Shenali D Waduge

 “Not only must Justice be done; it must also be seen to be done.” For 3 decades Sri Lanka endured terrorism. The present calls for accountability and other nomenclatures were not to be seen throughout the past. After playing no part to end terror, after Sri Lanka’s military solution, the UN is coming down hard on Sri Lanka creating precedents after a conflict has ended. The illegalities and beyond the mandate decisions warrants Sri Lanka’s case to be taken before the UN General Assembly where Sri Lanka as a member state can make recommendations for the peaceful settlement of any situation that might impair friendly relations among nations”. With the immunity UN officials have there is a question on the ethnics and impartiality of their decision making especially when evidence shows an unusual web of deceit and illegalities taking place against a founder UN member nation. The UN General Assembly members are appealed to come to the assistance of Sri Lanka before these precedents become used on their nations too.

Sri Lanka has faced innumerable international pressures, humiliations from the very nations that have banned the LTTE declaring it the world’s most brutal terrorist organization. Our envoys had been humiliated in the UN, events to which Sri Lanka participated as a Commonwealth nation faced a diatribe of diplomatic insults and media campaigns calling for boycotts. Visits of the country’s head faced insults and a very crude and unfair diplomatic/UN/media partnered with all other entities controlled by the West went out to declare Sri Lanka as guilty using propaganda.

EVIDENCE OF UN’S/UNHRC’S WITCH-HUNT AGAINST SRI LANKA….

Joint statement   

• Nowhere in the joint statement does the GOSL commit to holding an investigation

http://www.lankaweb.com/news/items/2014/08/19/the-bogus-joint-statement-between-president-of-sri-lanka-and-ban-ki-moon/

http://www.onlanka.com/news/sri-lanka-must-demand-investigate-the-investigation-unhrc-un-and-its-resolutions-must-be-probed.html

Arguments against Panel of Experts Report

• This was an advisory opinion personally commissioned by the UNSG only
• PoE not sanctioned by either the UN General Assembly, the UN Security Council or the UN Human Rights Council
• PoE is not an official UN report. It was never tabled in the UNHRC to give Sri Lanka official right of response and therefore it is illegal to be used as the basis for the successive resolutions and to be quoted by the UNHRC head in official reports/statements. How did a Panel appointed for personal advisory opinion end up as source for successive UNHRC Resolutions and the basis on which UNHRC head based her reports?
• The UNSG’s PoE was appointed on 22nd June 2010 just days after Sri Lanka appointed the LLRC on 15 May 2010 showing no respect for Sri Lanka’s appointment of a domestic mechanism.
• UNSG’s spokesman Martin Nesirky said the panel is “not a fact-finding mission…not an investigation…not an inquiry…not a probe….only a panel to advise the UNSG”.
• The Panel said ‘upto 40,000 may have died’ but there are no sources cited for the panel to use this number. This figure has become a battering ram against the GOSL and may have been elevated to actually ‘had been killed’.
• PoE does not mention the other figures quoted as dead in report. UN Country Team figure of 7,721 (up until 13 May 2009) the PoE says is too low to be accepted. PoE does not provide concrete evidence as to how 40,000 figure could be acceptable.
• The Panel on LTTE
• Very strange for the PoE panel to classify LTTE as ‘the most disciplined and most nationalist of the Tamil militant groups’.
• Credible allegations that approx. 300,000 – 330,000 civilians were kept hostage and prevented from leaving
• Civilians used as human shields and as strategic human buffer to the advancing SL Army
• Civilians forced to join ranks of LTTE to dig trenches and contributed to blurring distinction between combatants and civilians
• LTTE fired artillery to large groups of civilians and fired from civilian installations including hospitals
• Civilians sacrificed for the LTTE cause
• The PoE does not give civilians killed or injured by LTTE
• From February 2009 onwards, the LTTE started point-blank shooting of civilians who attempted to escape the conflict zone, significantly adding to the death toll in the final stages of the war.”
• LTTE “fired artillery in proximity to large groups of internally displaced persons (IDPs) and fired from, or stored military equipment near, IDPs or civilian installations such as hospitals.”
• PoE’s findings on alleged criminal violations fall short of legal standards associated with an impartial inquiry
• PoE Report’s finds are un-sourced (in the main body, in the footnotes and annexes) This makes it impossible to carry out further investigation which the PoE recommends.
• PoE does not offer evidence of circumstances of alleged attacks, presence of legitimate military targets, how PoE determined on evidence of where the attacks came and whether those attacks were on civilians and the proportion.
• If the PoE admits that LTTE kept hostages, used civilians as human shields and combatants to fight the SL Army and fired from among the civilians and targeted even hospitals how can the PoE authoratively say the SL army is responsible for killing civilians unlawfully?
• Why did the Panel state that the conflict ended ‘tragically’ when the entire country was relieved that they could walk out of their homes without fear.
• Why does the Panel refer to and make comments on the family of HE the President when their mandate was only the last stages of the conflict
• PoE did not submit witness statements (even anonymous ones) alongside the report. No report can be accepted without primary sources.
• PoE in reality is a non-legal analysis based on ‘suspicions’ and lack proof & evidence needed for an international court.
• In short the PoE in a court offers no substance or value having no evidence, sources to prove allegations in trials for war crimes and crimes against humanity.

Discrepancies in the successive Resolutions of 2012, 2013, 2014 & investigation on Sri Lanka

http://www.lankaweb.com/news/items/2014/08/10/investigation-against-sri-lanka-unhrc-navi-pillay-cunningly-exceeding-mandate/

http://www.sinhalanet.net/unhrc-investigates-sri-lanka-what-happens-when-the-other-side-is-caught-collecting-blank-submission-forms-with-signatures

http://www.sinhalanet.net/why-should-sri-lanka-face-isolation-for-valid-questions-unhrc-is-not-answering

https://tamiltigeractivities.wordpress.com/2014/10/28/caught-red-handed-unhrc-blank-war-crimes-forms-in-the-hands-of-tna-ltte/

• OHCHR is investigating for the 1^st time a country where a conflict ended without sanction of the UN General Assembly or the UN Security Council and based on a report that was a personally commissioned one and not even tabled at the UNHRC
• Illegality of using the PoE as a basis for the Resolutions and UNHRC reports/statements is questioned
• Exceeding mandate – The resolution was initially to cover crimes of both parties during the period under LLRC (2002 to 2009) but it has now self-appointed itself to investigate upto 2011 (2 years after the conflict which applies only to GOSL)
• OHCHR by manipulating operative paragraphs is creating dangerous precedents likely to affect other member states.
• Why is 1/3 of the conflict being investigated ignoring justice for the rest of the victims?
• Discovery of a LTTE cadre tasked by TNA to collect signatures on blank forms to be submitted to the UNHRC investigators reveal a plan to manipulate the investigation with bogus witness accounts being filled by third parties.
• That the UNHRC was in receipt of these falsely filled forms were not made public. After the arrest was made the UNHRC response was to chide the GOSL accusing it of hampering the investigation but avoided not denying they were in receipt of such filled forms. The UNHRC head did say they had a mechanism to detect bogus forms but why was it that this was not made public and it was only after the arrest that we came to know that an effort was being made to manipulate the investigation through false witness accounts.
• The LTTE cadre was obtaining blank signatures on the assurance that the people would be compensated by the UNHRC. The same had been done when the PoE were investigating.

Neutrality of Navi Pillay the UN High Commissioner for Human Rights

http://www.dailynews.lk/?q=features/ethnic-bias-conflict-interest-disqualifies-navi-pillay

• Conflict of interest – she is an ethnic Tamil sharing genetics and emotional attachments to the Tamil cause through family and roots as well as various other bindings
• You cannot be a judge in your own case (case of Lord Hoffman). The judge or presiding officer must be free from disabling conflicts of interest thus making the fairness of the proceedings or investigation less likely to be questioned. The provision of recusal should have prevailed wherein Navi Pillay should have opted to recuse herself from investigating Sri Lanka as neutrality of judges is a sine quo non in the judicial process
• Consistently issuing statements against Sri Lanka from her office without any evidence
• Using LTTE sources to cite her allegations
• Her calls for international investigations ignores 30 years of LTTE terror insisting on last 3 months only
• She committed procedural bias by circulating her own incriminating report while refusing to attach Sri Lanka’s response
• making statements without substantiate evidence in accusing the GOSL as being ‘authoritarian’
• Including non-conflict related items into her reports and statements which should have been taken separately through the universal periodic review and not incorporated into Resolutions against Sri Lanka
• she listens with empathy to spouses of dead LTTE leaders she never visited a single non-Tamil victim

The Charles Petrie Cover-up PoE

http://www.sundayobserver.lk/2012/11/18/fea02.asp

• Case of another leaked report
• Assignment of Charles Petrie, UN official in Rwanda (where UN abandoned 1m Tutsis to be killed)
• Petrie headed a Norwegian funded project Myanmar Peace Support Initiative’ though UN rules forbid staff to be employed by other governments (Article 100 UN Charter)
• Petrie report uses ‘unnamed sources’ quoted in the PoE and unsubstantiated allegations by NGOs to discredit Sri Lanka
• Petrie report excludes mention of LTTE suicide in makeshift reception centre where civilians and military personnel died
• Petrie report was tasked to declare the UN was to blame for not stopping bloodshed what about the bloodshed over 3 decades that UN did nothing about?
• The GOSL ended 3 decades of terror and within 3 years rehabilitated and reintegrated 11989 surrendered LTTE combatants, gave a presidential pardon to 594 child soldiers who were put through schooling & vocational training, the SL military restored irrigation infrastructure, canals, tanks, revived agriculture and farming, restored over 1000 schools, healthcare facilities, renovated kovils and even helped build houses for the IDPs.

Manipulations by Media – Human Rights Groups & funded agencies/organizations

The guilty are Amnesty International, International Crisis Group, Australian Red Cross, Human Rights Law Centre, ABC Four Corners, ABC Radio Australia, AFP, BBC, Channel 4, Groundviews, Reuters, Sydney Morning Herald, the Australian, Voice of America, Gordon Weiss.

http://www.onlanka.com/news/how-media-and-hr-groups-purposely-misinterpreted-ban-ki-moons-panel-of-expert-report.html PoE’s conclusion that there could have been as many as 40,000 civilian deaths.” PoE’s conclusion that there could have been as many as 40,000 civilian deaths.” PoE’s conclusion that there could have been as many as 40,000 civilian deaths.”

PoE’s conclusion that there could have been as many as 40,000 civilian deaths.” PoE’s conclusion that there could have been as many as 40,000 civilian deaths.” PoE’s conclusion that there could have been as many as 40,000 civilian deaths.”

• PoE’s conclusion that there could have been as many as 40,000 civilian deaths.” was manipulated by media to report that 40,000 or more were actually killed (above link will give detailed examples of the media’s distortions)
• Media also replaced ‘credible allegations’ with ‘credible evidence’ thus relaying internationally that the GOSL were the guilty party through their media coverage.
• C4 documentary is a private documentary – those funding it have not been disclosed. The star witnesses were proven LTTE cadres. Isolated cases were shown but inflated to project a command structure and thus create media guilt against the SL troops.
• If individuals soldiers are guilty of ignoring military commanders orders / GOSL Sri Lanka policy and the laws of the SL military these individual cases need to be taken separately by the SL military courts and soldiers punished separately. Individual acts do not constitute any war crimes/crimes against humanity.

The FACTS : The Civilians – the Disappeared – the Dead – the voluntary human shields

• Civilians were herded and taken by LTTE. If that had not been done there would be no reason to argue the plight of civilians. That LTTE held civilians by force for over 5 months without releasing them becomes an automatic war crime.
• LTTE deliberately misused civilians to protect its military targets
• Blur of distinction – LTTE used civilians of all ages including children (child soldiers in civilian) making it difficult for the Army to differentiate between civilians and fighters and fighters and human shields.
• LTTE used civilians as human shields, prevented them from fleeing and even fired at those fleeing
• LTTE refused to agree to a safe zone which is evidence of its intent to use civilians as objects. A one-sided no-fire-zone is not official.
• LTTE did keep military objectives inside the GOSL marked no fire zone.
• Sufficient evidence of military requesting civilians to move to safe zones via leaflets, mikes, etc
• There is no evidence to suggest SL Army commanders ignored Article 57(1) of Protocol 1 (Geneva Convention) that in the conduct of military operations care has to be taken to spare civilian population, civilians and civilian objects.
• US Embassy is quoted to say that the SL army took ‘utmost care’ to avoid civilian casualties.
• If laws of combat requires LTTE not to fire shielded by civilians – the SL military cannot be held responsible for firing causing death of civilians. The law is that LTTE cannot fire from among civilians.
• The military cannot suffer lethal force of enemy because it is under legal obligation not to respond using lawful force in self-defense.
• LTTE did have a people’s militia – civilians were given armed training by the LTTE. They did not wear uniforms but carried guns and followed a chain of command. Article 51 (3)  of Protocol 1 says that civilians enjoy protections ‘unless and for such time as they take a direct part in hostilities”. How many civilians were ‘voluntary combatants’ and died as a result? If they placed their lives at risk by participating in hostilities they do not enjoy combatant immunity.
  • How many were LTTE cadres in uniform
  • How many were LTTE cadres in civil clothing
  • How many were volunteer combatants in civil clothing carrying arms
  • How many were involuntary combatants carrying arms
  • How many were civilians who took no part in hostilities?
  • How many what we presume to be ‘hostages’ or ‘human shields’ were in fact LTTE combatants in civilian?
  • Note: all the close to 12,000 LTTE cadres who surrendered to the army were in civilian clothing.
• If LTTE used civilians to enjoy military advantage by virtue of this illegality LTTE cannot seek undue advantage for intentionally endangering civilians.
• LTTE also stationed military objects inside schools and hospitals and fired from inside
• SL Military commanders have every right to consider the safety of their forces in determining proportionality
• Good to remember that laws and right actions can be discussed on paper and outside a theatre of war but in a tense situation of firing / cross firing etc… can anyone imagine a soldier take out the Geneva protocols and having time to determine which laws apply before he can defend himself and would he be alive to tell the world how he assessed the situation?

The Credibility of the Dead – no names after 6 years!

• When the death estimates are just over 100,000 in 30 years isn’t it curious that Tamil deaths during the final few days should rise to over 40,000!
• Whether the number quoted as being dead is 1 or 100, or 1000, or 40,000 or more if anyone gives a number they must accompany that number with a name.
• Even after 6 years we are told that 40,000 or more died but no one has produced the names of the supposed to be dead people.
• Ban Ki Moon travelled to the North when he arrived on 23 May 2009 just 5 days after the military end of LTTE, if 40,000 or more had been buried the burial sites would have been visible from the helicopter and would have been photographed by those accompanying him.
• US Satellite imagery found only 3 grave sites and one belonged to LTTE.
• If the C4 is having mobile footage of soldiers killing surely they must produce footage of soldiers burying such a large number of dead people and stuffing them inside graves. No one has produced a single picture of soldiers digging graves, stuffing the dead or closing the graves! Digging graves for 40,000 is no easy task and time consuming too especially when firing was taking place from both sides. Moreover, with so many quoted as being dead the small area which had a lagoon too should have been covered with dead bodies!

Important Points

• PoE – “LTTE cadre were not always in uniform” led to “retaliatory fire by the Government, often resulting in civilian casualties.”
• Amnesty International 2011 report – LTTE used civilians as human shields and conscripted child soldiers”.
• ICRC Head of Operations for South Asia Jacques de Maio cable to US – LTTE saw the civilian population as a protective asset’ and kept its fighters embedded amongst them”. LTTE commanders’ objective was to keep the distinction between civilian and military assets blurred. They would often respond positively when the ICRC complained to the LTTE about stationing weapons at a hospital, for example. The LTTE would move the assets away, but as they were constantly shifting these assets, they might just show up in another unacceptable place shortly thereafter.”
• UN Under Secretary-General for Humanitarian Affairs & Emergency Relief Coordinator John Holmes 26 Mach 2009 – LTTE continue to reject the Government’s call to lay down their arms and let the civilian population leave, and have significantly stepped-up forced recruitment and forced labor of civilians..at least two UN staff, 3 dependents and 11 NGO staff have been subject to forced recruitment by the LTTE in recent weeks”…..” there are continuing reports of shelling from both sides, including inside the ‘no-fire zone, where the LTTE seems to have set up firing positions.”
• US Ambassador Robert Blake – 27 January 2009 LTTE must immediately desist from firing heavy weapons from areas within or near civilian concentrations”
• US Ambassador Robert Blake – “…As the Sri Lankan army was pushing north into the Tamil areas, the predominantly Tamil areas that were controlled by the LTTE for more than two decades, … … The LTTE systematically refused international efforts to allow those internally displaced persons to move south. To move away from conflict areas where they could have been given food and shelter and so forth. So they systematically basically refused all efforts and in fact violated international law by not allowing freedom of movement to those civilians. So had the LTTE actually allowed people to move south, none of this would have happened in the first place, so it’s important to make that point. I think that often gets lost in the debate on this…” (THERE WOULD HAVE BEEN NO CIVILIAN CASUALTIES IF THE LTTE HAD NOT FORCIBLY OR VOLUNTARILY TAKEN CIVILIANS WITH THEM)
  LTTE had also been using resources given by UN and NGOs for its military purposes – boats given by Save the Children, tents by UNHCR, hospitals and even heavy equipment of NGOs used by LTTE.
• John Holmes – “As the LTTE retreated, the Tamil civilian population from the area they had controlled were going with them, which obviously exposed them to huge risks. How voluntaiy was this? It was hard to say for certain.”
• Testimony of Dr. Shanmugarajah before CoI on LLRC in November 2010 – confirmed that he treated civilians who had been shot by LTTE when trying to move to safer areas.
• food and medicine sent to the North were monitored regularly by the Consultative Committee on Humanitarian Assistance (CCHA), which comprised officials from the Government, the UN and other humanitarian agencies, and representatives of the diplomatic community based in Colombo, including Japan, USA, Norway and the European Union.
• Question of how 20,000 LTTE cadres could take 300,000 Tamils by force which means some civilians would have gone voluntarily.
• The ICTY has made it clear that lHL strictly prohibits the feigning of civilian status in an internal armed conflict under the rule against perfidy.” – we need to know how many LTTE were in civilian attire and pretending to be civilians and attacking the military and their deaths becomes a perfidious conduct not even collateral damage.
• The accounts of the real eyewitnesses like the journalists Murali Reddy are not taken to account by the UN investigators, UNHRC heads or UN http://www.dailynews.lk/?q=features/sri-lanka-s-war-had-witnesses
• No one answers why the army would prolong the final assault, declare 3 no fire zones, 2 Presidential appeals to LTTE to lay down arms and surrender, save 295,873 Tamils, compromise the lives of over 2500 soldiers when the army could have easily ordered soldiers to fire and finish off the enemy without taking months to complete the military operation.
• If the Sri Lankan military had been indiscriminately firing at the no fire zones since 21st January 2009 how did 11,000 LTTE combatants live to surrender

You cannot have international laws, regulations and rules applicable to one set of nations and the same are ignored by another set. You cannot have justice systems favouring one set and disfavouring another. There is clearly an imbalance and the fact of the matter is that the very nations that violate all the law books are the very nations self-empowered to point fingers at other nations.

Illegal invasions, occupations have taken place. Mercenaries are being trained & transported as rebels and bombings for peace is the norm while a piece for peace is the next alternative as nations are now getting carved and cut on a new ideology called R2P a new method of taxing where a handful of corporates now decide who rules where and how. http://www.policymic.com/articles/71255/10-corporations-control-almost-everything-you-buy-this-chart-shows-how. If 10 companies control everything we buy and a handful of elite families hold the entire wealth they invariably hold the buttons to wars too. Lets not forget that the banks funded both sides of World War 1 that involved 27 nations, 66m people, 37m casualties, 7m deaths and cost $210trillion. The same banking cartel supported both sides of World War 2 as well.

Sri Lanka has suffered 3 decades of enduring pain for other people to profit. The next phase of that has become the tarnishing campaign and the lengths to which international entities are going for lack of provable evidence is disheartening and totally uncalled for.

It is therefore now the best time for Sri Lanka’s case to be taken up by the members of the General Assembly to stop certain sections/parties within the UN from carrying out a witch hunt. In 6 years none of that was alleged has been proved. How fair is it to use media to tarnish Sri Lanka and hold inquiries while declaring people guilty until some sort of evidence is sought or framed because these entities are now too embarrassed to admit that they have gone beyond the mandate and more importantly they do not have a shred of evidence to prove war crimes were committed from a top down order.

The time has come to have Sri Lanka friendly-nations to refer Sri Lanka to the General Assembly and the General Assembly to take up Sri Lanka’s defence on the floor of the UN.

Shenali D Waduge

Sources:

• Sir Desmond de Silva, QC
• Sir Geoffrey Nice – led the prosecution of Slobodan Milošević at the International Criminal Tribunal for the Former Yugoslavia (ICTY)
• Rodney Dixon – prosecuted and defended cases before the International Criminal Tribunal for the former Yugoslavia (ICTY), the Rwanda Tribunal (ICTR), the Special Court for Cambodia, the War Crimes Chamber for Bosnia and Herzegovina and the Special Court for Sierra Leone.
• Michael Newton, Professor of the Practice of Law, Vanderbilt University School of Law
• Professor DM Crane
• Legal arguments by attorney Dharshan Weerasekera