Feature Article
3RD LEAD (Update)

UN, a safe haven for alleged criminals?

[TamilNet, Thursday, 19 December 2013, 01:17 GMT]
While the treatment of a woman Indian consular officer in the hands of the wayward New York law enforcement officials who stripped and cavity searched her for an alleged visa fraud has triggered widespread condemnation, the Government of India's swift action to transfer the official to a United Nations post to offer her retroactive diplomatic immunity, has further highlighted that, under the leadership of Secretary General Ban Ki Moon, the United Nations is becoming a safe haven for alleged criminals, political observers in Washington said. Sri Lanka's alleged war criminals, ex-military General Shavendra Silva, under whose command Tamil civilians were massacred, and Palitha Kohona, who has a complaint pending in the International Criminal Court over his complicity the killing of surrendees in the Sri Lanka war, hold UN posts that protect them from prosecution.

A senior Indian official, acknowledged the transfer would not give the consular employee retroactive immunity. However, he said, it would protect her from future charges.

Ex-General Shavendra Silva's case filed in the District Court of New York illustrates that immunity provision is ex-post facto law. Diplomats at U.N., when accepted for the post by the U.N., will enjoy diplomatic immunity even for past crimes.

Inner City Press (ICP) which covers the proceedings within the United Nations in New York, has covered how the U.N. officials have taken and continue to take extra-ordinary measures to provide cover to the alleged war-crimes including, as commander of the 53rd division, given orders that resulted in killings of thousands of Tamil civilians in Mu'l'livaaykkaal at the end of the war in May 2009.

Palitha Kohona, Sri Lanka's ambassador to the United Nations, has been accused of assisting in organising the alleged murders of three surrendering Tamil Tigers in 2009.

Dr. Palitha T. B. Kohona
Dr. Palitha Kohona
In January, two Tamil organisations operating outside Sri Lanka — the Swiss Council of Eelam Tamils and a US group called Tamils Against Genocide — submitted a request to investigate Kohona for the murder of three surrendering Tamil Tigers to the prosecutor of the International Criminal Court. Kohona is said to have been prominent in negotiating the surrender of the victims while serving in the Sri Lankan government, but has denied any involvement in the alleged event.

Shavendra Silva, alleged War Criminal holding UN post
Shavendra Silva, alleged War Criminal holding UN post
On Shavendra Silva's appointment to the UN, Professor Boyle, an expert in international law, said, "U.N. Secretary-General has a Charter obligation to determine that the terms of article 101(3) have been satisfied before he appoints someone to the Staff irrespective of any alleged recommendation by the General Assembly," and therefore, "Ban to appoint a presumptive war criminal to his Staff would be ultra vires his powers under the terms of article 101(3) and thus a violation of the Charter itself."

"Interpreting the law to provide a diplomatic 'cloak' of protection to Silva--who is seen as a war hero in Sri Lanka, but as a war criminal by the United Nations Panel of Experts--contravenes the U.S. Congress's intent behind the law," said Ali Beydoun, co-director at SPEAK and director of the UNROW Human Rights Impact Litigation Clinic.

Beydoun added, "The U.S. Congress never intended to immunize war criminals, and international law does not permit such immunity either. Judge Oetken's decision suggests that individuals who deliberately rample upon humanitarian law during armed conflict can later take advantage of the U.N. system. They can serve as diplomats and invoke its protections to evade accountability in every jurisdiction. This result not only represents an egregious failure of the U.N. human rights system, it should shock the conscience of the international community," Beydoun said.

Another cultural diamension of India's politicians and diplomats was also visible in Ms Khobragade's unfortunate episode. The reaction of high-level decision makers who kept silent was when more horrendous crimes including gang rape were committed by Sri Lanka's security forces on Tamil women, was immediate and harsh: "It is no longer about an individual, it is about our sense of self as a nation and our place in the world," Foreign Minister Salman Khurshid said. Indian national security adviser, Shivshankar Menon, has called such treatment “despicable” and “barbaric.”

Khurshid was reported to have said: “We are not convinced there is a legitimate legal ground for pursuing this case,” he said. “The worst that can be said about her is that she did not comply with the amounts that was supposed to be paid under your law. I don’t think that justifies treating her like a common criminal.”

* * *

Meanwhile, in the case of Ms Khobragade, accusing Washington for the violation of Article 41 of the Vienna Convention on the privileges and courtesies that should be extended to diplomats, New Delhi has responded in the following ways:

India has directed all US diplomats and consular officers posted in the country to return the identity cards issued to them. India has withdrawn airport passes for the US consulates/ embassies personnel and their families. India has withdrawn VIP treatment to all US envoys across the nation. The Delhi police have been instructed to lift traffic barricades, except pickets, outside the US embassy. New Delhi has sought salary details of Indian staff working in the US consulate, including by Consular officers and families such as domestic help. India has stopped all import clearances for the US embassy including liquor. New Delhi has sought visa details of all teachers at US schools in India, salaries paid and bank account details, including of those of Indians in these schools [the last will particularly affect the USA, as the mushrooming US educational institutions operating in India often don’t follow standing regulations in getting prior clearances from GoI and also avoid paying the stipulated salary needed for an employment visa in India.]

As protest, Indian Speaker of the Loksabha, officials and politicians both in the ruling Congress and in the opposition refused to meet with visiting US delegations. Former External Affairs Minister and current BJP parliamentarian Mr Yashwant Sinha said that India should arrest same-sex partners of American diplomats, as homosexuality is illegal in India.

Ms Devyani Khobragade, Deputy Consul General for political, economic, commercial and women’s affairs at the Indian Consulate in New York, was arrested and handcuffed in public while she was driving her children to school. She was strip-searched and put in cell along with common criminals, drug offenders and sex workers. Later she was released on US $ 250,000 bail, after impounding her passport.

The high profile arrest was over an accusation that the diplomat was paying a much less salary, 30,000 Indian Rupees per month, to her domestic help brought from India, while to get visa for the domestic help the diplomat had claimed that the domestic help would be paid a salary of US $ 4500 per month.

The world is aghast at the diplomatic muscle flexing of the two world powers over a petty issue, while both of them have no qualms in making partnerships either in their complicity in genocide or in shielding and protecting their stooges in criminal regimes, commented political observers in Chennai.


Related Articles:
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24.02.13   Suspect genocidaire gives U.S. marines lessons in war
08.12.12   South Africa rejects Silva for deputy ambassadorship?
07.12.12   Sri Lanka's alleged war-criminal inspects UN Lebanon mission
21.05.12   General of genocide released in Colombo
13.04.12   Rajapaksa's blithe contempt for world opinion: Paper
06.04.12   UK accused of permitting alleged war-criminal to escape pros..
18.03.12   Shavendra Silva declared "persona non grata" to British even..
25.02.12   Nambiar opens mouth after killing of Marie Colvin
23.02.12   War-crime allegations lead to Shavendra's ouster from UN pos..
18.02.12   Ban under fire for silence in Shavendra's UN appointment
09.02.12   US Court dismisses Shavendra case on grounds of immunity
08.02.12   Boyle: Appointing alleged war-criminals to UN posts, a viola..
28.01.12   Silva's proposed UN appointment elicits condemnation from Ri..
04.12.11   War crime litigations reach crucial phase in US courts
21.11.11   Treaties provide absolute immunity against civil suits, Silv..
14.11.11   "Charming Betsy" not so charming towards defendant Silva
09.11.11   Shavendra not entitled to immunity, argue attorneys for Tami..
02.11.11   Shavendra raises immunity defense to escape torture charges
24.09.11   Torture case filed against Sri Lanka's ex-General Shavendra ..
08.04.11   HRW demands accountability for wartime disappearances
05.04.11   Australia soft on prosecuting Kohona's alleged war-crimes - ..
13.02.11   TAG, SCET's legal brief asserts ICC obligated to probe Kohon..

External Links:
IndianEmbassy: In response to a media query relating to Dr Devyani Khobragade
USGov: Statement Of Manhattan U.S. Attorney Preet Bharara On U.S. v. Devyani Khobragade
WP: India says it will transfer deputy consul at center of crisis over strip-search arrest
NYT: Outrage in India, and Retaliation, Over a Female Diplomat’s Arrest in New York


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