Tuesday, 5 August 2014

War crimes probes: Sri Lanka suffers for want of cohesive planning

Pathetic failure to exploit Wiki Leaks, US Defence Advisor’s declaration baffling




In the immediate aftermath of the liberation of Kilinochchi in January 2009:President Mahinda Rajapaksa with Defence Secretary Gotabhaya Rajapaksa and the then army Chief Gen. Sarath Fonseka visit the town.

by Shamindra Ferdinando

The Sri Lankan government should have anticipated the latest move against Defence Secretary Gotabhaya Rajapaksa on the human rights front. With war veteran Rajapaksa being the subject of a recent Congressional hearing meant to explore ways and means of prosecuting him as a US citizen for alleged war crimes committed during the last phase of eelam war IV, the government can expect a hardening of the UN position also on the human rights issue.

The Congress was told that the most obvious federal criminal statute is the War Crimes Act of 1996, which applied to U.S. citizen Rajapaksa. In case, the Justice Department felt that there was insufficient evidence for a criminal indictment, it could consider pursuing civil liability.

In fact, the US revealed its intention to zero-in on Rajapaksa over accountability issues a couple of months after the conclusion of the conflict in May 2009. The US project came to light when the then Chief of Defence Staff (CDS) General Sarath Fonseka was on a private visit to the US.

Although the Department of Homeland Security refrained from interviewing the General following strong objections by the Sri Lankan government, Professor of Law Ryan Goodman, who is also the Co-Chair of the Center for Human Rights and Global Justice raised the possibility of using various statements made by the former army chief against Defence Secretary Rajapaksa before Congress. Goodman made his presentation titled ‘Road Map II: Legal Avenues to Prosecute a US Citizen for War Crimes—The Case of Gotabhaya Rajapaksa’ on July 30.

Goodman wants to exploit Rajapaksa and Fonseka having dual Sri Lankan and US citizenship to prosecute the Defence Secretary on the basis of Fonseka’s testimony. Goodman wouldn’t have gone before Congress, unless he was convinced the US administration was serious about opening a new front against Sri Lanka. Goodman called General Fonseka a long term permanent resident of the US aka green card holder. Obviously, Goodman wanted to use Gen. Fonseka, a green card holder to prosecute Defence Secretary Rajapaksa though the writer inadvertently identified both Rajapaksa and Fonseka as dual Sri Lankan, US citizens in a front-page news item headlined Newest moves on war crimes exploit Gota’s & Gen SF’s US citizenship in the August 2 edition of The Sunday Island.

Goodman made the first part of his presentation titled ‘What more Congress (and the administration) can do to promote accountability in Sri Lanka’ on July 15.

With the US now set to explore ways and means of using whatever statements that can be attributed to retired Gen. Fonseka, a green card holder to build a case against Defence Secretary Rajapaksa, a US citizen, the government will have to re-examine all available information pertaining to war crimes allegations. Such a course of action will help Sri Lanka to counter the ongoing UN investigation as well as specific US operations targeting the Defence Secretary. The bottom line is that Sri Lanka’s defence in Geneva as well as the US largely depend on its ability to effectively use information/evidence now in the public domain. Such information can be of pivotal importance to negate unsubstantiated allegations made against the country, as well as expose the absurdity of some of the accusations.

It would be pertinent to study the circumstances under which Gen. Fonseka left the country on a private visit to the US in late October 2009. The visit took place amidst speculation that Fonseka would quit government service to challenge President Mahinda Rajapaksa at the presidential polls. Having reached the US, the then Lt. Gen. Fonseka on Oct. 28, 2009 declared that even if he had to leave the uniform, he wouldn’t hesitate to take whatever action necessary to ensure the security as well as prosperity of the country. Addressing a gathering at a Sri Lankan Buddhist temple in Washington DC, Gen. Fonseka alleged that some were trying to share the credit for the army’s triumph over LTTE terrorism (Gen. Fonseka says he is ready to leave uniform-The Island October 29, 2009).

Close on the heels of Lt Gen. Fonseka’s statement, Defence Secretary Rajapaksa, in an exclusive interview with the writer explained the events leading to the appointment of the former Army Chief as the CDS (Gota speaks out on Fonseka issue-The Island October 31, 2009).

Although Goodman told Congress that Gen. Fonseka had been at the helm of the Sri Lankan Army at that time, the Sinha Regiment veteran was in fact the CDS, having relinquished command of the victorious Army in July 2009.

Goodman said: Sri Lanka’s then-Army chief, Sarath Fonseka (who happens to be a long-term permanent resident of the United States) was in the United States on a personal visit. He was contacted by the Department of Homeland Security to schedule a special interview and was reportedly told by the DHS that "the intention behind the request for the interview is to use him ‘as a source against human rights violations done by Secretary/Defence." The interview was scheduled for November 4.

The then Sri Lankan ambassador in Washington Jaliya Wickremasuriya and Minister Basil Rajapaksa raised the issue with the senior official in charge of South and Central Asian Affairs, Robert Blake (former US ambassador in Sri Lanka) and his successor in Colombo Patricia Butenis, respectively, though both denied having any knowledge of the Department of Homeland Security seeking to interview Lt. Gen. Fonseka. The Defence Secretary is on record as having said that it was Gen. Fonseka, who informed him of the US move. The Defence Secretary said that Fonseka had contacted him on October 30, 2009 after having received a request from a US official two days before that there was a requirement to interview him (US seeks info on Gota from Fonseka-The Island-November 2, 2009 and Gota says Gen. Fonseka alerted him to the US move The Island- November 3, 2009).

Fonseka returned to the country during the first week of November, 2009 (Gen. Fonseka permitted to avoid ‘interview’, leave US The Island-November 5, 2009). Just over a week after having returned from the US, Gen. Fonseka tendered his resignation. Sri Lanka’a most successful army chief ceased to be in uniform with effect from December 1, 2009 (President promptly accepts Fonseka’s resignation-The Island November 13, 2009).

Thanks to whistle blowing website Wiki Leaks, several classified cables originating from the US embassy in Colombo are now in the public domain. The government’s failure to closely study these cables that dealt with the conflict/war originating not only from Colombo but US diplomatic missions in New Delhi, London as well as Geneva is inexcusable. Had such a study been undertaken, it could have helped the country to successfully counter major accusations, including the genocide charge (No less a person than Jacque de Maio, ICRC Head of Operations for South Asia, is on record as having told top US Geneva-based diplomat, ambassador Clint Williamson that there was no basis for genocide allegation directed at the Sri Lanka Army. Wiki Leaks revealed that the conversation took place on July 9, 2009 in Geneva. Maio, now in charge of ICRC operations in Gaza asserted that the SLA could have finished off the LTTE with less losses if it didn’t take into consideration the civilian factor). Unfortunately, the government never realized the importance of de Maio’s statement. In addition to that, particular statement attributed to Maio, there are a spate of other cables which can be effectively used to shield Defence Secretary Rajapaksa, thereby derailing the Western project meant to pave the way for a regime change in Sri Lanka. The government should realize that the defence of Rajapaksa in the US cannot be isolated from the war the threat coming from Geneva.

The international community cannot ignore Wiki Leaks revelations as a post-war inquiry undertaken by the Norwegian government examined released US cables (Pawns of Peace: Evaluation of Norwegian peace efforts in Sri Lanka (1997 – 2009). Norway released the study in September 2011. Norway admitted that Wiki Leaks revelations pertaining to Sri Lanka can help in investigation/examination of accountability issues.

A US diplomatic cable dated January 15, 2010 originating from Colombo authored by the then US ambassador here, Patricia Butenis now in public domain thanks to Wiki Leaks can expose the wonky US position on human rights. Just over two months after the Department of Homeland Security wanted to interview Gen Fonseka to explore the possibility of using him as a source to prosecute the Defence Secretary, Butenis asserted that Fonseka too, was responsible for war crimes. If not for the unbeatable combination of Bradley Manning-Wiki Leaks, the world would never have known that ambassador Butenis categorized President Mahinda Rajapaksa, Defence Secretary Gotabhaya Rajapaksa, army chief Gen. Sarath Fonseka as well as Minister Basil Rajapaksa as war criminals. Butenis couldn’t have been unaware that the Department of Homeland Security intended to use Gen. Fonseka against Defence Secretary Rajapaksa yet called him a war criminal because she never expected that particular missive to get into the public domain. The US supported Gen. Fonseka’s candidature at the January 26, 2010 presidential election.

Goodman conveniently didn’t make any reference to the cable authored by ambassador Butenis. In fact, except the Norwegian investigation, none of those wanting to haul Sri Lanka up before an international war crimes tribunal publicly admitted the relevance of Wiki Leaks revelations to accountability issues here. Strangely, the government too, ignored the revelations in spite of them which can be used to explain the events leading to the final confrontation on the banks of the Nanthikadal lagoon.

Wiki Leaks exposed the absurdity of the US position on human rights by releasing cables detailing atrocities committed by US forces in various parts of the world.

Another US diplomatic cable was based on a conversation between de Maio and ambassador Williamson also on July 9, 2010, the LTTE’s despicable use of civilians to hinder the advancing army. If Maio’s previous statement was examined together with the one below, the difficulties as well as sacrifices made by the army could have been proved. Sadly, no such attempt was made. The Ambassador quoted Maio as having said that the LTTE had tried to keep civilians in the middle of a permanent state of violence. The LTTE saw the civilian population as a ‘protective asset’ and kept its fighters embedded amongst them. The LTTE commanders, objective was to keep the distinction between civilian and military assets blurred (emphasis mine). They would often respond positively when the ICRC complained to the LTTE about stationing weapons at a hospital, for example. The LTTE would move the assets away, but as they were constantly shifting these assets, they might just show up in another unacceptable place shortly thereafter.

The cable was written by the US Ambassador to Geneva, Clint Williamson on July 15, 2009.

US ambassador Williamson wrote; "De Maio said it would be hard to state that there was a systematic order for LTTE fighters to stick with civilians in order to draw fire. Civilians were indeed under ‘physical coercion not to go here or there,’ he said. Thus, the dynamics of the conflict were that civilians were present all the time. This makes it very difficult to determine though at what point such a situation becomes a case of ‘human shields.’

Another Wiki Leaks cable revealed that a joint US-Norwegian effort to arrange the surrender of the top LTTE leadership to what the US embassy called a neutral third party failed to materialise due to failure on the part of the LTTE to provide the names of those willing to surrender as requested by Defence Secretary Rajapaksa. This cable too is available on the internet.

But there cannot be a better response to Goodman’s effort to pin the blame on Defence Secretary Rajapaksa over the alleged execution of surrendering LTTE cadres during the closing stage of the military offensive on the Vanni east front than a public statement made by war-time US Defence Advisor in Colombo, Lt. Col. Lawrence Smith two years after the conclusion of the conflict, hence he would have had time to verify the entire range of issues before going public.

The following is the US official’s statement made in response to a query posed by retired Indian Maj. Gen. Ashok Metha to Maj. Gen. Shavendra Silva, the General Officer Commanding (GoC) the celebrated 58 Division.

Lt. Col. Lawrence said: "Hello, may I say something to a couple of questions raised. I’ve been the defence attaché here at the US Embassy since June 2008. Regarding the various versions of events that came out in the final hours and days of the conflict – from what I was privileged to hear and to see, the offers to surrender that I am aware of seemed to come from the mouthpieces of the LTTE – Nadesan, KP – people who weren’t and never had really demonstrated any control over the leadership or the combat power of the LTTE. So their offers were a bit suspect anyway, and they tended to vary in content hour by hour, day by day. I think we need to examine the credibility of those offers before we leap to conclusions that such offers were in fact real."

"And I think the same is true for the version of events. It’s not so uncommon in combat operations, in the fog of war, as we all get our reports second, third and fourth hand from various commanders at various levels that the stories don’t seem to all quite match up."

"But I can say that the version presented here so far in this is what I heard as I was here during that time. And I think I better leave it at that before I get into trouble."

The government never used this statement in its defence. Perhaps, with Defence Secretary Rajapaksa now facing a fresh US threat, the government will have to reexamine its options again.