DHARSHAN WEERASEKERA

The report of the OHCHR- investigation is to be discussed by the Human Rights Council on 30th September, and also to be released to the public before that.  It is possible to predict what will be in it, because of the recent proposal by the United States, the chief-sponsor of the investigation, to introduce a ‘collaborative resolution’ with the Government agreeing to a domestic inquiry.

In my view, the proposal for a new domestic inquiry is a trap, far more dangerous than anything hitherto sprung on Sri Lanka in Geneva.  It is designed to pave the way for a ‘fishing expedition’ that will generate evidence to be used against this country at international venues, evidence that could not be generated by the present investigation.

In this article, I make two predictions about the upcoming report, explain the reason for the demand for a new domestic inquiry, and suggest some counter-measures.

a)  Predictions

The Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka (POE) released in 2011 set out three charges against the Government with respect to alleged violations of humanitarian law:  indiscriminate shelling, shelling of hospitals, and depriving civilians trapped in the conflict-zone of humanitarian assistance.  (POE, Pages 55-60.)

In February-2014, however, just two weeks before the Human Rights Council’s March- 2014 sessions, then High Commissioner for Human Rights, Navineethan Pillay, released a report where she introduced a new charge against the Government:  Deliberate killings.”

(Under international law, ‘Indiscriminate Killings’ and ‘Deliberate Killings’ are separate crimes, the first is where an attacker does not discriminate between civilian and military objects, and the second where an attacker deliberately targets civilians.)

The High Commissioner’s report had a section titled, ‘Emblematic cases,’ where she cited incidents such as the purported killing of Prabakarn’s son, the purported killing of LTTE ‘reporter’ Isaipriya, the White Flag’ incident, and so on.  Her primary source of evidence for these allegations was the Channel 4 videos.

To turn to the upcoming report, I predict the following:  with respect to the three older charges, the report will say there’s insufficient evidence to come to any definitive conclusions on any of them.  With respect to ‘Deliberate killings,’ the report will say there’s sufficient evidence to warrant trials against certain individuals.

In short, where the main thrust of the case for war crimes right up to March-2014 came from the three charges related to indiscriminate shelling, shelling of hospitals and denial of humanitarian assistance, from the upcoming report onwards, the main thrust of the case against Sri Lanka will be ‘Deliberate Killings.’

b) The reason for the demand for a new domestic inquiry

To understand the reason that the U.S. and other critics of Sri Lanka are calling for a new domestic inquiry, it is necessary to understand two things:  first, the legal grounds on which a case for war crimes can be made against the Government of a country, and second, the problem the U.S. and other critics of Sri Lanka have at present in establishing those grounds using the findings of the present report.

The only way to make a case for war crimes against the Government of a country—as opposed to individual soldiers who may be responsible for offences—is to make a case for ‘Command Responsibility.’ There are only two ways to do this:

One, show that persons high-up in the chain of command ordered the crimes in questions;

or two, that there were so many crimes that it was simply impossible for the higher-ups not to know of them, and, since they didn’t do anything to prevent the crimes in question, they are responsible for them.

The second principle mentioned above was established in a famous case, Yamashita v. Styer (1946),  and is called the Yamashita Doctrine.  In my view, this Yamashita Doctrine will become very important to Sri Lanka in the coming weeks and months, so it is worth digressing a moment to discuss the related case.  The facts and ruling in the case are as follows.

Tomoyuki Yamashita was the commander of Japanese forces in the Philippines during the Second World War.  He surrendered to the Americans at the end of the war, and was put on trial for war crimes.  The military tribunal that heard the case found him guilty, and sentenced him to death.  He appealed against this ruling to the U. S. Supreme Court.

His defence was that, although it was true that atrocities were committed by Japanese troops in various parts of the Philippines, at the time those atrocities were taking place, his lines of communication with the troops had been destroyed.  Therefore, he never ordered those troops to carry out any of the related atrocities, which means he cannot be held responsible for them.

The court did not buy this argument.  The court said that there was a duty on a commander to ensure that no atrocities were committed, and if he neglected that duty, he can be held personally responsible as if he ordered the acts himself.

The court said, inter alia:

‘It is urged that the charge does not allege that the petitioner either committed or directed the commission of such acts, and consequently that no violation is charged as against him.  But this overlooks the fact that the gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by ‘permitting them to commit’ the extensive and widespread atrocities specified…

The question is whether the law of war imposes on a commander a duty to take such appropriate measures as are within his power to control the troops under his command for prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures where violations result.’  (Yamashita v. Styer, 327 U.S. 1(1946))

To make a long story short, I think the U. S. and other critics of Sri Lanka are planning on arguing that a case for ‘deliberate killings’ can be made against the Government, because, one, there were so many such killings, and two, even if commanders did not directly sanction the killings, the fact they didn’t do anything to prevent them, makes the commanders liable under the Yamashita Doctrine above.

I shall now turn to the problem that the critics are facing at present.  In my view, the chief problem the critics are facing at present is that the upcoming report, if subjected to a proper assessment and evaluation, does not establish to any reasonable degree of certainty that a vast amount of deliberate killings took place.

(I suspect that the evidence the report has relied on to suggest that a vast amount of deliberate killings took place comes from sources such as the Channel 4 videos, the testimony of witnesses who have come forward after many years, hearsay, and so on, all of which can be challenged relatively easily in a court of law.)

The upcoming report is the sole official report produced by the Human Rights Council with regard to violations of human rights law and humanitarian law allegedly committed by the Government during the last phases of the war.  If such a report cannot establish that the alleged violations took place, then the international community has no right to continue making accusations against Sri Lanka, and the whole issue must end here.

So, the problem the critics are facing at present is this: one, to ensure that the upcoming report is not subjected to a thorough assessment and evaluation by members of the public or by independent experts, and two, to put in place a mechanism that will allow them to continue the ‘accountability’ campaign against Sri Lanka, even if, in the future, the report is released, and members of the public discover that in fact it fails to establish a credible case with respect to any of the related allegations.

The critics have accomplished the first of the tasks above by not releasing the report to the public even at this late date, though the Human Rights Sessions are set to begin on the 15th of September.  They plan on accomplishing the second, through the proposed ‘collaborative resolution,’ where the Government will agree to a domestic inquiry.

For instance, once the domestic inquiry gets underway, it will dig up information about purported ‘Deliberate killings’ independently of the information dug up (or generated) by the OHCHR  investigation.  The critics are then in a position to call for international tribunals by citing the new information.  In short, they can continue the ‘accountability’ campaign against Sri Lanka indefinitely, without being handicapped by the conclusions of the upcoming report, where those conclusions are inimical to their goals.

c) Counter-measures

If the Government becomes party to a ‘collaborative resolution’ and agrees to launch a domestic inquiry, the options for challenging the inquiry in the domestic courts diminish considerably.  This is because the Government will claim that it has a new mandate from the Human Rights Council to look into the related allegations.  Nevertheless, I believe challenges can, and must, be made.

I think the immediate need is to convince the Human Rights Council not to endorse a collaborative resolution’ or any other measure against Sri Lanka until the citizens of this country have had a chance to read and reflect on the upcoming report, and, at a minimum, to postpone any decision on Sri Lanka until the Council’s March-2015 sessions.

To that end, I suggest the following three measures:

a) Inform individual Members of the Human Rights Council who opposed the investigation in March-2014, that the citizens of Sri Lanka have not had a chance to read and reflect on the upcoming report, which is a gross injustice and a violation of their human rights, and to consider urging the Council to postpone any measures on Sri Lanka until at least the next sessions.

b) Petition the President of the U.N, General Assembly, acquainting him with the matters mentioned in the paragraph above, and asking him to initiate a  iscussion on those matters at the General Assembly.

c) Petition the Sri Lanka Human Rights Commission to urge the Government not to pursue any ‘collaborative resolutions’ at the Human Rights Council until the citizens of the country have had a chance to read the upcoming report, and to properly assess and evaluate it.

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of two books:  The UN’s Relentless Pursuit of Sri Lanka (2013), and The UN’s Subversion of International Law: The Sri Lanka Story (2015)