SPECIAL REPORT : Part 253January 15, 2019, 9:41 pm
By Shamindra Ferdinando
Sri Lanka is under fire for naming Maj. Gen. Shavendra Silva as the Chief of Staff of the Army. Various interested parties stepped up attacks on Sri Lanka in the wake of the Gajaba veteran, the wartime General Officer Commanding (GoC) of the 58 Division, receiving the due recognition.
President Maithripala Sirisena elevated the officer on January 10, 2019.
Early last year, Sri Lanka earned the wrath of Yasmin Sooka, a member of three-member UN panel that blamed Sri Lanka for the deaths of over 40,000 civilians, for naming Silva as the Adjutant General.
Sooka, in her capacity as the Executive Director of South Africa-based International Truth and Justice Project (ITJP), flayed the Sirisena-Wickremesinghe government over Silva’s appointment.
Maj. Gen Silva had been the GoC, 53 Division at the time he received the 2018 appointment.
In a Johannesburg datelined statement, Sooka, who had been a member of UNSG Panel of Experts on Accountability in Sri Lanka, alleged that the appointment, made immediately after the conclusion of the 34th session of UNHRC, ‘is an outrage and shows the Government is not serious about accountability or security sector reform.’
SOOKA LEADS ATTACK
Calling the Gajaba Regiment veteran a war criminal, Sooka referred to the celebrated 58 Division (Task Force I) as a notorious fighting formation on the basis of the controversial UNSG Panel of Experts’ report on Accountability in Sri Lanka (March 31, 2011) and the report of the OHCHR Investigation on Sri Lanka (OISL report / released on Sept. 16, 2015).
Sooka led the attack on the new Army Chief of Staff, with other foreign-funded agents, too, throwing their weight behind the latest project. The UK headquartered Global Tamil Forum (GTF), while condemning the appointment, urged the international community to take appropriate action in respect of the Sri Lankan government.
Under Silva’s command, the 58 Division achieved what no other fighting formation did during the entire Eelam war, though it would never have been the case if other formations and support services failed. At the end of the war, the political and military leadership found it difficult to share the glory.
Even a decade after the end of the conflict, Sri Lanka is mired in controversy over the conduct of her armed forces.
The Island last year dealt with the circumstances under which Gajaba veteran and Maj. Gen. Silva’s colleague, Chagie Gallage retired. "Gajaba was engraved in golden letters on the annals of the history of the Sri Lanka Army, if not in the history of Sri Lanka … and I’m certain it will never be reversed by any.
"So, I’m happy to be retired being a tiny particle of that proud chapter of the history, though designated as a ‘War Criminal."
Gallage is the first officer to make such a declaration, regardless of the consequences. Even after Gallage highlighted the plight of those who held command appointments, the government did nothing, absolutely nothing at least to examine the crisis.
Now, it’s Maj. Gen. Silva’s turn to face stepped up attacks. With the next Geneva sessions, scheduled for March, 2019, the Army Chief of Staff can expect a major propaganda offensive, directed at Sri Lanka, at his expense.
Maithripala Sirisena’s tenure as the President should be examined against the backdrop of Sri Lanka’s failure in Geneva.
SLFP spokesman Mahinda Samarasinghe, on January 09, 2019, faulted the then Foreign Minister Mangala Samaraweera for co-sponsoring the hotly disputed Geneva Resolution 30/1 titled ‘Promoting Reconciliation, Accountability and Human Rights in Sri Lanka’ much to the disappointment of President Maithripala Sirisena.
Although, Samarasinghe conveniently refrained from naming UNPer Samaraweera, the reference as regards Geneva Resolution was clearly directed at the former Foreign Minister.
Samarasinghe dealt with the issue at a media briefing at SLFP headquarters, especially called to explain President Sirisena’s four years (January 09, 2015 to January 09, 2019) Office. The National List MP Samarasinghe discussed the contentious accountability issue at the onset of the briefing, his first since he lost the Ports and Shipping portfolios on Dec 20, 2018 in the wake of the UPFA quitting the UNP-led government.
Recollecting his role as wartime President Mahinda Rajapaksa’s human rights envoy, Samarasinghe declared that President Sirisena strongly opposed the Geneva Resolution 30/1 meant to set up a hybrid war crimes mechanism, comprising foreign and local judges. Samarasinghe called the accountability issue the biggest major challenge faced by President Sirisena.
A decade after the successful conclusion of the war, on the banks of the Nanthikadal lagoon, the accountability issues remained a formidable challenge with a section of the international community pushing Sri Lanka to adopt a new Constitution or introduce far reaching constitutional reforms meant to abolish Sri Lanka’s unitary status.
The Geneva Resolution, adopted on Oct 01, 2015, on the basis of unsubstantiated war crimes allegations, is the basis for the division of the country on ethnic lines.
Although President Sirisena, on several occasions, vowed not to allow foreign judges in an accountability mechanism, the UNP-led United National Front (UNF) government did absolutely nothing to counter the despicable Geneva project, though Sri Lanka received credible evidence to disprove accusations.
RESPONSIBILITY OF MR GOVT.
The war-winning Rajapaksa administration, too, should accept the responsibility for the current situation as it neglected its responsibility. The top leadership owed an explanation as to why it refrained from building Sri Lanka’s Geneva defence on the basis of a declaration made by US Defence Adviser in Colombo Lt. Col. Lawrence Smith. in early June, 2011. The statement couldn’t have been made at a better a time for Sri Lanka, at that time struggling to cope up with UN accusations: (A) Sri Lanka ordered UN/INGOs to vacate Kilinochchi in September, 2008 to conduct ‘a war without witnesses’ (B) Vanni population denied medicine, food and other basic needs (C) Coordinated mortar/artillery/MBRL (multi-barrel rocket launchers) attacks on civilian population causing deaths of over 40,000 civilians. The UK’s Channel 4 News alleged that then Secretary Defence Gotabhaya Rajapaksa and then Army Commander Gen. Sarath Fonseka executed the operation (D) Rape of combatants/civilians. Subsequently, the military was accused of abusing/raping men. (E) The use of cluster bombs
Samarasinghe, in spite of being Rajapaksa’s human rights envoy. never exploited the US statement made at the inaugural Defence Seminar 2011. In fact, the previous administration was determined not to explore ways and means of using the US statement. Having reported the controversial US statement exclusively, the writer, on several occasions. personally made representations to several officials, including the then Chief of Defence Staff General Jagath Jayasuriya and the then Justice Minister Rauff Hakeem regarding the urgent need to take remedial measures.
In response to a question regarding the alleged move by some LTTE cadres to surrender during the last few days of the war, the US official denied that possibility, thereby effectively contradicting those propagating the story that security forces massacred surrendering persons. The US official was responding to a query posed by retired Indian Maj. General Ashok Metha. (Metha served in Sri Lanka during the deployment of the Indian Army in the late ‘80s in accordance with the Indo-Lanka accord). The Island exclusive on the US official’s reaction was ignored by the GoSL. It would be pertinent to mention the Indian’s question was posed to the wartime General Officer Commanding (GOC) of the celebrated 58 Division, Maj. Gen. Shavendra Silva.
This is what Lt. Col. Lawrence Smith had to say.: "Hello, may I say something to a couple of questions raised. I’ve been the defence attache 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 GoSL refrained from at least referring to the US statement. The GoSL, for some strange reason, ignored the INCREDIBLE statement made over two years after the LTTE’s defeat. As the senior Colombo-based US military official, he would have certainly had access to all relevant information and wouldn’t have responded that way if he was not sure of the actual situation.
The US State Department asserted that the US military officer hadn’t been at the Defence Seminar on an official capacity. The GoSL remained silent. The State Department NEVER contradicted the statement. Instead it disputed the military official’s right to make that statement.
Maj. Gen. Silva’s plight should be discussed, taking into consideration both negligence on Sri Lanka’s part as well as external factors. Let me reproduce verbatim what Zeid-Hussein stated in his June 28, 2016, address in Geneva, to pressure Sri Lanka into adopting a new Constitution:
= "Significant momentum has been achieved in the process of constitutional reform. On 10 March 2016, Parliament adopted a resolution establishing a constitutional assembly to draft and approve a new constitution or amendments by the end of 2016, which would then be put to a referendum in 2017. The drafting process has benefited from an inclusive public consultation process overseen by a Public Representations Committee that received submissions and held district level consultations in the first quarter of 2016.
= From a human rights perspective, the constitutional reform process presents an important opportunity to rectify structural deficiencies that contributed to human rights violations and abuses in the past and reinforce guarantees of non-recurrence. These could include a more comprehensive Bill of Rights, stronger institutional checks and balances, enhanced constitutional review, improved guarantees for the independence of the judiciary, effective individual complaints mechanisms and greater direct enforceability of international human rights treaty. Also, as demonstrated by other countries’ experience, is the strengthening of civilian oversight over the military in the form of multiple oversight and accountability mechanisms over defence policy, discipline and promotion, budgeting and procurement. The new Constitution will also be important in facilitating the establishment of the transitional justice mechanisms envisaged by the Government, for instance the criminalization of international crimes in national law or allowing for the involvement of international judicial personnel. At the same time, the High Commissioner hopes that the political process of adopting constitutional changes will not involve tradeoffs and compromises on core issues of accountability, transitional justice and human rights."
Collective failure of political party system
Sri Lanka created history by becoming the first country co-sponsoring a resolution against itself in spite of it being severely inimical to its interests. The entire process leading to the 2015 October Resolution was based on unproved allegations whereas US statement that cleared the country of such accusations were ignored. The Resolution paved the way for a new Constitution, in addition to the implementation of four specific measures meant to address accountability issues, namely (1) a judicial mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international human rights law (2) A Commission for truth, justice, reconciliation and non-recurrence (3) An Office for Missing Persons (OMP) and finally (4) An Office for Reparations.
Those seeking to haul Sri Lanka before hybrid accountability mechanism exploited Sri Lanka’s failure to pursue their objective. The writer firmly believes the issue at hand is not foreign judges in an accountability mechanism but Sri Lanka’s deliberate failure, since the end of war to-date, to present all relevant facts before Geneva. Western powers and the civil society shouldn’t be blamed for the failure on the part of the corrupt political parties to defend the country.
The SLFP spokesman conveniently ignored the fact that in March 2017, Sri Lanka asked for and obtained two years more to fully implement the October 2015 Geneva Resolution. The SLFP cannot absolve itself of the responsibility for taking it up with the UNP, thereby allowing the Geneva process to continue.
The SLFP also turned a blind eye to the Consultation Task Force on Reconciliation Mechanisms (CTFRM) in January 2017 calling for full participation of foreign judges, and other personnel, including defence lawyers, prosecutors and investigators, in transitional justice mechanism to address accountability issues.
Having repeatedly assured the country that the change of government, in January, 2015, had ended the likelihood of foreign participation in proposed war crimes inquiry, the government struggled to cope up with a report released by CTFRM, headed by attorney-at-law, Mrs Manouri Muttetuwegama.
The eleven-member committee stressed that foreign participation was required as those who had suffered during the conflict had no faith in local judiciary, which lacked expertise to undertake such a task. They endorsed Human Rights Commissioner Zeid Ra’ad Al Hussein declaration made in Colombo, in February, 2016, that the judiciary here was incapable of undertaking the process. The Jordanian questioned the integrity of the local judiciary.
The CTFRM comprised Muttetuwegama, Dr Paikiasothy Saravanamuttu, Gamini Viyangoda, Prof. Sitralega Maunaguru, Dr Farzana Haniffa, Mirak Raheem, Prof. Gameela Samarasinghe, Visaka Dharmadasa, Shantha Abhimanasingham, PC, K.W. Janaranjana and Prof. Daya Somasundaram.
Sri Lanka also ignored invaluable representations made by Lord Naseby in Oct, 2017, in the House of Commons on behalf of Sri Lanka on the basis of wartime British High Commission dispatches (January-May 2009). Sri Lanka turned a Nelsonian-eye to the highly respected Briton’s assertion that the number of dead couldn’t have exceeded 8,000 and one fourth of them were LTTE cadres. Foreign Ministry initially dismissed Lord Naseby’s move. The British High Commission in Colombo, too, adopted a similar stand.
Former Ministers, Dayasiri Jayasekera, Sarath Fonseka and Mahinda Samarasinghe in response to queries raised by this writer, at separate press conferences, admitted that cabinet never discussed how Lord Naseby’s revelation could be used to our advantage. While The Island took up the issue with Jayasekera at a post-cabinet media briefing in Nov. 2017 several weeks after Lord Naseby revelation, Fonseka and Samarasinghe were confronted at the Sustainable Development, Wildlife and Regional Development and SLFP Office, T.B. Jayah Mawatha, respectively.
The war-winning Army Chief admitted that there hadn’t been any Cabinet discussion on how Sri Lanka should respond to Geneva allegations of war crimes against the country. (SF: Cabinet never discussed how to counter war crimes allegations with strap-line...responds to PM’s 2030 leadership change move, The Island, Sept 8, 2018).
Mahinda Samarasinghe acknowledged that Sri Lanka’s decision to co-sponsor the Geneva Resolution 30/1 in Oct 2015 hadn’t been discussed by the Cabinet of Ministers nor the Lord Naseby’s revelation (Cabinet never discussed 2009, 2015 Geneva Resolutions – MS, The Island, Aug 18, 2018).
Jayasekera said that a statement made by Lord Naseby in the House of Lords would be used by the government appropriately at the right time, though the Cabinet was yet to discuss it. Jayasekera asserted that there were far more important issues than Geneva while accusing the writer of raising an unnecessary issue (War crimes: Cabinet spokesman provoked by query on govt. response to Naseby move, The Island, Nov 16, 2018)
One-time Attorney General and Foreign Minister Tilak Marapana, PC, in spite of promising parliament in late Nov 2017 to use the Naseby disclosure at the appropriate time and the venue, never kept the promise. This assurance, given in response to a query raised by the Joint Opposition, is yet to be fulfilled.
Had Sri Lanka properly used Lord Naseby’s disclosure obtained from the Foreign and Commonwealth Office (FCO) following an intervention made by the UK Information Commissioner’s Office in terms of the Freedom of Information Act 2000 along with US Defence advisor’s declaration made in June 2011, the Geneva lie could have been countered.
It would be important to know Lord Naseby made his request in accordance with the Freedom of Information Act 2000 on Nov 06, 2014 though the required information was denied on the basis of false claim public disclosure would undermine their relations with Sri Lanka whereas the actual situation was other way around.
Can anyone dare to name a country that deliberately denied its armed forces an opportunity to clear their name?