KAMALIKA PIERIS

Revised 17.3.19

The Darusman Report has been widely criticized in Sri Lanka.  The government of Sri Lanka said that the Report was characterized by fundamental deficiencies, inherent prejudices, and malicious intentions” and that it was legally, morally, and substantively flawed”. United National Party (UNP), then in opposition, also rejected the findings of the Report noting that it was an unwarranted interference”.

Darusman report was not prepared on the directions of the UN, or the Security Council. It is not a UN report nor does it bear the stamp for the UN,  said Gomin Dayasiri.  The Darusman Report cannot be called a UN report at all, said G.L.Pieris. It is a report compiled on the private initiative by the UN Secretary General and has no connection with the UN.

The Secretary General exceeded his powers when he appointed the Darusman Panel, said Neville Ladduwahetty. The UN Charter (article 100) says. “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”.

This means that the Secretary General      can only seek advice from those within the United Nations Organization. He is specifically barred from seeking advice from anyone outside the organization. The Darusman panelists do not come from within the UN. Their appointment is a violation of the UN Charter. The legitimacy of the Panel can be challenged on those grounds.

The members of the Panel were not impartial. Two are openly anti Sri Lanka. Third is financially dependent on the European Union, said Durand Appuhamy. Darusman is disqualified from sitting because he was involved in the IIGEP and withdrew from the committee, said Gomin Dayasri.

Yasmin Sooka, it later emerged, had links with the Tamil separatist movement. She addressed a Global Tamil Forum meeting in London in 2013. Then she wrote ‘Unfinished War: Torture and Sexual Violence in Sri Lanka 2009-2014’ (Sooka Report’), to influence the Human Rights Council in its Sri Lanka resolution of March 2014.

However, analysts observed that the Secretary General would not have taken this step on his own. He has been instructed to do this. He is serving the agenda of certain member states and acting on their behalf. Moon never thought of asking for a report during LTTE rule, where there were atrocities committed by the LTTE, observed Gomin Dayasiri. Critics point out that the UN Charter says, “Each Member of the United Nations undertakes 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 Panel said it was not an investigative or even a fact finding body. The Panel was set up only to advice. However, the Panel’s statements and the way they set about it, makes it clear that this was an investigation, said Chandraprema.  The Darusman Report will help those who wish to destabilize the country, said G.L.Pieris.

The Darusman Panel has been set up with an ulterior motive, said Gomin Dayasiri. This Report is part of a mission to discredit Sri Lanka. There is an underlying pattern to this whole exercise.  One aim of the report was to legitimize the submissions made by interested parties.  The Report focuses mainly on accountability, and its main criticism is that the Sri Lanka army killed civilians through widespread shelling. This would serve as the groundwork for the next phase,  which will be carried out by Human Rights Council in Geneva, not Security Council, because some of the Security Council members will not support it.

The Darusman Panel said it was appointed because of the joint statement by the Sri Lanka President and the UN Secretary General in 2009. Ladduwahetty pointed out that according to the joint statement; it is the government of Sri Lanka that will do the accountability, not the UN. The joint statement said, ‘The Secretary-General underlines 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”. Ladduwahetty added that if Sri Lanka had known that the UN Secretary General was going to poke his nose in, no joint statement would have been issued. ‘No government will agree to such a thing’.

The Panel focused on the period between September 2008 and May 2009. Panel was not allowed to come to Sri Lanka .However it was able to gather plenty of material from outside Sri Lanka, from persons, institutions and NGOs. The Panel met with persons affected by the war and also consulted those with experience on the subject including journalists and diplomats  The Panel issued an invitation for written submission and received over 4000 from more than 2300 senders. A significant number contained allegations of violations of human rights. The Panel also received lists of incidents and victims as well as photographs and videos.

The Panel admitted that there was difficulty in finding reliable material. Due to the scarcity of objective reporting it was difficult to determine precisely what happened in the final military assault.  The Panel then devised a solution. Panel would determine an allegation to be credible if there was reasonable basis to believe that the act or event occurred. Allegations would also be considered credible when based on primary reports which the panel deemed relevant and trustworthy. (sic)

There has been heavy criticism of the contents of the Report. The Darusman report is flawed in terms of method and content said G.L.Pieris. There is a clear bias. The panel have openly stated that they have given priority to the rights and needs of the victims.    there is no mention of LTTE killings. The Report deals only with the army and the civilians.

Durand Appuhamy noted that the report is full of general allegations against the security forces, none of which are proved.  The number of civilians killed is quoted in round numbers. This alone is evidence that nobody counted them. The mass escape of Tamils to the government territory is evidence that the government did not operate a policy of shooting down civilians. Army took risks to save them, concluded Durand Appuhamy.

Some of the findings are unacceptably vague. E.g. that some women ‘may have been’ raped. Some observations are made without any proof. e.g. The Government sought to intimidate and silence the media and other critics of the war through a variety of threats and actions, including the use of white vans to abduct and to make people disappear.”

The data used by the Panel can be questioned by any sensible person. For instance, the Report is full of photographs of dead persons. They all carry the same caption, ‘Submission by photographer’. There is no authentication, no independent verification of place and time. The photograph   of ‘civilian deaths in second NFZ in May 2009”on p 35   can be from anywhere.

The Panel has used the two highly controversial Channel 4 films   about the war, uttering nonsensical observations  such as  in a photo taken before execution the prisoner is clearly terrified’, also young boy tied to a tree and covered in blood’  and ‘prisoners  naked and blindfolded , made to cower in the mud before shot in the head’   The Panel has taken public domain satellite imagery from UNOSAT,  looked at the positions of the government artillery  and  concluded that the army had fired at the hospitals.

The Darusman Report has been supported by interested parties. They have been responsible for some at least, of the 4,000 submissions the Panel has received. Shamindra Ferdinando has commented on this. Having been jolted by the discouraging response, Diaspora and various other interested parties sought to inspire Tamils to make submissions. They worked overtime to achieve their objective, said Shamindra.

Having accused Sri Lanka of indiscriminately killing, the PoE struggled to gather evidence. The PoE, based at the UN Secretariat (Library Building L-330 L) New York, found it extremely difficult to gather a substantial number of complaints/submissions, in respect of accusations, before the expiry of Dec 15, 2010, deadline. The PoE posted a high profile notice on UN’s website, on Oct 27, 2010, seeking evidence against the Sri Lankan political leadership and the armed forces. The UN posting was accessible to the entire world, including those living in the Northern and Eastern regions of Sri Lanka. .Much to the disappointment of the PoE, the UN didn’t receive the expected response. .

The Center for War Victims and Human Rights, (CWVHR) a Canada based organization, spearheaded the effort by making a public appeal for submissions. The Center provided 25 sample letters, available online, for the writers to choose from, in case they could not write on their own.  Shamindra gives one of the sample letters.

The sample letter says

Justice delayed itself considered justice denied and it is necessary to reaffirm the international community’s commitment to the principle of accountability on serious violations of international humanitarian law in Sri Lanka. Arundhati Roy who  won the Booker Prize in 1997 for her novel, ‘The God of Small Things’ and Cultural Freedom Prize, awarded by the Lannan Foundation in 2002 For her work as an activist, mentioned that last year’s war was not just a war of the Sri Lankans against the Tamil people. She has also voiced her opposition openly on many occasions, condemning India’s silence on the humanitarian tragedy in Sri Lanka, and calling the war “a racist war on Tamils”. This should be considered as ‘war crimes’, ‘crimes against humanity’ and ‘genocide’ against Tamil citizens of Sri Lanka and impartially investigated by the independent international body and bring justice to the victims, as justice delayed is considered justice denied” (  the letter is much longer, I have edited it.)

These 25 samples were made available on line to the Diaspora as the Dec 31, 2010 deadline for the closure of submissions neared. The initial deadline was set for Dec. 15, 2010, but extended by two more weeks due to the poor response. The Centre also urged those interested in joining the campaign to fill an online petition. None of those who had submitted online complaints were summoned by the Panel for examinations, said Shamindra.

The Centre  was also going to hold a Panel Discussion on” Submission to UN Panel of Experts with regard to alleged violations of International Human Rights and Humanitarian Law during the final stages of the conflict in Sri Lanka.” It was to be held on Saturday, November 6^th 2010 from   10.00 am to 12.00 pm Venue   Scarborough Civic Centre (Canada) – Committee Room A.

The leaflet   said ’We will have Human Rights Experts, Activists and  Scholars on Humanitarian Law, and Rev. Dr. S.J Emmanuel, President of GTF in the Panel, who will advise us as to the following. How could we make our Submissions? What format we should follow? What kind of Conventions and Articles we should refer to? What kind of Strategy we should adopt in making the submissions? Ways of finding evidence and how to encourage others to participate in this exercise? And many more questions and answers. Our Submissions should be sent to UN Panel before 15^th of December. Sri Lankan Tamils were urged to pressure the UN, even if they hadn’t been directly affected by the conflict and atrocities committed by GoSL forces and its leaders.

Unfortunately, however, these letters and the rest of the data used by the Panel will not be available for checking. On the advice of the UN Office of Legal Affairs, the Panel has made use of the Secretary General’s Bulletin titled ‘Information sensitivity, classification and handling” (ST/SGB/2007/6). This makes provision for classifying documents as ‘strictly confidential’ and placing them in closed access for 20 years. Even after the mandatory 20 years, further retention or release would be subjected to a declassification review. The Darusman Panel stated, to the scorn of its readers, that nearly all of the Panel records will be labeled ‘strictly confidential’ and locked up for the next 20 years. (Continued)