Dharshan Weerasekera

A number of local newspapers have reported that there is to be a domestic inquiry into war crimes allegedly committed during the last phases of the war.[1]  Meanwhile, a few weeks ago, Foreign Minister Mr. Mangala Samaraweera was reported in a number of newspapers presenting what appears to be the rationale or justification for the aforesaid domestic inquiry.[2]

In my view, launching a domestic inquiry at this stage is illegal for two reasons.  First, there has already been a domestic inquiry—the Lessons Learnt and Reconciliation Commission (LLRC)—and it is legally untenable to initiate a second inquiry into the same issues without first establishing that the LLRC’s conclusions are wrong or inadequate.  Second, the rationale for the new inquiry (if we presume that Minister Samaraweera’s statements accurately capture that rationale) is logically flawed.

I want to briefly discuss both of the aforesaid matters in this article, in order to make members of the public aware of them, if they are not already.  I hope there will be more discussion of these important issues in the coming weeks and months, so that serious harm that may be done to Sri Lanka as a result of a possible exploitation of the proposed domestic inquiry by this country’s enemies, can be avoided.

1)  It is legally untenable to launch a new domestic inquiry without first establishing that the LLRC’s conclusions are wrong or inadequate.

My argument about the above matter is based on three points.  First, there is a general presumption that official acts of the Government are done properly, diligently and in good faith.  For instance, Section 114(d) of the Sri Lanka Evidence Ordinance says:

‘[The court may presume] that judicial and official acts have been regularly performed.’[3]

The LLRC was commissioned by a former President according to law.  Therefore, the LLRC’s acts are official acts, and enjoy the aforesaid presumption.  Anyone who wants to impugn them must first rebut the presumption, and that involves giving cogent reasons.

Second, the LLRC produced an extensive final report, and that report, plus the evidence on which it is based, including the testimony of various witnesses interviewed by the Panel, is on file and available to the public.

So, anyone who wants to say the LLRC’s conclusions are wrong or inadequate cannot say they don’t know the evidence on which the LLRC based its conclusions:  they have to point to the portions of the evidence they consider wrong or inadequate, or identify those points where they think the LLRC erred in its interpretation of the evidence.

(The LLRC concluded that, other than 7 specific incidents for which it recommended further investigations, the Government did not engage in indiscriminate or deliberate killings of civilians, which was the main charge that the international community leveled against the Government with respect to its conduct during the last phases of the war).

Finally third, it must be noted that the previous Government retained a number of international legal experts, including Sir Desmond de Silva and Professor David M. Crane, both of whom had been consultants to the U.N. in war crimes investigations in other countries, to give an independent opinion on the Government’s conduct during the last phases of the war.

Their conclusion on the question of possible indiscriminate or deliberate killings, was that civilian casualties during the relevant period were the result of collateral damage” rather than of deliberate targeting or indiscriminate attacks by the Government.  They said, inter alia:

‘As unfortunate as it is, the civilian casualties should be considered collateral damage and the ultimate responsibility for their loss would rest on the LTTE due to their grave breaches of IHL.’[4]

Obviously, the above corroborates the LLRC’s conclusions on the same issues.

To summarize, there is a presumption that the LLRC performed its duties properly, diligently and in good faith.  The evidence relied on by the LLRC is also available to the public, so anyone who wants to criticize the LLRC’s conclusions can do so with reference to the aforesaid evidence.

To my knowledge, the present Government has not produced any report or document that critiques the LLRC’s conclusions and shows them to be wrong or inadequate.  Finally, the conclusions of international experts (whose credibility it is difficult to impeach, because they have been previously retained by the U.N. itself) corroborates the LLRC on the relevant matters.

Given the above points, it follows that the LLRC’s conclusions remain valid to date. In the circumstances, there cannot be any legitimate reason to initiate a new inquiry.  Hence, such an inquiry is ex facie illegal.

I am not suggesting that a new Government cannot pursue policies different from its predecessors, and devise measures to execute those policies. In my view, however, if a new Government wants to repudiate the official acts of a previous Government, it has to be done according to law, and with reason.

2)  The rationale for the domestic inquiry

I shall take Foreign Minister Mangala Samaraweera’s statements, presented in the newspaper articles mentioned earlier, as accurately reflecting the Government’s position on the above matter.

Mr. Samaraweera is quoted in the Daily Mirror, (‘Domestic Mechanism to probe HR violations by September,’ 8 May 2015) as saying, inter alia:

‘It does not matter whether 40,000 or 1,000 died during the last stages of the war but what’s important is to hold a domestic inquiry and demolish the allegations with sufficient proof.’

Meanwhile, the Island (‘Mangala, too, wants truth established,’ 8 May 2015) had this to say:

‘The previous government had failed in its duty to act sensibly in the face of war crimes allegations, MP Samaraweera said.  Instead of taking tangible measures to prove those who had been making allegations wrong, the government engaged in a mudslinging campaign, the minister said.’

As far as I understand it, Mr. Samaraweera’s argument is this:  various people have leveled allegations against the previous Government that it committed war crimes during the last stages of the war, and the fact these allegations exists necessitates a domestic inquiry in order to prove the allegations wrong.

If the above is the Government’s rationale for the domestic inquiry, it doesn’t take an expert in logic to recognize the grave flaw in it.  What Mr. Samaraweera is suggesting is that a domestic inquiry is needed in order to prove that war crimes did not happen:  in other words, to prove a negative.

It is well-known that proving a negative is a logical impossibility:  no matter how much proof one adduces to establish that something did not happen, a critic can always say that one is forgetting (or hiding) some crucial bit of evidence that confirms the opposite.

To digress a moment, it should be noted that the Americans, in the run-up to the Iraq Invasion, used the tactic of demanding proof of a negative with great success.  They asked the then Iraqi Government to prove that they did not have weapons of mass destruction, and, no matter what proof the Iraqis forwarded, kept on saying they were hiding something, which in turn set up the pretext for the invasion.

To turn to Sri Lanka, I am not suggesting that Mr. Samaraweera is trying to set up an invasion.  In my view, the grave danger in the Foreign Minister’s idea is that it can be exploited to turn any domestic inquiry into a ‘fishing expedition,’ that is, an open-ended investigation, usually designed to see if something incriminating can be dug up about a designated suspect or suspects.

Normally, a complainant who alleges that someone has committed a wrong is under obligation to support the allegation with a modicum of evidence.  For instance, if a person tells a policeman, I saw X punch Y,” the policeman can’t immediately arrest X, or launch an investigation into the incident.  He has to first satisfy himself that, prima facie, the informant is telling the truth.

It is reasonable to presume that what applies in the case of private individuals applies in the case of countries also, perhaps more so.  If a country is accused of committing war crimes, it is incumbent on those making the allegations to first establish, prima facie, that the crimes in question occurred.

It is further reasonable to presume that, in the case of a country, and where the allegation is of as serious a nature as war crimes, an allegation, if it is to carry any weight, must come either officially from another country, or through the U.N. or one of its subsidiary organs.

(It is unreasonable to suppose that private individuals or organizations such as NGO’s can level accusations against a  country, and expect to be taken seriously, just on the strength of their word.

If private individuals and organizations want to level charges against a country, they can turn to facilities such as the Complaint Procedures mechanism of the Human Rights Council, which allow them to submit complaints, while according minimum safeguards, such as the right of reply, to the country being accused.)

Who are the persons or parties at present making war crimes allegations against Sri Lanka, and what is their general credibility?’ As far as I can see, and I’m happy to be corrected, there are actually only three significant sources of allegations:  The Secretary General’s Panel of Experts on Accountability (POE) which came out in 2011; the High Commissioner’s reports submitted to the Human Rights Council in March-2013, September-2013 and March-2014; and the Channel 4 videos.

Let’s look at each of those sources very briefly.  The POE was a document originally commissioned by the U.N. Secretary General for his personal use, and later submitted indirectly to the Human Rights Council.  It was never placed on the official record either at the General Assembly or the Human Rights Council, so Sri Lanka never had a chance to respond to it officially before the U.N.

Meanwhile, the POE is replete with factual errors, obfuscations and exaggerations.  (I, among others, have discussed these in a number of places.)[5] This means the POE, both on procedural as well substantive grounds, is hardly a reliable source of allegations.

Next, to turn to the High Commissioner’s reports, these level a series of allegations, both with respect to violations purportedly committed during the war, as well as ongoing violations.  The constraints of time don’t allow me to go into these reports in detail here,[6] but, in general, suffice it to say the HC repeats the POE’s allegations when she speaks about purported violations that happened during the war, and, as for ongoing violations, does not substantiate her claims with reliable sources.

That leaves the Channel 4 videos.  I shall limit myself to just two comments about these.  First, though Sri Lanka’s critics have been mentioning these videos to no end, as containing solid proof of war crimes committed during the war, they have never taken the trouble to place the videos officially on record at any U.N. venue and allow Sri Lanka to respond.

(Channel 4, meanwhile, has not availed itself of facilities such as the UNHRC’s Complaint Procedures mechanism, which would allow them to bring their charges directly, and officially, to the notice of the Council.)

Second, the general consensus among reasonably objective reviewers, including in England, is that the videos do not reflect respectable journalism.  Here, for instance, is the well-known British journalist A. A. Gill, writing about the C4 video Killing Fields” in the London Sunday Times:

‘The Channel has accumulated a large collection of samizdat amateur footage from mobile phones and video cameras—mostly un-attributed and uncorroborated.  It mixes that footage with comment from unnamed sources with distorted voices and shadowed faces.  And human rights lawyers.  It was brutal.  It was shocking, but it wasn’t journalism.  Not a second of this has been shot by Channel 4:  none of the eye-witness accounts come from journalists.’[7]

To repeat, of the three main sources of allegations against Sri Lanka, the POE and the High Commissioner’s reports suffer from procedural shortcomings, as well as factual errors, obfuscations and exaggerations.  The Channel 4 videos, according to knowledgeable critics, do not rise to the level of respectable journalism.

Such then are the main ‘witnesses’ arrayed—in a manner of speaking—against Sri Lanka at present.  According to Minister Samaraweera, however, this country has an obligation to prove these types of witnesses wrong, and in order to do it, must now launch a second domestic inquiry.  It does not seem to have occurred to the Minister to ask whether the witnesses have a modicum of an obligation to support their allegations in a way that would be acceptable to reasonable people.

Conclusion

The coming domestic inquiry is illegal, because, one, the present Government has not yet officially rejected or repudiated the LLRC’s conclusions, and two, the Government’s rationale for a new inquiry (if we presume that Minister Samaraweera speaks for the Government) is manifestly absurd.

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of, The UN’s Relentless Pursuit of Sri Lanka, and the Need for Effective Counter-measures (Stamford Lake 2013)  

[1] For instance, ‘Government will launch war crimes probe next month—President,’ The Island, 21 May 2015.

[2] For instance, ‘Mangala, too, wants the truth established,’ The Island, 8 May 2015, and ‘Domestic mechanism to probe HR violations by September,’ Daily Mirror, 8 May 2015

[3] Evidence Ordinance, Section 114(d)

[4] Opinion to the Commission from Professor David M. Crane and Sir Despond de Silva, QC, Paragraph 80, (What the International Experts say (3): ‘War crimes in Sri Lanka,’ www.island.lk, 18 March 2015)

[5] See, for instance, Dharshan Weerasekera, The Illegality of UN Secretary General Ban Ki Moon’s Approach to Sri Lanka,” www.foreignpolicyjorunal.com, 19 March 2013

[6] I discuss these at some length in an upcoming essay.

[7] A. A. Gill, ‘Judged,’ The London Sunday Times, 20 June 2011