BY GAGANI WEERAKOON Courtesy Ceylon Today

President Maithipala Sirisena clearly states that he, as the Head of the State, does not want foreign judges or would not allow the setting up of a Hybrid Court in the accountability process where Sri Lanka is under international scrutiny for alleged war crimes committed by government’s very own military forces in the final stages of 4th Eelam War.

Prime Minister Ranil Wickremesinghe, irrespective of his longstanding image of being a ‘non-patriot’ or a ‘non-nationalist’ made it clear that setting up a Hybrid Court or the involvement of foreign Judges – except experts on certain areas including forensic – is not feasible.

Foreign Minister Mangala Samaraweera told media in Colombo, meanwhile, that the inclusion of foreign judicial personnel in a domestic process as recommended by the 2015 UNHRC resolution that was recently extended by two years, was not the sole obsession of the government or of the international community.

Insisting government’s main concern was establishing a fair, independent and credible judicial process that will address the needs of all stakeholders, Samaraweera explained, the recommendation for foreign judicial officers to be part of the domestic process was recommended as faith in the Judiciary had declined under the previous regime.

“We will establish a transparent mechanism that will be accepted by all, and the international community knows this. The resolution is not something that is carved in stone and as the High Commissioner for Human Rights himself said in Sri Lanka, there are certain proposals they think is necessary to be followed, but the final decision will be made by Sri Lanka. This was what was promoted under the system that we proposed in 2015.”

Speaking of allegations of war crimes levelled against the Sri Lanka Army, Samaraweera said, whether they indeed amounted to war crimes would have to be decided by a Court. However, Samaraweera was unable to divulge the exact nature of the mechanism, but assured the final product would be something that would be acceptable to all stakeholders.

Every time, the topic of foreign Judges, being included in the accountability process, surfaces, many point the finger at former President Mahinda Rajapaksa as being responsible for inviting foreign Judges to get involved in internal matters.

The former Head of State, Rajapaksa, under whose period the ruthless LTTE terrorists were militarily defeated, despite immense international pressure calling for a slowdown, seems to have spent time and getting expert opinion in drafting his recent response which titled ‘The Great Betrayal in Geneva’. In this, Rajapaksa does not hesitate to in fact point a finger at the UN mechanism and accuse the UN authorities of foul play.

He also accuses the Yahapalana Government of hiding or suppressing important documents which otherwise, could have been used in favour of Sri Lanka at the UNHRC Session, held recently, and for meekly accepting the US co-sponsored resolution for the second time.

At the recently concluded session of the UN Human Rights Council (UNHRC), the Yahapalana Government pledged to implement in full the resolution they co-sponsored in October 2015.

Legitimacy issues

“Thereby they renewed their earlier undertaking to establish a war crimes tribunal with foreign Judges, prosecutors and investigators; to remove through an administrative process members of the armed forces suspected of war crimes, even if there isn’t enough evidence to take them before a judicial inquiry; to repeal the Prevention of Terrorism Act and to replace it with a law acceptable to the Western powers; and to allow the war crimes tribunal and other mechanisms to be set up in Sri Lanka to obtain funding from overseas. Though, the President and Prime Minister repeatedly say that no foreign Judges will be brought to try our armed forces, the pledge given in Geneva last week is exactly the opposite.”

According to Rajapaksa, the most dangerous aspect of the UNHRC resolutions of 2015 and 2017 is that the Government of Sri Lanka (GoSL)has accepted without any reservations the report of the Office of the High Commissioner on Human Rights (OHCHR) of September 2015 which had accused the Government of Sri Lankan of a whole range of war crimes including indiscriminate killings of non-combatants, torture, rape, illegal detention, abduction and deprivation of humanitarian assistance.

“There was no compelling reason for the Yahapalana Government to have accepted the OHCHR report other than their own inherent anti-national attitude. In 2010, the UN Secretary General commenced an inquiry against Sri Lanka and its report was published in April 2011. My government resolutely refused to accept that report and today, nobody even remembers that such a document existed,” he noted.

“The UN Secretary General can appoint a panel of experts to advise him on a country only on the instructions of the UN Security Council. Yet, under pressure from the Obama administration, Ban Ki-moon appointed a panel of experts to advise him about Sri Lanka without the sanction of the Security Council thus going against the practices in the UN that had evolved over seven decades. The investigation against Sri Lanka by the OHCHR which began in 2014 had similar issues of legitimacy. When the UNHRC appoints a Commission of Inquiry to go into the situation in a country, the members of the commission are appointed by the President of the UNHRC who is the Ambassador of a member nation. But in the case of Sri Lanka, the inquiry panel was appointed by the UN Human Rights Commissioner – a second tier UN official, not by the President of the UNHRC.

“Thus this report of the OHCHR which the Yahapalana Government has accepted is not the report of a properly constituted UNHRC Commission of Inquiry. Moreover, the UNHRC itself passes resolutions each year (with a two thirds majority) against the OHCHR accusing it of being overly dependent on Western countries for funding and having too many Westerners on its staff. Thus the present government has accepted the report of an inquiry carried out by a body regularly accused of bias by the UNHRC itself. In order to meet the allegations being made against our armed forces by various interested parties, my government commissioned six of the world’s foremost experts in the law of armed conflict, Sir Geoffrey Nice QC, Desmond de Silva QC, Rodney Dixon QC, Prof. David M. Crane, Prof. Michael Newton and Maj. Gen. John Holmes to provide us with written opinions about the allegations and purported evidence against Sri Lanka.

no violations

“All six experts wrote well-reasoned analyses declaring unequivocally that no violations of the law of armed conflict had taken place in Sri Lanka. My government wanted to table these six reports before the UNHRC, but we were voted out of power in January 2015. The new government deliberately suppressed all these documents. (However, these expert opinions were published in full by ‘The Island’ newspaper and they are in the public domain now for everyone to read). After suppressing these written opinions of international experts which were all in Sri Lanka’s favour, the yahapalana government accepted without a murmur, the OHCHR report on Sri Lanka which accused us of committing every war crime imaginable. Now they have through two co-sponsored resolutions in the UNHRC, agreed to implement the recommendations in that biased and tainted report. This is the extent of the outright treachery practised by the Yahapalana Government against its own armed forces and people,” he pointed out.

In their report on the legal Issues pertaining to the use of human shields and hostage taking by the LTTE by Prof. David M. Crane, Sir Desmond de Silva, QC and Advisory Council of Experts, have observed that after the fall of Kilinochchi on 2 January 2009 to the Sri Lanka Army (SLA), in order to secure the safety of hundreds of thousands of civilian Tamils the government set up a series of No Fire Zones (NFZs). Despite this effort, the LTTE allegedly refused to recognize the NFZs. International law requires that safe areas, ceasefires and truces are accepted by both warring parties: agreement is a pre-requisite for legitimacy. Due to the refusal of the LTTE to recognize any such NFZs the laws relating to such zones have less relevance to any analysis of the situation in the last stages of the conflict. It is asserted that the LTTE fighters took advantage of the NFZs, embedded themselves in the NFZs and began firing at the military forces from within the zones. Additionally, the LTTE allegedly held thousands of civilians and some UN aid workers hostage in the NFZs as human shields in order to deter the military from firing upon them, while they conducted their attacks.

Eventually, the GOSL declared victory on 19 May 2009, but allegations that tens of thousands of civilians were killed in the final phase of the war and that civilian property, such as local hospitals, were damaged have been used to support the argument that the government committed war crimes during this operation. However, the government contends that civilians and hospitals were never the intended target of their attacks, rather the SLA were returning fire against enemy targets embedded as they were amidst civilians and close to hospitals.

Discussion

On whether the LTTE’s attempts to immunize its military leadership and assets through the criminal act of hostage taking and the subsequent internment of civilians near areas of strategic importance constitutes the international crime of Human Shielding; the experts opined that there is evidence to suggest that the LTTE were firing artillery at the SLA from the NFZ from the very outset of its creation. The Bishop of Jaffna in a letter to the President on 25 January 2009, stated:

“We are also urgently requesting the Tamil Tigers not to station themselves among the people in the Safety Zone and fire their artillery shells and their rockets at the Army. This will only increase more and more the death of civilians thus endangering the safety of the people.

Monadic Court

“Throughout the final months of the Sri Lanka Conflict in 2009, it has been asserted that the LTTE kept up its attacks on the SLA from all NFZs that were set up by the government. This was allegedly done with the intent to immunize themselves from attacks by government security forces; the very same activity and intent which the Monadic Court found sufficient to constitute human shielding.

While a distinction may be drawn between the facts in Mladic, where the accused individuals were placing protected persons in strategic areas, and the instant case, where the LTTE were merely entering NFZs where civilians were already heavily concentrated, this distinction is not legally relevant. As Blaskic noted, Geneva Convention IV, stands for the premise that even the mere presence of protected persons cannot be used to render a military target immune from attack. In other words, a belligerent who hides within an area with high concentrations of civilians is committing the crime of Human Shielding even if the belligerent party is not ‘actively placing them into a location. Furthermore, there are numerous reports of LTTE holding UN personnel and their families hostage in the NFZs in order to prevent or make difficult any counter attack by the SLA; facts which are nearly identical to those which the Mladic Court relied upon in its determination of the sufficiency of the indictment against the defendants for the crime of Human Shielding.”

For all the aforementioned reasons, the LTTE’s activities as alleged, both in hostage taking and redeployment to the NFZs with the intent of immunizing its assets from attack – if true – would likely support LTTE liability for the crime of Human Shielding, they opined.

However, it is not clear as to why the Government of Sri Lanka remained unable to present these in its favour, if we were to believe the arguments of former President Rajapaksa.