Former President Mahinda Rajapaksa has urged the new Government to reject the report by the Office of the High Commissioner on Human Rights (OHCHR) on war crime allegations.

Issuing a statement Rajapaksa said, as the former head of state, I think it would be appropriate to make known to the public my observations on the recently released report on Sri Lanka by the OHCHR. My government did not cooperate with this investigation for many reasons, foremost of which was that it was instituted outside the established procedure of the UN Human Rights Council (UNHRC). The usual procedure was for the President of the UNHRC to appoint a three member independent panel to carry out the investigation after the relevant resolution is passed in the Council. However the investigation on Sri Lanka was not carried out by an independent Commission of Inquiry but for the very first time, by the OHCHR.

The OHCHR’s independence is questionable because it is funded for the most part not through the regular budget of the UN but through ‘voluntary contributions’ from the very Western states that sponsored the resolution against Sri Lanka. Furthermore all the important staff positions in this body are held by Westerners who make up half the cadre of the OHCHR. Resolutions are passed with overwhelming majorities at virtually every session of the UNHRC calling for an ‘equitable regional distribution’ in staffing at the OHCHR to no avail. Given the composition of the OHCHR, it would not be possible to expect an impartial inquiry from them.

The Pakistani Ambassador to the UNHRC, HE ZamirAkram observed during the debate on the resolution that set up this OHCHR investigation on Sri Lanka, that No self-respecting country would agree to the intrusive measures advocated in this resolution.” He also wanted to know how this investigation was going to be funded, and stated that if the ‘donors’ providing the funding were also the sponsors of this resolution, the whole process would be seen to be tainted. Despite persistent questioning, he did not receive a satisfactory answer to his query.

The Indian Ambassador HE Dilip Sinha warned that an intrusive approach that undermines national sovereignty” is counterproductive and that what is needed is a constructive approach for dialogue and cooperation.” India too refused to support the setting up of this OHCHR investigation. The final resolution had the support of only 23 members of the 47 member UNHRC despite all the pressure that its powerful sponsors brought to bear on the member states. That in brief, is the background to the OHCHR investigation that has led to this Report.

Some speculate that this report may have been watered down because a new government has been elected to power. If that is true, then the Pakistani Ambassador HE Akram would have been right in telling the UNHRC on 27 March 2014, that this resolution is All about politics and not about human rights.” Be that as it may, I don’t see this report as having been watered down. The most that can be done with a report of this nature is to recommend the setting up of a war crimes tribunal and that has been done.

Neither the OHCHR nor the UNHRC has the authority to set up an international war crimes tribunal. The only body with the authority to do so is the UN Security Council where the veto power of China and Russia will be a factor to contend with. Sri Lanka cannot be taken before the International Criminal Court (ICC), because we are not a signatory to the Rome Statute under which the ICC functions. The other way is for the government of the country concerned to cooperate voluntarily with the UN to set up a hybrid war crimes tribunal. What has been recommended in the OHCHR report is the only practical way in which a war crimes tribunal can be instituted in relation to Sri Lanka. So it is wrong to believe that this report has been watered down in any way.

Some claim that this report has been watered down because no names have been mentioned in relation to any alleged incidents. That is obviously due to the fact that the OHCHR has no way of justifying such a linkage. But a prominent journalist D.B.S.Jeyaraj has pointed out that the names of important military personnel and units have in fact been mentioned in the report in a manner designed to incriminate and direct investigations even though those names have not been linked to specific incidents. While some think that the report is not as bad as was expected, I don’t share that view.

Though some politicians claim that the risk of our war heroes being arrested in foreign countries for alleged human rights violations under universal jurisdiction has receded because of this purportedly watered down report, the very opposite is true in fact. There is a specific request made in this OHCHR  report on page 252 to member states of the UN to investigate and prosecute those allegedly responsible for war crimes. This is in addition to the proposed hybrid war crimes tribunal they have recommended. It is vital that the general public be informed about the real nature of this report.

Some appear to believe that had my government still been in power, this report may have led to economic sanctions being imposed on Sri Lanka. However, neither the UNHRC nor the OHCHR can impose economic sanctions on a country. Only the UN Security Council has that authority and they will not impose economic sanctions except in the most serious situations related to a threat to global security. The USA and the EU could if they so wished, have imposed unilateral sanctions on Sri Lanka as it is their sovereign right to refuse to trade with any nation. But such measures are very rarely implemented because the country imposing sanctions ends up making a permanent enemy of the people of the country at the receiving end. Unilateral sanctions against Sri Lanka was never on the cards during my tenure.

While there may have been tensions between my government and some Western nations at certain times, there were Western leaders who understood our point of view as well. John Kerry when he was the head of the US Senate Committee on Foreign Relations wrote in his December 2009 report titled ‘Sri Lanka: Re-charting US Strategy after the War’ that the Obama administration should take a broader multi-dimensional approach to Sri Lanka not driven solely by short-term humanitarian concerns but involving political, economic, and security dimensions.

During the war, Sri Lanka and the USA had a mutually helpful exchange of information on security matters. Republican administrations in the USA generally took a less intrusive approach to Sri Lanka. There is more to international relations than just human rights. The purchases made, contracts awarded and opportunities provided for investors all play an even more  important role in international relations. So I do not believe that the OHCHR report would have led to sanctions being imposed on Sri Lanka if my government had still been in power. Throughout my tenure, the main foreign investors in the Sri Lankan long term sovereign bond market and the securities exchange were from America and Europe. It is only after I was voted out of office that these investors started withdrawing their money from Sri Lanka.

In ruling a country, there are occasions when one has to go against the wishes of powerful nations in order to serve the interests of the people. In 1952, when Prime Minister Dudley Senanayake signed the Rubber-Rice Pact with China, the USA had imposed economic sanctions on the new Communist government of China and rubber was on the prohibited list. But Prime Minister Senanayake exported rubber to China even at the risk of antagonizing the USA because the people of Sri Lanka needed rice. Similarly, I too had to go against the wishes of certain powerful nations to defeat terrorism and bring peace to this country.
Had unilateral sanctions actually been imposed on Sri Lanka by Europe and the USA during my tenure, we would certainly have taken remedial measures. When the EU withdrew the GSP+ trade concession from Sri Lanka in 2010 under pressure from the powerful Eelamist lobby in Europe, my government saw to it that exports of apparel to Europe continued to grow year after year. In 2008-2009 when the entire world was reeling under the worst global depression since the 1930s, the people of this country were not even aware of the global recession because of the measures that my government took to contain the crisis. My government had an economic track record of which I am justifiably proud.

Many of the recommendations in the OHCHR report give cause for concern. In my view, establishing a hybrid special court to try war crimes integrating foreign judges, lawyers and investigators, and prosecutors is not feasible. If there are allegations of wrongdoing against any member of the armed forces, I strongly believe that those should be tried under the existing Sri Lankan law, under our present courts system and by our judges and our Attorney-General’s department. Our armed forces risked everything and made enormous sacrifices to save the country from the scourge of terrorism.

The recommendation that the OHCHR be allowed to establish a permanent presence in this country to monitor the human rights situation makes no sense since the country has been at peace for over 6 years with no allegations of ongoing human rights violations.

The OHCHR has also recommended that the Supreme Court of Sri Lanka should retract its refusal to accept the competence of the UN Human Rights Committee to consider individual complaints from Sri Lanka. We had a similar arrangement with the Privy Council when we were a dominion of the British Crown. In my view, such an arrangement would not be of any benefit to Sri Lanka.

It has also been recommended by the OHCHR report on page 250 that the Sri Lankan government develop a vetting process to ‘remove from office’ security force personnel who are believed to have been involved in human rights violations. Nobody can, or should be removed from office on the basis of unsubstantiated allegations or on mere suspicions. The government should be mindful of the fact that these recommendations are being made by forces that tried their best to stop the final offensive against the LTTE but failed.

The OHCHR has also recommended the repeal of the Prevention of Terrorism Act (PTA) and the Public Security Ordinance and the formulation of a new national security framework. Sri Lanka would not have survived as a state if not for these laws. The public security laws of a sovereign nation should be based on an assessment of threats and other such factors and not according to the dictates of an international organization which does not specialize in public security.

I wish to request the government to study the legal opinions on the law of armed conflict and humanitarian law given to the Commission of Inquiry on Disappearances by Sir Desmond De Silva QC, Sir Geoffrey Nice QC, Rodney Dixon, David Crane and Paul Newton and consider circulating these to UNHRC member states –in particular the detailed report on the law of armed conflict in relation to the allegations made against Sri Lanka which was submitted to the Commission on Disappearances by Sir Desmond De Silva recently. The views of these international lawyers should in my view, be incorporated in any detailed response to the OHCHR report.

Some politicians have been telling the people that all these international initiatives are based on my joint communiqué with the UN Secretary General of 23 May 2009. I see that as a deliberate attempt to mislead the people and seek justification for their own cooperation with interventionist foreign forces. There was nothing in my joint communiqué with the UN Secretary General about war crimes investigations and hybrid or local war crimes courts. All that the Sri Lankan government undertook in that joint communiqué was to address ‘grievances’. The accelerated development of the north, the holding of the Eastern and Northern provincial council elections, the setting up of the Lessons Learnt and Reconciliation Commission (LLRC) and the Commission of Inquiry into Disappearances were all measures taken in that spirit.

In fact during the debate on the resolution that set up the OHCHR investigation on Sri Lanka in March 2014, the Indian, Cuban and Pakistani Ambassadors to the UNHRC taking the floor one after the other said in one voice that the US backed resolution had not taken into account the wide ranging measures taken by the government to address outstanding issues, including the setting up of the LLRC. That was one of the reasons they decided not to support the proposal for an OHCHR investigation against Sri Lanka.

For the above stated reasons, I call upon the government of Sri Lanka to reject this report by the OHCHR.”