Any harm in Sri Lanka seeking reappraisal of Geneva Resolution?
SPECIAL REPORT : Part 197
By Shamindra Ferdinando
Lord Naseby recently took up Geneva Resolution 30/1(Promoting reconciliation, accountability and human rights in Sri Lanka) with the UNSG Antonio Guterres as Sri Lanka struggled to cope up with the Oct 12, 2017, revelations in the House of Lords, pertaining to the war against the LTTE.
The combined armed forces brought the war to a successful conclusion on the morning of May 19, 2009.
In the wake of the UK disclosure, Sri Lanka should have immediately called for a thorough reappraisal of the controversial process, leading up to Geneva Resolution 30/1, co-sponsored by Sri Lanka. The Geneva-based United Nations Human Rights Council (UNHRC) adopted the resolution on Oct 1, 2015. Instead, the Sirisena-Wickremesinghe government made a pathetic effort to distance itself from the Naseby declarations that 40,000 civilians didn’t perish on the Vanni front and the allegation that the then government purposely targeted civilians.
The first government response to Lord Naseby’s Oct 12, 2017, assertions was obtained by the writer, by way of a response from the Foreign Ministry. Having callously dismissed Lord Naseby’s statement, the Foreign Ministry issued a communique clarifying Sri Lanka’s stand. A few weeks later, co-cabinet spokesperson and Sports Minister Dayasiri Jayasekera, acknowledged that the issue hadn’t been at least taken up at the cabinet meeting chaired by President Maithripala Sirisena. Jayasekera made the shocking disclosure in response to a query posed by the writer at the post-cabinet media briefing at the Government Information Department.
Lord Naseby’s assertions were largely based on wartime UK Defence Attache, based in Colombo, Colonel Anton Gash. It would be pertinent to examine the circumstances under which the Guterres’s predecessor South Korean Ban Ki-moon set the stage for persecution of Sri Lanka. Against the backdrop of Lord Naseby disputing the March 2011 UN assertion that 40,000 civilians had been killed, a thorough inquiry is required on the procedure adopted by UNSG Panel of Experts’ (PoE) to gather so called war crimes evidence.
Lord Naseby forwarded the entire set of papers, consisting of the Hansard transcript of the Oct 12, 2017 debate, he had initiated, copies of the heavily redacted pages of Col Gash’s wartime dispatches from Colombo, his interpretation of the un-redacted parts and the substantial corroborative evidence from many other sources to Guterres, the Human Rights team at the UNHRC in Geneva, namely the High Commissioner, Zeid Ra’ad Al Hussein, and the nine UN Special Procedures mandate holders.
Former Prime Minister (1995-2002) of Portugal, Guterres succeed Ban Ki-moon on January 1, 2017.
As the UN High Commissioner for Refugees (UNHCR), for a decade, from June 2005, Guterres must have been fully aware of the Sri Lanka crisis. Especially as the UNHCR, he would have certainly received reports pertaining to Eelam War IV (Aug 2006-May 2009) with the focus on the displacement of almost the entire Vanni population. Post-war Sri Lanka is lucky to have a former UNHCR as the UN Secretary General.
A Europe-based good friend of mine who had been extremely helpful in my endeavors over the years suggested the urgent requirement to remind the forgetful Sri Lankans of PoE project with the focus on evidence-gathering mechanism. A real patriot, though being a foreign passport holder, he had thrown his weight behind The Island efforts without expecting anything in return. Such support should be studied against the backdrop of the previous government squandering millions of US dollars in taxpayers’ money to promote Sri Lanka in the US.
The current administration’s failure to inquire into such payments is inexcusable and strange.
Gash vs PoE ‘sources’
Having accused Sri Lanka of indiscriminately killing, the PoE struggled to gather evidence. The PoE, based at the UN Secretariat (Library Building L-330 L) New York, found it extremely difficult to gather a substantial number of complaints/submissions, in respect of accusations, before the expiry of Dec 15, 2010, deadline.
The PoE posted a high profile notice on UN’s website, on Oct 27, 2010, seeking evidence against the Sri Lankan political leadership and the armed forces. The PoE made its move clear after having informed the Permanent Representative of Sri Lanka at the UN. The UN posting was accessible to the entire world, including those living in the Northern and Eastern regions of Sri Lanka.
Much to the disappointment of the PoE, comprising former Indonesian Attorney General Marzuki Darusman, US attorney-at-law Steven R Ratner and South African NGO guru Yasmin Sooka, the UN didn’t receive the expected response. Shocking absence of complaints could have had a devastating impact on the project meant to bring war crimes accusations against Sri Lanka. Despicable UN effort should be examined against the backdrop of war-winning President Mahinda Rajapaksa securing a second term, in January 2010. For want of sufficient number of submissions, the PoE had no option but to extend the Dec 15, 2010, deadline to Dec 31, 2010.
The Rajapaksa administration never referred to the UN process. The External Affairs Ministry remained silent. The Rajapaksa’s refusal to cooperate with the PoE has been advantageous to those who had been propagating lies at the expense of both political and military leaderships. Having been jolted by the discouraging response, Diaspora and various other interested parties sought to inspire Tamils to make submissions. They worked overtime to achieve their objective.
The Center for War Victims and Human Rights spearheaded the effort by making a public appeal for submissions.
Let me examine how the Center for War Victims and Human Rights had collected some of its unsubstantiated information. Those wanting to contribute to an international war crimes probe had an opportunity to choose from over two dozen sample letters made available online by the Center for War Victims and Human Rights. The civil society group, while making available 25 samples online, urged those interested in joining the campaign to fill an online petition in case of their inability to write on their own. (How Moon panel gathered ‘war crimes ‘info revealed—The Island April 21, 2012).
Let me reproduce one such online letter:
To: Mr. Marzuki Darusman, Chairman
To: Mr. Steven Ratner, Panel Member
To: Ms. Yasmin Sooka, Panel Member
Re: Justice delayed itself considered justice denied and it is necessary to reaffirm the international community’s commitment to the principle of accountability on serious violations of international humanitarian law in Sri Lanka.
Arundhati Roy, the acclaimed Indian writer and activist who focuses on issues related to social justice and economic inequality, also won the Booker Prize in 1997 for her novel, The God of Small Things. For her work as an activist she received the Cultural Freedom Prize awarded by the Lannan Foundation in 2002. She mentioned last year’s war was not just a war of the Sri Lankans against the Tamil people.
"That was a corporate war. All the large Indian companies are now heading to Sri Lanka to make more money," said Arundhati Roy, while speaking at a Chennai convention. She has also voiced her opposition openly on many occasions, condemning India’s silence on the humanitarian tragedy in Sri Lanka, and calling the war "a racist war on Tamils." This should be considered as ‘war crimes’, ‘crimes against humanity’ and ‘genocide’ against Tamil citizens of Sri Lanka and impartially investigated by the independent international body and bring justice to the victims as justice delayed itself considered justice denied.
Yours truly,
Your Name, Contact Postal Address with the Residing country.
Can there be anything as ridiculous as someone demanding war crimes probe on the basis of Arundhati Roy’s accusation? However, the writer of that particular letter refrained from mentioning Indian intervention here in the 80s.
The Remaining 24 online samples can also be accessed. The writer brought Center for War Victims and Human Rights project to the then government’s notice. Unfortunately, the previous government lacked the basic strategy to counter the UN project. But, in spite of their strenuous efforts, the PoE could manage to secure approximately 4,000 submissions from about 2,300 persons (PoE report paragraph 17). It would be important to keep in mind that none of those who had submitted online complaints were summoned by the PoE for examinations. Having accused Sri Lanka of war crimes with the massacre of 40,000 being the primary charge, the PoE ruled that submissions couldn’t be examined under any circumstances for a period of 20 years. The PoE declared that even after the completion of the mandatory 20 years, further retention or release should be subjected to what it called declassification review (PoE report paragraph 20).
UN on confidentially clause
The Rajapaksa administration acted irresponsibly. Those who had been tasked with countering Western propaganda didn’t even bother at least to peruse the PoE report. The External Affairs Ministry as well as the Justice Ministry pathetically had failed in their responsibilities. The Defence Ministry, too, ignored the pivotal importance of a thorough study even after Colombo-based wartime US Defence Advisor Lt. Colonel Lawrence Smith, in June 2011, publicly questioned the very basis of accusations made against the Sri Lankan military. The previous government never realized the importance of the US military official’s statement, made over two years, after the conclusion of the war, and two months, after the PoE report. The US official wouldn’t have shielded Sri Lanka if he had an iota of suspicion as regards the conduct of the military.
Obviously, imposition of confidentially clause pertaining to PoE records was meant to protect anti-Sri Lanka operation.
When the writer raised the issue with UN as well as UNDP Resident Representative in Colombo, Subinay Nandy, whether the UN would do away with the confidentiality clause to facilitate the Geneva probe, undertaken in 2014, the Colombo mission issued the following statement after having consulted UN headquarters. The UN said: "The High Commissioner for Human Rights will now be making arrangements for a comprehensive investigation requested by the UNHRC and the issue of the confidentiality clause will need to be considered at a later stage," (UN to revive 20-year confidentiality clause ‘at a later stage’-The Island April 7, 2014).
The US, the British as well as the EU, too, in spite of their push for in international war crimes probe, ruled out the possibility of them calling for a review of the confidentiality clause (EU too, won’t call for review of 20-year UN confidentiality clause—The Island April 9, 2014).
The writer pointed out that Sri Lanka’s refusal to cooperate with the investigation undertaken by Geneva could be advantageous to those seeking a regime change here. Instead of blanket denial, the government should take tangible action to challenge the very basis of the PoE report as well as the lies propagated by the UK media outfit, Channel 4 News.
As The Island has asserted, the Geneva probe, spearheaded by Sandra Beidas, formerly of the Amnesty International, resulted in Sri Lanka being faulted on serious crimes that warranted immediate action. The Office of the High Commissioner for Human Rights (OHCHR) in July 2014, declined to release the names of the investigation team tasked with probing the war crimes allegations, though Ms Sandra Beidas was named as its coordinator.
OHCHR spokesperson Rupert Colville said: "While we felt it is important to announce the coordinator of the investigation, OHCHR does not normally release details of the staff team working on any particular issue, and we will not be doing so in this case either. Again this is standard practice, whether it is an OHCHR-led investigation like this one, or an independent Commission of Inquiry to whom we loan staff."
At a crucial stage of the UN probe on Sri Lanka, Zeid Ra’ad Zeid Al-Hussein, the then Permanent Representative of Jordan to the United Nations in New York, succeeded Navi Pillay, on Sept 1, 2014.
The OHCHR’s refusal to divulge the identities of the investigation team members surprised many as Hussein’s predecessor Pillay assured Sri Lanka that a panel comprising Silvia Cartwright (former New Zealand HC judge), Asma Jahangir (former President of Pakistan’s Supreme Court Bar Association and of the Human Rights Commission of Pakistan) and Martti Ahtisaari (former Finish President) would only play a supportive and advisory role to the investigation team and wouldn’t lead the investigation team.
Pillay said in her letter dated July 5, 2014: "Their purpose would be not only to provide expert advice and guidance to the investigation, but also to accompany the process and provide an independent verification of the investigation."
Colville’s statement that the names of the investigation team wouldn’t be divulged contradicted Pillay’s position. If Pillay intended to keep identities of the members secret, she wouldn’t have sought Sri Lanka’s permission for the investigators to undertake field visits between July and November, 2014. As Pillay had also called for the appointment of a high level GoSL representative to work with the investigating team, the decision against revealing the identities surprised many.
Wartime UN confidential report
Now that Lord Naseby has challenged the PoE report, wartime UN report that dealt with the Vanni war can help ascertain the ground situation.
Nothing can be as important as releasing a confidential war time dossier, prepared by the UN mission in Colombo, years before the Beidas led investigation. There cannot be a better ‘source’ than the UN report that dealt with fighting on multiple fronts in the Vanni region, both west and east of the Kandy-Jaffna road from August 2008 to May 13, 2009. The then head of the UN mission in Sri Lanka, Neil Bhune (July 2007-February 2011), supervised the project. Bhune was succeeded by Subinay Nandy. The dossier, approved by the UN mission in Colombo estimated the number of deaths at 7,721 and the wounded at 18,479 during the period from August 2008 to May 13, 2009. However, it didn’t specify losses suffered by the LTTE fighting cadre, a failure even discussed in classified diplomatic cables originating from diplomatic missions in Colombo, at the height of the war. The UN report was based on information provided by local staff of the UN and other NGOs in the LTTE-held area, the ICRC, religious authorities and other sources. As the UN mission in Colombo can still get in touch with those who had contributed to the report, the UN investigators have an opportunity to verify facts.
The UN remains silent on the confidential dossier though it can be of paramount importance. The Sri Lankan government, too, is yet to take it up with the UN. Sri Lanka’s failure to push the UN on this issue is surprising, as there cannot be a better way to verify claims and counter claims pertaining to 40,000 civilian deaths during the final phase of the offensive. Unlike the UN, both the PoE and Channel 4 News hadn’t specified the period they meant by the final phase. The bottom line is that as the UN had accurately covered the ground situation for almost 10 months (Aug 2008 to May 2009), it can be considered the best possible source. The UN’s failure to record the deaths and injuries from May 14 to 19, 2009 cannot justify attempts to disregard the valuable dossier. As the PoE as well as the Beidas team, too, had opportunities to examine the UN dossier, there is no reason for any party to object to its release now.
Perhaps the UN should call for a thorough review of all available information gathered since the conclusion of the war in May 2009 in addition to the UN report that had dealt with the situation on the ground while fighting was on in the northern region. In this regard, the UN should also closely examine the minutes of the Consultative Committee on Humanitarian Assistance.
In the wake of Lord Naseby’s representations to the UN, a fresh appraisal should be made on Geneva Resolution 30/1(Promoting reconciliation, accountability and human rights in Sri Lanka) that had been based on the PoE report (March 2011) taking into consideration (1) Gash reports that dealt with the January-May 2009 situation in the Vanni region (2) Amnesty International report titled ‘When will they get justice? (Sept 2011), Evaluation of Norwegian peace efforts (Sept 2011), minutes of the Consultative Committee on Humanitarian Assistance (CCHA) comprising government officials as well as top level diplomats. But the most important report that should be compared with the PoE is the still confidential UN document on the Vanni war prepared during Aug 2008 to May 13, 2009.
In addition to those reports and documents mentioned above, the UN can also examine the entire set of US diplomatic cables leaked by Wiki leaks that had dealt with the Vanni situation and if necessary compare it with Gash missives.
There cannot be any harm in the Sirisena-Wickremesinghe administration seeking a fresh evaluation, especially in the wake of Lord Naseby’s challenge to the UN.
