The Pros and Cons of Over-reliance on Lord Naseby’s Revelations
Posted on December 6th, 2017
Dharshan Weerasekera, Attorney-at-Law
One can hardly open a newspaper these days without seeing something on Lord Naseby’s revelations about the number of civilians that may have been killed during the last phase of the war, and their significance to countering UNHRC Resolution 30/1 of October 2015.[1] I am informed on good authority that a group of enthusiasts have even undertaken a campaign to push the Government to renegotiate Resolution 30/1.
At first glance one tends to think that a campaign to persuade the Government to renegotiate the Resolution will have absolutely no chance of success. For instance, why would the Government want to renegotiate Resolution 30/1 when at the most recent UPR review the Government pledged to do its utmost to implement all the recommendations of that Resolution?
However, the Government is now in desperate straits. It has to survive the upcoming Local Government elections, but more importantly ensure that the new Constitution is passed. Otherwise it will have no pretext to postpone the 2020 General Elections and avoid the inevitable drubbing it will receive at those polls. In this article I shall briefly explain why the Government may be amenable to ‘renegotiating’ Resolution 30/1 and the inherent dangers to the long-term interests of the Sinhalas if this happens.
Why the Government may be amenable to renegotiating Resolution 30/1
The following three matters are not in dispute. First, if the LG polls are held, Sirisena and his SLFP’ers will be completely discredited and the whole world will see that they have no mandate to carry on a ‘National Government’ with the UNP including to bring a new Constitution. Second, without a new Constitution, the UNP cannot postpone the 2020 Elections and thereby continue in power at least until 2025.
Third, the United States and India (India is actually piggybacking on the U.S.’s initiatives on Sri Lanka at the moment) need Sri Lanka to have a new Constitution in order to facilitate turning this country into a true ‘Client State.’ The key element they need in order to accomplish this purpose is to dilute the power of the Central Government and thereby the power of the majority Sinhalas to have an effective voice in determining the overall policies of the State.
To turn to a possible renegotiation of Resolution 30/1, the U.S. and India have very little to lose if Paragraph 6 of the Resolution (Paragraph 6 calls for a ‘special court’ including a Special Prosecutor to try Sri Lanka’s war-time leaders for war crimes) is deleted but all the other provisions of the Resolution are retained, especially Paragraph 16. Paragraph 16 is really the crucial paragraph in the entire Resolution.
Paragraph 16 calls for a ‘Political Settlement’ to the ethnic problem and specifically recommends constitutional reforms involving the 13th Amendment. It says:
‘Welcomes the commitment of the Government of Sri Lanka to a political settlement by taking the necessary constitutional measures, encourages the Government’s efforts to fulfill its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and also encouragers the Government to ensure that all provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka.’[2]
A moment’s reflection is enough to realize that, the formulation above covers, or can be interpreted to cover, all of the recommendations made in the Interim Report of the Constitutional Steering Committee with respect to Center – Periphery relations including especially the recommendation to turn Sri Lanka into an ‘Urumittu Nadu,’ i.e. a Confederation of Provinces.
To repeat, the Americans and the Indians will be quite happy to permit a renegotiation of Resolution 30/1 to delete paragraph 6 while retaining everything else, if they can get a renewed commitment by the Government to bring a new Constitution including to fully implement the 13th Amendment as soon as possible.
Under the circumstances, an enterprising spirit might dangle the following type of bait in front of Sirisena’s nose:
‘If you get Paragraph 6 deleted, you’ll be a hero, and this might just be enough to help your SLFP’ers make a good showing at the LG polls, perhaps even to draw with the JO. More important, you will gain enough credibility with the Sinhala masses to prevent a general uprising when you and your SLFP’ers (and a section of the JO) approve the new Constitution in Parliament. Your new-found credibility will also be helpful in neutralizing the opposition of the Buddhist priests to the new Constitution. Once the Constitution is enacted, you (and friend Ranil) are home free, because you’ll never have to face your ‘Day of Judgment’ in 2020.’
Sirisena’s political position is so precarious at present that he just might swallow an argument such as the above, and it is important for the Sinhalas to be aware of this.
The Inherent dangers of over-reliance on Lord Naseby’s revelations
The General Picture
To the best of my knowledge, Lord Naseby’s revelations are contained in his speech to the UK House of Lords on 12th October 2017.[3] They are most directly relevant to countering, one, the allegation that 40,000 or more civilians were killed during the last phase of the war, and two, the allegation that civilians were also denied humanitarian assistance during that last phase. These were first made in the Report of the Secretary General’s Panel of Experts on Sri Lanka, also known as the Darusman Report, in 2011.
The contention of the enthusiasts is that one can use Lord Naseby’s revelations to rebut the Darusman Report and thereby to discredit resolution 30/1, because according to them the Darusman Report is the basis, or at any rate one such basis, for Resolution 30/1. In my view, the aforesaid contention of the enthusiasts is wrong, because of the following reasons.
The Darusman Report was indeed the basis for a number of UNHRC Resolutions against Sri Lanka – for instance in 2012 and 2013 – but not after 2014. The Darusman Report was commissioned by the U.N. Secretary General for his personal use and was not a document produced at the behest of the General assembly, the UNHRC or any such organ, but subsequently indirectly submitted to the UNHRC.
The UNHRC was aware of the legal problems involved in continuing to rely on the Darusman Report as a basis to recommend actions against Sri Lanka, and gradually reduced such reliance. Then, in March 2014, the Council by Resolution 25/1 authorized the U.N. High Commissioner for Human Rights (OHCHR) to conduct a war crimes investigation on Sri Lanka.
The final report of the aforesaid investigation is called the OISL Report (OHCHR Investigation on Sri Lanka) and was released on 16th September 2015. This is the one and only official report of the Human Rights Council to level charges of war crimes against Sri Lanka – i.e. the State as opposed to individuals. Resolution 30/1 was adopted on or about 29th September 2015. So, it is the OISL Report that is the basis for Resolution 30/1.
The proof of the above is inter alia that, a) Paragraph 1 of the Resolution explicitly endorses the conclusions and recommendations of the OISL Report; b) there are only two footnotes in the entire Resolution, the first refers to the OISL Report and the second to the synopsis of the OISL Report that the High Commissioner submitted to the Council along with the longer report; and c) all the substantive provisions of the Resolution exactly mirror the recommendations made in the OISL Report.
The OISL Report levels seven charges against the State: three having to do with alleged violations of international humanitarian law, and four having to do with alleged violations of international human rights law. It also levels four charges against the LTTE but we need not worry about them here. The 3 humanitarian law charges are: indiscriminate shelling, denial of humanitarian assistance to civilians, and unlawful killings (i.e. incidents such as the purported ‘White Flag’ incident, etc.) The 4 charges under human rights law are: arbitrary arrests, enforced disappearances, torture and sexual violence.
The point is this. Even if we take Lord Naseby’s revelations at their strongest, they can only help rebut the charges with respect to indiscriminate shelling and denial of humanitarian assistance. They do nothing to rebut the charges with respect to unlawful killings, i.e. purported incidents such as the ‘White Flag’ killings, etc.
Meanwhile, it is a fact that, with respect to purported violations of humanitarian law, the UNHRC along with other critics of Sri Lanka have since about 2015 been focusing on allegations of unlawful or deliberate killings, i.e. White Flag’ incident, purported killing of Balachandran Prabakaran, etc. It is also not insignificant that, the OISL Report never cites the figure of 40,000 dead, no doubt because of the difficulty in proving that number.
In short, taken by themselves, Lord Naseby’s revelations do not help one take down Resolution 30/1. So, that is the general picture. I discuss below two more specific dangers in over-reliance on Lord Naseby’s revelations.
Specific Dangers
- Let’s suppose we base our entire defence on Lord Naseby’s revelations and ask the UNHRC to revisit Resolution 30/1, and the Council agrees. Recall that, Lord Naseby’s revelations are based on diplomatic dispatches – that is, documents we must accept or reject at face value, we cannot interrogate those documents, including the persons who prepared them.
Suppose that, a few days before the ‘dabate’ on Resolution 30/1, the British Government suddenly ‘discovers’ another batch of dispatches, some of which say that there is evidence of unlawful killings, torture, and so on. What then? Since we had put our entire defence on Lord Naseby’s revelations, which is to say we had completely accepted the credibility of the British dispatches, how can we now reject or even question those very dispatches when they reveal things unfavorable to us? In short, we are trapped.
To digress a moment, the reader will recall that, since about August 2017 the Tamil Diaspora has been pursuing a novel tactic to try and bring Sri Lanka’s war-time leaders before international tribunals under universal jurisdiction. They fired the first salvo with regard to this by filing a case in Brazil against General Jagath Jayasuriya.
A key point to note is that, U.N. High Commissioner for Human Rights Zeid Al Hussein has endorsed this new tactic, which ironically is an admission on his part of the failure of his own report – the OISL Report – to establish the relevant charges, since the Tamils will not have had to go to countries such as Brazil and file cases if the OISL Report had done its job properly in the first place.
The point is this. The threshold of proof to initiate proceedings under universal jurisdiction is very low – usually ‘reasonable grounds to believe’ – but the Tamils have not been able thus far to reach even that low standard. But, diplomatic dispatches, if their credibility has been conceded by the Sri Lankans themselves, might just be enough to meet the ‘reasonable grounds to believe’ standard.
In short, over-reliance on Lord Naseby’s revelations might legitimize the reliance on diplomatic dispatches, which in turn will have the inadvertent consequence of helping the Tamils circumvent the OISL Report in pursuing war crimes charges against our leaders in international tribunals.
- The Island of 4th December 2017 has an article titled, ‘Truth, Justice, Reconciliation and Non-Recurrence Commission the answer – Dr. Saravanamuttu.’ According to the article, The Island had asked Pakiasotty Saravanamuttu to comment on the repercussions of Lord Naseby’s revelations, and he had written back saying inter alia the following:
‘The Task Force or CTF was mandated to ascertain the views of the Sri Lankan public in respect of the four mechanisms outlined by the Sri Lankan Foreign Minister to the UN Human Rights Council in 2015 and incorporated in the resolution 30/1 of the Council thereafter….One of the mechanisms consulted on was the Truth, Justice and Reconciliation Commission. In response to your query re Lord Naseby’s claims, may I direct you to the CTF report and its recommendations – all contained in the report – reiterating the importance of such a Commission.’[4]
The ‘CTF Report to which Saravanamuttu refers is the once much-touted but now defunct ‘Muttettuwegama Report.’ It should be recalled that, Saravanamuttu was also a key member of that Commission. In any event, Saravanamuttu forgets to mention a few important details in his effusions above.
First, the four mechanisms that the ‘Foreign Minister outlined to the Human Rights Council in 2015’ came from the OISL Report. In other words, those four mechanisms were the four recommendations of the OISL report, which recommendations were endorsed by the Council in Resolution 30/1.
The fatal flaw in the CTF report (or ‘Muttetuwegama report’) is that it never subjects the OISL to an assessment in order to verify whether the conclusions of that report follow from its evidence. Instead, the CTF simply ‘rubber stamps’ the OISL Report’s recommendations.
When independent researchers began to show that the OISL Report was unreliable, the con that the CTF tried to pull off – i.e. to legitimize the OISL’s conclusions by claiming that the Sri Lankan people had been consulted about those conclusions and the related recommendations – was exposed.
Once the problems with the OISL report’s evidence began to surface, the UNHRC also realized that the CTF was a liability – because every time one mentioned the CTF the spotlight naturally fell on the OISL Report also. Hence, we have not heard anything about the CTF since about March 2017. The point is this. What Saravanamuttu is trying to do, under the pretext of addressing the concerns raised by Lord Naseby’s revelations, is to call for the launch of yet another investigation into purported war crimes.
In short, he wants to go on another ‘fishing expedition.’ And if that expedition fails (as indeed it is bound to, because everyone except diehards such as Saravanammutu now understands that only about 3000 civilians died during the last phases of the war) he’ll find a different excuse to call for yet another investigation, and so on, ad infinitum! These scoundrels never give up. Suffice it to say that, the Sinhalas don’t have to indulge the whims and fancies not to mention obsessions of the Saravanamuttu’s of this world.
Recommendations
- Lord Naseby’s revelations are valuable as corroborative evidence. They can support the conclusions one can draw from primary evidentiary sources such as contemporary reports, satellite imagery, eye-witness testimony and so on, and should be used only for such purpose.
- The Sinhalas must not permit themselves to be lulled into complacency thinking that the Government is now no longer interested in a new Constitution. A new Constitution is the only way for Government bigwigs to ensure their political survival beyond 2020, so they will do everything in their power to try and push one through. Therefore, any ‘deals’ that are struck with respect to Resolution 30/1 should not provide an opening for the Government to advance its plans with respect to the new Constitution.
- Resolution 30/1 must be rejected in toto and rendered null and void. The Sinhalas can hope to achieve such an outcome only if they negotiate from a position of strength and not from weakness, and they will be in a position of strength only when they have their own Government. So, the Sinhalas should wait until 2020 before they begin to renegotiate Resolution 30/1.
[1] See for instance, ‘UNSG Spokesman: Decision to revisit Resolution in the hands of the UNHRC members,’ Shamindra Ferdinando, The Island, 1st December 2017; and also, ‘Renegotiating resolution 30/1,’ Rajeewa Jayaweera, The Island, 3rd November 2017
[2] Paragraph 16, A/HRC/30/L.29
[3] Hansard, Volume 785, 12th October 2017, www.parliament.uk
[4] ‘Truth, Justice, Reconciliation and Non-recurrence Commission the answer – Dr. Saravanamuttu,’ The Island, 4th December 2017
December 6th, 2017 at 4:09 pm
Recommendation #3 is not valid on many counts. Even if Sri Lanka opposed in 2015 and 2016, Resolution 30/1 would have passed. It cannot be renegotiated by an internal movement. There is no way an “own Government” of Sinhalese can be formed before 2020. Even then it is very unlikely.
Agree with the rest.
There is a bigger danger than we face now if an American citizen or his close family member becomes president or even Prime Minister. As all American citizens are legally bound to show complete alligiance to USA, they will work for the US resolution against Sri Lanka. Otherwise they violete the oath with legal consequences.
Sadly most Sinhala people are driven by “friend-foe” thinking. They cannot see facts and mechanizations. Someone dropped into the “friend” bucket is always right and anyone questioning it must be bad seems the logic. This is not how the world works. There are no permanant friends or foes. No one should be able to take anti-Sri Lanka decisions just because some people believe they won the war.
December 6th, 2017 at 10:21 pm
Why the author considers the value that many analysts place on Lord Naseby’s revelations to be an “over-reliance” on them, is a strange interpretation of the challenge issued by Naseby to the concocted number that “40,000 civilians” were killed in the last days of SL’s armed conflict…a number that has been quoted so often that it has worked in Goebellian fashion to be accepted by even global news media like AP, and more damagingly, by our current government (Mangala Samaraweera’s co-sponsorship of UN Resolution 30/1).
Lord Naseby has brought attention to the official figures of ~7000 submitted by several international civil servants working on the ground in SL at the time the war ended. The documents claiming much higher figures are held frozen by the UNHRC until 2031 or somesuch. Even the documents finally made available to Naseby had been heavily redacted.
Should those who are concerned about propaganda taking over the facts NOT take up Naseby’s revelations as lending credibility to the position that the concocted high numbers of civilian casualties is a political propaganda means of vengeance against the Rajapakse government that brought an end to LTTE terrorism?
DK’s contention that ” As all American citizens are legally bound to show complete alligiance (sic) to USA, THEY WILL WORK FOR THE US RESOLUTION AGAINST SRI LANKA (emphasis mine). Otherwise they violete (sic) the oath with legal consequences.” is a very strange statement to make since “freedom of expression” is a much valued freedom in that country. To interpret it to mean what DK has conveyed is quite ridiculous.
December 7th, 2017 at 2:17 am
@nilwala
USA is not concerned about what is spoken. It is only after action. We saw the wide gap between the two in Lankan politics. A US citizen simply cannot go against the US position through his/her action without violating the oath they have taken. In that case they face consequences.
Dharshana says “over” reliance, not reliance. He is correct.
Spelling errors are regretted.
December 7th, 2017 at 12:32 pm
SOME QUESTIONS TO ASK RE FALSE ALLEGATIONS AIMED AT SRI LANKA :
Our hunch is that all these false allegations are to corner PATRIOTS/NATIONALISTS & their Leaders who put “Lanka First”.
Corner Lanka to what purpose ?
Over an year ago, the US authorities stated that Lanka Ports and state ought to be free of civil disorder, so that the Trade Routes can operate freely.
What is the difficulty in getting that aspect sorted out in Lanka WITHOUT the false allegations ?
The difficulty is Tamil Separatism for Eelam, is it not ?
Let us look at the so called Tamil Problem. Who created it and why ?
December 7th, 2017 at 4:04 pm
There was a short article in the LankaPage recently that the USA will be doing a Trade & Transport deal with Sri Lanka. So it is not surprising that they will expect Lanka to be free of civil disorder ?
December 7th, 2017 at 6:13 pm
In addition, the US together with the UK is going to assist Lanka to recover assets lost through corruption !! (See LankaPage today, 7th Dec).
December 8th, 2017 at 3:16 am
Dilrook:
Nobody who has addressed the Lord Naseby issue and the reluctance as well as the grudging slowness on the part ot the Yahapalana Govt. to make a positive response to it, has been taking the Naseby statements to be the only basis on which the injustice as well as the “cooked up numbers” aspect must be addressed. It has simply provided an opportunity to set things right and the injustice of what is taking place, i.e., it has opened an opportunity to pressure the UN/UK/US to make the questions raised by Lord Naseby a reason to PIVOT the UNHRC Resolution into a more reasoned and reasonable goal.
As things stand, the pursuit of the Human Rights Law direction rather than the Humanitarian Law direction is what has put Sri Lanka in a position where it will NEVER be able to comply with what the Diaspora Tamils are seeking to impose on whatever Govt comes into power in this country. In fact NO COUNTRY IN THE WORLD,NOT EVEN THE COUNTRIES MAKING THESE DEMANDS OF SRI LANKA, are able to provide the Human Rights demands in their own countries to the satisfaction of what the UNHRC is demanding of Sri Lanka to provide for its minorities.
Why not bring this charade to an end in some reasonable and reasoned manner, using judicial procedures compatible with the current laws in Sri Lanka which have indeed been largely based on European and British Laws anyway, and aimed at democratic governance with the rights of all communities being respected?
Lord Naseby has raised issues that can bring the very awkward Co-sponsorship by the Unity Govt.’s Mangala Samaraweera into question, and bring this long drawn out issue of the civilian casualties during the last months of the conflict to some reasonable closure, since any person with intelligence knows the numbers drawn out of thin air will never be proven, no matter the moaning and the wailing with which relatives present their cases. Compassion too has to be reasonable, and no country can afford to go overboard without EVIDENCE in a Court of Law.
In the meantime this country is made to go through periodic reviews that only draw attention to the never-ending aspects and the agenda-based injustices of UN interventions.
December 8th, 2017 at 3:32 am
@nilwala
There is no question about using Lord Naseby’s statement. It must be used. However, as the learned lawyer says, his statement cannot be overly relied upon. If “new” information is released by these agents, that too will have to be factored in.
This has nothing to do with human rights. It is geopolitics. They have made up their minds to divide Sri Lanka to create a vassal state in the island for military basing. For instance, what is the connection between human rights and new constitution?
December 8th, 2017 at 4:24 am
There is another wrong belief among some that if the 40,000 number can be reduced to 7,000, Sri Lanka will be off the hook or it will be a case of “lesser” war crimes. Not true. The number does not (emphasised) matter for the killing to be a war crime or genocide. For instance the Srebrenica massacre was just 8,000 but so many were framed for war crimes over it and Serbia-Herzegovina was divided at least 3 times.
A reduced number only has human considerations particularly from the Tamil community. But the Tamil community will never accept a lesser number.
Politics has further clouded the entire situation. For some Lord Naseby’s statement is another political mud to be thrown at opponents.
Lack of formally qualified legal experts on international law and “goda perakadoruwas” advising governments is a disastrous situation. They make it worse. A plumber cannot do heart surgery.
December 8th, 2017 at 9:17 am
It is indeed a misconception to think that reducing the number from 40,000 to 7,000 will exonerate Sri Lanka….to even state this in a serious discussion is silly. What is needed is to have the UNHRC take another look at the quality of the evidence available, and reconsider the validity of Resolution 30/1 in light of the discrepancies.
December 8th, 2017 at 2:25 pm
The validity of Resolution 30/1 won’t change even if the number 40,000 reduces to 7,000. The same demands can still stand irrespective of the number. It is stupid to believe a reduced number will save Sri Lanka in the UNHRC.
December 8th, 2017 at 2:33 pm
The reduction of the number has validity only in saving the good name of Sri Lanka more and reducing the perceived severity of the last stages of the war. These are valid and must be pursued. But it cannot even dent UNHRC action and war crimes matters. One depends on the other.
Lack of formally qualified legal experts on international law and hilarious “goda perakadoruwas” advising governments is a disastrous situation. They make it worse. A plumber cannot do heart surgery though he may see both as plumbing work.
Hopefully Marapana (a well versed lawyer) will get his act together and do the right thing even at this very late stage.
December 8th, 2017 at 9:58 pm
Looks like Dilrook considers himself a legal professional well versed in the intricacies and differences between Human Rights Law and Humanitarian Law, which have been at the bottom of what Sri Lanka has been made to suffer since 2009. SL’s Geneva position is purportedly based on the “best legal advice in the country”, but it has got the country stuck in the Human Rights rut, rather than by adopting the Humanitarian Law legal route that would serve Sri Lanka and its Armed Forces best.
Lord Naseby has attempted to pivot SL towards that route and instead of pursuing it, the country continues its “losing” position, due to the mistake of legal professionals who will not admit their mistake and who characterize the war as “Humanitarian”, but follow the “Human Rights Law” route, presumably unable to discriminate between the latter and the Rules of War that are accepted by the former.
SriLanka will be forever in the clutches of the purveyors of Human Rights which are the well-funded NGOs, due to this misinterpretation of the international laws by our local legal “experts” who dismiss approaches that are not their own.
December 8th, 2017 at 11:58 pm
I should add that both the Darusman Report and the OISL report state that International Humanitarian Laws are what apply, but we still adhere to the International Human Rights Laws…WHY for God’s sake do we stick by this latter route which can and will be never fulfilled fully enough to satisfy our geopolitical and local pestering persecutors?
December 9th, 2017 at 2:45 am
Just for the record I have sufficient formal education on international law. From what I read here, “Nilwala” (it is better to use the correct name as there is accountability then) doesn’t seem to know the subject matter. (He probably is a master in his own field).
For laws of war to be applied, we must do a comprehensive war crimes investigation. Yes, it will open old wounds but it must be done. That is shunned by all. Even the international community is not very keen on that. However, the international community, etc. uses our unwillingness to do it to extort various geopolitical and other demands.
Irrespective of the application of IHL, there is no bar from applying the IHRL on connected HR matters. The danger here is it can be a bottomless pit if we keep postponing a war crimes investigation as more and more demands will be made in the HR space.
UNHRC has no mandate for IHL application! Its primary focus is human rights issues. We have to adhere to IHRL. There is no way we can not adhere to them. We have done far more than we have to in the HR space.
December 9th, 2017 at 4:15 am
At last Dilrook has acknowledged the fact that the HR route is a bottomless pit is what will keep on being the bugbear for Sri Lanka. Surely, with an acknowledged that IHL should predominate in any investigation on SL, and if we have done more than what is needed in the HR sector, why should UNHRC be the authority to push Sri Lanka to the “Catch-22” corner?
December 9th, 2017 at 4:46 am
I’ve been telling it since 2011 at least.
Sadly not all those who advised the government were well versed in the legal aspect. Some utter fools even said USA and the EU were getting ready to impose economic sanctions on Sri Lanka (so we had to dance to their demands)! Some even ill-advised the government to waste millions of dollars on PR agencies. Still the government avoids war crimes investigations and continues to firefight with an ever increasing list of UNHRC demands.
Mixing 13A (and 13P) with it was another major flaw which should not have happened. It triggered the demand for constitutional change.
LLRC report created another list of demands on the nation – an own goal.
December 9th, 2017 at 4:56 am
But nothing can match the Co-sponsorship of Resolution 30/1. Obviously done by a Government with the lowest of
self esteem, willing to humiliate itself as never before. Wonder who the legal luminaries were who advised it to do this. Any “godaperakadoru” would have been conscious of better dignity and self-respect.
December 9th, 2017 at 4:42 pm
That is true. It was an idiotic move of self incrimination. However, even if Sri Lanka didn’t support it, the resolution would still have passed. It’s symbolic more than anything else. Once again, people with no formal understanding of the international law ill-advised the government. Better still, may be “Reconciliation Retards” advised the government this time.
December 9th, 2017 at 9:39 pm
Dilrook
Glad you agree….but since we are told that the “best legal minds in Sri Lanka” have advised Defence to go this HR route, this is the time to call them to task and have the issue revisited.
Some “godaperakadorus” are the only ones interested in getting to the bottom of this matter for the sake of relieving the Defence Forces and the country itself of this eternal noose around their necks!
December 9th, 2017 at 10:37 pm
You have a point. Some brilliant legal minds are (for some reason) unwilling to get into these. What’s the use of their education for the nation? On the other hand some patriots have dedicated their time to study the matter from start just to serve the nation. They deserve respect. However, they need an overall understanding on other things as well. For instance, interpretation of laws, criminal procedure, penal code, cases, etc. to guage the pros and cons of each approach. IHL and IHRL are just extensions of the law. The basics are needed.
Instead of using Sir Desmond, etc. to compile a pro-Sri Lanka brief, the government should have used them in a war crimes judicial investigation/trial. It is no secret they were paid a few million dollars each for their report. That destroyed their impartiality and the credibility of their report and the Udalagama (?) report that incorporated their report.
The fear is not the punishment of uniformed military personnel. None of them can be punished alone as they didn’t go against orders. The fear was/is in the political establishment. That is why we don’t take the IHL route and try to “compensate” it by going to the very extreme in IHRL (which is a bottomless pit).
December 10th, 2017 at 9:15 am
Your statement that “The fear is not the punishment of uniformed military personnel. None of them can be punished alone as they didn’t go against orders. The fear was/is in the political establishment. That is why we don’t take the IHL route and try to “compensate” it by going to the very extreme in IHRL (which is a bottomless pit)” is not the reason the Human Rights route was taken
I disagree…. The IHRL route was taken for different reasons: a) not wanting the LTTE to be given equal status with the SL Govt./Military; 2) The IHRL route being what had the admininistrative UN institutions that could bring the SL Govt which had resisted US/UK advice to heel, and the West’s support of the LTTE goals of federalism leading finally to separation for geopolitical reasons (remember the Milliband/Kuschner episode in Eheliyagoda among other significant events wherein the West concluded that the Sinhalas were too difficult to control?
3) the funding, i.e., the MONEY, was all in the IHRL area and IHL was under the jurisdiction of the International Red Cross and any investigation/accountability process taken via that route would have fizzled out for lack of funding and international interest 4) Above all, the legal eagles convinced the then political establishment that it was very dangerous for them to go the IHL route, and the Milosevic trial was the test case for what to expect.
December 10th, 2017 at 12:43 pm
Reason number 4 confirms what I said!
[Quote] 4) Above all, the legal eagles convinced the then political establishment that it was very dangerous for them to go the IHL route, and the Milosevic trial was the test case for what to expect. [Unquote]
December 11th, 2017 at 1:47 am
Let me repeat….It was the legal luminaries who took this position against which it was very difficult for the political leadership to take a different stand. We have yet to ascertain WHY the legal luminaries who should have had Sri Lanka’s interests uppermost, and known what a “bottomless pit” the HR route would be, took this stand that has Sri Lanka’s war heroes as well as the leaders hooked.
Did they not understand the implications?? Did they have some other agenda?
December 11th, 2017 at 5:34 am
Not true.
No reputed legal professional was consulted when the president agreed with Shiv Shankar Menon and Narayanan on May 21, 2009 for devolution, etc., when the president made a joint statement with Ban Ki Moon on May 23, 2009 and at the time of drafting the UNHRC resolution by the Sri Lankan representative on May 27, 2009.
December 11th, 2017 at 5:49 am
This is a legal expert Wijeyadasa Rajapakse. I really don’t like to share these but only in the interest of knowledge.
“https://www.youtube.com/watch?v=DBmxJ7UxXqY&t=625s”
Listen to the first 12 minutes.
Here is the joint statement summary.
“https://www.un.org/press/en/2009/sg2151.doc.htm”
December 11th, 2017 at 7:18 am
OK…granted that it is possibility that in the hype of the momentous occasion of the end of the war in 2009 such a statement was made as claimed, WITHOUT consulting the legal eagles. The ensuing evolution of the Geneva position should have alerted the the legal luminaries to be cognizant of the consequences, and they should have advised the President of the dangers ahead and helped steer things out of that HR track and into what could serve the President, the nation and the Defence Forces via the more reasonable IHL course. They did not do so, but proceeded on the HR course getting the country and the Forces into deeper and deeper trouble.
And of course to cap it all, the Unity Govt.’s Samaraweera who also must surely have consulted the”best legal opinion in the country”, clearly demonstrated the least concern for the dignity of the nation and its Armed Forces of whom so many had laid down their lives, when he endorsed it all by co-sponsoring Resolution30/1.
December 11th, 2017 at 9:25 am
Edited for corrections. Tx!
OK…granted the possibility that in the hype of the momentous occasion of the end of the war in 2009 such a statement was made as claimed by Dilrook, WITHOUT consulting the legal eagles. The ensuing evolution of the Geneva position should have alerted the the legal luminaries to be cognizant of the consequences, and they should have advised the President of the dangers ahead and helped steer things out of that HR track and into what could serve the President, the nation and the Defence Forces via the more reasonable IHL course. They did not do so, but proceeded on the HR course getting the country and the Forces into deeper and deeper trouble.
And of course to cap it all, the Unity Govt.’s Samaraweera who also must surely have consulted the”best legal opinion in the country”, clearly demonstrated the least concern for the dignity of the nation and its Armed Forces of whom so many had laid down their lives, when he endorsed it all by co-sponsoring Resolution30/1.
December 11th, 2017 at 12:40 pm
It is not my claim. This is what happened. We assigned the UN the right to initiate action against (and for) us in IHL and IHRL. All others (including the EU group’s resolution, UNHRC 2012, 2013, 2014, 2015) stemmed from this agreement. PoE Mandate also come from that.
People were never told about this and even I strongly believed PoE was illegal and a massive overstep of UNSG’s mandate. Not so because our government agreed. We were told (with Wimal’s acting) that the UNSG was doing something wrong of astronomical proportions. But Sri Lankan government never took it up! Locals were told one thing, the UN was told the other.
I even wrote about UNHRC and the UN charter were at loggerheads! Because we were never told our government agreed. So there is no violation of sovereignty. That’s why this never became an issue. Dayan claimed we won the world! In the very short term, yes we did because we surrendered to the UN for the purpose of IHL and IHRL.
Thereafter it is too late to change the course. We refused to sign the Rome Statute in 2002 (thanks to Ranil and Chandrika). But we (a country other than a signatory) can willingly come under it. No one can save us in such a situation. This is what happened. According to Wijeyadasa Rajapaksa it is the worst act of treason even in comparison to 1815.
I’m sure the agreement was made in good faith but it’s an utterly disastrous and shortsighted one. May be it was done to get some breathing space after 30 years of war. But that’s not what happened.
December 11th, 2017 at 6:23 pm
OK again….but from start to THE CURRENT DAY, was there LEGAL ADVICE given to the Govt. to take this route of surrender to the UN?. If so, it is the legal advisors who are responsible for MISLEADING THE GOVERNMENT. If legal advice was NOT sought and legal advisors DID NOT bring the dangers to the attention of the Govt., they should have at least brought public awareness to the dangers ahead. As far as I know, it is the “godaperakadorus” who have done the research and the homework on this issue. The Government’s legal advisors have for whatever reason ceded to the UN the responsibility to go the IHRL route, and the advisors have got the nation and the Defence Forces into a corner of utter injustice that no country facing terrorism and national security confrontation has had to.
There must be legal accountability too.
December 12th, 2017 at 1:15 am
All what Nilwala says is correct except his assumption government legal advisors blundered. No legal advice was sought by the government! The decision was made by politicians and political scientists.
No legal expert on earth can devise a plan on what ended on May 19 in just two days to agree with the Indian security advisor and defence secretary, and, make a Joint Statement with the UNSG in just 4 days. That is impossible even for the most efficient legal expert!
IHL and IHRL are very complicated. Even the US government took 6 months to compile the possible war crimes report. Sri Lankan legal experts would have taken longer.
Sri Lanka was under Indian, US, UN and UNHRC pressure but haste is not an excuse particularly in legal matters.
Some (not all) ‘Godaperakadoruwas’ had ready-made solutions (agendas) as they had on July 28, 1987. The Indo-Lanka Peace Accord and 13A were not plucked from think air. India and their agents had these drafted years ago. They knew the war will end and had their agenda readied. The good ones came to the scene later. But it was too late. Expert legal advice was never sought by the government until very recently when Marapana was appointed the foreign minister (he was the legal advisor to Avant Gurde before 2015). (Though GL Pieris was the foreign minister, he was working under Sajin Vaas).
But now it is damage control.
December 12th, 2017 at 3:26 am
Considering the gravity of the joint statement which the ex-President signed together with UNHigh Comm.Ban Ki Moon and which was purportedly done per Dilrook without having any legal advice being sought, brings up some questions. On every occasion when questioned, sources have told us that the “best legal advice” was sought and the positions taken were based on that advice. Should there not be some accountability for the wrong advice being given? Was not the Joint statement vetted by our some of our legal luminaries both private and public before Presiential signature? I cannot imagine that it was NOT!
That said, is the position not made so much worse by the Co-sponsorship of Resolution 30/1, and was legal advice sought in the process of taking that position?
December 12th, 2017 at 4:51 am
No legal advice was sought in 2009. Simply there was no time within 4 days! No lawyer can provide legal advice in such a short time on a very complex matter. Not even all facts were out in 4 days.
On the other hand, IHRL is not that complex in comparison. That is the easier part (but limitless). However, even that was not done from a legal point of view. Instead, what was thought as good human rights practice was promised mixing 13A (has nothing to do with human rights)!
By the time of the resolution 30/1, the blunders have happened and our doors have closed.
December 12th, 2017 at 12:48 pm
Co-sponsoring 30/1 was a disasterous move by the Yahap leadership.
We cannot understand why such a move was made, when it is obviously an act to put the entire country into unfair, uncalled for and unnecessary ongoing trouble.
There may have been not enough time to study the 30/1 in depth, but a quick read through it would have shown how negative it is for the entire country. Four days would have provided enough time for that quick read through. Also, Yahap reps could have requested more time to study the 30/1 in detail, and that was not done.
December 13th, 2017 at 7:55 am
To say there was “no time” to seek legal opinion is silly…even if only by 4 days after the war was over. Statements by a nation’s leader are never issued without legal input. One might ask what assurances were given by Sec. Gen. Ban Ki Moon to make MR confident that the UN was supporting SL, when the US/UK was trying its best to protect the LTTE leaders?
As for the time factir, there was no such time factor to cause Mangala S. to Co-Sponsor Res.30/1 without consulting legal opinion in 2015.
December 13th, 2017 at 12:56 pm
Not so. It is foolish to think competent legal advice on such a complicated matter was/could be sought in just 4 days! It is just not possible. There is no evidence of it either. One needs some apprehension of the IHL and IHRL even to assess the quantum of work needed before committing the country. A robbery case requires more than 4 days of work even to decide on the approach to be taken for the defendant. Prosecution takes far longer. Once again this boils down to “godaperakadoruwas” ruining it for Sri Lanka.
This is a very rarely used aspect of law in Sri Lanka when it comes to a challenge. We don’t have an established legal branch on this. Ban Ki Moon knew this deficiency very well and even Mahinda. The former pushed us without giving us enough time and the latter handed over the matter to the former which had expertise. No other country had to commit itself to the UN on a course of action in just 4 days after a 3 decade conflict was over and to the UNHRC after just 8 days!
The whole UN Joint Statement is a violation of Sri Lanka’s sovereignty (as nicely explained by Wijeyadasa Rajapakse, PC). The matter is strictly internal.
In addition to the debacle caused by non-legal professionals trying their luck with the IHL and IHRL (“L” stands for law), now I can see the folly of their thinking on the whole affair.
Yes; Mangala too agreed to 30/1 without consulting any competent legal opinion, just like Mahinda.
December 14th, 2017 at 9:56 am
So: Conclusion is that Mahinda Rajapakse had 4 days after 30yr of conflict to sign the Joint Statement, while Mangala Samaraweera had several more years and another 1-2 MONTHS after the august election to study it before making Sri Lanka a Co-signatory to Resolution 30/1! At least Mahinda had the excuse of being under intense pressure. The Unity Govt had plenty of time to have had top level legal opinion not to make this terrible blunder.
The non-legal professionals have done a darn sight better job than the legal top brass, and it is time we gave them thanks for their persistence and due diligence in pointing out the deficiencies of the procedures followed and the weakness of the IHRL route. If not for them, the nation would be still floundering in ignorance of the legal implications of an “armed conflict”and the relevance of IHL for the latter which would absolve Sri Lanka of many issues raised by the UHHRC. The silence of the experts is what has resulted in the prolonged battering of Sri Lanka at the Universal Review by the UNHRC.
December 14th, 2017 at 12:56 pm
The case of non-legal professionals is equal to the folk story of a donkey trying to do what a sleepy dog was supposed to do but didn’t. It ended up in disaster (though their efforts and dedication deserves appreciation).
Compare this against the Tamil lobby advised by the best lawyers both Tamils and hired American and British lawyers.
This is what we went against and lost every time since May 21, 2009.
Also read the connected matter of navy officers in prison. This is one outcome of the blunder. The Island article is published here.
The issue is not who is worse (Mangala or Mahinda) but the fact that the country lost thanks to all leading politicians.
December 14th, 2017 at 1:11 pm
A question :
Was the Mangala S. Agreement with the UNHRC on the 30/1 LEGAL ?
As far as I know, as needed by SL Law, he did not get permission from the SL Parliament to agree to the 30/1.
Correct me if I am wrong here.
December 14th, 2017 at 7:37 pm
“These scoundrels never give up. Suffice it to say that, the Sinhalas don’t have to indulge the whims and fancies not to mention obsessions of the Saravanamuttu’s of this world.”
“Resolution 30/1 must be rejected in toto and rendered null and void. The Sinhalas can hope to achieve such an outcome only if they negotiate from a position of strength and not from weakness, and they will be in a position of strength only when they have their own Government. So, the Sinhalas should wait until 2020 before they begin to renegotiate Resolution 30/1.”
Thank you Dharshan for this eye-opening contribution.
December 15th, 2017 at 2:16 am
Waiting until 2020 should not be in silence, though as already there has been too much paid by waiting for the Truth, which is clear to so many but was lying unexposed due to the silence of professionals who only think of their careers and not of the country. There is a lot to do in getting the CORRECT message across although the Nay-Sayers will keep on with their diversionary tactics to prevent the Truth being heard.