Shenali D Waduge

In April 2017 Amnesty International admitted that the very basis of the Geneva Resolution 30/1 adopted in Oct 1, 2015 is questionable. Then in June 2017, defending Sri Lanka & its armed forces through a NGO, admiral Sarath Weerasekera asked why the UNHRC is going after the Sri Lanka Army who defeated terrorists when the crimes of the West are ignored. The impact of the question and the questions of illegality by UNHRC plus the fact that Britain’s PM recently declared they would shred human rights laws to defend their troops has resulted in a hurried response by the UNHRC head who is now in a pickle. Is there a prima facie case against Sri Lanka, without such there can be no war crimes tribunals.

Where were resolutions by the UN or UNHRC since terrorism started throughout 1980s? Why did the same countries and UN not do anything to stop terror? Why did they all enter the scene after LTTE’s defeat?

Suddenly the UNSG arrives 3 days after the defeat. He goes in a helicopter viewing entire scene of the military operation. It was the best opportunity to see fresh ‘graves’ the only evidence to prove killing of 40,000 or more people was actually committed.

Contrary to what is promoted there was no such commitment to hold any investigation by the GOSL in the joint statement issues after his visit. However, the GOSL did launch the LLRC investigation in March 2010. Why did UNSG need to appoint a personal panel in June 2010 without giving the GOSL any time to end its investigation? He had not appointed such panels for other conflicts taking place globally!

When the PoE legality is in question and if so it automatically questions the basis of the 3 resolutions what is crucial is that inspite of the drama associated with the claims of ‘genocide’ and mass killing there is no prima facie case to prove any of the allegations. No dead bodies, no skeletons, not even 40,000 names with valid identifications! The onus is on those making the allegations to provide proof. 8 years we have still to be presented with proof to warrant a war crimes tribunal.

Serious illegal questions arise

1. PoE is a personally commissioned report by the UNSG with no approval given by UNSC or UNGA.
2. PoE report was not tabled in the UNGA, UNSG or UNHRC nor was SL given the right to officially respond to it.
3. How did a personally commissioned report become the basis for 3 UNHRC resolutions leading to a demand for a war crimes tribunal? A personally commissioned report has no basis for any action against a sovereign UN member state.
4. How can a personally commissioned panel requested to report on the last 3 months of the conflict ignore 30 years of terror and subject one party to war crimes charges without producing a prima facie case for such? Investigating part of a conflict and advocating relief to only one ethnic group is totally biased and unfair dishing of justice!
5. Without a prima facie case for war crimes how can UNHRC place PoE ‘witnesses’ sealed for 20 years.
6. Why did the PoE panel refuse to accept the UN country team estimate of 7721 deaths and have refused to release that report and instead brings in Charles Petrie to issue a report that UN had failed the victims.
7. The other important factor is that the UNHRC has been throughout concentrating only on Tamils being the victims – totally ignoring other victims of the war, the many Sinhalese civilians, public servants, Buddhist priests, politicians, children killed as well as Muslim civilians and even worshippers killed and more importantly UNHRC has completely ignored Sinhalese & Muslims in any resettlement programs as well as compensation and other aid programs. This is totally unacceptable. Sinhalese & Muslims were ethnically cleansed from their original habitats in the North in the early 1990s. Some of these victims have even presented details to the OISL.
8. Numerous times OHCHR head interfering in internal affairs of Sri Lanka flouting Article 7 of the UN Charter was cited by ordering Sri Lanka what type of courts to establish and who are to sit in judgment. Both times the UNHRC visited Sri Lanka both did not see any of the Sinhala or Muslim victims of LTTE terror. While UNHRC has even been hosting heads of proscribed LTTE fronts even in Geneva
9. At no time has the UNHRC made a statement on the 5000 missing Sri Lankan Army soldiers whose names have been submitted to the Geneva UNHRC office as well as logged with the Presidential Commission on Missing Persons. Even with all the details available nothing has been done.

Questioning the credibility of the PoE Panelists (Marzuki Darusman, Steven Ratner, Yasmin Sooka)

If the mandate of the panel was not a ‘fact finding or investigative’ one the Panel has no right to make conclusions that IHL violations occurred, to classify sources as ‘confidential’ denying cross-examination for 20 years.

The panel immediately after handing over report co-authors article titled ‘Revisiting Sri Lanka’s Bloody War” replacing their own conclusion of ‘credible allegations’ with ‘credible evidence’ http://www.nytimes.com/2012/03/03/opinion/revisiting-sri-lankas-bloody-war.html?_r=0 Sooka is also a regular invitee to events of proscribed LTTE fronts where she is addressed as ‘our comrade’.

Shamindra Ferndinando writing to Island newspaper also questioned the PoE-LTTE lobby link How Moon Panel gathered war crimes info revealed” 20 April 2012. Sooka is also on the Advisory Council of the Sri Lanka Campaign for Peace & Justice and joined several Tamil leaders in signing a petition calling for War Crimes investigation in March 2014. This explains PoE conclusion that LTTE was the most disciplined and most nationalist of the Tamil military groups’. Panel is out of line to say conflict ended ‘tragically’ when entire country was relieved that 30 years of terror had ended. Panel has no business to comment on the former President or his family. That has no relevance to their mandate!

A good analysis of statements issued officially by UNSG, OHCHR heads Navi Pillay and Zeid reveals that they have already determined SL Army as guilty. This is a grave injustice to a UN member state by officials who are paid to be unbiased. The locus standi of the former OHCHR head was questioned on account of her being an ethnic Tamil and it was her duty to recuse herself from the case. Despite raising this conflict of interest the UN system ignored calls to appoint an unbiased official and her bias was proven when immediately after retiring from her post one of her first visits as chief guest was to a proscribed LTTE front in Canada!

PoE was illegal and had no prima facie case.

The 2^nd investigation OISL was based on the PoE too did not have a prima facie case! And the UNHRC continues to demand Sri Lanka to investigate credible allegations.

All that those who are making allegations have come up with 3^rd party ‘invisible’ witness stories and edited documentaries! After 2 investigations there is still no legally binding case!

OISL investigation

Even the credibility in the choice for OISL investigators were highlighted. Marti Ahtisaari has been accused of accepting bribes by the Albanian Mafia to deliver Kosovo independence!

Moreover the OISL was mandated to cover only the period in LLRC 2002-2009 however it has included years after the conclusion of the conflict which covers only one side only.

What has obviously happened is that media lies, lobbying and money has completely taken entire UNHRC for a ride thus crippling its credibility. Media lies, Lobbying and money cannot be allowed to influence due process in the UN/UNHRC. http://www.onlanka.com/news/how-media-and-hr-groups-purposely-misinterpreted-ban-ki-moons-panel-of-expert-report.html

Some International Laws UNHRC & those who signed Resolutions against SL forgot to look at

• Given that Sri Lanka’s conflict is described as an armed conflict of a non-international character the laws applicable are: Common Article 3 to the Geneva Convention (appears in all 4 of the Geneva Conventions) & Article 1 of 1977 Additional Protocol II to the 1949 Geneva Conventions. LTTE fighters are not entitled to POW status but should be charged for their crimes in a domestic court of law
• Under customary international law applicable to international and non-international armed conflicts – LTTE as combatants do not enjoy the protection against attack accorded to civilians.
• Under the same law LTTE also does not enjoy right to combatant status or prisoner of war status.
• Rule 6 declares that civilians are protected against attack unless and for such time as they take a direct part in hostilities. No one can give us figures as to how many LTTE cadres died in combat, how many LTTE cadres in uniform/civilian clothing died in combat, how many civilians engaged in hostilities died in combat (it is important to note LTTE did have a militarily trained civilian force), how many civilians who were not engaged in any form of combat died in battle and died as a result of whose attacks (LTTE or SL Army) without ascertaining these facts how can only the SL Army be guilty of war crimes? Even of the survivors that were rescued numbering 300,000 we still do not know how many of them were trained by LTTE in armed combat (voluntarily or by force)
• US Law of War manual says party that employs human shields in an attempt to shield military objectives from attack assumes responsibility for their injury” – LTTE is guilty
• US Defense Dept thinks it ‘may lawfully kill an unlimited number of civilians forced to serve as involuntary human shields in order to achieve even a trivial military advantage”. SL Govt or its military DID NOT follow such a policy. How else did they end up sacrificing 2500 military lives and prolonging the military victory to save 300,000 people? http://www.lankaweb.com/news/items/2015/08/23/sri-lanka-war-crimes-farce-us-law-of-war-manual-on-human-shields/

1. a) Did the LTTE respect and ensure respect for IHL by all those acting on its instructions, or under its direction or control.
2. b) Did LTTE allow and facilitated rapid unimpeded passage of humanitarian relief.
3. c) Did LTTE keep hostages – a violation of Geneva Conventions.
4. d) Did LTTE keep human shields – a violation of Geneva Conventions.
5. e) Did LTTE blur distinction between combatant and civilian.

LTTE intentionally used the civilians to shield military operations which constitutes a war crime.

LTTE embedded its heavy artillery within the NFZ and intentionally shelled Sri Lankan positions from amidst civilian population

LTTE refused civilians to flee and shot at them (witness accounts & UNSG’s own appeals to release them is evidence)

Assessment of US ambassador at the time gives clearly that the operational goal of the LTTE was to effect military advantage against the Sri Lankan forces and so LTTE forcibly prevented evacuations of civilians who wanted to leave

‘Elements of Crimes for the Rome Statute’ adopted in June 2000 was clear that action by a perpetrator with the intent to ‘shield a military object from attack’ or to take advantage of one or more civilians to ‘shield, favour or impede military operations’ constitutes a war crime – LTTE committed

‘crime of using human shields is committed by any perpetrator that intentionally moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict” (Prof Newton) ‘there is no per se prohibition against attacking targets protected by human shields’ so long as government artillery strikes comply with the principle of proportionality and after taking ‘all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”. (Prof. Newton)

Voluntary human shields risk their own lives for a particular military or political objective. They are therefore intellectually identical to unlawful belligerents or other insurgents in the sense that they participate in hostilities but do not enjoy combatant immunity or benefit from the full range of rights that accrue to lawful combatants.” (Prof Newton)

http://www.lankaweb.com/news/items/2016/07/01/did-sri-lanka-commit-war-crimes-international-legal-luminary-prof-michael-newton-says-no/

http://www.lankaweb.com/news/items/2016/07/01/did-sri-lanka-commit-war-crimes-international-legal-luminaries-sir-geoffrey-nice-and-rodney-dixon-says-no/

http://www.lankaweb.com/news/items/2016/07/01/did-sri-lanka-commit-war-crimes-international-legal-luminaries-prof-crane-and-sir-desmond-de-silva-say-no/

If LTTE does not have any legal status under IHL but LTTE is legally obliged to as an armed group to ensure that its members respect IHL what is the international community doing about LTTE violations?

If the Sri Lankan military had been indiscriminately firing at the No-Fire Zones since 21 January 2009, how did 11,000 LTTE combatants live to surrender themselves to the military and why would the elimination of the LTTE have taken till 19 May 2009 to complete?

Lets just take an example of how a real international tribunal will question war crimes:

Allegation : Prabakaran’s son Balachandran killed by Sri Lanka military

Judge:         How can you establish that Prabakaran’s son was killed by the

Sri Lankan military?

Counsel :     Because Callum MaCrae said so

Because C4 documentary projects so every year

Because articles paid by the LTTE fronts say so

Because LTTE fronts say so

Because foreign politicians connected to LTTE issue statements

Because LTTE linked NGOs say so

Judge:         Do you mean to say all these were watching this being shot?

Counsel:       Well, no… but…

Judge:          What do you mean… well no .. but…otherwise how can you say that they are saying he was killed by the Sri Lanka Military?

(no response from the counsel)…

Judge:         Throw this to the bin. Are you trying to fool around with me?

Case closed!

Now you can understand why OHCHR is patting the backs of our new government for them to agree to a domestic inquiry because their illegalities can be covered and palmed off to the new GOSL.

The patriotic forces and people in Sri Lanka are thankful to Admiral Sarath Weerasekera for shaking the UNHRC with a petition so much so that the UNHRC hurriedly comes out with an article putting the retired admiral representing a NGO on par with the British Prime Minister too! https://www.colombotelegraph.com/index.php/sri-lankan-rear-admiral-theresa-may-misunderstanding-human-rights-law/

The long harangue by the UNHRC has not satisfactorily answered the compelling question – does the UNHRC even after 2 investigations have a prima facie case against the Sri Lankan Army for war crimes to warrant a war crimes tribunal? We think not!

Shenali D Waduge

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=163485

http://www.lankaweb.com/news/items/2015/08/28/sri-lanka-from-illegal-resolutions-international-probes-to-a-foreign-steered-domestic-probe/