UNHRC head too big for his boots: Does UNHRC have a prima facie case to accuse Sri Lanka of war crimes?
Posted on July 1st, 2016

Shenali D Waduge

UNHRC cannot push for a war crimes tribunal against a UN member state accusing it of war crimes and THEREAFTER LOOK FOR THE WAR CRIMES TO PROSECUTE SRI LANKA. Essentially what this means is that UNHRC must first showcase that it has a prima facie case for war crimes against a sovereign country. The confusing factor is that the other party is an internationally proscribed terrorist movement and globally a war on terror has the Western allies bombing all corners where they say terrorists exist and all killings (civilians included) are categorized as collateral damage & UN looks the other way while UN is relentlessly pursing and seeking punishment against the ONLY Country that vanquished the terrorists (at least the ground force). All UNGA members must be appraised of the revengeful manner the UNHRC is PURSUING action ONLY against a UN member state while the UNHRC head is blatantly interfering in the internal affairs of a sovereign government violating Article 2.7 of UN Charter. To accuse a country of committing war crimes is a very serious allegation to make. The UNHRC head is even seeking changes to Sri Lanka’s constitution while also claiming Sri Lanka’s judiciary is incompetent. The UNHRC head must be asked to explain his behaviour. A nation cannot be accused of war crimes using people who are being kept invisible for 20 years on witness protection anonymity, and accepting reports from people linked to and funded by LTTE fronts and obtaining data from LTTE terrorist sources – these do not constitute evidence for war crimes. How dare UNHRC head say to ‘rein in the Sri Lanka’s security forces’.

The UNHRC is bound to first produce evidence that Sri Lanka has violated international laws relevant to a non-international armed conflict

The case is confusing because we have 2 parties one of which is the national army the other is a globally banned terrorist movement wherein laws are confused as to how the armed movements can be internationally punished for their crimes. To date no international terrorist group has faced international legal action for violations of international laws. What is also important is that the LTTE had a civilian force. LTTE trained civilians in armed combat. Civilians were given compulsory training in armed warfare. Civilians were handed arms during the last stages of the war and sent to the battleground. Do we know how many of these civilians with arms died in combat? No, we do not know and the UN or the UNHRC are making no attempts to even find out.

Without answering the question of how many civilians took part wilfully or by force and perished as a result no one can answer how many were real civilians who died not taking part in hostilities. We have a well-funded campaign about 40,000 or more dead but still no one has produced a shred of evidence to even prove these people lived! In 7 years not even 100 names have been given of the supposed to be 40,000 dead. A Missing Persons Commission was set up and now a Missing Persons Office is being set up but we are still eagerly awaiting the solid evidence that these 40,000 or more people claimed to be dead were even born to be dead! http://www.lankaweb.com/news/items/2016/06/24/sri-lanka-missing-persons-office-steps-to-be-taken-before-establishing-any-war-crimes-court/

Then there is the question which again UNHRC is not willing to answer which relates to why the LTTE took such a lot of people by force with them. That the Sri Lanka Army rescued close to 300,000 people (a number which included unknown number of LTTE cadres and civilians who played some role in combat is still unknown) is evidence dismissing accusations that the Sri Lanka Army were genocidal and were following orders to kill. If so, the army would not have saved such a large number of people at the sacrifice of soldier lives who died saving them. Moreover, the UNHRC also ignores to answer the question why the army took months to finish off the conflict and save such a large number of people when they could have easily bombed the area and finished off the entire operation similar to the manner US & NATO dropped bombs in their military interventions. The fact that close to 300,000 people were brought to safety totally nullifies and dismisses all baseless allegations that the Sri Lanka Army were following orders to kill. If so the accusers must produce dead people and so far they cant even name 200 dead!

There are many violations that the LTTE has committed all of which are conveniently ignored by the UNHRC – displacing civilians by taking them by force from their homes (Additional Protocol 1 & Customary International Law Rule 129), using them as hostages and human shields, using them as cover to hide LTTE equipment and machinery, subjecting civilians to forced labor digging up trenches and bunds, denying food and other essentials sent by the GOSL and aid organizations (these were confiscated and distributed to only LTTE families), conscripting children under age of 15 and sending them to battle (Additional Protocol II/Convention of the Rights of the Child). The crux of the matter is if the LTTE had not taken people by force none of them would have suffered any form of injury. LTTE made civilians as object of attack to use as a means to buy time. LTTE had even abducted relief workers. LTTE should have faced their enemy without behaving as cowards! LTTE has destroyed so many civilian objects over 30 years but total silence from the UN.

Moreover LTTE has a history of destroying Buddhist places of worship in the North and East. The report by late Cyril Mathew gives an account of the numerous historical Buddhist sites in the North which have been destroyed. We have seen no attempt by the UN to even investigate these destructions by the LTTE though it is a violation of Additional Protocol II. Let us remind the world again that the LTTE struck Cultural Property – Buddhists sacred sites of Temple of the Tooth in Kandy and the Sacred Sri Maha Bodhiya too as well as Kattankudy mosque (Additional Protocol II / Customary International Law Rule 38).

Leaving all that aside the UNHRC head has but a handful of cases to put on the table claiming to be ‘war crimes’ a few of which are related to the deaths of terrorists themselves as if they are squeaky clean. In the meanwhile, UNHRC is visited and lobbied by parties that have been proscribed as LTTE fronts incorporating UNSC 1373 resolution. The other reports being used are either funded by parties associated with these LTTE fronts or the authors of these reports are regular invitees to events held by these LTTE fronts – one such regular report writer is described as a ‘comrade’ and she never fails to put out a report before a UNHRC session.

Be that as it may, Sri Lanka sought the legal expert opinion of international legal luminaries who had served in war crimes tribunals, who were terrorism experts and who had extensive legal background to determine if war crimes had been committed by the State of Sri Lanka. Their opinions do not show any such war crimes or crimes against humanity by Sri Lankan state had been committed.

Judicial precedence needs to occur. The UN cannot have one law for one party and a different law for another.

These were the principle findings of the OISL investigation calling for war crimes. Reading this list anyone would laugh and ask where are the cases for war crimes against a country!!!

Part 3 of the OISL report gives its Principal Findings from pages 1113 to 1174 (61 pages) A/HRC/30/CRP.2

OISL claims that there are reasonable grounds to believe that gross violations of international human rights law, serious violations of international humanitarian law and international crimes were committed by ALL parties and that if established before a court of law, these allegations would amount to war crimes/or crimes against humanity. OISL also says that these acts were ‘apparently committed in discriminatory grounds’.

Unlawful killings – OISL says

  1. ‘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 and other protected persons during the period covered by OISL’s report. ‘Tamil politicians, humanitarian workers and journalists’ targeted.
  2. ‘discernible patterns of killings, for instance in the vicinity of security force checkpoints and military bases, and also of individuals while in custody of the security forces’.
  3. OISL takes pains to pin point unlawful killings to Karuna Group after its split with LTTE in April 2004 and points to ‘unverified allegations that killings as well as disappearances were ordered by senior government officials’ and chain of command.
  4. ‘reasonable grounds to believe that LTTE also unlawfully killed Tamil, Muslim and Sinhalese civilians’. ‘LTTE targeted rival Tamil political parties, suspected informers and dissenting Tamils including political figures, public officials and academics as well as members of rival paramilitary groups’. ‘civilians were among the many killed or injure by LTTE indiscriminate suicide bombings and claymore mine attacks’.
  5. OISL footnote claims it has investigated allegations of extrajudicial executions of identified LTTE cadres and unidentified individuals at the end of the fighting on or around 18 May 2009, some of whom were known to have surrendered to the Sri Lankan military. ‘some facts remain to be established, based on witness testimony as well as photographic and video imagery, there appears to be sufficient information in several cases to indicate that they were killed after being taken into custody by the security forces’
  6. ‘during the final stages of the conflict, the LTTE also fired at Tamil civilians who were trying to leave the conflict zone resulting in some deaths and instilling widespread fear of reprisals if people tried to leave.

Note of the 6 areas covered 4 are against the Sri Lankan security forces.

Violations related to the deprivation of liberty – OISL says

  1. ‘OISL documented long-standing patterns of arbitrary arrest and detention by government security forces’ which led to enforced disappearances and extrajudicial killings (OISL also names Karuna Group and EPDP – no mention of LTTE)
  2. ‘typical modus operandi involved the arbitrary arrest or abductions of individuals by security forces…. Sometimes with the assistance of paramilitary group members operating in unmarked white vans” ‘.
  3. ‘detainees held for long periods under Emergency Regulations or the PTA”
  4. ‘those abducted or arbitrarily detained as described above were frequently subjected to torture and/or other cruel, inhuman or degrading treatment or punishment and/or sexual violence’………. ‘these violations were not isolated or sporadic but rather were committed in a widespread manner’ (what an allegation without facts!)

Note all 4 allegations are against only the Sri Lankan security forces.

Enforced disappearances – OISL says

  1. ‘Sri Lanka has one of the highest rates of reported cases of enforced disappearances worldwide many of which date back decades to earlier periods of conflict & insurgency (statement out of scope of investigation)…however OISL says that it has ‘reviewed reliable information on hundreds of cases of enforced disappearances that occurred within the period of its mandate’ especially in the North and East (again the OISL is doing its best to pin blame only on the security forces)
  2. reasonable grounds to believe that enforced disappearances may have been committed as part of a widespread and systematic attack against the civilian population, given the geographical scope and timeframe in which they were perpetrated by the same security forces and targeting the same population” (wonder who wrote this part!)
  3. there are reasonable grounds to believe that those who disappeared after handing themselves over to the Army at the end of the conflict were deliberately targeted because they were or were perceived to be affiliated with LTTE forces”.

Note all 3 allegations are against only the Sri Lankan security forces.

Torture and other forms of cruel, inhuman or degrading treatment – OISL says

  1. ‘OISL documented particularly brutal use of torture by the Sri Lankan security forces, particularly in the immediate aftermath of the armed conflict when former LTTE members and civilians were detained en masse” OISL documented the ‘use of torture following similar patterns by a range of security forces in multiple facilities, including army camps, police stations and rehabilitation camps, as well as secret, unidentified locations”.
  2. reasonable grounds to believe that this torture was committed on a widespread scale” – breaches the absolute prohibition of torture and Sri Lanka’s international treaty and customary obligations’. ….’amount to crimes against humanity if committed as part of a widespread or systematic attack”.

Note both allegations are against only the Sri Lankan security forces.

Sexual & gender-based violence  – OISL says

  1. ‘reasonable grounds to believe that rape and sexual violence by security forces personnel was widespread against both male and female detainees particularly in the aftermath of the war’….’patterns ….appear to be deliberate means of torture to extract information and to humiliate and punish persons who were presumed to have some link to the LTTE”.
  2. ‘victims reported being subjected to sexual crimes, including the penetration of a part of their body with a sexual organ, or of the anal or genital opening of the victim with an object or any other part of the body; or being forced to perform sexual acts on alleged perpetrators.
  3. ‘reasonable grounds to believe that violations of international human rights law & international humanitarian law related to sexual violence have been committed by the government security forces’ amounting to war crimes/crimes against humanity.

Note all 3 allegations are against only the Sri Lankan security forces.

Abduction and Forced recruitment  – OISL says

  1. ‘abductions leading to forced recruitment by LTTE until 2009. Victims and families who tried to resist, were physically mistreated, harassed and threatened’.( contravention to Common Article 3 of Geneva Conventions)
  2. movement of those forcibly recruited was severely restricted’ …
  3. OISL considers this may amount to a deprivation of liberty, however additional information would be necessary to sustain that this part of a systematic practice (no LTTE would not do such crimes !!!)
  4. grounds to believe that LTTE also violated international humanitarian law by abducting adults and subjecting them to forced labor and exposing civilians to attack, including those trying to leave the Vanni” (that can’t be.. LTTE would not do such things)

Note all 4 allegations are against LTTE.

Recruitment of children and use in hostilities  – OISL says

  1. ‘extensive recruitment and use of children in armed conflict by the LTTE over many years”
  2. information on child recruitment by the Karuna Group after its split from the LTTE
  3. OISL takes pains to establish child recruitment by Karuna and GOSL link to Karuna to inadvertently insinuate GOSL is part responsible for child recruitment as well.

Note all 3 allegations are against LTTE & Karuna as well as insinuation against GOSL.

Impact of hostilities on civilians and civilian objects  – OISL says

  1. ‘reasonable grounds to believe that many of the attacks reviewed in this report did not comply with the principles on the conduct of hostilities notably principle of distinction” (this area the international experts have dealt with and answered)
  2. OISL claims that ‘NFZs were established in areas where the LTTE military was already positioned’
  3. ‘NFZs as a whole could not be considered a lawful military target’
  4. ‘OISL notes with grave concern the repeated shelling of hospitals in Vanni’
  5. ‘directing attacks against civilian objects and/or against civilians not taking direct part in hostilities is a serious violation of international humanitarian law’ (this too the international experts have answered)
  6. OISL mentions use of weapons by Sri Lanka security forces – multi-barrelled rocket launchers
  7. OISL has obtained no information indicating that any specific warnings were issued to the civilian population inside the NFZs informing them that military operations were about to be conducted (an utter lie the samples of leaflets distributed were given)
  8. ‘OISL’s investigation did not uncover evidence suggesting that hospitals and other civilian facilities, including those of the UN were used by the LTTE for military purposes (yes, LTTE were such humane fighters, so kind and loving to civilians and the security forces!)
  9. OISL contradicts itself in next line OISL’s investigations indicate that there was a presence of LTTE military positions and personnel in the densely populated civilian areas of the NFZ”
  10. ‘LTTE fighters were seen carrying weapons in close proximity to hospitals and food distribution centres including whilst wearing civilian clothes (OISL contradicts itself again)
  11. reasonable grounds to believe that LTTE launched attacks from close proximity to these locations”.
  12. LTTE repeatedly constructed military fortifications and positioned artillery and other weapons in close proximity to and often adjacent to civilian areas including humanitarian and medical facilities and surrounding areas of IDP concentration in the NFZs (OISL contradicts itself again)

Note a lot of contradictions by the OISL.

Control of Movement  – OISL says

  1. ‘reasonable grounds to believe that LTTE had a clear high level policy of controlling the movement of civilians in and out of the Vanni for years through a pass system, thereby unlawfully interfering with the liberty of movement”………..’a number of individuals, including several children were shot dead, injured or beaten by LTTE cadres as they tried to leave, in contravention of their right to life and physical integrity’ (really, can’t believe LTTE would shoot at their own)
  2. OISL can’t believe it too so they suggest ‘further investigation ….to the nature, scale and frequency of incidents where LTTE shot directly at civilians as they tried to escape to ascertain if such shootings were part of an official LTTE policy to prevent civilians from leaving (the shots must have been fired accidentally, LTTE would not shoot civilians)
  3. ‘compelling civilians to remain within the area of active hostilities and by threatening and intimidating civilians in an attempt to discourage them from trying to leave, LTTE violated its obligation under international humanitarian law (LTTE has not signed any such law)
  4. ‘LTTE knew or had reasons to know that the security forces would target it, yet despite this knowledge it did not take measures to remove civilians from the vicinity of military objectives nor did it warn the civilians’ (OISL statement contradicts its own accusing the military)
  5. ‘LTTE exposed the civilian population to military operations, in particular shelling and gunfire from the military’.
  6. ‘witnesses told OISL that they continue to suffer from the psychological trauma of having been restricted in their movement while exposed to artillery strikes and gunfire’ (trauma from being kept by LTTE)

Note a lot more contradictions by the OISL raising doubts about the initial accusations against the Sri Lankan forces.

Denial of humanitarian assistance  – OISL says

  1. ‘OISL found that throughout the armed conflict, the Govt maintained stringent controls over all goods, including humanitarian relief entering the Vanni’
  2. OISL is accusing the GOSL of imposing ‘severe restrictions on food, non-food humanitarian assistance, medicines and medical supplies’. (These can be easily dismissed as statistical data of all provisions sent is available with proof)
  3. ‘GOSL placed considerable restrictions on freedom of movement of humanitarian personnel and on humanitarian activities in the Vanni’ (what if a foreigner died … the blame would again go to the GOSL)
  4. ‘LTTE also failed to respect its obligations to respect and protect humanitarian relief personnel and not to restrict their freedom of movement’.
  5. ‘consistent patterns of nutrition levels being significantly below the national average’ (can people become malnutritioned in a month!)

Note OISL will land itself in a lot of trouble when the data is brought out to show how far the GOSL had provided essentials. No country has fed a terrorist enemy over 30 years!

Screening and deprivation of liberty of IDPs  – OISL says

  1. ‘OISL believes that the IDPs held in Manik Farm and other closed camps were deprived of their liberty for periods far beyond what would have been permissible under international law (how many years have millions of IDPs been kept in open following military interventions in Iraq, Afghanistan, Libya etc)
  2. Restriction of movement of IDPs
  3. IDPs were treated as suspects (12,000 LTTE cadres surrendered in civilian clothing, how many didn’t surrender)

Now please read the expert opinions of these legal luminaries which will make any to laugh at the OISL report and how childish its case for war crimes tribunal against a UN member state is.

WAR CRIMES IN SRI LANKA – What the international experts say (1)

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=120653

WAR CRIMES IN SRI LANKA – What the international experts say (2)

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=121064

WAR CRIMES IN SRI LANKA – What the international experts say (3)

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=121568

WAR CRIMES IN SRI LANKA – What the international experts say (4)

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=121960

WAR CRIMES IN SRI LANKA – What the international experts say (5)

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=122895

Prof. Michael Newton – his resume http://law.vanderbilt.edu/bio/michael-newton

Sir Desmond de Silva – http://www.sirdesmonddesilvaqc.com/

Sir Geoffrey Nice – https://en.wikipedia.org/wiki/Geoffrey_Nice

Shenali D Waduge

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