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| The visit of the present UNSG only three days after the defeat of the terror outfit LTTE may, to discerning, raise many doubts and questions. Some may attribute sinister and ulterior motives to this visit connecting it with the unsuccessful visits of Miliband, Kouchner et al and the Americans waiting to evacuate to safety the leaders of the terrorist movement. |
by Parakrama Karunaratne
Introduction
(May 25, Colombo, Sri Lanka Guardian) Many opinions have been expressed with regard to the Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka (Report). These opinions are mainly against the formation of the Panel, the authority of the UNSG to appoint such a Panel and the very contents of the Report, which have been termed flawed, vague, presumptuous, biased and unsubstantiated. Certain opinions have been based on the very mandate of the UN and the governing rules and regulations.
In the Introduction to the Report, (page 1 paragraph 3) it is stated that:"Only three days after the end of the war, the Secretary-General visited Sri Lanka and saw first hand some of the areas in the conflict zone as well as a camp for persons displaced from the conflict area. At the conclusion of his visit, the Secretary-General issued a joint statement with the President of Sri Lanka. In it the Secretary-General underlined the importance of an accountability process to address violations of international humanitarian and human rights law committed during the military operations, and the President agreed to take measures to address those grievances. The establishment of the Panel of Experts is in follow-up by the Secretary-General to that joint statement" (emphasis added)
The Joint Statement is at Annex 1 of the Report. I cannot recall reading this statement in the press and I believe that the Government did not officially issue it to the public. I may be wrong but it is of interest for any discussion or analysis to read and understand what was agreed on between the President and UNSG.
However, prior to understanding the Joint Statement, some matters incidental to the visit of UNSG is relevant. I believe that Mr. Ban Ki-moon is only the 3rd UNSG to visit SL. The first was by Mr. U Thant in April 1967 and after that Mr. Kofi Annan in February 2003.
The visit of the present UNSG only three days after the defeat of the terror outfit LTTE may, to discerning, raise many doubts and questions. Some may attribute sinister and ulterior motives to this visit connecting it with the unsuccessful visits of Miliband, Kouchner et al and the Americans waiting to evacuate to safety the leaders of the terrorist movement. Additionally, the Tamil diaspora and LTTE apologists have been actively campaigning against SL to save the LTTE leaders and prolong the death and destruction that has been continuing for nearly three decades. Prior to reading the latest Wikileaks cables, I was willing to assume that the visit was innocuous and was not in fact connected to the earlier visits of others and he genuinely wanted to help SL and did not have any sinister or ulterior motive.
However, this is not so. GOSL would have been aware, and if not should have been aware, that UNSG was not coming to SL in a hurry to congratulate the Government for defeating the world’s most ruthless terrorist organisation or to learn from us – for the purpose of sharing with other member States – how to defeat terrorist outfits. He did in fact have a hidden agenda and his motives were not honourable.
The Joint Statement
The JS issued is reproduced below:
UN-SRI LANKA JOINT STATEMENT JOINT STATEMENT AT THE CONCLUSION OF UN SECRETARY-GENERAL’S VISIT
TO SRI LANKA, 23rd MAY 2009
At the invitation of the H.E. Mahinda Rajapaksa, President of Sri Lanka, the Secretary-General of the United Nations, H.E. Ban Ki-moon paid a visit to Sri Lanka. During the course of his visit, he held talks with the President, Foreign Minister as well as other senior leaders of Sri Lanka. During his stay, he also consulted other relevant stakeholders, members of the international humanitarian agencies and civil society. The Secretary-General visited the IDP sites at Vavuniya and overflew the conflict area, near Mullaitivu that was the scene of the conflict.
President Rajapaksa welcomed the Secretary-General as the highest dignitary to visit Sri Lanka in the post-conflict phase. This was a reflection of the close cooperation between Sri Lanka and the United Nations as well as Sri Lanka’s commitment to work with the UN in the future.
President Rajapaksa and Secretary-General Ban Ki-Moon agreed that following the end of operations against the LTTE, Sri Lanka had entered a new post-conflict beginning. In this context, the Government of Sri Lanka faces many immediate and long-term challenges relating to issues of relief, rehabilitation, resettlement and reconciliation. While addressing these critical issues, it was agreed that the new situation offered opportunities for long-term development of the North and for re-establishing democratic institutions and electoral politics after 2 ½ decades. The Government expressed its commitment to ensure the economic and political empowerment of the people of the North through its programmes.
President Mahinda Rajapaksa and the Secretary-General agreed that addressing the aspirations and grievances of all communities and working towards a lasting political solution was fundamental to ensuring long-term socio-economic development. The Secretary-General welcomed the assurance of the President of Sri Lanka contained in his Statement in Parliament on 19th May 2009 that a national solution acceptable to all sections of people will be evolved. President Rajapaksa expressed his firm resolve to proceed with the implementation of the 13th Amendment, as well as to begin a broader dialogue with all parties, including the Tamil parties in the new circumstances, to further enhance this process and to bring about lasting peace and development in Sri Lanka. .
President Rajapaksa and Secretary-General Ban Ki-Moon discussed a series of areas in which the United Nations will assist the ongoing efforts of the Government of Sri Lanka in addressing the future challenges and opportunities.
With regard to IDPs, the United Nations will continue to provide humanitarian assistance to the IDPs now in Vavuniya and Jaffna. The Government will continue to provide access to humanitarian agencies. The Government will expedite the necessary basic and civil infrastructure as well as means of livelihood necessary for the IDPs to resume their normal lives at the earliest. The Secretary-General welcomed the announcement by the Government expressing its intention to dismantle the welfare villages at the earliest as outlined in the Plan to resettle the bulk of IDPs and call for its early implementation.
The Government seeks the cooperation of the international community in mine-clearing which is an essential prerequisite to expediting the early return of IDPs.
The Secretary-General called for donor assistance towards the Common Humanitarian Action Plan (CHAP) jointly launched by the GOSL and the UN, which supports the relief, shelter and humanitarian needs of those in IDP sites.
President Rajapaksa and the Secretary-General recognized that the large number of former child soldiers forcibly recruited by the LTTE as an important issue in the post-conflict context. President Rajapaksa reiterated his firm policy of zero tolerance in relation to child recruitment. In cooperation with UNICEF, child-friendly procedures have been established for their "release and surrender" and rehabilitation in Protective Accommodation Centres. The objective of the rehabilitation process presently underway is to reintegrate former child soldiers into society as productive citizens. The Secretary-General expressed satisfaction on the progress already made by the Government in cooperation with UNICEF and encouraged Sri Lanka to adopt similar policies and procedures relating to former child soldiers in the North.
President Rajapaksa informed the UN Secretary-General regarding ongoing initiatives relating to rehabilitation and re-integration of ex-combatants. In addition to the ongoing work by the office of the Commissioner General for Rehabilitation, a National Framework for the Integration of Ex-Combatant into Civilian Life is under preparation, with the assistance of the UN and other International Organizations.
Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights in keeping with international human rights standards and Sri Lanka’s international obligations. 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.
The last paragraph of the JS has been twisted and misquoted both by UNSG and the Panel. What the UNSG did was to underline the importance of an accountability process for addressing violations of international humanitarian and human rights law. Nowhere was it stated "committed during the military operations". By the surreptitious interpolation of these words in the TOR as well as in the Panel Report, the hidden and diabolic agenda of the UN has been disclosed. By the use of the words "committed during military operations" an impression is sought to be created that the military did commit such violations and there was agreement by the President of such violations and that these violations need to be investigated.
Further, nowhere in the JS it is stated that UNSG is authorized to act on any of the matters or to examine them or to appoint any panel, expert or otherwise. It was in response to the President’s statement regarding promotion and protection of human rights and SL’s obligations that UNSG referred to the importance of an accountability process for addressing violations of international humanitarian and human rights law. It was agreed by the parties that the "Government will take measures to address those grievances."
Whilst it is evident that UNSG and the Panel have twisted the JS, UNSG has imposed a totally different and alien interpretation misconstruing the very essence of the JS. What was agreed in plain and simple language was for the Government, meaning the Sri Lankan Government, to take measures to address those issues. Therefore the GOSL was to put in place a mechanism that would give effect to the last paragraph of the JS and NOT the UNSG. Nevertheless, UNSG proceeded to form a Panel in violation of the JS and the Panel assuming a mandate that was never there presumed, albeit wrongly, that the "establishment of the Panel of Experts is in follow-up by the Secretary-General to that joint commitment." Mark the words "joint commitment." Such a commitment never existed and the only "joint commitment" was for SL to "take measures to address those grievances."
Inaction by GOSL
When UNSG announced sometime ago that he was contemplating the appointment of a panel to advise him on whether there had been any violations of the international laws and he was going to act according to the JS, GOSL should have pointed out to UNSG that such an agreement was never there and it was for the government to take steps in this regard. I believe that this was not done. (There are many areas of assumptions with regard to the action/inaction of the GOSL as the people have not been informed of the real situation. We learn of these matters through independent publications as the government does not disclose the true situation). Even if such representation were made, they were not forceful and sufficiently followed up.
Secondly, when the mandate of the LLRC was formulated it would have been prudent for the government to have forwarded a copy of the mandate and engaged UNSG in a discussion whether the mandate would address the commitment of GOSL in the JS. I am not aware whether such measures were taken and if such have been taken then UNSG has absolutely no writ to have acted as he has done. If not, then it is a fault of the Government to have allowed the grass to grow under its feet. By engaging UNSG with the mandate of the LLRC, GOSL would have sufficiently complied with its undertaking and even if some additions were to be made by UNSG, the entire matter would have been handled by the LLRC and not by any other person or panel.
Thirdly, the Government, rather than confining itself to few self-proclaimed experts should have engaged the services of those with knowledge, experience and acumen in international relations and affairs and the UN system and who command the respect of the international community. Such engagement would have given the government the expertise it presently lacks and a platform to have placed the SL case better. Eminent and internationally respected persons like Justice Weeramantry and Mr. Jayantha Dhanapala, if consulted, would have rendered invaluable assistance to the government.
Fourthly, the failure of the government to keep the people informed of the measures and events that it has taken, especially with regard to the JS. As I stated at the beginning I do not recall reading the JS in the press, if such has been disseminated then at least few knowledgeable persons would have pointed out the errors.
Fifthly, the Government was aware that its attempt to exclude the last paragraph was not accepted by UNSG. With this knowledge the Government should have acted in a manner to thwart any attempt by the vested interests groups to impose their self-serving mandates, which would be detrimental to SL interests.
To my understanding a joint statement is where both (or all) the parties agree to the contents of the statement. If the government was not agreeable but due to the then prevailing situation was forced to accept the unilateral imposition by the UNSG, that itself should have been a clear warning that more and unseen challenging situations would come up. If the Government naively believed that the LLRC would satisfy those braying for the blood of this nation, or that the last sentence in the JS that "the Government will take measures to address those grievances" meant what the language plainly states, then there is something seriously wrong with the Government think-tanks.
The Terms of Reference
In the Chapter I of the Report under the heading "Mandate, Composition and Programme of Work" and under "Formation of the Panel" the Report states:
"On 22 June 2010, the Secretary-General announced the appointment of this Panel of Experts to advise him on the issue of accountability with regard to alleged violations of international humanitarian and human rights laws during the final stages of the armed conflict in Sri Lanka. The Panel’s Terms of Reference were established as follows:
"In the Joint Statement of the Secretary-General and the President of Sri Lanka issued at the conclusion of the Secretary-General’s visit in the country on 23 May 2009, the Secretary-General underlined the importance of an accountability process to address violation of international humanitarian and human rights law committed during military operations between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). The President of Sri Lanka undertook to take measures to address these grievances. At this time and against this background:
1. The Secretary-General has decided to establish a panel of experts to advise him on the implementation of the said commitment with respect to the final stages of the war.
2. The purpose of the Panel shall be to advise the Secretary-General on the modalities, applicable international standards and comparative experience relevant to the fulfillment of the joint commitment to an accountability process, having regard to the nature and scope of alleged violations.
3. It shall be composed of three members having the appropriate and relevant experience. The Panel shall develop its own working modalities and be assisted by a Secretariat with the support of OHCHR.
4. The Panel shall submit its report to the Secretary-General within four months of the commencement of its work.
5. The Panel shall be funded form the Secretary-General’s unforeseen budget. "
Examination of the TOR reveals that the basic premise on which the Panel was formed is false, deceitful and insincere. This deceitful action could be best examined by reference to the TOR itself. The concoction did not end with the preliminary meandering of the concordant between the President and UNSG. Matters not included in the JS were imported and prejudicial interpretations were given.
a. To advise UNSG on the issue of accountability with regard to alleged violations of international humanitarian and human rights laws during the final stages of the armed conflict in Sri Lanka.
To any rational mind it is demonstrable that the JS did not refer in any manner to any period of time. If at all, the wording is so nebulous it could also be interpreted to a prospective period (post-conflict period) where the captured or former terrorists will be dealt under the prevailing international concepts. Further, the TOR refers to the "final stages of the armed conflict" exonerating all the atrocities committed by the LTTE and the many attempts made by GOSL to arrive at a negotiated settlement. This effectively closed the door to the involvement of IPKF, the imposition of the 13th Amendment, offer by the then President Ms. Kumaratunga to hand over the North to LTTE for 10 years and the CFA and the pusillanimity of the then SL government to molly-coddle the LTTE hierarchy.
The reference to "alleged violations" is obscure especially without any reference to any allegations being set out. If, for the purpose of discussion, UNSG were acting impartially he should have posed the question as to whether any violations took place and what steps the GOSL have taken to address such violations, if any.
Perusing the contents of the Report one is struck by the palpably one-sided findings of the Panel, going beyond even the wrongly and deviously drafted TOR. While it is not the intention to examine the Report in the present article, reference to one or two factors would no doubt assist to strengthen the arguments put forward herein.
The Report, while going beyond its mandate studiously keeps silent on the aspect of the CFA and the naiveté of the then government in appeasing the tigers as well as the pro-tiger international players.
The Report traverses the history from 2008 concentrating on aspects well prior to the final stages as well as the post conflict era, conveniently forgetting that UNSG himself has acknowledged and praised the government for its efforts (both pre and post) and deliberating on the areas of future cooperation
b. The importance of an accountability process to address violation of international humanitarian and human rights law committed during military operations between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE).
The second important factor in the TOR is the reference to violations committed during military operations between GOSL and LTTE. Unless UNSG has equated LTTE to a recognized lawful military force and not a rebel or terrorist organisation, the only military that was present was the legitimate armed forces of a sovereign government holding membership of the UN. Essentially, this statement in the TOR exposes the convoluted thinking of the UNSG.
Additionally, the word "committed" clearly spells out that a decision has been arrived at to the effect that GOSL is already guilty of violating international humanitarian and human rights laws, even without hearing or giving an opportunity to the GOSL to prove otherwise and further, without any evidence to that effect. Even the JS did not in any manner refer that such violations have been committed.
c. At this time and against this background
Next is the wording "at this time against this background" encompassing unsaid and imaginary gamut of a wide range of things practically referring to alleged violations by the Sri Lanka Armed Forces (SLAF), conveniently forgetting that it was the responsibility of the GOSL to take measures and not the UNSG. This also refers to the pre-conceived determination by the UNSG that violations have been "committed".
d. The Secretary-General has decided to establish a panel of experts to advise him on the implementation of the said commitment with respect to the final stages of the war.
The JS, as repeatedly referred to earlier, did not confer any power or right or action on the part of the UNSG to act and further there was no reference to any "committed". If at all UNSG were to act it should have been to seek advice whether the GOSL has taken measures, as agreed.
e. Relevant to the fulfillment of the joint commitment to an accountability process, having regard to the nature and scope of alleged violations.
Finally, the Panel is to advise UNSG "on the relevant modalities, applicable international standards and comparative experience relevant to fulfillment of the joint communication to an accountability process, having regard to the nature and scope of alleged violations."
Thus, the reference is to a paragraph UNSG forced the Government to include and as stated previously not in the JS.
It may be recalled that UNSG ad nauseam said that he was giving effect to the JS in setting up the Panel. Now we are aware that he forced the Government to include the last paragraph with the sole purpose of establishing the panel. Additionally, if he was really desirable in giving effect to the JS, he should have requested the Government to appoint a panel or a commission, or better still, should have advised the Government to include the areas of concerns in the mandate of the LLRC. He achieved his sole sinister objective and appointed a Panel comprising of members who were known to be hostile to SL. This was another area that the Government failed. When the names of the panelists were known, Government should have raised objections to the names, setting out the reasons for such objections. This would have been a better course of action rather than demonstrating before the UN office in Colombo.
There are many areas in the Report that warrant critical assessment which will prove the partiality and biasness of the Panel. However, this can be done only after a careful study and weighing each and every statement. There is also an area the duplicity of the government is exposed vis-à-vis the pronouncements relating to the illegality of the appointment of the Panel and refusal to permit the Panel to visit SL and other matters. This is another area of concern.
However, it is regrettable that several countries have accepted the Report and are demanding action on it. It is hoped that they will, see and realize the truth and the diabolical manner UNSG acted.
Conclusion (for the present)
To sum up: The JS and the TOR are at variance and this should be a matter of grave concern. By the actions of UNSG, firstly, forcing an unacceptable paragraph to the JS and then acting beyond even on that forced imposition, the UN system and the office of the UNSG per se have been brought to disgrace and disrepute. That the system and the holders of high office within the system could be manipulated, coerced, corrupted, influenced and maneuvered is starkly manifested.
By appointing as members with proven antagonism to SL as panelists, the warped and prejudicial mind of the UNSG is displayed.
Where the basic premise on which a party acts is false, fraudulent and manifestly illegal, the entirety of actions that flows from such premise is flawed and without any legality, acceptance or validity. Thus, the Report, stemming from the TOR should be rejected by all decent and law abiding nations, especially those who preach the rule of law, justice and fairness.
On the part of the Government, it should be more forthright and take the people into confidence without resorting to rhetoric’s, theatrics, antics and vote-garnering patriotism. It should be understood, if such has not been understood, that the people of this nation owe a debt of gratitude to the political leadership given by the President to remove the scourge of terrorism from this country and to all those helped in this noble venture.
The Government must, even at this late stage obtain the assistance and services of those who are knowledgeable and respected and those who without fear or favour would call a "spade a spade". Not those sycophants who sing hosannas and preach what it wants hear.
The writer is an Attorney at Law and former Deputy Solicitor General. He is also a past President of the Organization of Professional Associations of Sri Lanka. He obtained his LLM from University of Warwick, UK.
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