Who monitors the monitors? – III
Posted on September 6th, 2016

By Neville Ladduwahetty Courtesy The Island

The admission by the United Nation’s Secretary General (UNSG) Ban Ki Moon during his visit to Sri Lanka from 31 August to 2 September 2016 that the UN “made big mistakes” and “…learned very hard lessons” in Sri Lanka is in keeping with the traditions set by former UNSGs whenever the UN failed to meet its obligations as happened in Rwanda, Bosnia and more recently in Haiti. Continuing, he is reported to have stated: “Reports by experts, independent panels that I appointed found serious systemic problems on the part of Member States and Secretariat alike”… “We found serious mistakes, inactivity. Had we been more actively engaged we could have saved many more human lives” (Adaderana News, September 2, 2016).

These “big mistakes” were made during the separatist armed conflict in Sri Lanka. More “mistakes” that cost Sri Lanka dearly, occurred following the conclusion of the conflict. Within a week of the end of the conflict May 23, 2009) the UNSG, visited Sri Lanka and issued a joint statement with President Mahinda Rajapaksa. The last paragraph of the statement states:

“Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances”. The UNSG has violated the commitments in that Joint Statement.

POST-CONFLICT “BIG MISTAKES”

VIOLATING the UN CHARTER

Without appreciating that the humanitarian needs of over 350,000 post-war civilians and former combatants had to take precedence over accountability issues, the UNSG began proposing the appointment of an advisory panel in early 2010. Then, on March 16, 2010 the UNSG at the UN News Center stated: “The panel I am establishing will advise me on the standards, bench marks and parameters, based on international experience, that must guide any accountability process such as the one mentioned in the joint statement. Now that panel will report to me directly and not to any other body”.

In the appointment of such a panel, the UNSG is required to abide by the provisions in the UN Charter as to the formalities that the UN Secretariat should follow, i.e., provisions in Article 100 of the UN Charter.

Article 100 states:

1. “In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization”.

2. “Each Member of the United Nations under-takes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities”.

The UNSG violated these provisions and appointed a Panel of Experts (PoE) from outside the UN. The report of the PoE was meant for INTERNAL USE ONLY, again as per Article 100 cited above, and asserted by his statement in New York. Despite the strict need for confidentiality, the report of the PoE was unofficially made available in the public domain.

The consequence of these two actions were irreparable. According to the UNSG’s own admission in New York the panel was only to set the “standards, benchmarks and parameters” for an accountability inquiry. Instead, the panel issued a report that was damaging to Sri Lanka; the most serious charge being that possibly 40,000 civilians died. This excessive figure has haunted Sri Lanka ever since the report was made public. For this the UNSG has to take full responsibility.

VIOLATING COMMITMENTS in JOINT STATEMENT

The second act of the UNSG to seriously affect Sri Lanka related to violating the commitments in the joint statement between him and President Mahinda Rajapaksa. In keeping with this commitment, the Sri Lankan President appointed the Lessons Learnt and Reconciliation Commission (LLRC) on May 15, 2010. Despite this, the UNSG went ahead an appointed his panel one month AFTER the LLRC was appointed, on June 22, 2010, in violation of the joint statement that requires Sri Lanka to address accountability issues. This was compounded by the Panel report being submitted to the UNSG on April 12, 2011 well ahead of the LLRC report that was presented on November 2011, thereby prejudicing international and public opinion against Sri Lanka. Consequently, the LLRC report was initially not received with the objectivity that it deserved.

VIOLATIONS by the UN HIGH COMMISSIONER for HUMAN RIGHTS (UNHRC)

Paragraph 10 of the Human Rights Council Resolution on Sri Lanka specifically states: “…the need for an international inquiry mechanism in the ABSENCE (emphasis added) of a credible national process…”. On July 14, 2014, a national process was initiated in the form of a Presidential Commission headed by Justice Paranagama under the 2nd mandate to look into allegations of war crimes and other violations of international law. Despite the fact that the Commission was assisted by 3 internationally eminent legal experts headed by Sir Desmond de Silva, the Office of the High Commissioner for Human Rights (OHCHR) set up “a special investigating team within the OHCHR in Geneva, that came into operation in mid- August 2014 i.e. 1 month AFTER the national process was initiated.

The measures adopted by the UN clearly demonstrate that they violated their own commitments by initiating actions that should have been taken ONLY in the ABSENCE of initiatives by Sri Lanka. The measures resorted to by the UN and its agency, the OHCHR, violate concepts that are required to guide the work of the Council such as “impartiality, objectivity and non-selectivity, and cooperation with a view to enhancing the promotion and protection of human rights”; concepts that the OHCHR is expected to exercise as per paragraph 4 of the General Assembly Resolution that set up the Human Rights Council in 2006. The levels of unprofessionalism and misconduct reflect the degree to which the UN and its agencies are being manipulated; a fact that should be a matter of deep concern for all Member States.

The undertaking given in the Resolution of the UNSG and the UNHRC was that any inquiry into alleged violations should ONLY be undertaken in the absence of inquiries initiated by Sri Lanka. Both the UNSG and UNHRC violated their respective undertakings. The most egregious act was the unofficial release of the Report of the UNSG-appointed Panel of Experts report on Sri Lanka. This action was in complete violation of the remit granted to a UNSG by the General Assembly. The contents of this unofficial report which should NOT have seen the light of day except by the UNSG, have become the official source for other reports, the most specific being the arbitrary allegation that 40,000 civilian may have died.

COLLECTIVE ACCOUNTABILITY

During his current visit to Sri Lanka, the UNSG is reported to have stated: “The decades-long civil war saw terrible violence, terrorism, the use of human shields and other grievous violations of human rights and humanitarian law. In the conflict’s decisive final stages, tens of thousands of civilians perished. The war was ended – an unquestionable good for Sri Lanka, the region and the world. But we also know that even in its ending, the price was high”.

The admission by the UNSG that “Had we been more actively engaged, we could have saved many more human lives” means that the UN along with the parties to the conflict are collectively answerable for that “high price” in varying degrees. The UN – for not doing enough to save lives. The LTTE – for committing war crimes by compelling thousands of children to become combatants and by taking nearly 350,000 civilians hostage for the purpose of using them as a human shield, and shooting those who attempted to escape; facts confirmed by the UN and UNICEF. The Government – for using legitimate means appropriate to the circumstances presented to maintain and re-establish law and order in the State or to defend the national unity and territorial integrity of the State granted under Article 3 of the Additional Protocol II of 1977, bearing in mind that principles of distinction and proportionality were not applicable due to the inability to distinguish between civilians and combatants.

CONCLUSION

The facts presented above demonstrate conclusively there are 3 parties that should be associated with the accountability processes. They are:

1. The UN and its agency the UNHRC, for the “big mistake” of not “been more actively engaged”. Had they done so, the UN “could have saved many more lives”. In addition, there were serious improprieties in the manner the UN and the UNHRC conducted itself during the post-conflict period. These actions not only seriously disadvantaged and discredited Sri Lanka and its international image with consequences on its economy, but also violated the need for impartiality. The inappropriate procedures adopted by the UN during the post-conflict period were seen by the Sri Lankan public as efforts driven at the instigation of the Tamil diaspora and their supporters in the International Community. These perceptions have further polarized the communities, and continues to be a barrier to the reconciliation process to which the Sri Lankan government is committed.

2. The LTTE, for committing war crimes by taking nearly 350,000 civilians hostage to be used as a human shield, shooting any who attempted to escape and for conscripting over 6000 child soldiers equipped with suicide capsules one third of whom were girls.

3. The Government, for using legitimate means that could be deployed under the circumstances created by the LTTE to maintain and re-establish law and order in the State or to defend the national unity and territorial integrity of the State granted under Article 3 of the Additional Protocol II of 1977 bearing in mind that principles of distinction and proportionality were not applicable due to the inability to distinguish between civilians and combatants due to the conditions imposed by the LTTE.

These facts would demonstrate conclusively the complexities that would be associated with apportioning accountability through a Transnational Justice process as attempted by the UNHRC resolution or any other. In the course of such a process, it would be necessary to establish who is more accountable:

Is it the UN for not doing enough to save civilians trapped by the LTTE and preventing serious potential violations? OR

The LTTE for creating circumstances that compromised the safety of the civilians by taking them hostage and using children as frontline combatants thereby presenting moral challenges to the Security Forces? OR

The Government and the Security Forces who were compelled to make hard choices to separate the civilians and re-establish the territorial integrity of the State?

Clearly, attempting to unravel these complexities would cause more injustice than justice. Therefore, the component pertaining to accountability aspects of Transnational Justice should be abandoned.

3 Responses to “Who monitors the monitors? – III”

  1. plumblossom Says:

    In the Missing Persons Act, a relative or a friend can make an official inquiry (but a totally bogus inquiry) from the Office of the Missing Persons (OMP) by email inquiring as to the whereabouts of their relative or friend.

    There are over 8 lakhs to 10 lakhs Tamil diaspora asylum seekers (actually economic migrants), a vast majority of who support the separatist terrorist LTTE and its aim of a separate state. If even 40,000 of these Tamil diaspora who support the separatist terrorist LTTE write bogus emails to the OMP inquiring the whereabouts of their friend or relative (but this friend or relative is actually living alongside them in these countries i.e. the US, UK, EU, Canada, Sweden, Norway, Australia, New Zealand, India etc.) these inquiries will officially be accepted by the OMP as 40,000 missing persons.

    According to the provisions of the OMP Act, even if the OMP inquires after these let us say 40,000 and finds out that these are all bogus inquiries and that all these 40,000 persons are actually living alongside the inquirer i.e. their relative or friend and these complaints about these persons being missing are all bogus, the missing persons, now found by the OMP, can request that their whereabouts not be revealed to their relative or friend or be made public. So officially these 40,000 persons will still be missing!!!

    Then the OMP will use these bogus 40,000 missing persons (who are actually living comfortably in the US, UK, EU, Canada, Sweden, Norway, Australia, New Zealand, India etc.) as manufactured ‘evidence’ that war crimes happened in Sri Lanka (and all these bogus inquirers will state that these persons went missing during the 2006-2009 period) and our Sri Lankan Armed Forces will be persecuted for committing war crimes that they never, ever committed by a judicial process using these bogus email inquiries.

    The Missing Persons Act states specifically that if the missing person who is now found requests that the fact that they are now found not be revealed to the public that person will remain as missing as far as the OMP is concerned. That is how the OMP will manufacture bogus ‘evidence’ of 40,000 missing persons so that the Sri Lankan Armed Forces can be persecuted for committing bogus war crimes.

    The OMP emails cannot be checked by any outside body as stated in the Act since all evidence (almost all bogus) gathered by the OMP remains confidential. The OMP cannot be taken to the Supreme Court on this issue. However the OMP should absolutely and immediately be taken to the Supreme Court regarding what has been written above which is what would happen when this OMP is set up.

    The OMP will become a bogus ‘evidence’ manufacturing machine which will gather such bogus inquiries via email from those members of the Tamil diaspora who are supportive of the LTTE terrorists and who will send bogus email inquiries by their thousands. All these bogus inquiries (of people who are actually living in the US, UK, EU, Canada, Sweden, Norway, Australia, New Zealand, India etc.) will then be misused as missing person inquiries.

    I did not realize that the Sinhalese were this stupid as to allow such a process within the Missing Persons Act which can be blatantly misused in order to manufacture bogus ‘evidence’ like this. The OMP process is not transparent, it will happen in totally secrecy, no one in Sri Lanka will be able to question it, not our police, not our courts, not our Sri Lankan citizens, nobody. All the OMP will do is gather bogus email ‘evidence’ such as described above which will then be misused as missing person inquiries to try the Sri Lankan Armed Forces for bogus war crimes that they never, ever committed.

    The OMP process as described above must be stopped immediately. If a relative or a friend really and genuinely wants to find out about their genuinely missing relative or friend (i.e. perished LTTE terrorist), they can make a complaint to the OMP in person in public. This is the only way that Sri Lanka and the world will know that their inquiry is genuine. This was the methodology followed by the earlier Paranagama Commission which then received 23,000 complaints from relatives or friends of the missing person (i.e. perished LTTE terrorist or our perished Sri Lankan Forces soldiers) but they made their complaint in public in person to the commission. This is the only way to ensure authenticity and make the process transparent since this happens in the public arena. However, even with such safeguards, even some of those complaints may have been bogus.

    The OMP should be stopped immediately since it is not a transparent process at all as described above but a totally secretive process where no one and nobody can request to be provided an opportunity to even peruse, investigate or look at the email inquiries received by the OMP. If the UNHRC, the US, UK, EU, Canada, Sweden, Norway, Australia, New Zealand, India, the TNA and the separatist terrorists genuinely want to find out about perished LTTE terrorists, this Yahapalanaya Government could expand and extend the scope of the already set up Paranagama Commission in order to make such inquiries. This process should be totally following Sri Lankan Law, within Sri Lankan jurisdiction, paid for totally by the Sri Lankan Government only and with only Sri Lankan citizens appointed as commission members and investigators. In fact the entire staff should be composed Sri Lankan citizens only. The process should be a totally domestic process with no interference or input whatsoever from foreign countries. Most importantly, all complaints should be made in person by relatives and friends in public if their complaint is genuine.

    The Missing Persons Act is totally dangerous as pointed out above and should be dismissed totally as it is highly dangerous and a totally secretive process as described above designed and set up to manufacture bogus ‘evidence’ against the Sri Lankan Armed Forces.

  2. Fran Diaz Says:

    We thank Mr Ladduwahetty for his analysis on Violations and lack of Accountability by the UN.

    His arguments prove legally that the UN has to withdraw all the War Crimes accusations levelled at Sri Lanka.

    Also,

    Where was the UN when INDIA imposed the illegal 13-A under Duress during the JRJ govt times ?

    Where was the UN when the Tamil leaders of Lanka brought in atrocious Vadukoddai Resolution of 1976 forcing Tamil people of Lanka into Violence to achieve Tamil Eelam ?
    This V’koddai Resolution was brought in AFTER Lanka GOVT leaders (from the so called ‘Sinhala govt.’ !), had done much to help Tamil people get educated, acquire property, and advance in life, in spite of the Tamil Caste Wars of the North.

  3. Cerberus Says:

    Kudos to Mr. Ladduwahetty for pointing out the mistakes during the LTTE war and after the LTTE war by the UN. UN is a paid lackey of the powerful countries who use UN to bully the smaller countries while ignoring all the war crimes committed by the powerful countries. The UNSG appears to be completely spineless like our very own jellyfish my3. Both of them were just praising each other like long lost buddies who have just found each other.

    Mr. Ladduwahetty pointed out the mistakes made by UN well ahead of UNSG’s arrival in Sri Lanka in his previous two articles “Who monitors the monitors I & II”. His writing has been vindicated by Ban Ki Moon’s own statement that the UN made mistakes. However, Ban Ki Moon does not go far enough in the admission of mistakes. Mr. Rohitha Bogollagama has pointed out the damage that has been done by UN to Sri Lanka in his article on the Island. See below: http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=151516

    Though both Sri Lanka and India are members of the UN, UN has studiously ignored the bullying of Sri Lanka by India when they imposed the 13A on Sri Lanka in 1987. UN has also ignored the damage done to other smaller countries around India by India such as the shooting of protestors in Kashmir with pellet guns effectively blinding many of them, the manipulation of the Nepal’s new Constitution, acquisition of Sikkim by India to be another province of India, and the presence of the caste system in India which is a human rights violation. Now India is turning its attention to Bhutan which is a beautiful country and as in Sri Lanka they are sending their unemployed Dalits as a vanguard to create a minority in the country who will like in Sri Lanka agitate for a separate state at which point India will come to the “RESCUE” of the minorities as in Sri Lanka and take over the country. UN will, as usual, take the side of what the powers that be want and blame the majority and divide the country like they did in Yugoslavia, Sudan etc.

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