Tuesday, 21 January 2020

Alleged war crimes lame excuse to introduce new constitution

Oct 2015 Geneva Resolution based on pack of lies


Colombo-based top UN official Hana Singer raised the contentious issue of wartime disappearances with President Gotabaya Rajapaksa last Friday, January 17, when she met the latter at the Presidential Secretariat. President Rajapaksa explained as to how Tamil politicians hindered efforts to provide relief to those affected by the conflict (pic courtesy President’s Media)

By Shamindra Ferdinando

Apropos Midweek piece ‘What will be Prez Gotabaya’s Geneva policy’ published in the January 15, 2020, edition of The Island, Dr. Gunadasa Amarasekera has sent us the following comment, headlined ‘The President is duty bound.’ The following observations were made by the writer

(1)                    The JO never made a real effort to pressure the government over the Geneva issue. Instead, the JO helped the Geneva Project by joining the treacherous attempt to draft a new constitution to do away with Sri Lanka’s unitary status at the behest of the West and the Eelam lobby.

(2)                    However, the UNP cleverly used the Parliament to achieve its objectives. The UNP shrewdly involved all political parties, represented in Parliament, in a Constitution making process, as directed by Geneva against the country’s interest. The operation was meant to do away with the unitary status.

These observations take my mind back to the harsh comments I made regarding the first meeting summoned by the then Prime Minister Ranil Wickremesinghe to initiate a new Constitution, and to an incident that followed it.

When I saw the picture wherein the entire opposition with beaming faces rushed to participate at that meeting as requested by Ranil Wickremesinghe, I was so infuriated that I lashed out at them at a press conference. I remember quoting a verse from Budugunalankaraya – comparing their behaviour to that of the fish rushing to the bait. (gesu mas godurata pena yana masun vilasita)

A few days later, an emissary was sent to me by the opposition to convince me of the innocuousness of this act and to silence me, without raking up the issue. When I asked the emissary what made them behave in that way, the answer was, "if we did not go there, then we would not have known what was going on".

Those members of the opposition not only participated at that meeting but also joined the various committees, designed by Ranil Wickremesinghe. Was the intention to make Ranil Wickramasinghe do the dirty work and make him the scapegoat and wash their hands off?

I only hope that President Gotabaya Rajapaksa is not guided by these members of the then opposition (now in government) and will act independently and get the UNHRC to revisit this issue at the forthcoming Geneva sessions, as suggested by Lord Naseby. The President is duty bound to do so, as he was elected by the vast majority of Sinhala Buddhists and others who are not separatists out to divide the country. This may be the last chance to do so and save the country."

Thanks to Treasury bond scams, allegedly perpetrated by the then UNP-led government, in Feb 2015 and March 2016, high profile project to replace the Constitution went awry. The first Treasury bond scam caused a serious rift between the then President Maithripala Sirisena and Premier Ranil Wickremesinghe. In spite of that, President Sirisena dissolved Parliament, in late June 2015, to prevent tabling of COPE (Committee on Public Enterprises) on the first Treasury bond scam. If that report was allowed in Parliament, the outcome of August 2015 parliamentary polls would have been different. President Sirisena ensured the UNP victory by declaring that in case of a UPFA victory, Mahinda Rajapaksa wouldn’t be named the Prime Minister, under any circumstances. Having won the parliamentary poll, the UNP brazenly perpetrated a far bigger second Treasury bond scam, in late March 2016. President Sirisena owed an explanation as to why he delayed setting up of a Presidential Commission of Inquiry to probe the Treasury bond scams, till mid-January 2017.

In between the Treasury bond scams, the government, in Oct 2015, betrayed its own armed forces at the Geneva-based United Nations Human Rights Council by way of the controversial resolution ‘Promoting reconciliation, accountability and human rights in Sri Lanka.’ The resolution was nothing but a tool to create an environment necessary to bring in a new Constitution.

Geneva politics

As President Gotabaya Rajapaksa considered ways and means of tackling the Geneva issue, it would be necessary to examine the whole project carefully with the focus on the Oct 2015 resolution. The resolution was based on a pack of lies. Geneva intervened in a new constitution making process. Unsubstantiated war crimes allegations were used as an excuse to meddle in purely a domestic matter. It would be pertinent to mention that Western powers brought in a UNP- led coalition to power under Maithripala Sirisena’s leadership to ensure the right political climate to bring in a new Constitution. Having failed to oust Mahinda Rajapaksa, at the January 2010 presidential poll, Western powers succeeded in t January 2015. The treacherous project involved the UNP, JVP, SLMC and one-time Velupillai Prabhakaran’s proxy, the four-party Tamil National Alliance (TNA).

Sri Lanka never made a genuine effort to prove the basis for the Geneva resolution as being a sinister ploy and thereby allowed the continuation of a process meant to divide the country on ethnic lines. The 19th Amendment, enacted weeks after the first Treasury bond scam, was meant to facilitate the despicable process by diluting the executive powers of the President.

The JVP’s proposal to choose a President, by way of a vote in Parliament, if adopted, could have caused a catastrophe.

HR Chief on new Constitution

In June 2016, the then High Commissioner for Human Rights, Zeid Ra’ad Zeid Al-Hussein, commented on the constitutional making process in his oral update to the rights body.

Al-Hussein said: "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."

LSSP (majority group) stalwart attorney-at-law Lal Wijenayake headed the much advertised Public Representations Committee. Wijenayake, the then LSSP Secretary, played a significant role in the overall project, along with Dr. Jayampathy Wickremaratne, PC (UNP National List).

The UNP cleverly involved all political parties, represented in Parliament, in the Geneva project to replace the much amended 1978 Constitution.

The then Joint Opposition (JO) never bothered to examine the UNP strategy. The JO joined the constitution making process, thereby gave credence to the operation. JO constituent, the National Freedom Front (NFF), quit the process in July 2017. NFF leader Wimal Weerawansa, and four other NFF MPs, elected on the UPFA ticket, namely Weerakumara Dissanayake, Jayantha Samaraweera, Udayashantha Gunasekera and Niroshan Premaratne, quit the Constituent Assembly (CA). Weerakumara Dissanayake, subsequently, switched his allegiance to the then President Maithripala Sirisena.

In spite of the NFF’s move and the Federation of National Organizations (FNO) demanding that the JO quit the disputed constitution making process without further delay, the group remained in the process. Dr. Amarasekera and Dr. Wasantha Bandara, on behalf of the FNO, repeatedly warned of dire consequences from the proposed new Constitution. President’s Counsel Manohara de Silva, too, on many occasions, highlighted the threat posed by the proposed new Constitution.

Gotabaya Rajapaksa launched Eliya in a bid to make the public aware of the danger posed by the new Constitution.

The Treasury bond scams dealt heavy blows to the UNP-led administration, thereby derailing the process. The UNP couldn’t proceed with the Geneva time table primarily due to its own failures. The Treasury bond scams considerably weakened the UNP. The debilitating setback, suffered at the Feb 2018 Local Government poll, finally led to the Oct 26, 2018 ‘constitutional coup.’ But, the Geneva process remained on track with the then government reassuring UK of its commitment to the Geneva process.

The UNP conveniently forgot about the high powered ‘ammunition’ provided by Lord Naseby, in Oct 2017, by way of wartime dispatches from Colombo, to discredit the Geneva resolution.

On the basis of UK military dispatches, from Colombo, (January-May 2009), Lord Naseby, revealed the maximum number of Tamils killed was about 6,000 and not 40,000, as alleged by the UN Panel of Experts, and that the Mahinda Rajapaksa’s government never deliberately targeted the civilian community. Of those killed, during the final phase of fighting, one fourth was described as LTTE combatants.

President Gotabaya Rajapaksa’s government has an opportunity to seek re-examination of the Geneva resolution in the wake of Lord Naseby requesting the UK to withdraw the now discredited resolution.

Mangala reiterates commitment

Minister of State, Foreign and Commonwealth Office, Lord Ahmad of Wimbledon, on Feb. 05, 2019, revealed Sri Lanka’s unwavering commitment to the Geneva Resolutions, in his response to Lord Naseby, during the House of Commons debate on UNHRC Resolutions - 30/1 in Oct. 2015 and 34/1 in March 2017.

Let me reproduce, verbatim, the section that dealt with Sri Lanka’s stand on Geneva. Declaring that the UK repeatedly urged Sri Lanka to go further and faster, Lord Ahmad, of Wimbledon, who is also a key member of Ahmadiyya Muslim Community, founded in Punjab, said: "On 21 January, 2019, I met the Minister of Finance and Mass Media, Mangala Samaraweera, in London. He has been a strong supporter of Sri Lanka’s commitments to Resolution 30/1. It was a pleasant and constructive meeting, during which he took the opportunity to engage directly with representatives of the diaspora in the UK, including members of the Tamil community. My honourable friend, the Minister for Asia and the Pacific, Mark Field, did the same when he met Foreign Minister Marapana and a number of other Sri Lankan Ministers and officials, in Colombo, last October. Last September, the UK led a statement on behalf of the core group at the 39th session of the Human Rights Council, urging Sri Lanka to prioritize and drive forward the implementation of its commitments."

The new government cannot afford not to undertake a full review of the Geneva process. Obviously, the Geneva resolution, co-sponsored by Sri Lanka ,is nothing but an excuse to proceed with the new constitution making process that would undermine the country’s sovereignty. The previous government established an elaborate set up to bring in a new Constitution. UNP leader Ranil Wickremesinghe personally led the parliamentary process. Wickremesinghe could have brought the process to a successful conclusion if not for the massive damage the UNP caused itself by way of Treasury bond scams. The destabilization, caused by the UNP, undermined the constitution making process, undertaken by the party, though Western powers and the TNA remained confident that the Parliament could be somehow used to achieve their objective. However, the Treasury bond scams (Feb 2015 & March 2016), dispute over the co-sponsorship of the Geneva resolution (Oct 2015), appointment of Presidential Commission of Inquiry to probe Treasury bond scams (January 2017) and the debilitating Local Government polls defeat suffered by the UNP and the SLFP (Feb 2018) ruined yahapalana arrangement. Finally, President Sirisena sacked PM Wickremesinghe (Oct 2018), after having failed to get rid of him with the help of the UNP parliamentary group.

The Sinhala south overwhelmingly voted for Gotabaya Rajapaksa at the 2019 presidential poll. The north and east electorates rejected him. They voted for Sajith Premadasa who contested on the New Democratic Front (NDF) ticket. If not for the Tamil vote, Gotabaya Rajapaksa would have won the election by a far bigger margin than the 1.3 mn votes. The forthcoming Geneva session has given President Gotabaya Rajapaksa’s government an opportunity to place all available credible facts before Geneva, and the North-East Tamil electorate, to disprove the primary war crimes allegation 40,000 Tamil civilians being massacred as a result of the Mahinda Rajapaksa government deliberately targeting that community.

A high profile campaign is required to educate the public in the run up to the Geneva session and the parliamentary polls expected in the last week of April, or early May 2020.

Sri Lanka never bothered to critically examine all available information, nor present them in Geneva. A proper assessment would have certainly exposed the discrepancy in accusations directed at the war-winning Sri Lankan military.

Pivotal issues

Let me list key developments since the successful conclusion of the war in May 2009: (1) March 2011 UNSG Panel of Experts (PoE) alleged that Sri Lankan military killed 40,000 on the Vanni front.

(2)In June 2011, US Defence Advisor in Colombo, Lt. Col. Lawrence Smith, disputed accusations pertaining to battle-field executions following an agreement between the government and the LTTE.

(3)In Sept 2011, London headquartered Amnesty International placed the number of civilian deaths at 10,000.

(4) In Sept 2011, the UK parliament was told 100,000 persons including 60,000 LTTE combatants, were killed in 2009. For some strange reason, Sri Lanka never bothered at least to point out the discrepancy in various figures quoted by interested parties, hell bent on hauling Sri Lanka before the international war crimes court.

(5) Sri Lanka’s failure to highlight/point out discrepancy in the number of deaths is very surprising, against the backdrop of the United Nations Country Team (UNCT) contradicting PoE assertion 40,000 civilians perished in the offensive. The UNCT, on the basis of information secured from those based in wartime Vanni, placed the number of dead at 7,721 and wounded at 18,479. Sri Lanka owed an explanation as to why this was not taken up with those who accused Sri Lanka of massacring innocent people.

(6) Interestingly, the March 2011 PoE report, that alleged Sri Lanka of killing 40,000, revealed the existence of UNCT report yet to be released over a decade after the end of war. For want of a cohesive strategy, Sri Lanka never really brought up issues that should have been dealt with. A case in point is the UN ruling that prevented examination/verification of accusations for a period of 20 years, since the March 31, 2011, releasing of the PoE report. The bottom line is that on the basis of unsubstantiated accusations ,collected under mysterious circumstances, the UN engaged in a process that finally led to the treacherous UNP-SLFP combine backing the Oct 2015 Geneva resolution.

(7) Sri Lanka co-sponsored the Geneva resolution, just over a week, after finding fault with it. The then Permanent Representative in Geneva, Ambassador Ravinatha Aryasinha, who objected to the draft resolution, was instructed to endorse it. Aryasinha did.  In spite of President Sirisena repeatedly dissociating his government from the Geneva resolution, he conveniently refrained from taking remedial measures. The Geneva resolution stands today unchanged.

(8) In June 2016, Geneva referred to constitutional making process in Sri Lanka. Geneva represented the interests of the Western powers. In the same month, lawmaker M.A. Sumanthiran, PC, in the presence of then Sri Lanka Ambassador to Washington, Prasad Kariyawasam, revealed the existence of a tripartite agreement on the accountability mechanisms. In other words, he declared the Sirisena-Wickremesinghe government acceptance of foreign judges and other foreign personnel. With Kariyawasam on his side, Sumanthiran declared that foreign judges being allowed in domestic war crimes courts was in line with the Constitution.

(9) The House of Lords was told, in Oct 2017, there was no basis for the PoE claim of 40,000 deaths in the Vanni. Recently, Lord Naseby reiterated in the House of Lords there were only 6,000 deaths. Of them, one fourth were LTTE combatants. (Once Lord Naseby referred to 7,000 to 8,000 deaths) It would be pertinent to mention Lord Naseby based his statement on wartime British High Commission dispatches from Colombo. Sri Lanka is yet to take up Lord Naseby’s disclosure with the UN. Farhan Aziz Haq, Deputy Spokesperson for UNSG António Guterres, said that decisions regarding actions taken by the UNHRC were solely in the hands of the members of the Human Rights Council. Haq said it would be up to the member states of the Human Rights Council to decide whether to revisit Sri Lanka’s case. The UNHRC comprises 47 countries divided into five zones.

The UN spokesperson said so when The Island asked him whether there was a possibility in the UN revisiting Geneva Resolution in the wake of Lord Naseby assertion that the Vanni death toll was maximum 7,000 to 8,000 not 40,000 as reported by UNSG Panel of Experts (PoE) in March 2011 andthat the GoSL never targeted civilians purposely.

The Island raised the issue with the UN in the wake of Sri Lanka Parliament taking up the issue twice since Lord Naseby’s Oct 12 bombshell statement in the House of Lords.

Sri Lanka ignored the opportunity given by Haq as well. In fact, Sri Lanka also turned a blind eye to the UK efforts to suppress dispatches which cleared Sri Lanka. UNHRC member UK didn’t release dispatches until Lord Naseby sought the intervention of UK Information Commissioner in accordance with the Freedom of Information Act (2000).  Had the Foreign and Commonwealth Office released the required information, as requested in early Nov 2014, Western powers would have found it difficult to justify the Geneva Resolution. Western powers engineered the change of government in January 2015 to ensure the passage of the Geneva resolution meant to facilitate the constitutional process tailor made by the West. Final objective was to bring in the new Constitution. As pointed out by Dr. Gunadasa Amarasekera, who played a significant role in the overall resistance against the anti-Sri Lanka project, pointed out, in a letter to the writer, the threat remains. In fact, the threat is growing. The possibility of the Parliament being used to achieve separatist project cannot be ruled out.

(10) Sri Lankan leadership lacked insight to point out as to how the UN contributed to the Tiger despicable project of using of civilians as a human shield to halt the advance of security forces - March-May 2009. The LTTE, in early 2007, detained Tamil UN workers who had helped those who lived in areas under LTTE control to safely cross the Vanni frontline. Sri Lanka never took up this issue with the UN though the UN mission here was found to have deceived both the government and its New York headquarters. The PoE comprising Marzuki Darusman (Chairman), Stevan R. Ratner and Yasmin Zooka ended the report with the following recommendation: "The Secretary-General should conduct a comprehensive review of actions by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates."

Culpability of the UN

The UN owed the world an explanation as to why it did nothing to prevent the massive scale use of human shields. Let me end this piece with leaked ICRC statement which cleared Sri Lanka of genocide charge.

The cable dated July 15, 2009 signed by the then Geneva-based US Ambassador Clint Williamson cleared the Army of crimes against humanity. The cable addressed to the US State Department was based on a confidential conversation Ambassador Williamson had with the then ICRC head of operations for South Asia, Jacque de Maio, on July 9, 2009. Ambassador Williamson wrote: "The army was determined not to let the LTTE escape from its shrinking territory, even though this meant the civilians being kept hostage by the LTTE were at an increasing risk. So, de Maio said, while one could safely say that there were ‘serious, widespread violations of international humanitarian law,’ by the Sri Lankan forces, it didn’t amount to genocide. He could cite examples of where the army had stopped shelling when the ICRC informed them it was killing civilians. In fact, the army actually could have won the military battle faster with higher civilian casualties, yet it chose a slower approach which led to a greater number of Sri Lankan military deaths. He concluded however, by asserting that the GoSL failed to recognize its obligation to protect civilians, despite the approach leading to higher military casualties."

A thorough review of all information available - from UK dispatches to Wiki Leaks - is necessary, at least now. The government can begin by examining the UNHRC project to blame Sri Lanka for the Mannar mass graves and the then Northern Chief Minister C V Wigneswaran’s accusations pertaining to poisoning of over 100 LTTE ex-combatants undergoing rehabilitation during the yahapalana administration.