By Kalana Senaratne
Dr. Lakshman Marasinghe (Emeritus Professor of Law, University of Windsor) in an article titled “Sri Lanka can seek advisory opinion from International Court of Justice about legality of UN panel (www.transcurrents.com), makes a serious suggestion to the Government; i.e. to obtain an Advisory Opinion (AO) from the International Court of Justice (ICJ) at The Hague, to determine “whether it was within the power of the Secretary-General to appoint an Advisory Panel mandated as he has when appointing it.”
He admits that he is “unable to suggest a political solution” to what he considers to be a matter which raises an “interesting point of international law.”
Dr. Marasinghe’s suggestion, in turn, raises greater problems, and is a risk that Sri Lanka cannot afford to take at this stage.
The unresolved ‘problem within a problem’
An AO from the ICJ, even if it is to be ‘favourable’ to Sri Lanka, would not be one which addresses the root of the problem; the problem of accountability and investigations. Dr. Marasinghe detects only the ‘international’ problem (i.e. the appointment of the Panel by the UNSG), and not this enduring domestic/internal problem of the inability to carry out investigations. Why so? It is because the Government, for quite some time now, believed that there was no problem, i.e. that there is absolutely no need to seriously investigate any of the allegations of IHL/HR violations because it argued that no such violations occurred during the last stages of the conflict.
It is not very clear whether this position has changed, and one awaits in this regard the recommendations of the ‘Lessons Learnt’ Commission on the issue of ‘investigations.’ Even the response to the US State Department’s report is yet to be published (one could only ask ‘haven’t we replied yet?’ - as Prof. Rajiva Wijesinha MP seems to have asked, as mentioned during a recent interview with Radio Australia).
If Sri Lanka had resolved this problem, neither the West nor the UNSG could have raised any concerns regarding ‘accountability’. As long as that problem remains unresolved, there is nothing much to be gained by approaching the ICJ and seeking an AO (which is not legally binding).
Dr. Marasinghe seems to believe that the UNSG, by establishing the Panel, has violated certain specific provisions of the UN Charter, especially Articles 33 and 34 of the Charter. But, how could the UNSG violate these provisions when the establishment of the Panel has nothing to do with the subject matter covered under Articles 33 and 34?
Articles 33 and 34 come within Chapter VI entitled ‘Pacific Settlement of Disputes’. Article 33(1) basically states that parties to any dispute, the continuation of which is likely to endanger the maintenance of international peace and security, shall first seek solutions (by negotiations, enquiry, mediation etc.) or other peaceful means of their own choice. Article 33(2) states that the Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. Article 34 states that:
the 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.
These provisions refer, in the main, to ongoing disputes which are likely to threaten international peace and security. But what the UNSG has done is to appoint a Panel, one year after the conflict. So the UNSG’s clear argument would be that there is neither a dispute, nor one which threatens international peace and security, and therefore, Articles 33 and 34 are simply of no relevance. Even if one is to argue, as Dr. Marasinghe has done, that the panel appointed by the UNSG is ‘international’, Chapter VI doesn’t broadly cover the unique Sri Lankan case (The better provision to have cited would have been Article 100(1), of Chapter XV).
Now, it should not be forgotten that there are serious concerns with regard to the mandate of this particular Panel, or rather concerns regarding the understanding of the mandate by the members of the Panel. But this does not necessarily mean that specific provisions of the UN Charter have been violated (an accusation which gives rise to a serious legal argument), because the UN Charter does not seem to cover what a UNSG could do with regard to issues of ‘accountability’ in a ‘post-war’ situation when the conflict has ended and there is no dispute whatsoever between the conflicting parties.
It is a problem of the largely outdated UN Charter, and this is exactly why the UNSG was able to appoint a panel and draft a mandate which seemed to please all actors concerned (the West, the panel, and even Sri Lanka, by stating that the Panel is available only as a resource), and still survive without any serious or strong condemnation (Note, in this regard, that even though news reports stated that Russia had ‘slammed’ the UNSG, Russia concludes the statement by pointing out that it hopes that the UNSG Panel would not complicate the investigation being conducted by the Sri Lankan authorities.
That, I would argue, is good enough for the UNSG to carry on with the process). If the UNSG-Panel had been established during the time of armed conflict, i.e. before May 2009, then certainly a strong legal argument could have been raised. But this is not the case. Therefore, when the provisions of the Charter are so vague and unclear, it is not in the best interest of Sri Lanka to take the matter to the ICJ.
Reaching the ICJ: the political process
Another factor Dr. Marasinghe ignores is the political process involved in taking the question to the ICJ. Dr. Marasinghe has not clarified this issue. The impression the reader gets is that any State could easily approach the ICJ and seek an AO on any legal question. No.
Article 96 (1) of the UN Charter states very clearly that it is the General Assembly or the Security Council which may request the ICJ to give an AO on any legal question. Article 96(2) states that other organs of the UN and specialized agencies may also make similar requests. Thereafter, Article 65(1) of the Statute of the ICJ affirms this position in stating that the ICJ may give an AO 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.
Therefore, it is clear that Sri Lanka first needs to win over a majority of the General Assembly (in particular), and without such support, its efforts would not succeed. In any authoritative work on the ICJ’s jurisprudence (especially by the foremost authority on the ICJ, Shabtai Rosenne) one could find how requests for AOs have been made in the past (eg. Res. ES-10/14 of December 2003, adopted by 90 votes to 8 with 74 abstentions as regards the question of Israel’s illegal construction of the wall, Res. 49/75K of December 1994 adopted by 78 votes to 43 with 38 abstentions, as regards the question of illegality of nuclear weapons, etc. etc.).
But is this possible for Sri Lanka? Even the Non-Aligned Movement (NAM) has been so far reluctant to come out with a statement critical of UNSG’s decision, and in addition to this, the impact of Minister Weerawansa’s fast has been an extremely negative one, further damaging Sri Lanka’s credibility in the eyes of her friends.
Furthermore, what is interesting to note is that certain members of the NAM (as numerous news reports suggest) are observing this development from a different perspective. While Sri Lanka may be adversely affected, the precedent that the UNSG has set is extremely interesting and useful for some of the NAM members, because they could now exert pressure on the UNSG and request him to take similar action re. other cases: e.g. Israel (This, I would argue, is the only positive outcome of this whole exercise). So, even if the NAM supports Sri Lanka in taking the question to the ICJ, there is no guarantee that the NAM will be overly worried by the outcome, because given NAM’s interests, some of its members could benefit from any kind of AO that the ICJ decides to deliver. These are some of the considerations not raised by Dr. Marasinghe.
ICJ: the politics of law
Another serious factor that needs to be noted is the ‘politics of law’, or rather, the politics of the ICJ. What makes approaching the ICJ risky is that one cannot be sure of what the Judges would state in response to a question as one posed by Dr. Marasinghe. There is certainly no guarantee that all of them would clearly hold that the UNSG has exceeded his powers.
One reason is because, as pointed out above, the Charter provisions are unclear. (And do not forget, it was the ICJ which held in its Advisory Opinion of 8 July 1996 that in view of the current state of international law it cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence. So holding that the law is unclear is nothing new!). Even if the majority holds that the provisions are clear and that the UNSG has exceeded his powers, what would the impact be of a strong Dissenting Opinion of any single judge? And in such a scenario, wouldn’t there be judges who would come up with such individual opinions?
Take the composition of the court, and the ‘geo-politics’ surrounding the Sri Lankan issue. The US, for instance, has publicly welcomed the establishment of the Panel. In such a context, could one expect the US judge on the ICJ bench, Judge Buergenthal, seriously hold that the UNSG had no power to appoint a panel which advices him, and thereby ridicule the US’s decision to support the establishment of the Panel? Take US’s closest ally, the UK. Now, the present UK judge on the bench is not Judge Higgins (as Dr.
Marasinghe seems to imply when he refers to her as “the judge”), but Judge Christopher Greenwood who is a strong defender of the UK government and its policy on humanitarian intervention. Judge Greenwood (then, as Prof. Greenwood, QC), strongly defended the NATO intervention in Kosovo and in this regarded defended the UK government in the ICJ as UK’s counsel, when the Federal Republic of Yugoslavia sought provisional measures directing a halt to the NATO operations (he held similar controversial views concerning the Iraq invasion, and in this regard see The Evening Standard report titled ‘Easy Justice for QC who took us to war in Iraq’). Now, given the politics surrounding the issue and the response of the West with regard to the establishment of the UNSG Panel, how would these judges approach the issue,
what would they say?
It is due to the above - which seem to raise more problems (and not any meaningful solution) for Sri Lanka - that I fail to agree with the suggestion proposed by Dr. Marasinghe.
There was, and there is, a simple answer to these numerous ‘international’ problems which seem to be piling up: the investigation of all serious allegations of humanitarian and human rights law violations. This was not done, and whether it would be done in the future is unknown. But as long as that problem remains unresolved, different and difficult problems will continue to trouble Sri Lanka. Going in search of Advisory Opinions to The Hague without seriously addressing that enduring domestic problem is of little use. In fact, going anywhere near The Hague could be pretty dangerous.
(Kalana Senaratne, LL.B, LL.M (University College London), is a post-graduate research student at the University of Hong Kong)