We demand answers. Ban Ki Moon 3 member panel is a personally appointed panel, how did this report become the foundation for a UNHRC investigation against a UN member state & how did this investigation & Ban Ki Moon report become the basis for 3 resolutions against Sri Lanka is the explanation UN has to offer Sri Lanka FIRST before Sri Lanka agrees to anything else. Let’s stop going round the mulberry bush until UN provides a legally acceptable explanation.

UN Security Council Resolutions are binding. UN General Assembly Resolutions are non-binding.

According to Sir Hersch Lauterpacht, a former member judge of the International Court of Justice:

… the General Assembly has no legal power to legislate or bind its members by way of recommendation.”

Professor Judge Schwebel, former President of the International Court of Justice, states that:

… the General Assembly of the United Nations can only, in principle, issue ‘recommendation’ which are not of a binding character, according to Article 10 of the Charter of the United Nations.”

This means no UN body can exert aggressive & authoritarian ruling over a UN member state. Therefore, the UNHRC which is simply an associate body within the UN system has no mandate to issue demarches against Sri Lanka. Having said that, there are a plethora of in congruencies that have been committed by the UNHRC against Sri Lanka while at the same time plenty of faux pas committed by the GOSL the last & silliest being co-sponsorship of the resolution by a minister sans the approval of the Sri Lankan President or endorsement of the Sri Lankan Cabinet.

Since the UNGA cannot compel action against any governments the alternate path has been to use diplomatic pressure to force action on selected states through a new precedence created using the power of money & lobby groups to create country-specific resolutions & use diplomatic pressures to bring countries to their knees. Sri Lanka is a victim of this new ploy.

If UN resolutions are non-binding why has Sri Lanka wasted time & money lobbying without simply challenging the UN & associate entities to produce evidence before drafting resolutions?

UNHRC is simply an inter-government entity within the UN system it has no legal authority whatsoever over any UN member state. Any Human Rights issues committed by Sri Lanka should have been dealt with during the Universal Periodic Review sessions.

We list the inconsistences bordering illegalities committed by the UN/UNSG/UNHRC against a UN member state

• The 3-member panel appointed by then UN Secretary General Ban Ki Moon was a personally commissioned panel report WITHOUT UN Security Council or UN General Assembly Mandate. It was a personally commissioned ‘ADVISORY’ report on the FINAL STAGES (last phase) of the conflict. This personally commissioned report had no basis to be used for an Investigation by UNHRC or 3 successive resolutions against a UN member state.
• The UNHRC Resolutions even go beyond the period covered by the Ban Ki Moon panel another violation.
• Sample formats appearing on internet to show Tamils how to compile complaint cases against Sri Lanka Army for OISL investigation.
• Discovery of UNHRC blank war crimes forms with signatures being collected by LTTE-TNA (explains why UNHRC wishes to freeze ‘witness’ details for 20 years)
• In the supposed Joint-Statement made on 22 May 2009, Sri Lanka does not commit to undertaking any investigation or agree to any international investigation.
• Ban Ki must explain why he was so impatient to appoint his own panel (which he has not done for other international conflicts) hardly a month after Sri Lanka appointed the LLRC. LLRC appointed in March 2010, Ban Ki Moon panel appointed in June 2010.
• If the 3-member Panel report was not a fact-finding or investigative report on what basis did it conclude on violations of humanitarian law, how can the panel classify sources as ‘confidential’ denying cross-examination for 20 years, how can Ban Ki Moon’s panel describe LTTE as ‘the most disciplined & nationalist of the Tamil militant groups”? How can the panel claim the conflict ended ‘tragically’ when the entire nation breathed in relief that there would be no more LTTE bombs & suicide attacks? More importantly why is this panel commenting on the family of the then President – that has nothing to do with their reporting on the last stages of the conflict?
• The 3 members selected by Ban Ki Moon were also controversial figures. Darusman the head of the panel has been openly critical of Sri Lanka while member of the IIGEP in 2007. Yasmin Sooka has been a very active attendee of pro-LTTE events, she also serves in the Advisory Council of an anti-SL campaign.
• Immediately after presenting their report the 3 panelists co-authored an article ‘Revisiting Sri Lanka’s Bloody War” in which they replaced ‘credible allegations’ (phrase used in their Report) with ‘credible evidence’.http://www.nytimes.com/2012/03/03/opinion/revisiting-sri-lankas-bloody-war.html?_r=0
• How can this 3 member panel REFUSE to accept the UN Country Team estimate of 7721 dead? On 13 March 2009 then UNHRC head Navi Pillay quoted 2800 dead. 25 April 2009 UN claimed 6432 deaths. 13 May 2009 UN Country Team claims 7721 dead. Why is the UN not releasing the UN Country Team report? GOSL gave 7432 deaths while even pro-LTTE website Tamilnet claimed 7398 in May 2009. To camouflage UN’s failures, it appoints Charles Petrie to release a report that promotes the notion that UN failed the ‘invisible’ dead completely ignoring UN failures over 30 years to stop LTTE terror.
• The Panel of Experts report concludes ‘credible allegations’ but ‘credible allegations’ is soon substituted with ‘credible evidence’ by global media & human rights groups. https://www.onlanka.com/news/how-media-and-hr-groups-purposely-misinterpreted-ban-ki-moons-panel-of-expert-report.html The same entities manipulated the PoE statement that ‘there could have been as many as 40,000 civilian deaths’ to promote that 40,000 actually died. To date no one has given details of the 40,000 supposedly dead people while they are silent about the 300,000 saved by the very people they are accusing to have killed the 40,000! Sri Lankan Army cannot be accused of murder without dead bodies or even details of the dead!
• The inconsistences about the No Fire Zone. Rules of armed conflicts & creation of no fire zones requires consent by both parties on its demarcation. Only the GOSL declared a NFZ, LTTE did not agree or sign its consent. Such a one-sided demarcation has not legal authority but LTTE has to abide by rules of war which denies it to fire from among civilians or keep artillery among civilians – LTTE committing this places LTTE as a guilty party.
• UN ignored repeated requests for UNHRC head Navi Pillai to recuse herself on account of her ethnicity being Tamil. This explains her derogatory statements & frequent quoting from LTTE sources against Sri Lanka & committing a procedural bias by circulating her own incriminating report while refusing to attach Sri Lanka’s response. Her statements made against Sri Lanka have been without evidence & highly derogatory.
• Isnt it also strange that the man tasked to head the investigation on Sri Lanka was accused of accepting bribes by the Albanian mafia to deliver Kosovo independence & KLA & LTTE have much in common! https://www.onlanka.com/news/navi-pillai-appoints-martti-ahtisaari-bribed-by-albanian-mafia-to-deliver-kosovo-independence-to-investigate-sri-lanka.html
• Now let’s look at those making the allegations – every ‘source’ quoted making these wild allegations were attendees to a pro-LTTE event in 2012 held inside the UK Parliament! Siobhain McDonagh MP (claims 100,000 dead), Yasmin Sooka (GTF describes her as ‘comrade’) Eric Solheim (cried at LTTE ideologue Anton Balasingham’s funeral & now UN auditors accuse him of defraud) Prof William Schabas (who recommended an international investigation on Sri Lanka), Callum Macrae (Director of C4 documentary Killing Fields), TNA MP & present Opposition Leader R Sambanthan as well as TNA MP Sumanthiran Yolanda Foster, Amnesty International’s Senior Researcher (Amnesty accepted money from another proscribed LTTE front), Frances Harrison author of book ‘Still Counting the Dead’, Gordon Weiss, former UN spokesman in Sri Lanka besotted with his own book & inflating civilian dead figures at every book launch, In addition a host of British MP including the former PM Cameron also spoke – NONE OF THESE PERSONS OR THEIR STATEMENTS CAN BE ACCEPTED on account of speaking at a pro-terrorist event but these are the very sources that the UN & UNHRC are using against a sovereign state. Any sane person should be able to understand that people who are mixing with pro-terrorist elements have no credibility to make any allegations whatsoever. https://www.globaltamilforum.org/media/6250/3rd-Anniversary-Conference-report.pdf
• While UN is accepting the statements of above persons as their ‘sources’ the UNHRC will not accept the UN Country Team’s assessment of 7721 dead,

UNHRC will not accept the GOSL figure of 7432 dead

UNHRC will not accept Lord Naseby’s statements

UNHRC will not accept US Defence Advisor in Colombo Lt. Colonel Lawrence Smith comments at the Defence Seminar in 2011 who questioned the very basis of allegations made against the Sri Lankan Army.

UNHRC will not accept embedded journalist Murali Reddy’s account & he unlike all of the 3^rd party sources the UN/UNHRC & Ban Ki Moon panel quote was with the civilians & saw first hand what was happening.

UNHRC will not accept the dispatches from Lt. Col. Anton Gash, Defence Attache at the British High Commission in Colombo, to the Foreign and Commonwealth Office in London http://www.dailymirror.lk/article/New-light-on-last-stages-of-the-war-Michael-Roberts-unpacks-the-Gash-Files–149598.html

UNHRC will also not accept that LTTE kept weapons in hospitals a cable by ICRC head to US & UN https://www.colombotelegraph.com/index.php/wikileaks-ltte-stored-weapons-at-hospitals-icrc-to-us-mission-to-un/

The list of incriminating evidence against the LTTE are many however none of these are accepted or even inserted to any UN/UNHRC report however the UN/UNHRC takes pains to list out every unsubstantiated allegation made by people who were not even in Sri Lanka at the time. These 3^rd & 4^th party unverifiable statements are the sources on which a national army is being held to task! The scale of hypocrisies and double standards are shocking.

Therefore, it is ridiculous to even consider drafting a counter-resolution WITHOUT challenging the Ban Ki Moon Panel Report, the OISL investigation & the 3 successive resolutions that was based on this personally appointed panel.

More importantly, the Ban Ki Moon report was not even tabled in the UNHRC or the UN General Assembly or handed over to the UN Security Council, if in fact war crimes had been committed. Instead, a handful of bloc nations deems it their right to be slapping allegations that come with no evidence & demand not only an international tribunal but with every resolution & Geneva Session there are demands to reduce the national army, to remove the military bases, to change the penal codes, to even draft a new constitution – what do all these have to do with eliminating terrorism & a terrorist movement in May 2009?

Therefore, neither the Sri Lankan Government nor any of the Sri Lankan groups attending Geneva sessions should even consider making any counter resolutions until & unless the UN is challenged to give a legal response to how a personally commissioned report could become the basis for a UNHRC investigation on Sri Lanka & 3 successive resolutions against Sri Lanka all demanding an international investigation together with drastic changes to Sri Lanka’s internal administrative systems which are all violations of the UN Charter & the spirit with which UN is expected to treat all of its member states.

Shenali D Waduge