As the UNHRC sessions heats up, one of the questions in the minds of most members of the public is whether the UNHRC can initiate a war crimes probe against Sri Lanka. There are only two ways in which a war crimes trial can take place.
One would be for the Security Council of the UN to institute a war crimes tribunal as had been done in the case of the special Tribunal on Yugoslavia (ICTY) or the Special tribunal on Rwanda (ICTR). The other way is for the International Criminal Court (ICC) to initiate proceedings against Sri Lanka. There are three ways in which the ICC can commence a probe against a country. The first way is for the UN Security Council to refer a matter to the ICC in which case, the ICC will have the authority to act even if the country concerned is not a signatory to the Rome Statute which set up the ICC. The other methods by which the ICC can initiate a probe is if any member of the ICC moves a motion calling for a probe against any other member state. The Prosecutor of the ICC can also recommend that a probe be initiated against a country if he is satisfied that there are sufficient grounds for doing so.
But in both these latter instances, the country concerned should be a signatory to the Rome Statute – Sri Lanka is not a signatory – so no war crimes probe can be initiated against SL without the sanction of the UN Security Council. The likelihood of the UN Security Council sanctioning a war crimes probe against Sri Lanka is quite remote because both China and Russia will use their veto power to block it. So a war crimes probe will never see the light of day through Geneva. What can emanate from Geneva will at the most be a Commission of Inquiry (COI) like the one they appointed on Syria in 2011 mandate ‘to investigate all alleged violations of international human rights law’. Such a commission will only be able to carry out an exercise like that which has already been done by the advisory panel appointed by Ban Ki-moon which produced its report in April 2011.
Ban’s advisory committee was appointed outside the normal procedure of the UN using the authority that any institutional head has to seek advice on a matter before him. Usually, when the UN Secretary General appoints an Expert Panel (a real one) this can be done only at the request of the Security Council. However the committee of inquiry that Ban appointed did not have the sanction of the Security Council but was appointed only to give advice to him. This advisory committee produced a report which is called an ‘Expert Panel Report’ without actually being a Expert Panel Report as per the operating procedures of the UN. Usually such a report is a game changing document which results in a complete change in the history of the country that was thus investigated because it has the weight of the entire Security Council behind it. But the Ban report had no such weight behind it. On the contrary it came up for derision even in the British parliament with one Conservative MP pointing out during a debate on Sri Lankan asylum seekers that clause 153 of that report says that nothing in the report should be taken as proven fact!
Now if the UNHRC appoints another Commission of Inquiry to do exactly what the Ban advisory committee has done, it will be an official commission sanctioned by a properly constituted UN body – the HRC. It will not be a pretence and a back door operation like the Ban report. But the Ban report has been used against Sri Lanka for the past two years as if it was an official UN document even though it was not. A UNHRC Commission of Inquiry will turn Ban’s report into a joke. These things should have been done in the reverse order. The UNHRC should have had the COI first and based on that report, recommended to the Security Council that action be taken and the Security Council should in turn (if it thought fit) have instructed the Secretary General to appoint an Expert Panel to go into the matter and recommend measures to be taken which the Security Council will then carry out.
But in SL’s case everything is turned on its head. Any moral pressure that the UNHRC could have exerted on SL by instituting a COI has now been vitiated because the Western powers jumped the gun and got the UN Secretary General to publish that advisory committee report. A similar report with much the same allegations will not necessarily sway Sri Lanka one whit. Ironically, if the Ban advisory panel report had not been published, a COI appointed by the UNHRC would have had a much greater impact on Sri Lanka, because it would have been sanctioned by a properly constituted UN body. But at this stage, even if a properly constituted body carries out another investigation, they will basically repeat what was said earlier in Ban’s report and since the world has already heard the story, it will not have the desired impact.
Then we come to the question of economic sanctions. The UNHRC does not have the power or the authority to impose economic sanctions. All they can do is to perhaps recommend to the Security Council that such action be taken against a particular country but the Security Council is not going to take any action against Sri Lanka because of the veto power of China and the Russia. What the Western powers can do however is to impose unilateral sanctions against Sri Lanka. But the UNHRC is already considering a resolution No: A/HRC/21/L.18 against the imposition of unilateral sanctions against countries. This is an ongoing subject of discussion and is due to come up again in 2014. If the western powers try to impose unilateral sanctions on Sri Lanka, in the middle of this very discussion against unilateral sanctions, what is that going to make the UNHRC look like?