The UNHRC Report: Consequence and challenges
Posted on September 20th, 2015

By Prof. G. L. Peiris Courtesy Island

 

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United Nations High Commissioner for Human Rights Zeid Ra’ad Al Hussein holds a press conference on Sri Lanka at the UN Office in Geneva on September 16, 2015. The United Nations detailed horrific abuses committed in Sri Lanka’s civil conflict, including the disappearance of tens of thousands of people, and said the country needed international help to probe war crimes to enable reconciliation. AFP PHOTO / FABRICE COFFRINI

The long awaited Report by the United Nations Human Rights Council on Sri Lanka has now been released. Its contents have grave implications for the destiny of our country, and it is therefore of the utmost importance that the public of Sri Lanka should be fully aware, at an early stage, of the nature and effect of the findings contained in this crucial document.

Since informed public discussion transcending partisan political approaches is an urgent necessity, my purpose is to draw attention to some of the salient features of the Report.

Domestic or International Investigation?

The crux of the series of recommendations by the High Commissioner is his emphatic insistence on the establishment of “hybrid special courts, integrating international judges, prosecutors, lawyers and investigators”. The mandate of these courts, it is specifically declared, is “to try war crimes and crimes against humanity”.

This demand by the High Commissioner is predicated on his conviction, explicitly articulated, that “For accountability to be achieved in Sri Lanka, it will require more than a domestic mechanism”. He added: “Victims of past alleged crimes will not find any solace in a purely domestic mechanism”.

It is, therefore, beyond question that what is sought to be established is, by no means, a domestic mechanism but, in every sense of the phrase, an international judicial body. It would be less than candid to pretend otherwise.

On several occasions in Parliament, in recent months, I pointed out the danger inherent in repeated statements in influential foreign capitals that nothing short of an international tribunal would be acceptable. The Government, in reply, insisted that these were not authoritative pronouncements, that the Government of Sri Lanka would under no circumstances agree to an international mechanism, that it was under no duty to do so because Sri Lanka was not a signatory to the Rome Statute, and that the firm policy of the Government was to set up a domestic inquiry which would carry out its work within the framework of our national legal system.

What has happened, however, is the very opposite of this. Not only is the establishment of an international court proposed as the core recommendation by the Council, but there is the further ominous comment that the international investigation “should draw on the lessons learnt and good practices of other countries that have succeeded with hybrid special courts”.

Is Sri Lanka, then, to be put on a par with situations involving, for instance, the international war crimes tribunal in West Africa called the Special Court for Sierra Leone and similar tribunals which were established in respect of the former Yugoslavia, Liberia and Cambodia? Is this equation to be made, notwithstanding the clearly demonstrable and fundamental differences between these contexts and the Sri Lankan situation? If we are prepared to do this, are we fully mindful of the dire consequences attendant on this course of action for the Armed Forces of Sri Lanka?

The Government of Sri Lanka responded immediately to the Report, inter alia, in the following terms: “The Government recognizes fully that this Report represents a human rights investigation and not a criminal investigation”. Unfortunately, this is not entirely correct. The High Commissioner has been far from reticent about the gravity of the crimes allegedly committed by the Armed Forces and the stark issue of criminal responsibility. He stated at the Press Conference in Geneva: “The severity of the crimes was most astonishing.” He also remarked: “Crimes of a sexual nature made harrowing reading”.

On the subject of genocide – indisputably the most heinous crime known to international law – the High Commissioner, while stating that this is not something they perceived to have occurred in Sri Lanka at this stage, went on to declare: “That is not, however, to say that at a subsequent stage, it is implausible.” The Report specifically says that, if established before the hybrid court that is proposed, “many of these allegations may amount, depending on the circumstances, to war crimes.”

The Gravest of Findings Against Military Personnel

The High Commissioner proclaimed, at a media briefing in Geneva, that the findings are “of a most serious nature”, involving as they do a pattern of systemic and flagrant violations. The Report sets out, in unmistakable terms, the finding that there are reasonable grounds to believe that the gravest offences were committed by Sri Lanka’s Armed Forces.

The following assertions, quoted verbatim from the Report, are amply illustrative of the threshold of criminal liability envisaged and the resulting depth of peril. “There are reasonable grounds to believe the Sri Lankan security forces and paramilitary groups associated with them were implicated in unlawful killings carried out in a widespread manner against civilians.” “OISL documented long-standing patterns of arbitrary arrest and detention by Government security forces, which often reportedly led to enforced disappearances and extrajudicial killings.” “OISL documented brutal use of torture by the Sri Lankan security forces”. “The information gathered by OISL provides reasonable grounds to believe that rape and other forms of sexual violence by security forces personnel was widespread”. “The security forces, police and intelligence services have enjoyed near total impunity”.

These sweeping statements speak for themselves and leave no room for doubt as to the intended consequences. The extreme seriousness of these prima facie findings, and the consequent potential exposure of military and police personnel to the highest degrees of criminal liability and punishment, is quite apparent.

On What Kind of Evidence?

It is, then, quite legitimate to ask on what basis these far-reaching and gravely prejudicial conclusions have been arrived at.

The purported evidence, on which these critical findings are based, is shrouded in secrecy. The identity of the persons who are said to have testified, is protected from disclosure for extended periods.

Lurking in the shadows and assured of anonymity, they are free to make allegations for political or other purposes, with no inhibition whatever. There is, consequently, a breach of the requirements of fairness and transparency even at the basic level.

Inevitably, this brings into question very sharply the reliability and probative value of this purported evidence. I am constrained to point out, with deep sadness, the wholly fictitious nature of some conclusions which may well presage the most devastating results. The Report finds that hospitals and other civilian facilities were not used by the LTTE for military purposes. This is palpably false. The Report, moreover, accuses the Government and the Armed Forces of “depriving the civilian population in the Vanni of basic foodstuffs and medical supplies essential to survival”. If true, this would constitute a war crime, with all the penalties which that entails.

These are findings rooted at best in opaque testimony proffered by interested parties. By contrast, no less a personage than the Head of the United Nations System in Sri Lanka at that time, Mr. Neil Buhne, has publicly acknowledged the substantial success of the Sri Lankan Government’s efforts in the most challenging circumstances. His observations are on record. Examples are provided by his address at the Sixty-Fifth U.N. Day Celebrations (at which I was Chief Guest) in October 2010, the Press Release by the U.N. Colombo Office on 26 August 2010 and the letter titled “U.N. Support for North Re-Settlement”, addressed by Mr. N. Buhne to the Secretary to the Presidential Task Force for Resettlement, Development and Security in the Northern Province, Mr. S.B. Divaratne, on 8 April 2010.

There is, as well, another remarkable omission. The Report fails to take into account in any way the significant fact that arrangements for the despatch of food and medical supplies to the Northern Province were overseen at the time by a Committee which included, in its composition, the Ambassador of the United States of America, the Head of Delegation of the European Commission, the Ambassador of Germany, the High Commissioner of the United Kingdom, the Ambassador of Japan and no fewer than eleven Specialized Agencies of the United Nations.

The Snares and Pitfalls of ‘Special’ Courts

My concern, at bottom, is about the intrinsic infirmity of the evidence, by recourse to which the most serious aspersions are sought to be made against Sri Lanka’s political and military authorities.

This is all the more reason to resist, with the utmost vigour, “special” courts to try these persons for the gravest criminal offences. Certainly, the rule of law must be upheld and enforced without discrimination. One may, however, be forgiven for resenting the patronizing reflection made in the Report: “The unfortunate reality is that Sri Lanka’s criminal justice system is not yet ready or equipped to conduct an independent and credible investigation”.

This country is painfully familiar with the total havoc and injustice wrought by “special” courts. The egregious example, perhaps, is the Criminal Justice Commission which deprived the late Prime Minister Sirimavo Bandaranaike of her civic rights. It is a matter of serious doubt whether this is the way the public of Sri Lanka would like to go with regard to dubious allegations regarding genocide and war crimes.

A Quantum Leap? Proposal to Subject Sri Lanka to the International Criminal Court

There is manifest danger in some of the recommendations made in the Report. For instance, Sri Lanka is required to accede to the Rome Statute of the International Criminal Court. This means that a foreign court, for the first time since the abolition of appeals to the Judicial Committee of the Privy Council more than half a century ago, will have the power to exercise criminal jurisdiction over our political and military personnel.

The Supreme Court of Sri Lanka has already held, in no uncertain terms, that this is a brazen infringement of our nation’s Basic Law. Contrary to the Government’s recurring assertions, the international dimension of the proposed investigation – and the envisioned trajectory for the future – are plainly visible. The Conclusions and Recommendations of the Report clearly state that investigation and prosecution should be “notably under universal jurisdiction”. Are we now asked to believe that this is a domestic exercise?

In the meantime, in a recommendation that is extraordinary for its oppressive and altogether unjust impact, the Report recommends to the U.N. System and to Member States that they should “apply stringent vetting procedures to Sri Lankan police and military personnel identified for peacekeeping, military exchanges and training programmes”.

On the most tainted evidence imaginable, then, Sri Lanka’s police and military personnel, simply because they are Sri Lankan, are to be deprived of the opportunity to earn, to gather knowledge and to uplift themselves in life.

Vindication or Capitulation?

What emerges is the spectacle of a potential national calamity arising from a policy, the pivot of which has been the consistent desire to placate, accommodate and acquiesce. The prize aimed at was persuasion of the sponsors of three consecutive Resolutions against Sri Lanka, to settle for a domestic inquiry. Obviously, this has failed.

The tragedy, from a national standpoint, is that, once a policy of admission, repentance and commitment to “non-recurrence” is embarked upon, it cannot realistically be reversed mid-stream. The march of events could well take place with the inevitability of a Greek tragedy. The need to be forewarned is, therefore, vital, bearing particularly in mind that the Report calls on Council Members “to sustain their monitoring of developments in Sri Lanka with a view to further actions that may be required at the international level”. The Sword of Damocles is menacing.

What gives rise to profound regret is the realization that none of this was unavoidable. Rather than expose our Armed Forces to the dangers looming before them, we had every opportunity to use well established principles of international humanitarian law and international human rights law, applied with reasonable uniformity in precedents across the globe, to make out a cogent, perhaps even unassailable, case for the protection of our military personnel. A great deal of productive work had already been done on this, with the focus on the excruciatingly difficult hostage situation which had developed as a result of deliberate action by the LTTE in the closing stages of the war. Sadly, we seem to be treading instead a different path fraught with the greatest danger.

 

15 Responses to “The UNHRC Report: Consequence and challenges”

  1. Dilrook Says:

    Fully agree with Prof Peiris. Glad it came from a legal luminary.

    [Quote] What gives rise to profound regret is the realization that none of this was unavoidable. Rather than expose our Armed Forces to the dangers looming before them, we had every opportunity to use well established principles of international humanitarian law and international human rights law, applied with reasonable uniformity in precedents across the globe, to make out a cogent, perhaps even unassailable, case for the protection of our military personnel. [Unquote]

    A very diplomatic way of saying it. What prevented us from doing this despite a number of persons telling the government since 2009 to do so? Distraction by the reconciliation process, political concerns, conflict of interest due to US connections, not taking proper legal advice and the fear of war crimes charges are some reasons.

  2. Charles Says:

    The President has not read the 225 page UN Report on Si Lankan War Crimes.Ignorance is bliss. When you do not understand the ramifications involved in a matter and you depend on people who tell half the truth, you presume that there is nothing to worry about a report against the Sovereign State and make irrelevant statements side stepping the dangers involved in the issue. It is like the King who believes that he is wearing an excellent dress because his dress makers told him so, but in reality he is only stark naked.

    A hybrid court proposed by a hybrid UN HR Commissioner is dangerous even to accept in part. It has to be thrown into the dust bin. It has no legal value as the witnesses to the supposed to be facts related are unknown and the names are deliberately kept secret for 22 years or so. The 3000 eye witness accounts may have been written in London by the Tamils of the LTTE front organisations. What is the guarantee they are true eyewitness accounts ? UNHR Commissioner should have refused to accept it, instead of trying to impose it on us.

  3. Independent Says:

    Dilrook says – “What prevented us from doing this despite a number of persons telling the government since 2009 to do so? Distraction by the reconciliation process, political concerns, conflict of interest due to US connections, not taking proper legal advice and the fear of war crimes charges are some reasons.”

    Worth repeating in bold. It wasBOLDness that was lacking. What is the underlying reason for that ?

  4. Christie Says:

    Christie Says:

    September 21st, 2015 at 6:03 am

    I browsed through the Indian Empire sponsored report. There is hardly any reference to the Indian Empire except about the Indian Ocean Tsunami and the Indian Peace Keeping Force. There is no mention about that India was directly involved with the Terrorist. Being an International organization any UN instrument should look in to the involvement of other countries in the internal affairs of the Country.

    I rang few contact numbers in Geneva and they are not prepared to listen to you, they are so busy. They want me to write to them and send them petitions etc. You need lots of money to do that and Indian Empire has a lot and they will get more later when the Sinhalese disappear from the island like in Mauritius etc.

  5. Nihal Perera Says:

    If the country to be saved from these foreign interventions by the biased UNHCR, the majority Sinhalese need to get their act together and stand against the present colonial boot-liking regime of MY3 and Ranil – for pandering to their masters – USA and India.

    Now that UNHCR is demanding for a international inquiry, assisted by a hybrid court, this should be a wakeup call for all Sri Lankans (Sinhalese..), regardless of their political affiliations. We need to realise that by agreeing to UNHCR demands, we are practically handing over our sovereignty to foreign powers. After fighting 30 years of a brutal war, sacrificing over 20,000 of our own brave soldiers, is this what we want to achieve for the sake of our country and its future generation..?

    No other country in the world would allow their political leaders to sell the country, after defeating the most ruthless terrorists that world has ever known. So why on earth we should allow our spineless bunch of traitors to sell our country, and our sovereignty for the sake of fake claims of HR violations, and to satisfy a minority group with their never ending demands….???

  6. LANKAPUTHRA Says:

    Charles, this Independent comment writer is a paid dis-information person. I exposed him and for few weeks he went silent. Look at this comment “telling the government what to do since 2009.” Yes every one has a say that is one man one vote and not RANIL PUNKS I am above the Law.

    You Independent PUNK, who is paying for your comments? You imagine readers cannot recognize your writings! Read what Nihal Perera has written, read what Christi has written. There is nothing called reconciliation process that is term used to confuse and distract the focus that is on the UN security consul and what is happening there. This reconciliation process is process South Africans created to suppress Sri Lankans. The Cannibal Bishop TUTU DESMOND killed and ate Africans who came to his church after been attacked by South African police. I challenge you to answer my questions so that every reader knows who independent is!

  7. Lorenzo Says:

    Kithsiri,

    You are on the right track.

  8. LANKAPUTHRA Says:

    Prof, GL Peiris, My question to you is did you find out this Prince Zeid Ra’ad Al-Hussein back ground? I got to the Jordanian government web site to find out who he is and in there it says he nothing to do with the government. He was appointed by OBAM under the recommendation of TAMILS FOR OBAMA. This is what I can remember. He is half brother of King Hussein and during the uprising against the KING, he took the side of Palestinians and went to the UN to represent them. When he came back King Hussein who was in London Hospital took all his powers and gave it to his son, now King Abdulla. Once he graduated from the military academy in UK he went back and took all the powers. Now this Prince Zeid started a university for terrorists to be reformed and take control of Palestine. Hisbulla took full advantage of it and created a second state. This man is insane and he is not allowed to walk around Jordan freely. Obama was looking for a such a man to get to the UN position and then attack SL military personnel who defended the mother land. My next question is this Atul Ketchup ambassador, what has he got to do with the second draft? We all like to read your answers please request one of your staffers to add the Lanka web comments. Has SL ambassador Ravinath Ariyasinhe got the ability to address such issues?

  9. LANKAPUTHRA Says:

    Lorenzo, at last you have seen the light at the end of the tunnel. Thank you for the reply, we all need to attack this Indian Empire if not Sinhala will be a sub race of Tamil Nadu Tamils.

  10. Independent Says:

    Kithsiri Athulathmudali Ayya,

    Please read “MY” comment again. Then read the one 16 line above “MY” comment. Please challenge the one who wrote the original comment which I approve whole heartedly because it is true.

    I remember Dilrook was the ONLY ONE who was insisting to carry out proper domestic inquiry and everyone bashing him that time.

    I am in this web site before you cam here. Those who paying me must be paying a lot of money for 17 years now.

  11. Independent Says:

    Ayya,
    You are too old. You cannot see the real Kotiya pretending here for years which Ananda , your countryman could recognise.
    Ananda , where are you ?

  12. Independent Says:

    Kit Athul Says:

    March 27th, 2012 at 6:36 pm

    May be Wimal Weerawans’a mansion was funded by INDIAN RAW? No one will ever know. If Wimal Weerawansa wants to boycott Googal, then where is he getting Internet access for e-mail? Every E-Mail service provider has to go through Googal or a service provider company that is pratly owned by Googal. Even the Chinese government could not go against Google. G.L. Peiris can talk talk, but wehere is the action? How about postulating nullifying the 13A befor October?

  13. Susantha Wijesinghe Says:

    THIS ZAHID, HE IS ACTING LIKE A MAD MAN. HOW TAMIL TERRORISTS DIASPORA MONEY CAN GO SO FAR. HE IS SINGING FOR HIS SUPPER EH ??? BAKA MOONA DID THE SAME THING. TAMIL MONEY MADE HIM REQUEST FOR PERSONAL REPORT, WHICH HE, LIKE A CUNNING FOX, MADE IT ILLEGALLY LEGAL..MONEY CAN BUY ROYALTY.

    THIS REPORT SHOULD BE PRESENTED TO THE SECURTY COUNCIL AS SHENALI HAD COMMENTED. IT CAN BE THROWN INTO THE DUST BIN IF RANIL DOES NOT ACT LIKE A PAMBAYA. SIRISENA CANNOT COMPREHEND THE DANGERS IN THE REPORT. HIS LACK OF UNDERSTANDING THE ENGLISH LANGUAGE, CAN BE DISASTROUS TO SRI LANKA. RANIL ATLEAST SCORNED THE **HYBRID** THEORY. THE WHOLE REPORT HAS TO BE THROWN AWAY INTO A CESS PIT.

    ZAHID IS TRYING A STUNT TO INVEIGLE THE GOVERNMENT TO ACCEPT A LITTLE OF IT, AKIN TO THE CAMEL PUTTING HIS HEAD INTO THE TENT. THIS IS THE VOICE OF DOOM. SRILANKAN DAYS ARE NUMBERED IF THIS REPORT IS NOT THROWN AWAY, ONCE AND FOR ALL. MAY THE POWER OF THE GUARDIAN GODS OF SRILANKA PREVAIL.

  14. LANKAPUTHRA Says:

    Independent, why I said that your comment was in support of this crazy man Dr. Ra-a’a Al-Hussein is because you did not clearly show you resented this man. I was wrong calling you names, but this happens when one gets agitated over current situation in SL. I do not know how you got to the archives of my articles, I couldn’t. Now I was going to write a short letter to show how Chapika Ranawake became a millioner, but you gave my name and every detail of myself. And its OK with me, but I live in Florida, USA and if had to visit LA in California, I might even get physically attacked. It has happened to a friend of mine. at a Sri Lankan gathering. Wimal Weeravansa is an astute politician, as you can see. He swims with the tide and not against it, and that’s how he manipulate him self. Now Mr. Independent, I will write about what went wrong: how MR lost the election. The golden Rule is never go against the US State department. MR did just that. 1. if he won the election or he did not hold an election, he would have got thrown out. How! CBK was given an excusive power by OBAM, to go to the Temple Trees with a military force at midnight and get the whole family on to a plane and Wisk them Hague, and to the jail. Obama warned MR not to attempt, to present the Palestinian issue at the UN General Assembly. MR ignored it. 2. MR did good with Modi Government, in India, that troubled OBAMA as well and he was determined to get rid of him. Independent you did not get kappan from any body, that was my anger getting on to you. I am glad this article was not taken out before I could correct my self. I hope you read this and understand me. I cannot reply to any event the next day because I do work part time two days a week and rest of it, I have to keep my home in side and the out side of it clean. If not the County lays a big fine for violation of the code.

  15. Independent Says:

    Ayya,
    I understand. Thank you. I don’t trust that info straight but will keep in mind. It is not that I do not respond or shut up, my comments not published 50%.
    Thanks again, you have told your story before to me, I communicated in a deferent name then.

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