Colombo Telegraph

Sri Lanka And The Article 99 Of The UN Charter

By S. V. Kirubaharan –

S. V. Kirubaharan

Paper presented by S. V. Kirubaharan, General Secretary, Tamil Centre for Human Rights, France, in the conference on Genocide organised by the TGTE in London, UK. 28-29 September 2013

Mr Moderator, co-panellists, friends, ladies and gentlemen.

First of all, I would like to thank the organisers of this conference, the members of TGTE, for inviting me to speak.

At the same time I would like to express my personal gratitude and appreciation to Rudra Annai (Mr V. Rudrakumar, PM of TGTE).

Ladies and gentlemen,

Soon after the Second World War, fifty-one nations gathered in San Francisco in June 1945 to establish, the United Nations – UN, an inter-government body, replacing the League of Nations. All member states agreed that there should be special provision in the UN Charter for the United Nations Secretary General – UNSG who is accountable to no nation, but to the UN. He was given authority to give early warnings regarding matters that were not on the agenda of the UN Security Council – UNSG. The UNSG can exercise his right through political judgement to consider any situation which may be a threat to international peace and security.

This powerful mechanism is Article 99 of the UN Charter. It appears in Chapter XV, which is titled The Secretariat. This article can be invoked by the UNSG during an urgent and emergency situation in any UN member States. In fact, Article 99 has been invoked by the UNSG, not only to alert the UNSC but to alert the other organs of the UN, the General Assembly and the member States.

Article 99 stipulates that: “The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”. This obviously gives a primary, independent and political role to the UNSG, to lead the Security Council to act when and where international peace and security are under threat.

The act of alerting the UNSC and also the member states defines “early warning” in a situation of armed conflict.

Article 99 also provides for the UNSC appointing of independent fact-finding committees and gathering information to prevent further escalation of crisis in any member country. Whenever the UNSC has an urgent or emergency meeting under the request of the UNSG, he addresses it as the first speaker on the crisis.

The information sources of the UNSG are very important and include the following: UN staff and agencies; UN High Commissioner for Human Rights, Stake holders, UN member states; Media and in general, members of civil society.

It is true that there have been situations in which the UNSG has invoked Article 99 as a “late warning” or in support of statements already made by member states.

However, according to a strict application of Article 99, it has been used on only three occasions in the first half century of the UN. These were in relation to the Congo in 1960, in 1979 during the American hostage crisis in Iran and in 1989 in Lebanon. However the Congo and the Lebanon cases were “late warnings”.

In Jun 1950, then UNSG warned the UNSC that North Korea may attack South Korea. Considering the emergency situation, the US demanded a UNSC meeting but USSR boycotted this meeting.

In Sep 1959, Laos’s alleged Vietnamese aggression gave rise to the UNSG requesting to send a UN force. But due to objection from USSR no force was sent.

On 5 July 1960, the Congolese government sought UN military assistance to protect against Belgian Para troops.

In July 1961, fighting intensified in Bizerta in Tunisia. When the Tunisian and the French forces were clashing, the UNSG considered this and warned the UNSC that there was threat to international peace and security. The UNSC called for an immediate cease-fire and the return of all armed forces to original positions. France refused to participate in this meeting.

In July 1974 during UNSG Kurt Waldheim’s time, the Greek Cypriot National Guard staged a coup d’état on 15 July in Cyprus against the first President Archbishop Makarios.

The UNSC endorsed continued UN peacekeeping efforts and authorized UNSG to attempt to mediate the dispute. On 20 July, due to the Turkish invasion, the UNSC passed a resolution calling for a cease-fire.

On 4 November 1979 the US Embassy in Tehran was seized by revolutionary Islamic students with the support of the Iranian government.

In 1980, UNSG Waldheim wrote to the UNSC, when Iraq invaded Iran on 22 September 1980, warning that fighting between Iraq and Iran was a threat to international peace and security. The UNSC adopted a resolution on 26 September urging Iraq and Iran to accept mediation and calling for a cease-fire.

In August 1989, UNSG Javier Pérez de Cuéllar, wrote to the UNSC regarding the escalation of violence in Beirut stating it posed a serious threat to international peace and security.  He requested the UNSC to call for a meeting urgently.

In 2001 Kofi Annan said that he still had found it necessary for him to invoke article 99. But there were occasions when Kofi Annan had informal meetings under article 99 on escalation of violence in the Middle East.

Article 99 never invoked

UNSG U Thant never invoked article 99 when Mujibur Rahman and Awami League had told foreign press reporters that their announcement of the 7th March 1971 would be equivalent to Unilateral Declaration of Independence UDI.

When the President of Pakistan Yahya Khan ordered his Army to suppress the action of the Awami League resulting in a bloodbath in East Pakistan, U Thant never invoked Article 99. Pakistan and India maintain that this was an internal matter. As there were millions of refugees who had fled to India from East Pakistan, the UNSG limited his involvement to purely humanitarian matters.

In 1994 during the period of Boutros Boutros-Ghali, there were numerous signs of the impending genocide in Rwanda, perceived by UN peacekeepers and other UN sources. The failure of Boutros Boutros-Ghali to invoke article 99 resulted in over half a million Tutsis being massacred in Rwanda.

Another deplorable case of failure to invoke article 99 led to 70,000 to over 100,000 Tamil civilians being slaughtered by the Sri Lanka military in Vanni, the Northern part of the island of Sri Lanka.

In my opinion

My opinion is not necessarily the same as others.

Where conflicts, genocide, right to self-determination and independence are concerned, Eelam Tamils in the island of Sri Lanka are amongst the most tragic. In an article titled “The Tamil People’s Right to Self-Determination”, published in the Cambridge Review of International Affairs, in 2008, TCHR has set out in detail, the argument defining what happened (and is happening) to the Tamils as genocide. The scope and elements of genocide considered in the first international genocide trial in history, informed the international humanitarian law standpoint of the argument.

Here I do not have to go into the history of Eelam Tamils nor about the island history.

Briefly, as more than three long decades of non-violent struggle had been brutally suppressed by the Sinhala Buddhist governments, birth was given to armed struggle and a continued demand to exercise the right to self-determination. In fact, the demand for external right to self-determination originated long before the Liberation Tigers of Tamil Eelam – LTTE. It was not introduced by the LTTE as the Sri Lankan government misinforms the international community.

This armed struggle had many ups and downs but eventually a successful de-facto administration with all infrastructures was established by the Liberation Tigers of Tamil Eelam – LTTE, also known as the Tamil Tigers.

The Sri Lankan government knew well that their forces alone – land, sea and air – could not win on the LTTE battlefield. Therefore while they continued to fight militarily, they also carried out a strong international lobby, disseminating misinformation. This was the beginning of the failures.

Tamils who are victims of Genocide and victims of misinformation, have the duty to analyse the reasons why the UNSG never invoked Article 99, especially when 70,000 to over 100,000 innocent people were massacred, facing all sorts of inhuman sufferings.

There were a few factors that prevented the UNSG invoking the Article 99.

Firstly, the strong lobby with high-profile individuals on behalf of the Sri Lankan government. In other words, the Tamil diaspora lobby and the lobby by the LTTE political wing themselves never earned enough sympathy or the solid support of any single country.

Secondly, the party to the conflict, the LTTE, was banned in nearly 36 countries, including by the USA, UK, EU and India. The international community expected that the LTTE may challenge those bans, but it never did!

It is true that the human suffering and disaster was, and is – more than enough for the UNSG to act. But as I said before, the UNSG always exercises his right to invoke Article 99 through political judgement.

I agree that there were a few informal meetings in the UNSC initiated by a few States but nothing at the request of the UNSG.

The third factor was a crucial one. The Secretariat of the UNSG had one or two officials who were hostile to the LTTE. One of the official’s own brother was an advisor to the Sri Lankan military in their offensive against the LTTE.

Fourthly, there was a de-facto administration which had existed for nearly two decades with much infrastructure. Unfortunately no UDI was made by the LTTE. In fact, in June 2008 I wrote an article titled as “UN member states recognise de-facto and independent states”. It was widely published in many media including in one of the newspapers ‘The Nation’ in Colombo,.

In that article, I concluded that, “Presently Tamil Eelam is lacking in only three things. One, it has not declared its independence; secondly, it is waiting recognition and thirdly, even though it has its own financial institutions, it is using the Sri Lankan currency in place of its own. Therefore it is the right time for Tamil Eelam to think of introducing its own currency and to work hard for its international recognition.” (Excerpt – The Nation, 1 June 2008)              

If UDI had been declared by the LTTE, today the diaspora would have been able to continue the lobby to re-establish either the de-facto state or something else!

However a few truths have been documented in the UNSG’s reports published on Sri Lanka. – Panel of Experts that advise him on accountability with regard to any alleged violations of international human rights and humanitarian law, 12 April 2011 and the UNSG’s Internal Review Panel (IRP) on UN action in Sri Lanka, November 2012.

However, it is my understanding that now it is too late to expect the UNSG to invoke Article 99 regarding the case of Tamils in the island of Sri Lana.

Sri Lanka realized the value and effects of Article 99 long ago. This was the reason why they blocked Kofi Annan’s visit to LTTE administrated areas in 2005, using the Article 100 of the UN Charter.

Article 100

  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 on their position as international officials responsible only to the Organization.
  2. Each Member of the United Nations undertakes to respect the exclusively inter- national character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.

In my opinion if Kofi Annan had successfully visited the LTTE administrated areas, the UNSG may have invoked Article 99 and today Eelam Tamils would have been in a very different situation.

Way forward

However, these opportunities are all past. One mistake in the past should be a lesson for a bright future. Therefore we cannot ignore our past. We are at a crucial juncture. We can’t make any more mistakes and have diplomatic debacles.

No external right to self-determination has ever been invoked without the help of neighbouring countries. Eritrea, East Timor, Kosovo and South Sudan are good examples.

As far as the Eelam Tamils are concerned, neighbouring India plays a very crucial role in our political struggle. Whether one likes it or not, our past experiences and mistakes have taught us a lesson that we can’t achieve anything without the help and support of India.

This cannot be achieved through the support of only one state within India – Tamil Nadu. There are 28 States in India. The Sri Lankan government realises this fact and is lobbying 27 states – all of them apart from Tamil Nadu.

Our present diplomatic struggle should be motivated, coordinated and targeted. There is no way that goals can be achieved without unity! Whether through the UN or any other inter-governmental institution, it should be with the support of powerful countries.

We have missed the opportunity for the UNSG to invoke Article 99 of UN Charter. However, we can still achieve our goal in a step by step process, using given procedures. This is where the international community, powerful states and the neighbouring India may help us.

At the same time, the UNSC, which has the primary responsibility for the maintenance of international peace and security, has to realise the importance of the root causes of our conflict. We need long-term preventive measures and a permanent solution. Provision is set out in Article 55 of the UN Charter, which covers a wide range of essential aspects, including universal respect for human rights as a necessity to create conditions for stability.

The following issues are all covered in the Charter: Root causes, preventive measures, addressing the political needs through democratic approaches, constitutional power sharing, trust building between communities and ethnic groups, rule of law, strengthening legal protection, and independence of the judiciary and promotion of civil society.

With new actors – many new states, (the UN has grown from 51 member states in 1945 to 193 today) – has come a wide range of new voices, perspectives, interests, experiences and aspirations.

A few old states and a new state, Kosovo, are waiting to process their identity with the UN. International law holds a range of possibilities, designed in sets of articles permitting what states can do to further the concepts of human rights – which can be used to further collective rights.

Sri Lanka has the responsibility to protect the people, to prevent violations and to rebuild the lives of the people whom it claims as its people and who are experiencing starvation, ethnic cleansing and slaughter. As Sri Lanka is unwilling and unable to carry out its responsibility, now this responsibility is in the hands of the international community.

It is vital and a matter of urgency to get the necessary political commitment from the UNSG, UNSC as well other organs of the UN.

Once again thank you very much for inviting me to this conference.

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