Wednesday, 4 November 2015

Int’l community, Army bear responsibility for assisting proposed war crimes court

Probe on missing persons




By Shamindra Ferdinando

Last week’s piece, titled War Crimes probe: Relevance of leaked US cables and UK court case, with strap line, Foreign experts highlight previous government’s failure, in the Midweek section received a spate of responses. A retired Major General asserted the responsibility, on the part of the top military leadership, to examine all relevant factors, without being guided by domestic political issues.

One UK based keen follower of events, during the war, as well as post-war developments, stressed the need to examine the Rajapaksa administration’s failure to address the accountability issues, particularly turning a blind eye to available information, such as US diplomatic cables, to counter accusations.

The UK-based Sri Lankan said: "I think it’s time we found out why? Is it due to sound legal advice or just plain ignorance? Or, the previous administration didn’t care, or wasn’t bothered with growing Western hostility towards Sri Lanka?

Has the then Defence Secretary, Gotabhaya Rajapaksa, External Affairs Minister, Prof GL Peiris, or Central Bank Governor, Ajith Nivard Cabraal, ever mentioned why? "Perhaps Neville Ladduwahetty can shed light on the previous government’s failure. As some of the leaked US cables, originating from Colombo, were negative, the previous government perhaps felt Wikileaks cannot be used unless all such cables, pertaining to Sri Lanka, were scrutinized."

Although some of the leaked cables had been certainly negative and misleading, overall Wikileaks cables helped Sri Lanka’s cause. In fact, many countries as well as local and foreign NGOs, examined Wikileaks revelations, pertaining to Sri Lanka, though the country concerned ignored them. In spite of making a spate of unsubstantiated accusations, based on information received by embassy contacts, on the one hand they didn’t really reveal anything really incriminating which can be used against Sri Lanka. On the other hand, Wikileaks gave an insight to US projects, particularly its involvement in politics here. In a cable, dated Nov 6, 2009, authored by the then US ambassador here, Patricia A. Butenis, the State Department was told of the ongoing efforts to unite all Opposition political parties against the then President Mahinda Rajapaksa. The cable dealt with SLMC Chairman, Basheer Segudawood, assessment on building up forces in support of General (retd) Sarath Fonseka at the January, 2010, presidential election. The same cable quoted Tamil National Alliance leader, R. Sampanthan, as having said that his party would back Mahinda Rajapaksa’s candidature as it would be extremely difficult for the Tamil community to back Fonseka. The veteran politician went to the extent of calling Mahinda Rajapaksa the lesser of two evils. The Nov 6 cable should be examined with the another one, dated January 15, 2010, also originating from the US mission, in Colombo, which categorized three Rajapaksa brothers, Mahinda, Gotabhaya and Basil, along with Fonseka, as war criminals.

The previous government, until the very end believed in changing US opinion, through expensive PR firms, which did nothing but to obtain massive amounts of money. The present government should investigate whether politicians, or officials, benefited from such transactions and name and shame them.

Leaked cables revealed the US wanting to see the back of then President Mahinda Rajapaksa. Having explained the difficulty in Tamils backing Fonseka’s candidature, during first week of Nov 2009, Sampanthan changed his position. Who could have forced the TNA leader to back Fonseka? Although the January, 2010, project went awry, the US supervised a similar project which brought Maithripala Sirisena into power. Had it not being the case, US Secretary of State, John Kerry, wouldn’t have been here last May.

A leaked cable, originating from the US mission, in London, revealed that the then British government intervened in Sri Lanka, in early 2009, to save the LTTE due to domestic political reasons. The Labour government move was meant to appease British citizens, of Sri Lankan origin, in view of the elections.

If not for former President Mahinda Rajapaksa’s much delayed decision to expand the scope of the Paranagama Commission, on July 15, 2014, to accommodate a team of international legal and military experts, to assist the domestic mechanism, Sri Lanka would never have received the benefit of Wikileaks revelations. The international team comprised 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 report on the Second Mandate Of the Presidential Commission of Inquiry, Into Complaints of Abductions and Disappearances, explained the possibility of using Wikileaks to strengthen Sri Lanka’s defence vis a vis the main allegation pertaining to massacre of over 40,000 Tamil civilians.

The Commission also dealt with the contentious issue of disappearance of detainees in the final phase of the war. The report pointed out the failure, on the part of the international community, to assist Sri Lanka to establish the fate of missing persons, during the previous administration. Citing privacy laws, foreign governments had declined to help the Commission to establish the identity of those who had secured foreign nationality, while being categorized as missing in Sri Lanka. The Commission asserted that absence of foreign assistance had deprived investigators of an opportunity to establish the truth. Verifying the allegations, regarding disappearances, is as important as establishing the number of civilians dead due to military action.

The Commission asserted: "Whilst it is quite possible that persons, who had been in custody, went abroad, upon their release, without the knowledge of their families, or alternatively went underground, or changed their identities, the truth must be ascertained as regards the fate of the majority of those disappeared persons whose fates are hitherto unknown. This, the Commission feels, is a vital contribution to reconciliation."

The Commission referred to the alleged disappearance of Kathiravel Thayapararajah in the hands of the security forces and his subsequent arrest in Tamil Nadu to underscore the need for a comprehensive investigation into missing persons cases. The Commission categorized the Thayapararajah’s case as the most high profile case. However, the Commission failed to explain why the Thayapararajah’s incident was called the most high profile case.

Let me produce the Commission’s reference to the Thayapararajah’s case: "The most high profile such case was that of Kathiravel Thayapararajah, who was alleged by LTTE sources to have been executed by the security forces, with a respected Jaffna-based NGO describing his gun shot injuries and subsequent cremation. The truth was that he had gone underground, surfacing in May, 2014, in Tamil Nadu, with his wife and four children. His identity was discovered upon his arrest for illegal entry into India. The Commission does not speculate as to how many such phantom disappearances there may have been."

A section of the Indian and Sri Lankan media, including The Island, in May, 2014, revealed US Assistant Secretary of State, for South Asian Affairs, and one-time US Ambassador in Colombo, Robert O. Blake’s role in the Thayapararajah’s affair. Blake had intervened on behalf of Thayapararaja, married to a notorious human smuggler Uthayakala. Blake’s role came to light soon after the duo were apprehended during the first week of May, 2014 (Man whose ‘disappearance’ evoked Blake’s interest found with suspect, with strap line, Indian help sought to recover money from human smuggler-The Island, May 15, 2014).

The Indian High Commission, in Colombo, declined to comment on Thayapararajah’s case though the writer sought information on several occasions. The previous government never raised the issue with India. Those well-funded NGOs, habitually demanding international intervention here, to establish the truth, never felt the need to inquire into Thayaparajah’s case. They refused to admit it was not an isolated incident (‘Executed’ Director of Vanni project in Indian custody: SL seeks access to him-The Island, May 16, 2014).

Wouldn’t it be interesting to know who prompted Ambassador Blake to intervene on behalf of Thayapararajah, who had worked closely with the LTTE, in the Vanni. Blake can assist the proposed war crimes court to establish the circumstances under which Thayapararajah and Uthayakala reached Tamils Nadu. Thayapararajah (33 in 2009) disappearance in September, 2009, prompted a section of the media, as well as some international NGOs, to accuse the Directorate of Military Intelligence (DMI) of executing him.

The University Teachers for Human Rights (Jaffna), the Australian Government Refugee Review Tribunal, Tamilnet and the European Center for Constitutional and Human Rights, among others blamed the Sri Lankan intelligence for the disappearance. The proposed court can also seek their assistance, to establish Thayapararajah’s case. Ambassador Bake will certainly want to assist Sri Lanka to establish the truth. Neighbouring India can inform Sri Lanka of Thayapararajah’s whereabouts. New Delhi bear the responsibility for assisting Sri Lanka as Thayapararajah had been in their custody in May, 2014. Now, that the report on the Second Mandate Of the Presidential Commission of Inquiry Into Complaints of Abductions and Disappearances had been tabled in parliament, the Commission should write to the Indian High Commission, through the Foreign Ministry, seeking immediate assistance to track down Thayapararajah. Is the man still in Indian custody, living some where in India after having obtained bail, or already left for Europe, or perished while trying to reach Australia. Sri Lankans are among those who had risked perilous sea journey, over the years, to gain political asylum, in Australia.

Thayapararajah had been closely connected to the LTTE, though he wasn’t involved in actual fighting, on the ground. Having graduated from the Peradeniya University, Thayapararajah had joined a project run by Vanni Tech, in Kilinochchi, with the financial backing of the US-based Tamil Diaspora. The project, launched in 2003, during the Ceasefire Agreement, brokered by Norway, was one of those operations undertaken by the Diaspora, though Thayapararajah joined the project in 2005.

The Geneva Resolution, co-sponsored by the Maithripala Sirisena-Wickremesinghe government, never made a specific reference to such cases. In fact, US led resolutions, which dealt with Sri Lanka, never raised the issue. The much discussed UN investigation, undertaken by Ms Beidas, into accountability issues here, conveniently ignored cases of Sri Lankans clandestinely, either leaving, or returning to the country. Purely a domestic court is unlikely to help Sri Lanka to establish the truth. Now that Western powers have adopted a resolution, in Geneva, for a thorough investigation, and Sri Lanka through the latest Commission report, too, underscored the same, the urgent need to verify allegations, pertaining to the disappeared, cannot be further delayed.

Australia issuing a passport to a Sri Lankan Tamil, Kumar Gunaratnam, bearing the name of Noel Mudalige, during the previous government, further highlighted the need for a comprehensive hybrid investigation. Unfortunately, the Commission hasn’t made a reference to Gunaratnam case due to failure on the part of the previous government. The previous government never knew the Australian connection until the Australian High Commissioner here, Robyn Mudie, took up with the then Defence Secretary, Gotabhaya Rajapaksa, the disappearance of Gunaratnam allegedly in the hands of the intelligence services. What really surprised the previous government was HC Mudie had Gunaratnam/Mudalige’s travel documents in her purse when the Australian was handed over to her in Colombo.

The previous government never sought to examine individual incidents to ascertain the bigger picture. The following case is a glaring example;

The Commission cited a complaint, received from Mrs. Ilangatheepan Thusiyanthini, of Mullativu, regarding the disappearance of her husband during the war. Having ‘lost’ her husband due to the circumstances of the war, she sought the assistance of the Commission to find her beloved. She subsequently told the Commission that she had received information, from friends of her husband, that he was seen at the Andapan Camp, in South India, where he was a refugee. She was able to make contact with her husband at the camp. They reunited.

However, the Commission strongly emphasized the need to inquire into accusations, directed at the army, regarding specific cases of disappearances. The Commission identified several cases which it felt should be thoroughly investigated and those responsible punished.

The Commission said: "The Commission has heard first hand testimony on one of the incidents dealt with in the Channel 4 allegations which may involve international crimes, namely the alleged forced disappearance and alleged summary execution of approximately 100 persons who boarded a bus during the last days of the war. The Commission is of the view that a judge-led investigation into this incident is necessary and indeed the Commission has already taken steps to appoint an investigative team that has begun its work in relation to this incident. We have made a finding that there is a reasonable basis to believe, having heard evidence on this issue, that these individuals may have been executed."

Army headquarters, too, should initiate a thorough inquiry, without further delay, or face the consequences. The top brass must realize that particular allegation is an extremely serious, therefore tangible action is required on the part of the Sri Lankan government. The government bear the responsibility for inquiring into accusations, particularly in the backdrop of a Commission, appointed by the war winning government, and thereafter accepted by the Maithripala Sirisena-Wickremesinghe coalition making specific allegation. The failure to probe individual cases will result in the country having to accept the responsibility ‘system crimes.’ The integration of 12,000 members, as well as sympathizers of the defeated LTTE, to the civil society, after rehabilitation, proved beyond any doubt that the previous government acted prudently. Former Defence Secretary, Gotabhaya Rajapaksa, paved the way for the International Organization for Migration (IOM) to work closely with the detained. Former IOM head, Richrad Danziger, in an interview with the writer, in April, 2013, explained their role in the post-conflict situation. A mutual friend, Prabath Fernando, arranged the interview as Danziger was preparing to take over new responsibility in Kabul. The Island report, titled Sri Lanka generous towards vanquished, quoted Danziger as having said the IOM had access to over 11,000 ex LTTE personnel released after rehabilitation. Perhaps, Danziger can be requested to appear in the proposed war crimes court.

According to Danziger, the project had begun even before the conclusion of the conflict, in May, 2009. "IOM had access to LTTE cadres from the Eastern Province at an early stage due to military operations in the region ending earlier."

The eastern campaign ended, in July, 2007. The military launched the Vanni offensive, in March, 2007.

Commenting on the basic difference between the project here and projects undertaken by the IOM in other parts of the world, including the Philippines, Danziger said that unlike in Sri Lanka other ventures involved two parties to peace agreements. In spite of the GoSL being victorious, in its war against the LTTE, it had been very generous towards the vanquished.

Asked whether he was able to achieve what he intended to during his mission here, Danziger said that the IOM was definitely able to improve the living standards of many, particularly of those who fought for the LTTE.

Danziger said that the IOM launched projects in Sri Lanka, way back, in 2002, in the wake of the Norway arranged Ceasefire Agreement (CFA) coming into operation. "We launched a pilot project to rehabilitate 100 personnel each from the Sri Lankan Army and the LTTE. Although the project with the SLA went on smoothly, the LTTE declined to cooperate," Danziger said.