Sri Lanka vs. UN: 1 – 0

As international lawyers, we are made well aware from the beginning that the “international rule of law” that we work and hope for is a fragile and imperfect concept, constantly challenged by realpolitik and the Westphalian State-centric international system. The current situation in Sri Lanka is a testament to the difficulty of establishing that international rule of law.

So what is going on in Sri Lanka? This week, hundreds of protesters, under the leadership of a (now former) government minister, have laid siege to the United Nations compound in Colombo, refusing to let workers out until the U.N. cancels its investigation of alleged abuses (second edit: Bad choice of words, the UN is not investigating abuses, only thinking of ways to punish the alleged crimes. The UN has no direct jurisdiction over war crimes: they’d have to refer it to the ICC, or create a new ad hoc tribunal) committed during the 25-year civil war there. Demonstrators burned effigies of Secretary General Ban Ki-moon and blocked the police’s attempt to free the workers.

To understand the reason behind this violence directly targeted at the United Nations, a brief summary of events is required. Sri Lanka, formerly known as Ceylon, is a large island off the coast of India in which a civil war that has lasted for more than 25 years was brought to a bloody end last year. The civil war, which has opposed since its start in 1983 the Sri Lankan government against the Liberation Tigers of Tamil Eelam (LTTE, but more commonly known as the Tamil Tigers) who fought to create an independent state on the island for the Tamil minority. During the first half of 2009, the Sri Lankan army defeated, at last, the LTTE by resorting to methods that involved heavy bombings, including of civilians and hospitals, torture, and the holding of everyone, combatants and non-combatants, in prison camps that were out-of-bounds to journalists and international non-governmental organizations. Edit: I should mention that government forces are not the only ones suspected of having committed war crimes. The LTTE are also accused of breaches of international humanitarian law such as the use of human shields (see below in comments).

The United Nations vs. Sri Lanka. Following the Sri Lankan victory, the United Nations was put under pressure for its passivity during the conflict, in particular by Louise Arbour, the head of the International Crisis Group (ICG). The ICG published a report in May 2010 in which it denounced the breaches of international humanitarian law by both the government and the LTTE during the final months of the conflict. In an interview with Foreign Policy editor and Washington Post U.N. correspondent Colum Lynch, Arbour – a well respected lawyer from Canada, who contributed to the success of the International Criminal Tribunal for ex-Yugoslavia as its Chief Prosecutor from 1996 to 1999, as well as a former UN High Commissioner for Human Rights and former Supreme Court Justice of Canada – directly criticized the UN for its inaction during the final months of the Sri Lankan conflict and its failure to push for an independent investigation into alleged war crimes afterwards.

Ban Ki-Moon has since named a three-member panel composed of Marzuki Darusman of Indonesia, Yasmin Sooka of South Africa, and Steven Ratner from the U.S charged with finding ways to punish the alleged war crimes. The creation of the panel has sparked criticism from international heavyweights Russia and China, which both wield veto power at the UN Security Council, and that may cause trouble in the future. The Non-Aligned Movement, composed of 188 developing countries, also support Sri Lanka‘s refusal to investigate war crimes.

It is in “protest” (if we can call it that) against this panel and its work that nationalist mobs have been holding U.N. employees prisoner in their own offices.

Epilogue? The end of the story, at least for now, is that the U.N. are retreating from Sri Lanka. Ban Ki-Moon has recalled the resident coordinator in Sri Lanka and decided to close the United Nations Development Programme (UNDP) Regional Center in Colombo. The Secretary General maintains however that the panel will continue with its work.

A dangerous precedent must not be allowed to be set. The situation in Sri Lanka, as it stands today, cannot be tolerated by the international community, and this for two reasons.

First of all, the United Nations is a respected, legitimate international organization concerned with international peace and security. It is unacceptable that a State, and a Member State at that, can bully the UN towards the door using methods worthy of thugs. Allow me to cite a short excerpt from the United Nations Charter that is unfortunately way too often forgotten:

Article 2(5): All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

(Emphasis is mine)

Way to go on that one, Sri Lanka. Such actions only contribute to decredibilizing the UN’s actions when – for all its faults – millions of lives worldwide depend on it.

Second of all, and perhaps even more importantly, I concur with Mark Goldberg’s analysis over at UN Dispatch that accountability for war crimes matters. Not only does it matter, it is essential. In war, the means must never justify the end, and yet the Sri Lankan army has (allegedly) gone to great and bloody lengths to put an end to the civil war, defying elementary rules of international humanitarian law such as the principle of proportionality and the principle of distinction between civilians and combatants. As Mark Goldberg writes: “if these crimes go unpunished, what is stopping other countries with persistent insurgencies to adopt the “Sri Lankan method” of fighting terrorism? The answer is nothing.

Today’s international context is (at least in part) about the global fight on terrorism, and all the dangers that it involves, as has been often observed (Guantanamo Bay, Abu Ghraib, Bagram Air Base, etc.) It is the responsibility of the international community, and of the UN Security Council in particular, to guarantee global peace and security, and that is clearly under threat when we allow for such ruthless violence to go without consequences.

With the forced withdrawal of the United Nations from Sri Lanka due to an investigation into war crimes, the international rule of law has suffered a great blow and humiliation. It is the international community’s responsibility, and its interest, not to let that humiliation go unpunished. Will it rise to the challenge? Nothing is less sure.

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  1. #1 by Daniel on 9 July 2010 - 16:57

    Once again, great post. I just want to temper your judgement about the methods used, adding that LTTE were nothing like saints.

    • #2 by Xavier on 9 July 2010 - 17:13

      You are absolutely right, and I had no intention to write from a biased perspective. I should have mentioned in the post that the inquiries into war crimes concerned both government forces and the LTTE, who had a rather nasty habit of using human shields (among many other things).

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