KAMALIKA PIERIS

 

The OISL Report’ is a report on Sri Lanka  prepared by a special investigation team within the UN Office of the High Commissioner for Human Rights (OHCHR). The acronym OISL means ‘OHCHR Investigation on Sri Lanka.’ The purpose of the OISL report  was to pave the way for UN resolution 30/1 on Sri Lanka in 2015.  An internal report conducted by UN staff was necessary if the UN was to push charges against Sri Lanka.

The Investigation started in 2014 and the report was submitted in 2015 in time for the review of Sri Lanka at the HRC in September 2015. The period investigated was from February 2002 to November 2011,

The investigation was based on HCR Resolution 25/1 of 2014, where the Human Rights Council requested the Office of the High Commissioner for Human Rights to undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes during the period covered by the LLRC, to establish the facts and circumstances of   such alleged violations and of the crimes perpetrated and, lastly, to hold perpetrators accountable.”

The request for a comprehensive investigation, it appears, was due to increasing international and national concerns about the absence of a credible national process of accountability to address the extensive atrocities, including allegations of war crimes and crimes against humanity, allegedly committed towards the end of the conflict in 2009”.

The OCHRC appointed Martti Ahtisaari, former President of Finland, Dame Silvia Cartwright, former High Court Judge of New Zealand, and Ms. Asma  Jahangir, former President of the Human Rights Commission of Pakistan were appointed  as ‘experts’ to provide a  supportive and advisory role in  the investigation. Special Procedures mandate holders of the HRC were ‘invited’ to assist and they formed a committee to liaise with OISL team. UN special rapporteurs on extrajudicial and arbitrary killing, torture, and enforced disappearances would also be consulted.

The OISL report is an internal report of the UNHRC. The investigation was conducted by a special seven member HRC staff team, who are not named. The seven consisted of three human rights investigators, one legal advisor, a senior coordinator, an administrator and a Sinhala and Tamil translator, said DBS Jeyaraj.  The investigators will travel to Sri Lanka, if access is granted, and also North America, Europe, and the Asia Pacific region to gather evidence and witness testimony, he said.

Sandra Beidas was appointed senior coordinator of the investigation team. She would be in charge of all administrative aspects of the probe on Sri Lanka. She was a senior official of the OCHRC   who had worked earlier with Amnesty International.

Beidas was head of the UNHRC office at Somalia. She  was expelled in 2011 by the Somali government .   Beidas then became head of HRC office in South Sudan. She was expelled from South Sudan also, in 2012 for allegedly conducting an unethical probe into human rights violations in the country. She was given 48 hours to leave the country . A mass petition signed by thousands, supporting Beidas was submitted to the authorities. They said her findings matched those of Amnesty International. OCHRC wanted her expulsion revoked.

Government of Sri Lanka objected to Beidas appointment for the Sri Lanka investigation. But human rights activists in Sri Lanka welcomed the decision saying Ms. Beidas was the ideal choice, possessing unimpeachable integrity, objectivity, and efficiency”

There is nothing in this Report to indicate that this team looked anew at the   issues. They do not seem to have elicited new evidence or new testimonies. They have clung to the existing reports and the evidence contained in them,

In view of the extensive documentation already available on the period covered by the OISL investigation, the team initially carried out a desk review of existing material, including Government publications, international and Sri Lankan Non-Governmental Organization (NGO)/civil society reports, the report of LLRC and other commissions, audio-visual material and satellite images, reports of the United Nations Special Procedures and treaty bodies.”

OISL reviewed publicly available written and oral statements given by Government officials to the Human Rights Council, the Human Rights Committee and other United Nations mechanisms, transcripts of Government and military officials to the LLRC, public Government reports such as the Humanitarian Operation Factual Analysis July 2006- March 2009” and Sri Lanka’s Humanitarian Effort”, as well as official Government websites. OISL also received subsequently a number of previously unpublished official documents, which it assesses to be authentic. UNOSAT provided invaluable analysis on satellite imagery.

A public call for submissions    resulted in 1,985 submissions. OISL also received a number of detailed written testimonies from ‘other credible sources.’ The team conducted face-to-face interviews, whenever this was possible, or otherwise through audio-video communication. However, the team was not given access to Sri Lanka and did not carry out direct interviews with individuals inside Sri Lanka. The alleged violations and abuses had occurred more than three years and, in some cases, up to 12 years ago, making investigation difficult.

The OISL’s witness statements and other confidential material, like the Darusman material, are also locked up as strictly confidential. Details which could reveal the identity of victims or witnesses such as names, dates and places have been omitted in many cases described in the report in order to ensure that the victims, witnesses and their families cannot be identified.

The OISL team was given extensive access to the documentation of the Sri Lanka Monitoring Mission (SLMM), which was present in Sri Lanka (2002-2007) to monitor the implementation of the 2002 Ceasefire Agreement. The SLMM did not collect human rights information, but their documentation included incidents which could be considered human rights violations or abuses, including conflict- related unlawful killings and abductions.

The OISL team latched   on to the Darusman Report, like a limpet. Darusman report was considered ineligible for UN action since it was not prepared by UN staff. That is how OISL came into being. ‘OISL’ was replacing ‘Darusman.’  OISL team met the three members of the Darusman Panel and had discussions with them.

OISL were given access to the evidence used by this Panel which is at present under the custody of the UN and kept sealed from public view for     25 years. These documents served as an important resource for identifying leads to incidents said OISL team. They could only follow up a limited number of the individual submissions held in this collection. This does not, however, lessen the value of the submissions, which will remain recorded in OISL confidential archives, said the team loyally.

The OISL repeats the Darusman findings, parrot like, in the same sensational way. During the last phases of the armed conflict, the intense shelling by the armed forces caused great suffering and loss of life among the civilian population in the Vanni. Witnesses gave harrowing descriptions to OISL of the carnage, bloodshed and psychological trauma of bombardments in which entire families were killed. Lack of food, water and medical treatment…”

OISL team complained that the greatest obstacle to OISL work was the absence of cooperation and undermining of the investigation by the government of Sri Lanka, then under Mahinda Rajapaksa. The government of Sri Lanka refused permission for the OISL team to come into Sri Lanka and totally rejected the investigation. They refused to cooperate or respond to letters from the OCHCR. Permanent Representative of Sri Lanka to the United Nations in Geneva refused to meet with OISL coordinator Beidas   or Dame Silvia Cartwright.

The government questioned the team’s objectivity, professionalism and integrity. The Government issued several press statements, called three meetings with Colombo-based diplomats, and issued two demarches through the United Nations Resident Coordinator in Colombo, accusing OHCHR of a series of grave inconsistencies and contradictions which call into question the honesty, integrity and appalling levels of unprofessionalism of the OHCHR”. These allegations centred on procedural issues.  High Commissioner for Human Rights issued a press statement urging the Government to focus on the substantive issues under investigation instead of obscuring them by the constant questioning of procedures”

The Yahapalana government which took office in January 2015 showed encouraging signs of cooperation and engagement with OHCHR, said the report. There were a number of exchanges between the High Commissioner and the Foreign Minister, Mangala Samaraweera. However, the new Government did not cooperate directly with OISL, its position on access to the country did not change, and it did not respond officially to a letter sent on 15 March reiterating a request for information.

OISL was tasked with carrying out a comprehensive investigation into human rights violations and related crimes that occurred between 2002 and 2011. To do so in such a short time, given the extent of the violations, the amount of available information, as well as the constraints to the investigation, posed enormous challenges, said the report.

OISL said that its mandate was to carry out a human rights investigation, not a criminal investigation. Therefore OISL has based its findings on the standard of reasonable grounds to believe”. Where the information gathered was sufficiently credible and corroborated there are reasonable grounds to believe” those violations, some of which may amount to crimes, did occur, concluded the Report. Critics observed that ‘reasonable grounds to believe” is considered the lowest form of proof.

Now let us look at what the OISL report is really trying to do .OISL report says it is a ‘human rights investigation’ not a criminal one, but its findings are directed towards a war crimes investigation against the Sri Lanka army. The report openly advocates hybrid special courts and foreign judges for the investigation as well.

The OISL report is not an impartial report. . The intention of the OISL report is very clear. Here are some quotations:

there are reasonable grounds to believe that gross violations of international human rights law,  and serious violations of international humanitarian law were committed  and  if established before a court of law, many of these allegations would amount,  to war crimes and/or crimes against humanity.  

On the basis of the information obtained by OISL, there are reasonable grounds to believe the Sri Lankan security forces and paramilitary groups associated with them were implicated in unlawful killings carried out in a widespread manner against civilians and other protected persons during the period covered by OISL’s report”

These patterns of conduct consisted of multiple incidents which occurred over time. They usually required considerable resources, coordination, planning, and organization, and were usually executed by a number of perpetrators within a hierarchical command structure. Such systemic acts, if established in a court of law, may constitute war crimes and crimes against humanity, and give rise to individual criminal responsibility.” This is about system crimes.

The Report went on to say that the army attacked the NFZs, though there was absolutely no reason to do so. They used powerful weapons like Multi-Barrelled Rocket Launchers which are area weapons, not designed for hitting a point target, instead of more suitable weapons. There was repeated shelling of hospitals in Vanni. Also that the government denied food; drink and medicine to those in LTTE controlled areas. Here are more quotations”

Counting or estimating the exact number of civilian casualties during the different stages of the armed conflict is impossible but on the basis of the information compiled by OISL, there is no doubt that thousands, and likely tens of thousands, lost their lives”

More than 250,000 found themselves deprived of liberty in military-run closed IDP camps for months. Once released from the IDP internment camps, they still risked further abuses, such as surveillance, detention, torture and ill-treatment and sexual violence. Former LTTE cadres and others are believed to have been secretly executed after handing themselves over to the Sri Lanka army.”

During the course of its investigation, OISL reviewed reliable information on hundreds of cases of enforced disappearances that occurred within the period of its mandate in various parts of the country, with particular prevalence in the Northern and Eastern Provinces. Furthermore, the mass detention regime after the end of hostilities also led to enforced disappearances, and relatives continue to be unaware of the whereabouts of the detainees.

OISL documented long-standing patterns of arbitrary arrest and detention by Government security forces, as well as abductions by paramilitary organizations,”

‘Detainees were held for long periods under Emergency Regulations or the PTA, usually not informed of the specific reasons for their detention, and not presented with any charges. Only in very few of the documented cases were they brought before a judge and granted the opportunity to challenge the legality of their detention. They did not have access to legal counsel, and were often held incommunicado, without access to the outside world. In some cases, even some of the limited guarantees of the PTA and Emergency Regulations were allegedly breached. 2011”

The Federation of National Organizations, in association with the Global Sri Lanka Forum, observed that there has been no proper evaluation of the facts given in OISL report. Instead, Yahapalana government and also the UN HRC had accepted and endorsed without reservation the conclusions and recommendations of the report”.

Therefore, in 2017, the Federation asked lawyer Darshan Weerasekera to provide a proper legal evaluation of the OISL report. Dharshan Weerasekera   obliged but said that the time given to him was insufficient for a full report.  However, in his ‘short report’ Weerasekera managed to rip the contents of the Report to shreds .His analysis is too detailed and too technical to be recorded here. It can be   read at  http://globalsrilankanforum.org/oisl-rebuttal  also  at   Lankaweb and Sinhalanet.

Weerasekera said that, the evidence in the OISL report is seriously flawed, characterized among other things by contradictions, omissions, lies, obfuscations and half-truths, and also lacking in any consideration of exculpatory evidence, the cumulative effect of which is that the report fails to establish its primary claim, namely, that the State (i.e. the military as well as civilian leaders who oversaw the conduct of the war, and thereby the armed forces collectively ,as contra-distinguished from individual soldiers) is responsible for war crimes and other serious crimes allegedly committed during the relevant period.

Weerasekera said that  the OISL team has failed miserably, to establish that the government of Sri Lanka was guilty of the any of the charges that the team levels against it.. He wanted the Federation of National Organizations and its affiliates to ask for official assessments of the OISL report from the government of Sri Lanka and also the UNHRC.

Weerasekera then went on to  a very, very  important issue. An issue  that should have been queried and  settled  as soon as the UNHRC  resolutions against Sri Lanka started to emerge. What is the true  scope of the UNHRC and what are its limits? Weerasekera points out that the UNHRC functions under two controlling documents, one is the UN Charter and the other is Resolution /60/251 of 2006 which created the UNHRC,

UN Charter  says the UN must always respect the sovereignty, territorial integrity and domestic jurisdiction of member state of the UN. Resolution 60/251  says there must be impartiality, objectivity, non-selectivity, constructive international dialogue and cooperation  in whatever work the UNHRC  engages in.

Weerasekera points out that when UNHRC accepted the OISL report,   and then used it to support Sri Lanka resolution A/HRC/30/L.29, without debate or discussion, it violated both the UN Charter and Resolution 60/251. This is a serious matter said Weerasekera and the UN must be asked to intervene. If there is  clear evidence that the UNHRC and the OHCHR, two subsidiary organs of the UN, are behaving in an unfair, unjust and inequitable way  towards a member state of the UN, then  it is a  very serious violation of the UN Charter and the UN  General Assembly must take action, said Weerasekera.

The Federation of National Organizations and its affiliates must now  take immediate action to inform the UN General Assembly of what has been taking place at the UNHRC and compel the UNGA to assign a Special Rapporteur to investigate the entire matter. Also, to impose a moratorium on the UNHRC from pursuing any further measures  relating to the resolution A/HRC/30/L.29, on Sri Lanka , until such investigation is complete, concluded Weerasekera. [1]

 

[1] A Factual Appraisal of the OISL Report:  A Rebuttal to the Allegations Against the Armed Forces

Commissioned by – The Federation of National Organizations   Sponsored by – The Global Sri Lanka Forum

Author: Dharshan Weerasekera 2017.