SPECIAL REPORT : Part 153January 10, 2017, 9:11 pm
By Shamindra Ferdinando
Having repeatedly assured the country that the change of government, in January, 2015, had ended the likelihood of foreign participation in proposed war crimes inquiry, the yahapalana government struggled to cope up with a report released by its own outfit, headed by attorney-at-law, Mrs Manouri Muttetuwegama.
The Consultation Task Force on Reconciliation Mechanisms (CTFRM) called for full participation of foreign judges, and other personnel, including defence lawyers, prosecutors and investigators, in transitional justice mechanism to address accountability issues.
Mrs Muttetuwegama delivered the report to the, Chairperson of Office for National Unity and Reconciliation (ONUR), former President Chandrika Bandaranaike Kumaratunga, on January 3, 2017, at the Presidential Secretariat. The CTFRM released the report on the eve of the third anniversary of President Maithripala Sirisena’s victory over his predecessor Mahinda Rajapaksa.
The report proved that yahapalana leaders’ assertion wrong. Those who had been propagating the lie that war winning President Mahinda Rajapaksa’s defeat, at the January, 2015, presidential polls, would automatically save Sri Lanka from the humiliation of being probed by the international community, ended up with egg on their faces. Well compiled dossier backed calls for foreign participation in the judicial process. The writer is also of the view that the victims should not be deprived of a proper inquiry. Yahapalana government cannot ignore the recommendations made by its own. Addressing a packed media conference, at the Government Information Department last week, the CTFRM declared that members unanimously approved the report.
The CTFRM comprised Muttetuwegama, Dr Paikiasothy Saravanamuttu, Gamini Viyangoda, Prof. Sitralega Maunaguru, Dr Farzana Haniffa, Mirak Raheem, Prof. Gameela Samarasinghe, Visaka Dharmadasa, Shantha Abhimanasingham, PC, K.W. Janaranjana and Prof. Daya Somasundaram.
The eleven-member committee stressed that foreign participation was required as those who had suffered during the conflict had no faith in local judiciary, which lacked expertise to undertake such a task. They endorsed Human Rights Commissioner Zeid Ra’ad Al Hussein declaration in Colombo, in February, 2016, that the judiciary here was incapable of undertaking the process. The Jordanian questioned the integrity of the local judiciary.
Weliamuna on foreign judges
Attorney-at-law, J.C. Weliamuna confirmed foreign participation in the proposed war crimes court, in Oct. 2015, in the wake of formation of the new government, in August, 2015.
Weliamuna said that Parliament would have to make the required amendments to pave the way for international participation in the process.
The Information Department organised the briefing in collaboration with the state-run Rupavahini.
Weliamuna was flanked by Deputy Foreign Minister, Dr Harsha de Silva.
Weliamuna insisted that Sri Lanka needed foreign expertise to meet the challenging task of inquiring into accountability issues. Post-war Sri Lanka required international expertise though some extremists sought to cause chaos. Quoting from a UN report that dealt with Sri Lanka, Weliamuna said that the local judiciary lacked the capacity to investigate system crimes.
Would the mechanism, proposed by the CTFRM, meet the aspirations of the UK headquartered Global Tamil Forum (GTF) and other Diaspora groups? The GTF has repeatedly called for ‘an internationalized Special Court for criminal prosecution’ to try those who had been accused of committing atrocities, during the conflict.
The GTF urged the 47-member states of the Geneva-based UNHRC, to adopt a resolution that captured all the recommendations of the OHCHR (Office of the High Commissioner for Human Rights) report, including the establishment of a Special Court, and call upon the Government of Sri Lanka to fully cooperate or face the consequences.
Geneva adopted three resolutions, plus an external investigation (2012-2014), on the basis of those who had made uncorroborated accusations at various forums. The UN investigation report, too, repeated accusations that hadn’t been verified. Those who couldn’t stomach Sri Lanka’s triumph over terrorism exploited the previous government’s failure at least to closely examine the allegations. Their failure facilitated the anti-Sri Lanka project, during the Rajapaksa presidency.
Mrs Muttetuwegama’s report proved that the change of government, two years ago, hadn’t changed the Geneva project. War crimes probe with foreign participation is now on track though State Finance Minister, Lakshman Yapa Abeywardena, on behalf of President Maithripala Sirisena rejected the CTFRM recommendations. Mrs Muttetuwegama’s proposals included immediate demilitarisation of the Northern Province, abolition of the Prevention of Terrorism Act (PTA) and bifurcation of the Attorney General’s Department to pave the way for an Independent Prosecutor’s Office.
TNA, GTF on foreign judges
The GTF statement received the endorsement of the four-party Tamil National Alliance (TNA), which is recognised by the government as the main Opposition political party. The Centre for Policy Alternatives (CPA) has joined the GTF-TNA project. They addressed gatherings, in Bern and London to articulate their position, vis-a-vis Geneva declaration. The CTFRM included two members of the CPA, namely Dr Saravanamuttu and Mirak Raheem.
The GTF came into being in the wake of the LTTE’s demise, on the banks of the Nanthikadal lagoon, in May, 2009. The grouping had its inaugural meet in the UK parliament, on Feb. 24, 2010, with the blessings of three major political parties, as well as the US government. The GTF’s choice of venue was no coincidence. Had the LTTE survived the government onslaught on the Vanni front in early 2009, Prabhakaran wouldn’t probably have seen the need for such an organization. The TNA, too, would have remained simply an LTTE proxy with Prabhakaran still remaining the sole representative of the Tamil speaking people.
The bottom line is that had the US and Norway succeeded in throwing a lifeline to Prabhakaran, as desired by the British, Sri Lanka’s accountability issue wouldn’t have ended up in Geneva. In fact, those who had called for Geneva intervention wouldn’t have done so if fighting was brought to a negotiated end.
Sri Lanka now faces a formidable challenge in addressing accountability issues raised by Mrs Muttetuwegama’s outfit. It would be the responsibility of the government of the day to defend the armed forces as well as the wartime political leadership in court. The previous government should take the responsibility in messing up Sri Lanka’s defence. The Rajapaksa administration caused irreparable damage by hiring expensive US public relations firms to win over the outgoing US administration at the expense of credible effort to establish the truth.
They, however, did obtain legal opinion of some of the leading jurists and other experts in the world, who literally dismissed the one-sided charges levelled against Sri Lanka. The team consisted of Sir Desmond de Silva, QC, Chairman of the legal advisory council (UK), Professor Sir Geoffrey Nice QC. (UK), and Professor David M. Crane (USA), They were backed by Rodney Dixon, QC. (UK/ South Africa), Professor Michael Newton (USA), Commander William Fenrick (Canada), Professor Nina Jorgensen and Major General John Holmes, DSO, OBE, MC (UK) former Commanding Officer of the Special Air Service (SAS) Regiment, Paul Mylvaganam (UK) and Victoria de Silva and Delarney Uyangodage, for their research.
The CTFRM recommendation should be examined against the backdrop of Jaffna District MP and attorney-at-law M.A. Sumanthiran’s declaration in respect of foreign judges.
Sumanthiran told a ‘Congressional Caucus for Ethnic and Religious Freedom in Sri Lanka’ in Washington that the government of Sri Lanka, the TNA and the US had been involved in the negotiations leading to the agreement regarding foreign judges, defence attorneys, investigators etc. The revelation was made before Geneva adopted the Resolution on Sri Lanka.
The declaration was made in the presence of Sri Lanka’s Ambassador in Washington, Prasad Kariyawasam.
Attorney-at-law Sumanthiran stressed that the resolution was moved in Geneva following an understanding that the participation of foreigners wouldn’t be contrary to Sri Lanka’s Constitution. Declaring that he had been personally involved in the negotiations, with the United States of America also participating in that particular process, Sumanthiran said: "There were some doubts created, as to whether the Constitution of Sri Lanka would allow for foreign nationals to function as judges and we went into that question, clarified it, and said yes they can".
Sumanthiran told the Congressional Caucus that the resolution, accepted at Geneva, had been negotiated and they settled for a hybrid model though they originally asked for an international inquiry.
Let me examine issues which should be brought to the notice of the proposed judicial mechanism. It would be of pivotal importance to prepare for the best possible defence without being too much bothered with the type of court, likely to be established, in accordance with the Geneva Resolution, adopted in Oct. 2015.
Secretary to the CTFRM, Dr Saravanamuttu, underscored that their report had been prepared in line with the Geneva Resolution co-sponsored by the government of the day. The Resolution, called for international judges, including those from the Commonwealth.
*It would be the responsibility of yahapalana government to establish the circumstances leading to Eelam War IV, in August, 2006, and the complicity of the TNA in the LTTE’s overall project. Co-chairs to Sri Lanka Peace Process, namely the US, EU, Japan, and Norway, as well as India, should be called in to establish the events leading to the final war.
*Norway and the five-nation Scandinavian truce monitoring mission, which monitored the tripartite Ceasefire Agreement (CFA), involving Norway (facilitator), Sri Lanka and the LTTE, should be able to prove the LTTE quitting the negotiating table, in April, 2003.
*TNA making representations on behalf of the LTTE, in the run-up to parliamentary elections, in April, 2004. The TNA-LTTE coalition should be examined in the backdrop of the former recognizing the latter as the sole representative of the Tamil speaking people.
*The EU Election Observation Mission report, on the April, 2004, election, can prove the direct relationship between the LTTE and the TNA. The EU pointed out the fact that the LTTE stuffing ballot boxes helped the TNA to acquire the lion’s share of seats in the Northern and Eastern Provinces. The TNA secured 22 seats, including two National List slots, at that election.
*The TNA ordering Tamil speaking people not to exercise their franchise at the Nov. 2005, presidential election, on behalf of the LTTE, underscored their joint strategy. Their move helped Mahinda Rajapaksa to win the presidency. An expensive Norwegian study, closely examined LTTE/TNA directive, leading to Ranil Wickremesinghe’s defeat (Pawns of Peace: Evaluation of Norwegian Peace Efforts in Sri Lanka). UNP Chairman and Minister of Development Strategy and International Trade, Malik Samarawickrema, told this writer, over the phone that Wickremesinghe could have easily won the election if not for the LTTE/TNA action (LTTE action belies ali-koti pact-The Island, Nov 21, 2005).
*The SLMM blamed the LTTE for launching Eelam War IV, during the second week of Aug. 2006, with a multi-pronged assault, meant to overrun the Jaffna peninsula. The battle claimed the lives of 700 combatants, and 1,000 wounded (SLMM blames LTTE for Jaffna battle-The Island, Sept 8, 2006). The LTTE resumed claymore mine attacks, during the first week of Dec 2005. In January, 2006, the LTTE blasted a Fast Attack Craft (FAC) off Trincomalee. In spite of grave LTTE provocations, the then President accepted Norwegian facilitated talks. Much to the chagrin of those who had backed his candidature, at the Nov. 2005, presidential polls, President Rajapaksa went ahead with the Geneva talks. The TNA never uttered a word in support of the President’s initiative. The mainly foreign funded so-called civil society remained mum as the LTTE flexed its muscles.
* Those who had shared their horrific experiences, with British media outfit, Channel 4 News, UNSG Ban Ki-moon’s Panel of Experts (PoE), International Crisis Group, Human Rights Watch, Amnesty International and Office of the High Commissioner for Human Rights (OHCHR) should be requested to come to - the judicial mechanism. The PoE, in March, 2011, recommended that accusations directed against Sri Lanka cannot be verified for two decades. Even after the completion of the mandatory 20-year period, information cannot be verified without a declassification review. (PoE report page 6 point no 23).
*A comprehensive inquiry is required to establish the number of civilians killed, during the final phase of the conflict. For want of an inquiry, various interested parties propagated varying figures regarding the number of civilians dead. Long standing LTTE supporter, British MP Siobhain McDonagh (Mitcham and Morden - Labour) told the House of Commons on Sept. 15, 2011, that Sri Lanka’s war, in its last five months alone, had claimed the lives of 100,000 people, 40,000 of them civilians. The UN backed court can request McDonagh to reveal how she had reached that conclusion. The Labour Party politician targeted Sri Lanka during a debate in the House of Commons on ‘human rights in the Indian sub continent.
*A proper inquiry is required to establish the truth. A confidential report, prepared by the UN mission, in Sri Lanka, can help ascertain the ground situation, during the Vanni offensive. The report dealt with the situation, in both the west and the east of the Kandy-Jaffna A9 road, from August, 2008, to May 13, 2009. The war ended six days later. The PoE rejected that report, in spite of it being based on accurate information provided by the national staff of the UN and NGOs, as well as the ICRC. The UN report estimated the number of dead, at 7,721, and 18,479 wounded. The UN report disproved claims that the then government conducted a war without witnesses. Although, the government requested expatriate staff of international NGOs to vacate the Vanni, during the battle for Kilinochchi (August-Dec 2008), the ICRC remained there, until Feb 2009.
*The entire set of confidential US diplomatic cables, originating from Colombo, New Delhi, Geneva, Washington, as well as London, relating to Eelam War IV, too, should be examined. The Norwegian examination of its role here included a comprehensive study of diplomatic cables revealed by whistle blowing website Wiki Leaks. Unfortunately, the previous government never thought of studying them. The US cables dealt with various aspects, including the then British government intervention in Sri Lanka, due to domestic political issues, ICRC on accusations of genocide committed by the Sri Lankan Army, as well as secret consultations with political parties here. One such cable dealt with SLMC Chairman, Basheer Segudawood, discussing political strategy in the run-up to the Nov., 2005, presidential poll. US cables also extensively dealt with communications among Colombo-based embassies. Another cable quoted a top ICRC official as having told the Geneva-based US envoy that the Sri Lankan Army could have brought the war to a conclusion much earlier than May, 2009, with less casualties of its own if not for the civilian factor.
*The ICRC, as well as the Indian High Commission, will be able to help establish the total number of wounded, evacuated by sea, following the closure of overland routes due to intense fighting. The last ICRC - supervised evacuation took place on May 9, 2009, 10 days before the final confrontation. Those who had been accusing the previous government of conducting a genocidal war never explained that President Mahinda Rajapaksa allowed an Indian medical team at Pulmoddai, north of Trincomalee, and subsequently at Manik Farm in the final phases of the war. In fact, one US diplomatic cable, originating from Geneva, in June 2009, cleared the Sri Lankan Army of genocide charge.
*Wartime US Defence Attaché in Colombo, Lt. Colonel Lawrence Smith, can provide crucial evidence. Lawrence is on record as having denied accusations relating to massacre of surrendering LTTE personnel. The denial is of utmost importance because it took place over two years after the conclusion of the conflict.
*An Amnesty International report, titled ‘When will they get justice: Failure of Sri Lanka’s Lessons Learnt and Reconciliation Commission’, released in September, 2011, too, should be examined. The Amnesty International estimated the number of civilians killed at 10,000, whereas others accused Sri Lanka of killing as many as 100,000 Tamils within five months (January-May 2009). The investigative process should seek to reach a consensus on the number of civilian dead.
*India, EU, the US and other countries, including Australia, should cooperate with the new court to establish the identities of Sri Lankans living overseas under new identities. Such a process is needed in the backdrop of evidence that many Lankans obtained new identities while receiving foreign citizenship. Front line Socialist Party (FSP) leader, Kumar Gunaratnam, receiving Australian passport bearing the name of Noel Mudalige, is a case in point.
The OHCHR comment, as regards the LTTE restricting movement of Tamil speaking people, during Eelam War IV, revealed the shocking failure on the part of UN investigators to investigate all relevant information. The following is the relevant section, headlined Control of movement: 49. OISL’s findings indicate that there are reasonable grounds to believe that the LTTE had a clear high level policy of preventing civilians from leaving the Vanni, thereby unlawfully interfering with their liberty of movement. The information also shows that the policy hardened, from January 2009, although the specific instructions as to how LTTE cadres should prevent anyone from leaving need to be clarified. Nevertheless, the information gathered indicates that a number of individuals, including several children, were shot dead, injured or beaten by LTTE cadres as they tried to leave, in contravention of their right to life and physical integrity. These acts may amount to direct attacks on civilians not taking direct part in hostilities, in violation of international humanitarian law. If established before a court of law, and depending on the circumstances, such conduct may amount to a war crime."
"50. By compelling civilians to remain within the area of active hostilities, the LTTE also violated its obligation under international humanitarian law to take all feasible measures to protect the civilian population under its control against the effects of attacks from the security forces."
In fact, the UN knew of an LTTE project to prevent civilians from seeking refuge in the government -held area, in early 2007, at the onset of the Vanni offensive. The Island revelation of the LTTE detaining Tamil UN workers, in April 2007, led to the issue being raised in New York (LTTE detains UN workers-The Island, April 20, 2007) and (UN had talks with Tigers on the sly-The Island, April 23, 2007).
In the wake of The Island reportage of criticism of UN action, the issue was raised at the daily media briefing, in New York. Responding to queries, UNSG Ban Ki moon’s spokesperson, Michele Montas, revealed that the UN mission in Colombo hadn’t informed New York of the kidnapping of the Tamil UN workers. Montas was speaking over 10 weeks after the incident. Wouldn’t it be interesting to examine the accountability on the part of UN mission in Colombo? Referring to The Island exposure, Montas said: "We don’t have any confirmation of that newspaper report. We have heard them. As soon as we have a confirmation, we’ll get something for you on that. I am checking with the UN presence in Sri Lanka". Stressing that the UN mission in Colombo hadn’t confirmed the newspaper reports, Montas said: "I don’t know. We don’t have any confirmation. They haven’t confirmed those reports. I heard them through the press. (UN HQ admits Colombo office kept it in the dark with strap line SL government criticizes UN inaction-The Island April 28, 2007).
Had the UN intervened forcefully, a sizable section of the Vanni population could have escaped from the LTTE and sought protection in the government-held area. The LTTE subsequently, prevented the UN from moving its local staff from the Vanni to the government-held area. Still the UN and Colombo-based Western embassies tolerated the LTTE’s action and the TNA never even bothered at least to issue a statement expressing displeasure. Instead, it remained mum until the Army brought the war to a successful conclusion, thereby freeing it from Prabhakaran’s terror network.
Sri Lanka should present its defence in proper context. The responsibility lies with the Maithripala Sirisena-Wickremesinghe administration.