by Neville Laduuwahetty
The UN Secretary General (SG) has maintained that:
(1) he has the authority to seek advice on issues that are of concern to the UN. Under this authority he has appointed an expert panel to advice him on criteria that should be met to establish accountability in regard to alleged humanitarian and human rights violations during the final stages of the conflict; and
(2) the accountability process is in keeping with the joint statement signed by him and the President of Sri Lanka on May 23, 2009.
The authority under which the SG functions is specified in the UN Charter.
Article 100 Clause 1 states:
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 position as international officials responsible only to the Organization".
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".
Accordingly, the SG has to satisfy two conditions. First, he shall not seek or receive instructions from any government or any other authority external to the organization. Second, he has to maintain the "exclusively international character" in his dealings.
During a monthly press conference at UN Headquarters in New York in March 2010, the SG stated: "The panel I am establishing will advice me on the standards, benchmarks and parameters, based on international experience, that must guide any accountability process such as the one mentioned in the joint statement. Now this panel will report to me directly and not to another body"(UN News Center, March 16, 2010). Although the intent of the SG is to seek "advice" from the panel, the form and substance of that "advice" could be so specific that it could for all intents and purposes be an "instruction" to guide the accountability process. This specificity would be tantamount to ‘seeking and receiving instructions’ . Therefore, the panel appointed to undertake such a task should NOT be "external to the organization".
The panelists therefore need to be "responsible only to the Organization". If they are affiliated with the UN in one form or another, but not "international officials responsible only to the Organization" as required by Article 100 Clause 1 of the UN Charter, would they (by not being a part of the SG’s staff) be in a position to maintain the "exclusively international character of the responsibilities of the Secretary-General"? This "exclusively international character" cannot be maintained by "staff" who are temporarily engaged by the UN for specific assignments, as for example in this instance, because their "responsibility" to the UN ceases upon termination of the assignment or the contract. This is not the case with permanent UN staff. Their commitment to the Organization would remain.
Under the circumstances, there are grounds for the legitimacy of the panel appointed by the SG to be challenged because it violates provisions of the UN Charter.
The only reference to an "accountability process" is in the last paragraph of the joint statement which states: "Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary-General underlines the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances".
It is evident from the foregoing that it is the responsibility of the Government of Sri Lanka to "take measures" to undertake accountability processes and not for the SG. The concept of a panel to advice the SG emerged after the joint statement was signed. Tasking such a panel to establish "standards, benchmarks and parameters" that should guide the accountability process independent of the panel appointed by the Government of Sri Lanka is an intervention on a process that is strictly domestic. There is no mention in the joint statement that the accountability process would meet criteria set by the SG. If the SG was forthright at the time the statement was signed and had indicated that the Government had to meet criteria set by him and the UN, it is unlikely that a joint statement would have resulted, since no government would commit to meeting such unspecified criteria.
Furthermore, the SG’s notion that the accountability process should meet criteria established by an authority set up by the UN is in direct violation of Article 2 (7) of the UN Charter regarding intervention. This Article states: "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…". The attempt by the SG should therefore be interpreted as nothing but direct intervention concerning an issue that is strictly within the domestic jurisdiction of a state.
There is no doubt whatsoever that the steps initiated by the SG were taken subsequent to signing the joint statement. There was no indication at the time of signing the joint statement that the SG was going to appoint a panel of experts to establish guidelines for judging the accountability process. By doing so now, the SG has violated the spirit of a joint statement and in the process has brought discredit to the office of the SG.
In addition, the measures adopted by the SG violate provisions of the UN Charter firstly in respect of Article 100 that governs the performance of his duties and secondly, in respect of Article 2 (7) regarding intervention in areas of domestic jurisdiction.
Therefore, there are grounds for the Government of Sri Lanka to challenge the actions of the SG regarding the legitimacy of a panel of experts to develop guidelines, and to expect a member state to comply by standards set by such a panel, because it is tantamount to intervention in issues that are strictly domestic.