Tuesday, 22 April 2014

Gathering war crimes evidence the UN way



Sri Lanka’s Deputy Permanent Representative at the UN, Maj. Gen. Shavendra Silva shakes hands with UNSG Ban Ki-moon in New York.

By Shamindra Ferdinando

Having failed to obtain the anticipated response to its public call for submissions, UNSG Ban Ki-moon’s three-member Panel of Experts (PoE) had no option but to extend the deadline to Dec 31, 2010. The PoE posted a notice in English on the UN website on Oct 27, 2010 calling for submissions on or before Dec 15, 2010. Sinhala and Tamil versions of the notice too, were subsequently posted. The PoE report released on March 31, 2011, acknowledged that the decision to extend the deadline to Dec. 31, though it didn’t give a specific reason.

The PoE comprised former Indonesian Attorney General Marzuki Darusman (Chairman), US attorney-at-law Steven R. Ratner and South African NGO guru Yasmin Sooka. From Oct 27, 2010 to Dec 31, 2010, the PoE received 4,000 submissions from 2,300 persons.

In the backdrop of the United Nations Human Rights Council (UNHRC) receiving a mandate to go ahead and investigate alleged atrocities committed by the Sri Lankan military as well as the culpability of the political leadership in war crimes, it would be pertinent to examine the circumstances under which the PoE collected information. Such an examination is necessary, particularly because of the controversial confidentiality clause meant to conceal the identity of those 2,300 complainants for 20 years, from the date of the publication of the PoE report.

When the writer raised the issue with UN as well as UNDP Resident Representative in Colombo, Subinay Nandy whether the UN would do away with the confidentiality clause to facilitate the UNHRC probe, the Colombo mission issued the following statement after having consulted UN headquarters. The UN said: "The High Commissioner for Human Rights will now be making arrangements for a comprehensive investigation requested by the UNHRC and the issue of the confidentiality clause will need to be considered at a later stage," (UN to revive 20-year confidentiality clause ‘at a later stage’-The Island April 7, 2014).

The US, the British as well as the EU too, in spite of their push for in international war crimes probe recently ruled out the possibility of them calling for a review of the confidentiality clause (EU too, won’t call for review of 20-year UN confidentiality clause-The Island April 9, 2014).

Sri Lanka’s refusal to cooperate with the investigation undertaken by the UNHRC can be advantageous to those seeking a regime change here. Instead of blanket denial, the government should take tangible action to challenge the very basis of the PoE report as well as the lies propagated by the UK media outfit, Channel 4 News. In case Sri Lanka shunned the investigation, the UNHRC will accept the available information as evidence and proceed swiftly to fault the Sri Lankan government. Sri Lanka will have to successfully challenge the PoE as well as Channel 4 News or face the consequences. There cannot be a better way than pushing the UN/PoE to prove their allegations. Now that the UN is on record as having said that the confidentiality clause will be considered at a ‘later stage’, the government should take it up without further delay. The government will have to discuss this issue at the highest level at the UN without further delay. The writer is of the opinion that the government should ask those international actors active in Sri Lanka during the conflict, including the UN, UN agencies as well as the International Committee of the Red Cross (ICRC) to come clean about the situation in the Vanni east front (January 2009-May 2009). Sri Lanka should push for an international forum with the participation of member states of the UNHRC as well as the EU to appraise the available information.

Nothing can be as important as releasing a confidential war time dossier prepared by the UN mission in Colombo ahead of the investigation. There cannot be a better ‘source’ than the UN report that dealt with fighting on multiple fronts in the Vanni region, both west and east of the Kandy-Jaffna road from August 2008 to May 13, 2009.The then head of the UN mission in Sri Lanka, Neil Bhune (July 2007-February 2011), supervised the project. Bhune was succeeded by Subinay Nandy. The dossier approved by the UN mission in Colombo estimated the number of deaths at 7,721 and 18,479 wounding during the period from August 2008 to May 13, 2009. However, it didn’t specify losses suffered by the LTTE fighting cadre, a failure even discussed in classified diplomatic cables originating from the US embassy in Colombo, at the height of the war. The UN report was based on information provided by local staff of the UN and other NGOs in the LTTE-held area, the ICRC, religious authorities and other sources. As the UN mission in Colombo can still get in touch with those who had contributed to the report, UN investigators have an opportunity to verify facts.

The UN remains silent on the confidential dossier though it can be of paramount importance. The Sri Lankan government too, is yet to take it up with the UN. Sri Lanka’s failure to push the UN on this issue is surprising, as there cannot be a better way to counter unsubstantiated claims that 40,000 civilians perished during the final phase. Unlike the UN, both PoE and Channel 4 News hadn’t specified the period they meant by the final phase. The bottom line is that as the UN had accurately covered the ground situation for almost ten months (Aug 2008 to May 2009), it can be considered the best possible source. The UN’s failure to record the deaths and injuries from May 14, 2009 to May 19, 2014 cannot justify attempts to disregard the valuable dossier. As the PoE too had an opportunity to examine the UN dossier, there is no reason for any party to object to its release ahead of the investigation targeting Sri Lanka (Government won’t cooperate, but wants secret UN report released-The Island April 9, 2014).

Online petitions

Let me examine the way the PoE may have gathered some of its unsubstantiated information. Those wanting an international war crimes probe had an opportunity to choose from over two dozen sample letters by the Tamil Diaspora to be sent online to the PoE. The Diaspora, while making available 25 samples online, urged those interested in joining the campaign to fill an online petition in case of their inability to write on their own (How Moon panel gathered ‘war crimes ’info revealed-The Island April 21, 2012).

Wouldn’t it be interesting to know whether such online petitioners were among those 2,300 persons covered by the UN’s confidentiality clause?

Sri Lanka should push for a comprehensive examination of all available evidence/information gathered by those wanting to have Sri Lanka investigated for wartime atrocities before they are accepted by the UNHRC. It would be nothing but a catastrophic mistake if Sri Lanka resorted to blanket denial instead of challenging unsubstantiated allegations. If Sri Lanka shunned the investigation, it would be to the advantage of those eyeing a regime change here. They would simply use unverified evidence/information against Sri Lanka. Unless Sri Lanka countered these allegations, they’ll constitute evidence against Sri Lanka, whatever the government’s position on the proposed UNHRC investigation/findings.

Unfortunately, the government seems just satisfied with the decision not to cooperate with the investigation. Sri Lanka’s position that it wouldn’t accept the jurisdiction of the Office of the United Nations High Commissioner for Human Rights to undertake an investigation is likely to facilitate a US-UK-Canada project targeting Sri Lanka (Prof. Peiris explains why Sri Lanka won’t cooperate with UN probe-The Island April 8, 2014). Regardless of Sri Lanka’s non-participation in the process, the UNHRC will go ahead with planned action. Perhaps, Sri Lanka should privately consult those countries which voted against the resolution moved by the US on March 27, 2014 at the 25th session of the Geneva based UNHRC.

The online petition campaign launched by the Center for War Victims and Human Rights was meant to attract as many Tamils possible. It was launched about a week before the expiry of the first deadline (Dec 15, 2010). The organizers posted a detailed communication from the Secretariat to PoE/PoE on a website named Stop Sri Lanka State Terrorism. The following is the communication:

From: panelofexpertsregistry 


Dear Sir, Madam,

Thank you for writing to the Secretary-General’s Panel of Experts. The Panel appreciates the time you have taken to your share your contribution with it.

The Panel is unable to reply to each individual given the volume of messages received. The responses to a number of frequently asked questions are thus set out below.

Q.: Can I write in Sinhala or Tamil?

A.: Yes, though English, being the Panel’s working language, is preferred.

Q.: Is my submission confidential?

A.: Yes, your submission will be treated as confidential. Neither your name nor identifying particulars will be specified in the Panel’s report.

Q.: When will the Panel make its report?

A.: The Panel anticipates submitting its report in January 2011 (But it was actually released on March 31, 2011)

Q.: Will the Panel’s report be made public?

A.: The report is to the United Nations Secretary-General. He will decide whether to make the report public.

Q.: Can I speak to the Panel in person?

A.: The Panel has a limited time for its work and has therefore chosen to request contributions in the written form detailed in the notice.

Q.: Can I make multiple submissions?

A.: You are requested to raise all issues you wish to raise within the one, single submission.

Q: Can I send my submission in hard copy to a physical address?

A.: Yes. You may send materials to the following address within the timeframe set out in the notice:

Secretary-General’s Panel of Experts on Sri Lanka

UN Secretariat (Library Building, L-0330 L)

New York, NY 10017

United States of America

Q: Can I submit non-written materials, such as photographs and film clips?

A.: Yes. Please enclose such materials as attachments to your email or mail them to the above address.

Thank you again for taking this opportunity to be in contact with the Panel.

Yours sincerely,

Secretariat of the Panel of Experts

Let me produce a few sample petitions posted on the same website along with the organizers’ statement inviting Tamils to join the campaign:

25 sample letters that you could use to submit your letters to the U.N. (If not already done so) Panel of expert to pressure UN for war crimes investigation on Sri Lanka please use these letters if you do not find time to write your own letters.

Please submit your letter to the U.N Panel, as we have only 08 more days even if you are not directly affected by the conflict and crimes against humanity committed by Sri Lankan forces and its leaders.

Make sure, you attach your postal address and the country of residence in your letter.

The letters does not need to be long, even few lines should do. Please appeal to the panel to ask U.N. to investigate Sri Lanka for war crimes, crimes against humanity and genocide of Tamils.

The following is the first sample:

To: Mr. Marzuki Darusman, Chairman

To: Mr. Steven Ratner, Panel Member

To: Ms.Yasmin Sooka, Panel Member

Re: Through U.N. investigation Sri Lanka’s war criminals must be brought to books

Tamils in Sri Lanka have gone through several rounds of communal violence tacitly supported by successive Sinhalese lead governments and its armed forces since Independence. Since 1956, Tamil minority rights and Tamils were used as political pawn in Sri Lankan polity to hold on to the power. The minority Tamils were systematically and routinely subjected to all kind of atrocities, including ‘war crimes’, ‘crimes against humanity’ and ‘genocide’ in order for the Sinhala political parties to woo the Singhala masses in the name of majority hegemony.

Meanwhile, in another development, Gotabaya Rajapaksa, The Defence Secretary of the Sri Lankan government has threatened to execute Sarath Fonseka, the army commander who delivered victory over the Tamil Tigers, if he continues to suggest that top officials may have ordered war crimes during the final hours of the Tamil war. During an interview with BBC’s Stephen Sackur, Sri Lanka’s defence secretary Gotabaya Rajapaksa said General Fonseka was a liar and a traitor.

A US-based activist group, claimed, that it has obtained a 100-page long sworn affidavit from a senior commander of the Sri Lanka Army (SLA) who has fled Sri Lanka seeking asylum for himself and his family. SLA Commander’s affidavit contains incriminating information in several areas.

But more than that, there is substantial body of credible evidence pointing to the commission of war crimes by government forces including attacks on humanitarian operations, attacks on hospitals and deliberate shelling of civilians enticed by the government to seek protection in the safety of "No Fire Zones."

I appeal to the panel of expert to ask the U.N. in no uncertain term that Sri Lanka should be investigated for ‘war crimes’, ‘crimes against humanity’ and ‘genocide’.

Yours truly,

Your Name, Contact Postal Address with the Residing country.

The following is the third sample:

To: Mr. Marzuki Darusman, Chairman

To: Mr. Steven Ratner, Panel Member

To: Ms.Yasmin Sooka, Panel Member

Re: Justice delayed itself considered justice denied and it is necessary to reaffirm the international community’s commitment to the principle of accountability on serious violations of international humanitarian law in Sri Lanka.

Arundhati Roy, the acclaimed Indian writer and activist who focuses on issues related to social justice and economic inequality, who also won the Booker Prize in 1997 for her novel, The God of Small Things. For her work as an activist she received the Cultural Freedom Prize awarded by the Lannan Foundation in 2002. She mentioned the last year’s war was not just a war of the Sri Lankans against the Tamil people.

That was a corporate war. All the large Indian companies are now heading to Sri Lanka to make more money," said Arundhati Roy, while speaking at a Chennai convention. She has also voiced her opposition openly on many occasions, condemning India’s silence on the humanitarian tragedy in Sri Lanka, and calling the war "a racist war on Tamils." This should be considered as ‘war crimes’, ‘crimes against humanity’ and ‘genocide’ against Tamil citizens of Sri Lanka and impartially investigated by the independent international body and bring justice to the victims as justice delayed itself considered justice denied.

Yours truly,

Your Name, Contact Postal Address with the Residing country.

Due to space constrains, The Island is unable to publish all samples. But the two published samples are loaded with unsubstantiated allegations directed at the government, as well as the mindset of those wanting to haul Sri Lanka up before an international war crimes probe.