staffer but this report is issued by UNSG and therefore it is a UN report.

Q: What action the government can take against this report as it has violated its own Charter?

A: As the UNSG has violated the UN Charter in many ways, the only action that we take at the moment is to convince super powers to avoid reporting to things that would harm the country. Sri Lanka must strengthen the cordial relationship with those countries. There are 49 countries in the Human Rights Council.

Q: The government firmly said it will not respond to the report.

How will this affect the situation?

A: There is nothing to respond to this report as the panel has not asked government's explanation. The government will have only to respond if they have taken further initiatives. For example, if they referred this to the International Criminal Court, then the government has to challenge it.

Though there is nothing to respond, the government has to take measures to clear the image created by the panel report.

Q: The Mahinda Rajapaksa government did not dance to the tune of the West but strengthened its ties with Russia and the Asian giants . Do you think that this approach has also affected our foreign relations?

A: Yes, the government's foreign policy, which strengthened its ties with the Asian giants have affected the country as we have lost the support of powerful countries in the West.

I am not saying that we must kneel down before them and be dependent on them. In an emergency these are the countries we can seek support from. When the country was in a dangerous situation and faced economic issues, the IMF helped us. Had it not been for the IMF in the last two years we would have suffered economically. All these are decided by the superpowers and we can't get away from the system as we have to protect ourselves.

I have observed some politicians suggesting a separate UN for Buddhist countries. Sad to say those are idiotic concepts.

Q: The people have launched several protests like collecting one million signatures against the report. Will these protests bring results?

A: Public protests against the UNSG's report are good to show their protest but it should be done in a more professional way. It is good that the organisations such as the Sri Lanka Bar Association have protested against the report. Arousing the feelings of the general public will lead to a serious end. On the May day the effigies of the UNSG were burnt. He is also a human being and he will feel bad when he sees his effigies were burnt. He is the number one citizen of the world and internationally he has a voice since the people believe when he says something. He helped Sri Lanka and he was a friend of Sri Lanka, which helped him to get his post. Due to lack of diplomatic approaches our relationship with them has broken.

Q: Don't you think that the Opposition which you represent has a responsibility to be with the government in issues like these to protect the country?

A: Yes, I agree, when it comes to local politics, there is a distinctive role for the Opposition, to play. This is a national issue and if the government had a discussion with the Opposition there would have been a consensual procedure for all to get together and face it. If a member of the government had written, this letter, it would have ended up in waste bin as it comes from a party which has been accused of certain allegations, but when it comes from a member of the Opposition, they have to take a serious note of it.

After I wrote the letter, the following day the media had questioned UNSG and for the first time Ban ki-Moon stated that he lacked authority on two grounds. They are the very same points that I had cited in my letter. One is Rome Stature and the second is the lack of a resolution by the Security Council.

The Opposition was willing to support the government but it never wanted our support.

On several occasions I tried to explain the danger of signing the Joint Agreement with the UNSG but certain politicians in the government branded me as a traitor and started tarnishing my image. So in such situations we are reluctant to come forward as we have to face unnecessary criticism by the government politicians.

I think the issue could be handled in a diplomatic way by enlisting the support of the political parties. Issuing statements will not help at this juncture.

The government should introduce a proper mechanism to get the support from each and every sector of the country on national issues.

Q: It was reported that you had to pay a huge amount as income tax and the case has been referred to the CID. Is it true?

A: I also heard about this news and it is completely wrong. There is no CID case against me but I have some problems with the Income Tax Department as I have to recover Rs. 500 million from them. I am a gold card holder of the Department for paying taxes regularly. During the last six years I got Rs. 3.3 million by way of salaries and allowances and I put Rs. 1.7 million from my pocket and used that money to set up a surgical theatre at the Maharagama Cancer Hospital.

Q: Why did you decide to write this letter. They claimed that you did this with the intention of evoking the sympathy of the President to get rid of the CID inquiry?

A: I am not surprised by these allegations and I also don't blame any one who entertain doubts, because it is the thinking pattern of the Sri Lankan people. I crossed over in 2007, but throughout the last few years I have a good relationship with President Rajapaksa.

Whenever I want support, not any personal assistance but the issues relating to my voters, I can always approach him. I don't have personal grudges and I have helped him since 1989. I went to Hambantota Kachcheri to deliver his nomination papers including nomination for the Presidency.

My policy is that I should not have any problems with individuals but on policy basis I will fight.

My sense of patriotism made me to write to the UNSG. I love my country and when its image was at stake I thought I should do my duty. I am a President's Counsel and in our oath we declare that whenever there is a problem or any danger to the country we need to come forward as it is our duty. I will not expect anything as I don't have anything to gain.

Q: Did you discuss with President Rajapaksa and also the UNP Leader Ranil Wickremesinghe before sending the letter to the UNSG?

A: Yes, I met both of them but didn't discuss about the contents of the letter. I told them that I would write the letter.

After handing over the letter to the UN representative here in Colombo, I sent copies to both of them, all foreign missions in Sri Lanka and the media.

Q: Do you have plans to join the government, if President invites you?

A: No, I will not betray the people who voted for me. I have no such plans. I never do politics for my personal gains. I would remain in the Opposition.