Shenali D Waduge

 The OHCHR investigation against Sri Lanka led by outgoing UN chief Navi Pillay will attempt to use the platform given to reinforce the dubious, contradictory and controversial reports that have been compiled against Sri Lanka. One such forming the basis of successive Resolutions and Navi Pillay’s own reports is the Panel appointed by UN Secretary General to advise him on the accountability during the final stages of the war in Sri Lanka. It is a good time to look through and analyse the contents of this report starting off with its Executive Summary

The UN Secretary General’s Panel of Expert Report (Darusman Report)  

•  On 22 June 2010 the United Nations’ (UN) Secretary-General established a Panel of Experts on accountability in Sri Lanka” to advise him on accountability during the final stages of the war in Sri Lanka. (Note: TO ADVISE HIM / FINAL STAGES OF THE WAR) – within no time a report that was ‘to advise him’ became the ‘advise to all’ and the ‘final stages of the war’ has today included ongoing non-war related issues as well. It showcases an agenda against Sri Lanka.

• The LTTE was militarily defeated in May 2009 putting to an end 3 decades of terrorism by a terrorist outfit banned by 32 nations. LTTE were non-state actors as well as defined international terrorists.
• 21^st May 2009, UN Secretary General arrives in Sri Lanka (barely days into the conclusion of the conflict)
• The 23^rd May 2009 joint statement issued by the Sri Lankan Government via the Ministry of External Affairs and the UN Secretary General’s office had the following serious fallacies

http://www.mea.gov.lk/index.php/component/content/article/1753-joint-statement-by-the-gosl-a-the-un-at-the-conclusion-of-un-secretary-generals-visit-to-sri-lanka

1. At the conclusion of a terrorist conflict why was there any need to include reference to aspirations and grievances of all communities because the conflict that ended was one of TERRORISM that affected all communities and benefitted those working for and benefitting from terrorism?
2. Given that the statement does state ‘all communities’ why did the Sri Lankan authorities include reference to 13^th amendment and involvement of Tamil parties when there was no requirement to give special mention to one community and when Tamil parties have not been omitted from the democratic system of governance?
3. The conclusion of the joint statement was The Secretary General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances” (Nowhere does the Sri Lankan Government commit to undertaking an investigation nor does the GOSL agree to an international investigation)

• On 15^th May 2010, the Sri Lankan President appointed the LLRC with a mandate to investigate period 2002 February to 2009 May. Giving no respect to the GOSL’s domestic investigation initiative the UN Secretary General appoints a Panel of Experts in June 2010. (Why did the UNSG appoint a Panel of Experts in June 2010 when he was well aware that the GOSL had appointed the LLRC on 15^th May 2010 – does the UNSG’s patience on Sri Lanka last only a MONTH)
• It is important to note that the Panel of Expert appointment was neither a UN General Assembly mandated appointed nor a UN Security Council mandated appointed. The Panel of Experts was purely a decision made by the UN Secretary General who in her personal capacity has the right to call for such a report but HE DOES NOT have a right to make this report public. Not only has this report been made public it has been the foundation and basis on which numerous Resolutions against Sri Lanka has been formulated and the UNHRC chief herself has made her reports quoting the UN Panel of Experts. These are to be taken as irregularities and manipulation of the systems and unethical conduct against a member State.
• LLRC appointed on 15^th May 2010 and report submitted on 15^th November 2011.
• UNSG Panel appointed in Jun 2010 and report submitted on April 2011.

http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf

ASPECTS OF THE PANEL’s MANDATE

• The Panel’s mandate was to ADVISE the Secretary General on

1. modalities, applicable international standards, comparative experiences relevant to an accountability process
2. The Panel included Marzuki Darusman as Chair (Indonesia), Steven Ratner (US), Yasmin Sooka (South Africa)
3. The Panel began work on 16 September 2010 (3 months after its appointment)
4. The Panel’s mandate does not extend to fact finding or investigation
5. Sri Lanka’s conflict was categorized as an ARMED CONFLICT applicability of international humanitarian law and international human rights law.
6. Page (i) of the Panel report states that ‘the Panel applied the rules of international humanitarian and human rights law to the credible allegations involving both the primary actors in the war; that is the Liberation Tigers of Tamil Eelam (LTTE) and the Government of Sri Lanka. (UNSG’s Panel had placed a non-state actor & internationally banned terrorist outfit ON PAR with a democratically elected Government)
7. However the Panel while stating that the GOSL having signed international treaties were bound by them and expected to investigate violations did not commit itself to displaying how a terrorist outfit like the LTTE not bound by any international treaties would be held accountable?

 Allegations by Panel of Experts

The Panel claims that contrary to the GOSL Sri Lanka stand that it pursued a ‘humanitarian rescue operation’ with ‘zero civilian casualties’, allegations ‘IF PROVED’ was indicative of violations of International humanitarian/human rights laws. 

The Panel’s CREDIBLE ALLEGATIONS between September 2008 and 19 May 2009

1. Widespread shelling on Vanni populace causing largescale civilian deaths
2. 330,000 civilians trapped (but kept hostage by LTTE)
3. GOSL silencing media and critics by intimidation and white vans
4. 3 shellings on no-fire zone
5. Shelling UN hub, food distribution lines near ICRC ships coming to pick up wounded from the beaches.
6. Panel report page (ii) states that ‘most civilian casualties in the final phases of the war were caused by the government shelling’
7. Panel report page (ii) also states that
8. ‘GOSL systematically shelled hospitals on the frontlines’.
9. All hospitals in the Vanni were hit by mortars and artillery (some hit repeatedly) despite them being known to the GOSL.
10. Systematically deprived people in the conflict zone of humanitarian aid (food and medical supplies, particularly surgical supplies)
11. purposely underestimated the number of civilians who remained in the conflict zone. Page (iii) of Panel report says ‘tens of thousands lost their lives from January to May 2009”.
12. The Panel report also accuses the Government of subjecting victims and survivors to further suffering
13. screening for LTTE took place without transparency or external scrutiny (with international NGOs placed in the North during reign of LTTE did any of them stop recruitment of children to the LTTE)
14. some were ‘summarily executed’ (who were summarily executed are not named)
15. some ‘MAY HAVE BEEN RAPED’ (there is a BIG difference in MAY HAVE BEEN and actually been raped – but the MAY HAVE BEEN gets ignored and the anti-SL lobby runs off with the ‘rape’ story)
16. The Report accuses the Government of detaining all IDPs in ‘closed camps’ (perhaps the intention was to enable all civilian-clad LTTE to escape)
17. Other accusations included ‘massive overcrowding’, ‘breaching basic social and economic rights’ (can UN give a single example of a Government opening banks inside a camp and enabling the IDPs to keep their jewellery in safety, or providing vocational training to IDPs, day care for kids and giving tuition to students studying for competitive exams!),
18. The Panel also says ‘MANY lives were lost unnecessarily’ (they do not give numbers or names and purposely omits to mention that those that died did so of fatigue and old age and their numbers are with the authorities)
19. The Panel also says ‘some persons in the camps were interrogated and subjected to torture’ (this is vague – who are the SOME, the Panel should report their names and give details of the torture they were subject to)

 Panel comments on LTTE

• ‘LTTE refused civilian permission to leave’ (does this not satisfactorily lay all blame of subjecting civilians to unnecessary harm with the LTTE? – inspite of ICRC, other NGOs with the LTTE during the initial stages of the conflict were they able to remove a single civilian, even the aged?, did the LTTE listen to the UN or any other body and release civilians – NO)
• LTTE used civilians as ‘hostages’ – is the GOSL to be blamed for this?
• LTTE used civilians ‘at times using their presence as a strategic human buffer between themselves and the advancing Sri Lankan Army’ (if these ‘civilians’ were kept as virtual human shields and their status were not known to the advancing Sri Lankan Army, the army cannot be faulted for shooting for these civilians were put into harms way by the LTTE and these civilians were not in a civilian zone)
• According to the Panel LTTE ‘implemented a policy of forced recruitment throughout the war’(does this not make any to wonder how many of the civilians were actually ‘civilians’ at the end of the war, if they were forcefully recruited)
• The Panel also confirms that ‘in the final stages, (LTTE) greatly intensified its recruitment of people of all ages, including children as young as fourteen’ (let us note that 594 of the children were confirmed LTTE cadres and underwent rehabilitation, it is anyone’s guess again how many more children took part in combat and pretend to be civilians still. The same logic can be applied to civilians who would have also had to take part in hostilities and if so even without uniform in an armed conflict the army cannot be held culpable for their deaths)
• The Panel has also added that the LTTE ‘forced civilians to dig trenches and other emplacements for their (LTTE) own defences’ (this activity in a categorized armed conflict removes the status of ‘civilian’ from the civilians)
• The next part of the Panel report are its golden words that should be quoted by any response given by the GOSL. The Panel says that the LTTE in using civilians for non-civilian activities had contributed to ‘blurring the distinction between combatant and civilian exposing civilians to additional harm’. THE IMPORTANCE OF THIS STATEMENT IS INVALUABLE FOR ALL OF THE ALLEGATIONS OF HUNDREDS OF THOUSANDS OF ‘CIVILIAN’ DEATHS BECOMES ERASED IF LTTE USED CIVILIANS AS COMBATANTS (digging trenches, as child soldiers, as combatants etc) In an armed conflict any civilian engaged in combat activities LOOSES their status as a civilian.
• It is also pertinent that the Panel admits that the war was ‘clearly lost’. This places complete blame on the LTTE for keeping civilians against their will. If the Panel says ‘many civilians were sacrificed at the altar of the LTTE cause and its efforts to preserve its senior leadership’. This goes to show that the Panel admits that LTTE thought only of its own cadres and its senior leadership and NOT the Tamil civilians. It also questions how does that fit in with the Panels own claim that ‘tens of thousands lost their lives from January to May 2009” (accusation against the GOSL).
• The next piece of admission by the Panel is also noteworthy for all those pointing fingers at the GOSL. The Panel says ‘from February 2009 onwards the LTTE started point-blank shooting of civilians who attempted to escape the conflict zone, significantly adding to the death toll in the final stages of the war’ (do we not recall that the same Panel accused the GOSL of killing tens of thousands of people from January to May 2009?)

9. Also negating the accusation against the GOSL, the Panel in its report states that LTTE ‘fired artillery in proximity to large groups of internally displaced persons and fired from, or stored military equipment near, IDPs or civilian installations such as hospitals’. This contradicts with the Panels allegations that the GOSL were systematically shelling ALL the hospitals and its own statement that ‘most civilian casualties in the final phases of the war were caused by the government shelling’

• The Panel goes on to add that ‘throughout the final stages of the war, the LTTE continued its policy of suicide attacks outside the conflict zone’ ….LTTE ‘perpetrated a number of attacks against civilians outside the conflict zone’.

Inspite of the above statements by the Panel against the LTTE, the Panel concludes that it has found ‘credible allegations that comprise 5 core categories of potential serious violations committed by the GOSL’

5 accusations against GOSL

1. killing of civilians through widespread shelling
2. shelling of hospitals and humanitarian objects
3. denial of humanitarian assistance
4. human rights violations suffered by victims and survivors of the conflict (including both IDPs and LTTE suspects)
5. human rights violations outside the conflict zone including against media and other critics of the Government.

In so far as items 1 to 4 are concerned, the Panel has by its own report shown that apart from making accusations against both to compile its report there is no hard evidence and the likelihood of he said/she said scenario arises. However, item 5 is totally outside the gamut of a conflict and the item should be taken for discussion or debate outside of the investigation that is on the last phase and crimes committed therein by both parties.

6 accusations against LTTE

1. using civilians as a human buffer
2. killing civilians attempting to flee LTTE control
3. using military equipment in the proximity of civilians
4. forced recruitment of children
5. forced labor
6. killing of civilians through suicide attacks

Now the all important questions are :

a)    WITH THE DEATHS OF THE ENTIRE GROUND LEADERSHIP OF THE LTTE ALONG WITH ITS LEADER PRABAKARAN, WHO IS TO STAND ON THE DOCK AND CLAIM ACCOUNTABILITY FOR THE CRIMES COMMITTED BY THE LTTE?

b)   IF OHCHR INVESTIGATORS ARE READY TO INVESTIGATE THOSE THAT HAD DIRECT LINKS WITH LTTE WOULD THEY BE HELD ACCOUNTABLE AND PUT ON THE DOCK?

The UN needs to answer this before we move anywhere, otherwise it would be a case of only hounding one party while the other gets away with a paper accusation and nothing more. LTTE’s crimes lasted 3 decades and not just during the last phase and certainly not confined to the 6 areas that the Panel has listed. There has to be justice for the victims of every day, every month and every year that LTTE put to death and there numbers are far more than the numbers quoted as deaths during the last stages.

 

The Panel’s ‘ACCOUNTABILITY’ heading (after the Executive Summary)

Says that violations of international humanitarian/human rights laws must be prosecuted under domestic and international law. In which case we again ask who will take the fall for LTTE crimes given that the ground LTTE is no more?

The Panel speaks of the need for reparations for victims – how can that be possible for an internationally banned terrorist outfit that has no legal status and is not signatory to any international treaties?

Another significant and noteworthy statement in the report is that the Panel in keeping with the United Nations policy does not advocate a ‘one-size-fits-all’ formula. That is in deed good news and the Panel also states that it does not advocate ‘importation of foreign models for accountability’. (this is good for some of Sri Lanka’s own advisors to take note of especially those attempting to copy the South African reconciliation model to Sri Lanka) Yet why has the Panel concluded that the Governments notion of accountability is not in accordance with international standards”. This adds to the Panels contradictory statements.

If the UN Secretary General’s panel says that it recognizes the need for the accountability process to be defined based on national assessments, involving broad citizen participation, needs and aspirations’, it is interesting to know what or who says there is no such taking place in Sri Lanka? Moreso it is an apt time to take a survey and let the international fraternity statistically come to terms with the truth that entities like CPA, Transparency Intl etc who they think as great sources of reference are entities with people that very few in Sri Lanka deem as credible.

The report also states that the GOSL emphasized on RESTORATIVE justice while the panel deemed both restorative and retributive justice as equally important.

 The Panel on Sri Lanka’s LLRC

The Panel that initially stated that it does not espouse a ‘one-size-fits-all’ formula once again repeats that the LLRC is ‘deeply flawed does not meet international standards for an effective accountability mechanism’ and does not satisfy with the joint commitment by the President of Sri Lanka and the UNSG. Repeated again is that there is no line in that agreement that claims Sri Lanka will investigate. (pl refer the joint statement)

 The Panel on ‘Other Domestic Mechanisms’

The Panel after taking 10months to review Sri Lanka has concluded that

• the panel has little confidence in the justice system
• independence of Attorney General weakened
• Emergency Regulations and Prevention of Terrorism Act obstructs judicial system
• the panel has no confidence in the military court system carrying out crimes against final phase.
• most commissions of inquiry have failed and recommendations rarely implemented

 The Panel on ‘Other obstacles to Accountability’

1. Triumphalism on the part of the Government, expressed through its discourse on having developed the means and will to defeat ‘terrorism’ thus ending Tamil aspirations for political autonomy and recognition, (this statement is way off mark. When after 30 years a terrorist movement that killed not only military but civilians who were Sinhalese, Muslims, Tamils and even foreigners is finally defeated who does not celebrate? Let us not forget that a man the world came to know as the person behind the 9/11- a single incident without proof was killed while unarmed after US Navy Seals entered a country without informing the Government and lit crackers all night long – is that not triumphalism?. The next point is how dare the Panel claim that the end of ‘terrorism’ which the panel has purposely put in inverted commas to be compared with ending Tamil aspirations for political autonomy. Has the Panel not been given the list of over 250 Tamil leaders gunned down by the LTTE?
2. ongoing exclusionary policies, which are particularly deleterious as political, social and economic exclusion based on ethnicity, perceived or real, has been at the heart of the conflict. It would be good to have examples of where there is any such ongoing exclusionary policies legislatively, legally or constitutionally instead of making vague statements.
3. continuation of wartime measures, including not only Emergency Regulations and the Prevention of Terrorism Act, but the continued militarization of the former conflict zone and the use of paramilitary proxies all of which perpetuate a climate of fear, intimidation and violence. To answer this allegation let us wonder what if all the LTTErs that posed as civilians did not go through rehabilitation and continued to move around amongst the people and the Sri Lankan military did not bother to gather all hidden catchments of arms and ammunition, what would happen when these LTTE cadres with no leader, no money and no means of livelihood would do amongst their own if there were no military presence? The answer was found when 3 LTTErs posing as civilians had to eventually be gunned down!
4. restrictions on the media contrary to democratic governance and limit basic citizens rights – what are these restrictions?
5. role of the Tamil diaspora which provided vital and moral support to the LTTE over decades – if they are foreign passport holders it is for those governments to take up with them why they are supporting a terror group.

 There is an uncanny shift throughout the report to take away reference to LTTE as a terror outfit and compare LTTE as representative of Tamil aspiration. This notion is fermented when the Panel states that ‘there should be a genuine commitment to a political solution that recognizes Sri Lanka’s ethnic diversity and the full and inclusive citizenship of all of its people, including Tamils as the foundation for the country’s future’. Lets also get something straight, there is no ethnic diversity. The population of Sri Lanka is 74% Sinhalese, 11% Tamil, 9% Muslims. Everyone is equal before the law. If anyone is treated different it is not because of ethnicity it is because they are rich or politically linked (whether they are in opposition or government and these links and rich include all the ethnic groups)

 The Panel on ‘International role in the protection of civilians’

The Report states that the UN political organs and bodies failed to take actions that might have protected civilians during the final stages. Lets be practical, what does the Darusman, Ratner and Sooka expect the UN bodies to have done. Could they have gone inside the conflict zone and taken out the civilians and would the LTTE have waited and watched this happen. Let’s get real. There were ICRC presence, the UN convoys took food and medicines not one returned even with injured or elderly. That is not the failure of the UN staff but the reality that they were dealing with animals.

 The Darusman Report : Recommendations

The paragraph on Recommendations ONLY requires complementary action by the GOSL and the UN and associatates.

Recommendation 1: Investigation

1. Domestic investigation into international humanitarian/human rights law committed by both sides involved in the armed conflict (Note it does not say last phase, thus the provision to include entire conflict has been left open)
2. Recommends that the UNSG establishes an independent international mechanism with a mandate to cover
3. monitor and assess how Sri Lanka is carrying out domestic accountability process and periodically advise the UNSG
4. conduct investigations independently into alleged violations
5. collect and safeguard information related to final stages of war

 Recommendation 2: Immediate measures to advance accountability

A. GOSL to implement short term measures

1. End violence by the State, its paramilitaries and others tolerated by State
2. facilitate recovery of human remains to families and allow cultural rites of the dead
3. provide death certificates for the dead/missing (first they must have a name and a birth certificate too!)
4. facilitate psychosocial support for all survivors respecting their cultural values
5. release all displaced persons and facilitate their return to their former homes or provide for resettlement (all those who have not seen how the people in the Vanni were living may need a reality check because they should think twice before asking people to return to areas that have not been de-mined)
6. continue to provide interim relief to assist the return of all to normal life (the Darusman team needs to be given the list of provisions the GOSL provided to those who were eventually resettled.

 B. GOSL to investigate and disclose the fate of all forcibly disappeared. GOSL must invite the Working Group of Enforced and Involuntary Disappearances to visit Sri Lanka. (Has the Darusman team given a list of all those they claim to be forcibly disappeared?)

 C. GOSL should immediately repeal Emergency Regulations and modify provisions of the PTA that are inconsistent with Sri Lanka’s international obligations. The GOSL should take the following measures against suspected LTTE

a. publish their names with locations of their detention and notify legal basis of their detention (does the US give those held at Guantanamo Bay, Diego Garcia, Abu Ghraib prisons!)

b. All detainees access to family members and legal counsel

c. Allow detainees to question justification of their detention in a court

d. Charge those against whom there is sufficient evidence of serious crimes and release all others and allow them to reintegrate (let the Darusman team note that close to 12,000 such former LTTE cadres have been successfully reintegrated and are leading normal lives)

 D. GOSL should end state violence and practices that limit freedom of movement, assembly and expression or contribute to climate of fear (let is also be noted that during LTTE defacto rule there was no freedom of movement, now with the Tamil National Alliance heading the provincial council, the Chief Minister says Sinhalese are not welcome in the North, does anyone speak on behalf of Sinhalese right of movement?)

 Recommendation 3: Longer term accountability measures

a. Sri Lanka should initiate process with strong civil society participation to examine the root cause of the conflict including ethno-nationalist extremities on both sides, the conduct of the war and patterns of violations and corresponding institutional responsibilities.

b. GOSL should issue a public, formal acknowledgement of its role in and responsibility for extensive civilian casualties in the final stages of the war (this is going overboard because much of the detail on the LTTE by the Panel suffices to show that the mayhem was caused by LTTE and civilian deaths were as a result of LTTE too) This statement is totally out of line.

c. GOSL should institute a reparations program to international standards for all victims (what about those that the Panel confirms were deaths as a result of LTTE?)

 Recommendation 4: United Nations

1. UNHRC should reconsider May 2009 Resolution regarding Sri Lanka (A/HRC/S-11/L.1/Rev.2)
2. UNSG to conduct a comprehensive review of UN system during the war in Sri Lanka and after

  To be continued….