Shenali D Waduge

The UNHRC head has released his report. It is now the ONLY official document that has been tabled in the UNHRC. This is following the unofficial & purposely leaked report Panel of Expert report commissioned for the personal review of the United Nations Secretary General only and the UNHRC investigation namely the OISL. The Panel of Expert was used as the foundation for the resolutions against Sri Lanka totally ignoring questions of illegality while both reports inspite of requests have shied from tabling them at the UN General Assembly or the UN Security Council. The golden question now that the UNHRC head has tabled the report is not whether judges should be local or international but whether there is a prima facie case for judicial proceedings against a UN Member state. This is where the UNHRC now finds itself cornered.

The questions are simple

1. DOES THE UNHRC HAVE A PRIMA FACIE CASE AGAINST A SOVEREIGN NATION FOR COMMITTING WAR CRIMES? For the UNHRC to accuse a State of committing war crimes and call for a war crimes tribunal is a serious allegation which must have sound evidence and proof even to make the allegation. Does the UNHRC have such proof of war crimes committed by a State? The question is not what type of tribunal to hold or whether the judges are black or white, foreign or local… the question is does the UNHRC have a prima facie case in the first place to warrant judicial procedure?

2. The UNHRC report is the ONLY OFFICIAL report to be tabled in the UN claiming that a country has committed war crimes. This is a serious allegation to make against a sovereign nation and the seriousness is such that to accuse a country of committing war crimes the UNHRC must have hard evidence and proof. Sp far they can’t even prove the 40,000 dead and are trying they best to distance themselves from the allegation. UNHRC cannot produce a countable number of isolated cases for which if found guilty individual soldiers who have misbehaved can be charged in a military court. The Panel of Expert report was virtually an illegal basis for charges against a state. Sri Lanka’s LLRC did not find the state had committed any war crimes. The OISL however claims so but does it really have a case? The UNHRC cannot plan to carry out a war crimes investigation and look for investigation for war crimes. This is unheard of and creating a precedent which fellow UN General Member nations should oppose. UN General Assembly Members should also be wondering why the UNHRC and the UNSG has been shy to table their reports at the UNGA or the UNSC if they seriously believe war crimes have been committed.

3. NATIONAL ENGAGEMENT/CONSULTATION BEFORE JUDICIAL MECHANISMS. Yes the Government of Sri Lanka co-sponsored the resolution however, there is an operative paragraph 3 of that resolution which explicitly says that before the GOSL initiates and truth seeking mechanism which includes judicial mechanism the government must ENGAGE – in other words there has to be a broad National Engagement of CONSULTATIONS. Where is the National Consultation when the OISL report has not even been translated to Sinhala and Tamil and made available to the general public. How many in Sri Lanka can read and understand the English language leave aside the language in the OISL report to comprehend the gravitiy and seriousness of the report. We seriously wonder whether even the government has even read every word of the report before co-sponsoring it and we at times wonder how many of the Western countries supporting the OISL report have themselves read, understood and wondered whether there are any war crimes prima facie case? http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_CRP_2.docx

4. In view of the seriousness in NOT making available the translation of the OISL report to Sinhala and Tamil Dr. Gunadasa Amarasekera a well respected public figure has come forward to file a fundamental rights case against the GOSL accusing it of violating his personal rights to be able to read and understand what is inside the OISL report. His petition is also a public interest petition for it echoes the views and thoughts of close to 99% of the non-English conversant population. The case will soon be taken up in court and until such time there should be no decision taken on Sri Lanka by the UNHRC whatsoever.

5. The members of the UNHRC cannot be party to the duplicitous actions of the UNHRC by attempting to create a precedence that would become relevant to other UN Member states when shoddy reports without prima facie evidence are allowed to create hybrid courts and slap a non-aligned nation with war crimes charges when Sri Lanka was defending its nation and its people against an internationally banned terrorist outfit who refused to lay down arms and refused to give up terror inspite of countless negotiations, ceasefires, peace talks even with foreign third party involvements.

6. National Consolation requires

• GOSL translates the OISL report in both Sinhala & Tamil language and make it available through all modes of state communication to the citizens of Sri Lanka.
• Public opinion must be sought thereafter from locals – individuals, associations, organizations.
• Expert opinions must be sought from friendly nations – China, Pakistan, Cuba, Venezuela, Thailand (India cannot be included as India is responsible for creating armed militancy in Sri Lanka, while western nations where LTTE fronts are home to and have not investigated them inspite of the UNSC Resolution 1373 cannot profess to be impartial)

Has the GOSL honoured the UNHRC resolutions operative paragraph 3?

Where is the national engagement? Where is the national consultations? To have a national consultation the GOSL must first translate the report to Sinhala and Tamil language and make it available to the public of Sri Lanka.

Decisions of the country is decided not by a handful of English speaking people only!!! The UNHRC and the UN system always preaching about common consensus and transparency surely must realize this faux pas.

Therefore, the question that needs to be asked is whether the UNHRC does have a prima facie case against a sovereign state to accuse it of war crimes. Individual isolated cases of soldier misbehaviour does not warrant war crimes charges against an entire state and to hold a war tribunal for such. It is not a question of whether the judges should be white, black or brown or whether the court should be hybrid or any other but the UNHRC must first answer whether it has a case for war crimes at all and whether it has evidence to prove so (by evidence UNHRC cannot pull out LTTE terrorist related/associated sources)

• Does UNHRC have a prima facie case against a sovereign nation?
• Did Sri Lankan Government follow commitment to operative paragraph 3 regarding national consultation? No, because even the OISL report has not been translated into Sinhala and Tamil
• If so all proceedings must be kept on hold until the initial requirements and criteria’s are done.

The nations of the world should not allow the UN to get away with such irregularities and illegalities. Countries must intervene before allowing UNHRC to commit precedents by fooling government of Sri Lanka officials into acceptance.

Shenali D Waduge

http://www.lankaweb.com/news/items/2016/06/27/the-patriotic-national-movement-writes-to-icj-to-delay-unhrc-hearing/

http://www.foreignpolicyjournal.com/author/dharshan-weerasekera/