Tuesday, 1 April 2014

War Crimes: Will GoSL squander chance to challenge credibility of ‘sources’?



Panel of Experts (PoE) responsile for report on accountability issues in Sri Lanka (From L-R) Yasmin Zooka, Marzuki Darusman and Steven Ratner (extreme right) with UNSG Ban Ki-moon at UN headquarters.

By Shamindra Ferdinando

Now that the Sri Lankan government has lost the crucial vote in Geneva on the US-led resolution, it would have to face the consequences. Whatever the government says, the resolution endorsed by 23 countries, including the US has paved the way for an international investigation, therefore President Mahinda Rajapaksa’s administration is now in unknown territory. First of all, the government should realize that those who had voted against the resolution as well as abstained due to different reasons wouldn’t be able to defend Sri Lanka at the impending investigation spearheaded by the Office of the High Commissioner for Human Rights (OHCHR).

The bottom line is that Sri Lanka is on its own. Therefore, it would be the responsibility of the government to examine all available information pertaining to the period covered by the Lessons Learnt and Reconciliation Commission (From February 2002 to May 2009) to ensure Sri Lanka’s defence. Such an examination is of pivotal importance as the OHCHR investigation will focus on the period from Feb 2002 to May 2009.

With UN human rights chief Navi Pillay scheduled to retire in August this year, she’ll go all out to initiate the investigation as quickly as possible. The government shouldn’t make the mistake of simply rejecting the resolution without effectively countering long standing allegations propagated by UK’s Channel 4 News on behalf of the LTTE rump/pro-eelamist Tamil Diaspora. As quite rightly pointed out by British Prime Minister, David Cameron during his visit to Colombo last November, the Channel 4 News documentary titled Sri Lanka’s Killing Fields was the basis for Geneva action against Sri Lanka. Cameron didn’t mince his words when he credited the British media for hauling Sri Lanka up before Geneva. The documentary was first aired in June 2011 to US audiences, though Channel 4 News made initial accusations in late 2009.

It would be pertinent to mention that Sri Lanka’s Killing Fields too, covered the period by the LLRC. Now the US resolution has authorized the OHCHR to investigate the same period.

Although most of these allegations propagated by Channel 4 News could have been effectively countered, the government for some strange reason, didn’t do so. Regardless of Sri Lanka’s opposition, OHCHR will depend on Sri Lanka’s Killing Fields. There is a danger in OHCHR accepting the documentary as evidence unless the government countered specific allegations, including the circumstances leading to eelam war IV as propagated by the British media outfit. Sri Lanka’s Killing Fields propagated the lie that there wouldn’t have been an eelam war IV if not for Sri Lanka’s increasingly REPRESSIVE President Rajapaksa ordering an all out war against the LTTE in 2008. But the main allegation is the slaughter of 40,000 Tamil civilians during the last few weeks of the conflict on the Vanni east front.

In addition to Sri Lanka’s Killing Fields, the Report of the Secretary General’s Panel of Experts (PoE) on Accountability in Sri Lanka too, reiterated the contentious figure of 40,000 dead. The PoE released its report on March 31, 2011. Although the government refused to accept the PoE, there is no doubt, the OHCHR will use the panel’s findings against Sri Lanka. Of course, the Sri Lankan government will resist, but it cannot do anything about it.

The PoE comprised one-time Indonesian Attorney General, Marzuki Darusman (Chairman), US lawyer, Steven R. Ratner and South African NGO activist, Yasmin Sooka.

Both Sri Lanka’s Killing Fields as well as PoE asserted that the actual number of civilian deaths could be much more. Let me reproduce verbatim PoE’s assessment on civilian deaths (Page 41- Point 137): "In the limited surveys that have been carried out in the aftermath of the conflict, the percentage of people reporting dead relatives is high. A number of credible sources have estimated that there could have been as many as 40,000 civilian deaths. Two years after the end of the war, there is still no reliable figure for civilian deaths, but multiple sources of information indicate that a range of up to 40,000 civilian deaths cannot be ruled out at this stage. Only a proper investigation can lead to the identification of all of the victims and to the formulation of an accurate figure for the total number of civilian deaths."

Having stressed the need for a proper investigation meant to establish the number of civilian deaths, the PoE has adopted a surprising course of action contrary to its own recommendation to conduct a comprehensive investigation. The PoE recommended that the identities of those who had made war crimes allegations against Sri Lanka shouldn’t be released until March 31, 2031 (Twenty years from the day it was released).

According to the PoE, it has received altogether 4,000 submissions from 2,300 persons from October 27, 2010 to December 31, 2010 (Page 5-Point 17). In spite of its inability to individually verify allegations, the PoE recommended (Page 6-Point 23): "In some instances, the panel received written and oral material on the condition of an assurance of absolute confidentiality in the subsequent use of the information. The Office of Legal Affairs (OLA) confirmed through formal legal advice that the provisions set out in the Secretary General’s Bulletin on "Information sensitivity, classification and handling." (ST/SGB/2007/6) could be applied to its records. This bulletin provides for classification of a document as ‘strictly confidential’ with correspondingly strict limits on any access for a period of 20 years, following which a declassification review may be undertaken that weighs the equities involved in retention or release. Moreover, OLA confirmed that, where necessary and appropriate for the panel’s work, the panel could give an undertaking of absolute confidentiality in subsequent use. As a result, nearly all of the panel’s substantive records will be classified as ‘strictly confidential’ with, in some cases, additional protections regarding future use."

It would be interesting to know whether the PoE’s recommendation on the confidentiality of its record could be reviewed in the wake of OHCHR receiving the mandate to investigate accountability issues in Sri Lanka. Sri Lanka should raise the issue with the UN without further delay. In fact, all those countries which voted for the US resolution meant to pave the way for an OHCHR to investigate Sri Lanka should now demand the UN to make available all available information to crucify Sri Lanka. The US resolution received the support of Argentina, Austria, Benin, Botswana, Brazil, Chile, Costa Rica, Cote D’Ivoire, Czech Republic, Estonia, France, Germany, Ireland, Italy, Mexico, Montenegro, Peru, Rep. of Korea, Romania, Sierra Leone, The former Yugoslav Republic of Macedonia and the UK.

The UK based Global Tamil Forum (GTF) and all other Tamil Diaspora groups as well as the Tamil National Alliance (TNA) should now demand declassification of information to facilitate an investigate which they have been demanding for some time. Sri Lanka too, should now urge the UN to review its confidentiality clause. Sri Lanka will have to face dire consequences, unless it takes up this issue immediately.

Those who have been accusing Sri Lanka of the mass scale slaughter of Tamil civilians on the Vanni east front and ongoing systematic abuses refuse to reveal their sources. They expect Sri Lanka to accept their allegations without verification. Australian law and policy organization, namely the Public Interest Advocacy Centre (PIAC) on February 5, 2014) declined to reveal the identity of those who had provided eyewitness accounts for its latest publication titled ‘Island of Impunity’ which dealt with alleged battlefield atrocities during the last phase of the conflict. The PIAC spokesperson, Senior Media and Communications Officer, Gemma Pearce didn’t even respond to the writer’s query as to how the Sri Lankan government could verify allegations directed at its armed forces, unless there was an opportunity to cross examine those who had furnished information to the Australian NGO (Now, Australian NGO alleges mass killings but won’t reveal sources -’The Island’ February 6, 2014).

The US embassy in Colombo too, took a similar position when the writer queried from the embassy spokesperson, Juliana A. Spaven regarding a statement issued by the mission at the end of Ambassador-at-Large, Stephen J. Rapp’s weeklong visit to Sri Lanka in early February 2014. ‘The Island’ sought a clarification in the wake of an embassy claim at the conclusion of Ambassador Rapp’s visit on January 11 that the envoy had got an opportunity to listen to eyewitness accounts of serious human rights abuses and violations of international humanitarian law, including those that occurred at the end of the war." Having claimed to have direct access to eyewitnesses, the US embassy urged Sri Lanka to seek the truth through independent and credible investigations and where relevant, have prosecutions. The embassy said that it wouldn’t share information gathered by Ambassador Rapp of the State Department’s Office of Global Criminal Justice during his almost week-long visit to Sri Lanka with the government (War crimes: Gotabhaya urges US to share ‘eyewitness accounts’ with strap line US won’t characterize Ambassador Rapp’s discussions- spokesperson-The Island January 16, 2014 ).

Perhaps those confident of credibility of their sources can now bring them before OHCHR. The UN should explain its position on the contentious issue of secret witnesses before the OHCHR investigation gets underway. Sri Lanka too, should seek an explanation from the OHCHR regarding the use of PoE’s report, Sri Lanka’s Killing Fields as well as other allegations received by the UN agency.

The government shouldn’t misjudge the threat faced on the Geneva front. Had there been a mechanism to inquire to counter anti-Sri Lanka propaganda at least during the last phase of the conflict, the country wouldn’t have been in this sorry state. A section of the international community adopted devious strategies to paint a bleak picture of Sri Lanka. Unfortunately, the government never countered such projects. Some foreign powers and their local agents campaigned against the war effort. In the wake of President Rajapaksa ordering the armed forces to meet the LTTE’s conventional military challenge, they propagated lies both here and abroad. In fact, in March 2007, the Norwegian led five-nation Sri Lanka Monitoring Mission (SLMM) alleged that violence over a period of 15 months caused deaths of 4,000 persons, whereas during the three previous years only 130 died due to the conflict. The claim was made in a statement issued by the SLMM to coincide with the fifth anniversary of the Norwegian arranged Ceasefire Agreement (CFA). By not making any reference to combatants, the truce monitoring mission implied the dead were civilians.

The CFA came into operation in February 2002.

Both local and international media gave wide coverage to the monitoring mission’s claim.

The SLMM consisted of international monitors from five Nordic countries, namely Denmark, Finland, Iceland, Norway, and Sweden, supported by local staff.  

(The mission was terminated on January 16, 2008, following the abrogation of the CFA by Sri Lanka, and the organization ceased to exist by the end of 2008, following an administrative termination in the Nordic countries).

As the writer felt that there couldn’t be any basis for the SLMM’s claim, a clarification was sought from its headquarters in Colombo in early March 2007. After a series of telephone calls, the mission acknowledged that the dead included 3,500 combatants and 1,500 civilians. However, the mission refused to provide a breakdown of the number of persons killed during the 15 month period The Oslo-led mission claimed that revelation of such information wouldn’t be favorable to its role in Sri Lanka (Deaths due to conflict: SLMM backs down on breakdown with strap line Changes figure to 1,500 from 4,000 - ‘The Island’ March 12, 2007).

The SLMM statement was meant to draw attention to the fact that there was a sharp escalation of violence since Novembe5, 2005, following the election of Mahinda Rajapaksa as the fifth executive president of Sri Lanka.

Subsequent inquiries revealed that the truce monitors’ simply exaggerated deaths among combatants just to get away from a tight spot.

The monitoring mission also refused to divulge its sources.

The government never sought a clarification from the monitoring mission or the Norwegian peace facilitators. The government’s failure would have even surprised the truce monitors as well as co chairs to the Sri Lankan peace process, namely the US, EU, Norway and Japan. Interestingly, except Japan, other peace co chairs have been pushing for a war crimes investigation targeting Sri Lanka.

However, army headquarters, in response to a query by ‘The Island’, insisted that there had been only 694 civilian deaths during the November 2005 –March 2007 period. Army headquarters rejected truce monitors’ claim of 1500 civilian deaths during this period. But the Secretariat for Coordinating the Peace Process-SCOPP-SCOPP accepted controversial figures though the army objected. The military acknowledged that the government’s failure to challenge the truce monitors over the false report was damaging, especially in the backdrop of growing international scrutiny of human rights.

The SCOPP declined to comment on the truce monitors’ report.

The government’s response to PoE’s claim of 40,000 civilian deaths during the final phase of the offensive on the Vanni east front was very much similar to that of the truce monitors’ bogus claims-first 4,000 civilians perished during November 2005 to March 2007 and the second 1500 civilians and 3,500 combatants died during the same period.

The government should reexamine major allegations propagated by Sri Lanka’s Killing Fields as the well as PoE report without further delay. The failure would strengthen the hands of those wanting to blame the political and military leaderships for atrocities committed during eelam war IV.