Monday, May 20, 2024

Sri Lanka: Quest for Justice, Rule of Law and Democratic Rights

By Shamindra Ferdinando

With an eye on the 46th session of the Geneva-based United Nations Human Rights Council (UNHRC) later this month, the highly influential Global Tamil Forum (GTF), Centre for Human Rights and Global Justice, New York University, Sri Lanka Campaign for Peace and Justice and The Canadian Tamil Congress have brought in ‘big guns’ for a combined onslaught on Sri Lanka this week.

Among the participants, at a two-hour webinar, titled ‘Sri Lanka: Quest for Justice, Rule of Law and Democratic Rights’, scheduled for Friday, Feb. 12 (UK 1:30 pm; Europe/South Africa 3.30 pm; India/Sri Lanka 7:00 pm IST; Canada/US 8:30 am; Australia 12.30 am) are former UN Assistant Secretary General, Charles Petrie, former Special Rapporteur on the promotion of truth, justice, reparation and guarantee of non-recurrence, Pablo de Greiff and former US Ambassador-at-Large for Global Criminal Justice, Stephen J. Rapp.

The panelists includes Tamil National Alliance (TNA) lawmaker M.A. Sumanthiran, PC, former Commissioner of HRCSL Ambika Satkunanathan, Centre for Policy Alternatives (CPA) representative Attorney-at-Law Bhavani Fonseka, civil society activist. Shreen Saroor, and Sri Lanka Muslim Congress (SLMC) representative, Attorney-at-Law, Ameer Faaiz. Melissa Dring, of the Sri Lanka Campaign for Peace and Justice, is the moderator.

Their project has received a tremendous boost with the US returning to the Geneva body. The US quit UNHRC in June 2018.

The TNA, in late 2001, recognized the LTTE as the sole representative of the Tamil community. The LTTE held that privileged status in the eyes of the TNA, until Sri Lanka brought the war to a successful conclusion, in May 2009. The TNA is a direct beneficiary of the LTTE’s demise. Of course, Sumanthiran cannot be entirely held responsible for TNA’s actions as he joined the one-time LTTE mouthpiece, as a National List MP, in April 2010.

Why back Fonseka?

Sumanthiran entered Parliament a couple of months after the TNA wholeheartedly backed war-winning Army Commander Gen. Sarath Fonseka’s presidential candidature. Perhaps, Sumanthiran should explain on Feb 12, as to why the TNA, having accused the Army, Fonseka led with such efficiency, till the crushing of the formidable Tigers militarily, of genocide and then backed him to the hilt at the presidential poll that came soon afterwards. The TNA cannot conveniently ignore the fact that all Northern and Eastern electoral districts overwhelmingly voted for Fonseka though he lost the overall contest by a staggering 1.8 mn votes. Why did Tamils vote for Fonseka after accusing him, and his men, of genocide after they crushed the LTTE, which many pundits repeatedly claimed the Lankan security forces were incapable of achieving?

Participation of Petrie, Pablo de Greiff and Rapp, in Friday’s webinar, is of extreme importance. Petrie headed an ‘Internal Review Panel on UN actions in Sri Lanka’ that dealt with the final phase of the conflict, in his capacity as Special Rapporteur; De Greiff visited Sri Lanka on four occasions, between 2015 and 2019, and Rapp visited Colombo twice, in 2012 and 2014.

The Petrie report conveniently forgot how India formed half a dozen armed groups in the ‘80s to terrorize Sri Lanka, just to teach the then JRJ a lesson for being overtly pro-West and perhaps for derogatively comparing Mrs. Bandaranaike and her son, Anura with Mrs Gandhi and her son Sanjay. The Indian intervention was meant to pave the way for the deployment of her Army in the Northern and Eastern regions. The Indian project went awry. India ended up losing nearly 1,500 officers, and men, here, in less than three years. In addition, double that number received injuries. The military mission was aborted in March 1990. A year later, the LTTE assassinated Rajiv Gandhi, who, in his capacity as the Indian Prime Minister authorized the deployment of the Indian Army here. Can India ever absolve herself of the crime of causing massive chaos and destruction to this country as a result of her diabolical project here? The Petrie report also ignored how the LTTE scuttled the last bid to negotiate a settlement by quitting peace talks in April 2003. The LTTE’s abrupt move jeopardized the survival of UNP leader Ranil Wickremesinghe’s government and paved the way for its ouster in the following year.

Those who really value justice, rule of law, as well as democratic rights, should examine the Indian intervention here, too. Petrie and de Greiff should use the opportunity to explain the UN’s failure in the ‘80s to thwart the murderous Indian project. The UN played along in a devious plot to destabilise Sri Lanka, over the years. The UN’s response to the LTTE, during the Vanni offensive is no exception. The issue is whether the use of ‘human shields’, by the LTTE, could have been averted if the UN took tangible measures against the LTTE, especially in the wake of its detention of Tamil UN employees, accused of helping civilians to flee the Vanni west.

Did Petrie probe abductions of UN workers?

 Did Petrie inquire into the abductions after the revelation of secret UN powwow with the LTTE, led to the UN confirmation of the incident at daily UN media briefings, in New York, by the Secretary General’s Spokesperson Montas (The Island expose of UN employees abducted by LTTE: UN HQ admits Colombo Office kept it in the dark – The Island, April 28, 2007) Beginning April 20, 2007 (LTTE detains UN workers). The Island published several news items on the issue. The TNA, or those who issued media statements at the drop of a hat, remained conveniently silent. The TNA’s decision to remain quiet is understandable due to its close working relationship with the LTTE. Many an eyebrow was raised when the European Union election monitors openly accused the Tigers of helping the TNA to win 22 seats in the North and East, in 2004, by stuffing ballot boxes on its behalf. In the following year, the TNA, on behalf of the LTTE, ordered Northern Tamils to boycott the November presidential election. CPA’s Executive Director, Dr. Paikiasothy Saravanamuttu, is the only civil society leader to criticize the LTTE-TNA move.

The LTTE and the TNA set the stage for an all-out war. The LTTE commenced claymore attacks, in early Dec 2005. In January 2006, the LTTE blasted a Navy Fast Attack Craft (FAC) off Trincomalee; in late, April 2006 they made an abortive bid to assassinate Fonseka, and in early Oct 2006 an attempt was made on Defence Secretary Gotabaya Rajapaksa’s life. The LTTE lost the Eastern Province, eight months later.

The TNA, as well as some sections of the international community remained strongly confident of the LTTE’s military superiority, until it was evicted from Kilinochchi. The LTTE lost Kilinochchi in early January, less than two weeks after Canada-based veteran political and defence analyst D.B.S. Jeyaraj asserted that the LTTE was on the verge of reversing territorial gains made by the Army. The rest is history.

None of those who are harping today about the loss of civilian life bothered to publicly appeal to the LTTE to let go of its human shields. The TNA certainly owed an explanation why it remained silent over the LTTE taking cover behind the civilian population. Against the backdrop of the UN mollycoddling the LTTE, Prabhakaran forced Tamil civilians to follow the retreating LTTE fighting cadre from the western part of the Vanni region across the Kandy-Jaffna A9 road towards the Mullaitivu coast.

Oslo’s missive to Basil

 The then Norwegian Ambassador, Tore Hattrem, acknowledged the rapidly developing crisis in the eastern part of the Vanni region, in a letter to Presidential Advisor, Basil Rajapaksa, as the Army stepped-up operations. Hattrem’s missive to Rajapaksa revealed their serious concerns over Prabhakaran’s refusal to give up human shields. The Island, some time ago, published the hitherto unknown Norwegian note, headlined ‘Offer/Proposal to the LTTE’, and personally signed by Ambassador Hattrem. The Norwegian envoy was writing to Basil Rajapaksa on behalf of those countries trying to negotiate a ceasefire between the government and the LTTE, to facilitate the release of civilians, held hostage by the latter.

The following is the text of Ambassador Hattrem’s letter, dated Feb. 16, 2009, addressed to Basil Rajapaksa: “I refer to our telephone conversation today. The proposal to the LTTE on how to release the civilian population, now trapped in the LTTE controlled area, has been transmitted to the LTTE through several channels. So far, there has been, regrettably, no response from the LTTE and it doesn’t seem to be likely that the LTTE will agree with this in the near future.

How many civilians perished during the Vanni offensive? The UN Secretary General’s Panel of Experts (PoE) report, released on March 31, 2011, having faulted the Army, on three major counts, alleged the massacre of at least 40,000 civilians. Let me reproduce the relevant paragraph, bearing no 137, verbatim: “In the limited surveys that have been carried out in the aftermath of the conflict, the percentage of people reporting dead relatives is high. A number of credible sources have estimated that there could have been as many as 40,000 civilian deaths. Two years after the end of the war, there is no reliable figure for civilian deaths, but multiple sources of information indicate that a range of up to 40,000 civilian deaths cannot be ruled out at this stage. Only a proper investigation can lead to the identification of all of the victims and to the formulation of an accurate figure for the total number of civilian deaths.”

The PoE arrived at the figure on the basis of information provided by persons whose identities would remain confidential till 2031 (20 years since the release of POE report in March 2011). The UN has strangely guaranteed confidentiality of ‘sources’ even after the lapse of the mandatory 20-year period. Perhaps, Petrie and Pablo de Greiff should explain how the UN pushed ahead with subsequent actions against Sri Lanka, based purely on still unverified accusations made by ghost accusers. In other words, Sri Lanka was convicted by the PoE report after a kangaroo court trial. How convenient?

Having failed to obtain the anticipated response to its public call for submissions, the PoE had no option but to extend the deadline to Dec 31, 2010. The PoE posted a notice in English on the UN website on Oct 27, 2010 calling for submissions on or before Dec 15, 2010. Sinhala and Tamil versions of the notice too, were subsequently posted. The PoE received 4,000 submissions from 2,300 persons. None of them were verified at any stage of the Geneva process, leading to yet bizarre Sri Lanka co-sponsoring of the Geneva Resolution on Oct 1, 2015 against itself.

When the writer raised the issue with the UN, as well as the then UNDP Resident Representative in Colombo, Subinay Nandy, whether the UN would do away with the confidentiality clause to facilitate the UNHRC probe, 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 UN never did. Sri Lanka never exploited the matter.

The US, the British, as well as the EU, too, in spite of their push for an international war crimes probe, recently 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).

Successive governments, and even those interested in defending the country, never really bothered to examine undisputed facts that were in Sri Lanka’s favour. The incumbent administration is no exception to this type of inexcusable lapses at great cost to the country.

PoE contradicts own claims

 Interestingly, the PoE report contradicted its own claim of 40,000 killings. Unlike the unsubstantiated claim of 40,000 deaths, the paragraph bearing No 134 dealt with the issue on the basis of reliable sources acceptable to the UN.

It would be pertinent to reproduce the relevant section verbatim: “The United Nations Country Team is one source of information; in a document that was never released publicly, it estimated a total figure of 7,721 killed and 18,479 injured from August 2008 up to 13 May 2009, after which it became too difficult to count. In early February 2009, the United Nations started a process of compiling casualty figures, although efforts were hindered by lack of access. An internal ‘Crisis Operating Group’ was formed to collect reliable information regarding civilian casualties and other humanitarian concerns. In order to calculate a total casualty figure, the group took figures from RDHS as the baseline, using reports from national staff of the United Nations and NGOs, inside the Vanni, the ICRC, religious authorities and other sources to cross-check and verify the baseline. The methodology was quite conservative: if an incident could not be verified by these sources or could have been double counted, it was dismissed. Figures emanating from sources that could be perceived as biased, such as Tamil Net, were dismissed, as were Government sources outside the Vanni.”

Amnesty International (AI) in Sept. 2011, launched its own report, titled: ‘When will they get justice? Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission.’ The report estimated the number of civilian deaths, due to military action, as over 10,000. AI based its assertion on eyewitness testimony and information from aid workers.

AI, too, guaranteed confidentiality of its ‘sources.’ Perhaps for want of close cooperation among those who had wanted to drag Sri Lanka before an international tribunal, they contradicted themselves in respect of the primary charge. Interestingly, none of those, except British Labour Party MP Siobhan McDonagh (Mitcham and Morden-Labour) propagating lies, regarding civilian deaths, dared to blatantly lie in Parliament about losses suffered by the LTTE. McDonagh estimated the number of LTTE cadres killed, in fighting, from January 1, 2009, to May 19, 2009, at 60,000. Successive governments didn’t even bother to raise the Labour MP’s lie with the UK though The Island pointed out the need to clarify matters. The absurd claim was made during the third week of Sept 2011, in Parliament. Sri Lanka never realized the need to inquire into the possibility of British parliamentarians’ relationship with the Tamil Diaspora. In fact, some politicians had benefited from their relationship. The GTF hired former MP for Enfield, North Joan Ryan, as its policy advisor. Of course, the GTF had the backing of all major political parties, with key politicians participating in its inauguration in the UK Parliament, in Feb 2010, in the wake of the LTTE’s demise.

Let us hope Friday’s webinar responds to Lord Naseby disclosure pertaining to loss of lives, based on confidential cables from British High Commission in Colombo (January-May 2009) and US Defence Advisor Lt. Col. Lawrence Smith’s declaration in June 2011 (two months after the release of the PoE report). Both contradicted the position taken by British and the US. Sri Lanka never made a genuine effort to build-up a proper defence in Geneva. Sri Lanka shirked high profile opportunities to exploit startling revelations made by Wikileaks. The British are yet to release all confidential cables that dealt with the Vanni offensive, though Lord Naseby managed to secure some, following legal intervention made by him. That took over two years as the UK tried to withhold information which could have helped the UNHRC to ascertain the truth and Sri Lanka being absolved of these totally exaggerated accusations by interested parties against her.

A cable from Geneva

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

The Army lost 2,400 personnel during the January-May 2009 period. The losses were the worst suffered by the Army during the Eelam War IV (Aug 2006-May 2009). Frontline fighting formations lost a further 70 personnel, who were categorized as missing in action, in 2009. Deaths due to reasons other than combat during the same period were placed at 334. Thousands were injured. The losses suffered on the Vanni east front, during the first five months of 2009, was over 100 per cent, when compared with battlefield losses in the previous year. For the whole of 2008, the Army lost 2,174 killed and 43 missing in action.

Army Chief General Shavendra Silva told the writer that the Sri Lankan military had the wherewithal to decimate the LTTE in a far shorter period, if not for the human shields. “We paid a heavy price for being mindful of the civilian presence among the LTTE cadres. Restricted use of long range weapons, as well as air support on the Vanni east front, caused quite a bit of problems.”

The US slapped a travel ban on General Silva, in Feb 2020, over his role as the GoC of the celebrated 58 Division (which started as Task Force 1). The US move is an affront to the war-winning armed forces, who achieved their arduous task against all odds and the political leadership that backed them to the hilt, irrespective of threats to try them, too, for war crimes. Unfortunately, even the utterly unsubstantiated action against Gen. Shavendra Silva hadn’t jolted the government, as well as those genuinely interested in defending the country, to re-examine the accountability issue.

Sri Lanka’s pathetic and continuing failure has allowed Western powers to use the LTTE rump and Tamil Diaspora in a high profile project to overwhelm the country.


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