Wednesday, 23 September 2015

War crimes probe: An inevitable UN role



By Shamindra Ferdinando

Calling for an’ internationalized Special Court for criminal prosecution,’ to try those who had been accused of committing atrocities, during the conflict (2002-2009), the UK headquartered Global Tamil Forum paid a glowing tribute to the survivors who bravely shared their horrific experiences, despite the fear and uncertainty they faced, without which last Wednesday’s Geneva report would not have been a reality.

The GTF urged the 47-member states, of the Geneva-based UNHRC, to adopt a resolution that captures 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 unsubstantiated accusations at various forums. Those responsible for Sri Lanka’s defence should keep in mind that the UN investigation report, too (unveiled last Wednesday), repeated accusations that were never verified. Those who couldn’t stomach Sri Lanka’s triumph over terrorism exploited the previous government’s refusal to cooperate with Western powers. The war-winning administration failed, at least, to closely examine the allegations, thereby facilitated the anti-Sri Lanka project, during the Rajapaksa presidency.

The recent explosive revelation of the circumstances under which the then US Secretary of State, Hillary Clinton, mistakenly accused Sri Lanka of using rape as a tactic of war, must prompt the government to call for the re-examination of unsubstantiated allegations which resulted in the latest Geneva report.

The GTF statement has received the endorsement of the four-party Tamil National Alliance (TNA), the main Opposition political party here. The Centre for Policy Alternatives (CPA) has joined the GTF-TNA project. They addressed gatherings, in Bern and London, last Thursday and Saturday, to articulate their position, vis a vis Geneva declaration.

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’s proxy with Prabhakaran still remaining the sole representative of the Tamil speaking people.

Sri Lanka now faces a formidable challenge from the GTF-TNA grouping with the UNHRC almost certain to order a comprehensive inquiry into accountability issues. The type of the mechanism will be known next Wednesday (Sept.30).

Addressing a hastily arranged media briefing, at the President’s House, last Friday (Sept.18), President Maithripala Sirisena emphasized that Sri Lanka would have to face an inquiry, whether we accepted such a situation or not. It would be pertinent to mention that Premier Ranil Wickremesinghe, on the previous day, asserted that the forthcoming investigation could be turned into Sri Lanka’s advantage. The Premier was participating at an event to commemorate JRJ’s birth anniversary.

Let me examine issues which should be brought to the notice of the proposed investigate 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 next Wednesday’s Geneva resolution.

*It would be the responsibility of the government of Sri Lanka 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, before whatever the investigative mechanism is to establish the events leading to the 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, can 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 underscored the LTTE throwing its weight behind 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. It was their best results.

*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 so-called civil society remained mum as the LTTE flexed its muscles. Had the LTTE succeeded in assassinating the then Army Chief, Lt. Gen. Sarath Fonseka, the war effort would have suffered an irreparable loss. The failed April, 2006, LTTE assassination bid, on the Sinha Regiment veteran, marked the turning point of the conflict. The LTTE suffered another devastating setback when its attempt on the then Defence Secretary, Gotabhaya Rajapaksa, in Dec 2006 failed. Had Prabhakaran succeeded, Sri Lankan wouldn’t have been in the Geneva agenda.

* Those who had bravely 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), leading to last Wednesday’s report, can now come before the investigative mechanism, scheduled to be decided next week, in Geneva. 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). In the backdrop of the Maithripala Sirisena-Wickremesinghe government cooperating with the OHCHR, the UNP cannot deprive the proposed hybrid special court of an opportunity to hear those who had bravely shared their experience with various interested parties.

*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, 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. In fact, as Prime Minister Wickremesinghe pointed out last week, Sri Lanka can turn an inquiry into her advantage. A confidential report, prepared by the UN mission, in Sri Lanka, can help the hybrid court to 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 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 President Mahinda Rajapaksa allowing an Indian medical team at Pulmoddai, north of Trincomalee, and subsequently Manik Farm. 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 countries, US and other countries, including Australian, cooperate with 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.