KAMALIKA PIERIS

The War crimes’ charge, with its wild claims of excessive deaths needed international support. Therefore Eelamists pushed for ‘impartial’ reports on Eelam War IV (2006-2009).The result was four reports which discussed the war crimes of Eelam War IV.

They are

• Report of the Secretary-General’s Panel of Experts on Accountability in Sri   Lanka (Darusman  report), March 2011
• the Commission of Inquiry on Lessons Learnt and Reconciliation, (LLRC report) November 2011
• The Report on the second mandate of the Presidential Commission of Inquiry Into complaints of abductions and disappearances (Paranagama report) August 2015.
• Report of the OHCHR Investigation on Sri Lanka (OISL report) September 2015.

LLRC REPORT.

The Commission of Inquiry on Lessons Learnt and Reconciliation (LRRC) was appointed by  President Mahinda Rajapaksa in May 2010. The report was completed in November 2011, published in December 2011, and tabled in   Parliament.

The LLRC was composed of eight members. *C. R. De Silva, PC (chairman)  Attorney General (2007–09), Solicitor General (1999–2007). * A. Rohan Perera, PC  former legal advisor to the Ministry of Foreign Affairs and  Chairman of the United Nations Ad Hoc Committee on Comprehensive Convention on International Terrorism and member of the International Law Commission.* Karunaratne Hangawatte, Professor of Criminal Justice at the Department of Criminal Justice, University of Nevada, Las Vegas and former consultant to the United Nations[ *Chandirapal Chanmugam, Secretary to the Treasury (1987–88).*Manohari Ramanathan ,former Deputy Legal Draftsman and former member of the Monetary Board of Sri Lanka *Maxwell Paranagama, former High Court Judge *M. T. M. Bafiq, Senior Attorney at law and member of the Human Rights Commission of Sri Lanka. and *H. M. G. S. Palihakkara, former Secretary, Ministry of Foreign Affairs and former Permanent Representative to the United Nations 2008-2009.

The commission was asked to inquire and report on the following matters that may have taken place during the period between 21st February 2002 and 19th May 2009, namely;

• The facts and circumstances which led to the failure of the Ceasefire Agreement operationalized on 21st February 2002 and the sequence of events that followed thereafter up to the 19th of May 2009;
•  Whether any person, group or institution directly or indirectly bear responsibility in this regard;
• . The lessons we would learn from those events and their attendant concerns, in order to ensure that there will be no recurrence;
•  The methodology whereby restitution to pay persons affected by those events or their dependants or their heirs, can be effected;
•  The institutional, administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future, and to promote further national unity and reconciliation among communities and; to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of the Warrant.”

These terms of reference” call for comment. They imply that the Ceasefire Agreement, which created an embryo Eelam, was acceptable.   Also that the Government of Sri Lanka was wrong in waging war and must now pay reparation to the secessionists.  President Mahinda Rajapaksa should not have taken this position.  As President of Sri Lanka, he is expected to uphold the unity of the state.

The Eelam war was a  war of secession, between the legitimate government of Sri Lanka and a bogus ethnic group, (‘Ceylon Tamil’)   occupying a critical parcel of land (Trincomalee port, Pulmoddai sands, Mannar oil) and taking to arms with the support of a foreign country.  Such civil wars, based on international power politics have taken place in many countries. Eelam is part of this pattern.

Further, the Tamil demand for secession   was nothing new and the Eelam war should not have come as a surprise. The call for Eelam was made in the 1940s, soon after independence.  Tamil politicians created the Illankai Thamil Arasu Kadchi in 1949.” Illankai Thamil Arasu Kadchi” (ITAK) means ‘Tamil State Party of Sri Lanka ‘.

Therefore   in my view, the President should not have appointed the LLRC. Not only were the terms of reference faulty, but they were also too broad for one committee. The Commission did its best. It conducted hearings and issued a report of 388 pages.  The report was heavily criticized by the Tamil Separatist Movement and Sri Lanka does not   seem to have acted on it, either.

The International Crisis Group was one of the many NGOs that were highly critical of the LLRC report. The ICG is a   leading,   hyper- active, pro-Eelam NGO.

 ICG said, The LLRC’s conclusions are untenable for several reasons. First, it is obvious throughout the report that it considered only the materials the government chose to place before it. There was no independent assessment of the full scope of information in the government’s possession – including all communications with the UN, ICRC and sources in the conflict zone, as well as other evidence from government and international sources, such as uncensored satellite images and footage from the military’s unmanned drones. Similarly, the record before the LLRC is inadequate to draw conclusions ruling out unlawful attacks when there are thousands of witnesses who did not come forward, partly because of the lack of witness protection, and when there is no indication that the LLRC had physical access to the final war zone where most of the civilian casualties occurred. Those areas have been off limits to everyone but the military since the end of hostilities.”  (end of quote)

DARUSMAN REPORT.

The second, report, Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka   is known at the ‘Darusman report’ or ‘PoE report’. The panel consisted of Marzuki Darusman, (Chairman) former Attorney General of Indonesia, Yasmin Sooka, High court judge, South Africa and Steven R. Ratner, Professor of Law, University of Michigan.

This Panel was asked to advise the   UN  Secretary General on’ the modalities, applicable international standards and comparative experience  relevant to the  fulfillment of the joint commitment to an accountability process having regard to the nature and scope of the alleged violations’. The Panel focused on the period between September 2008 and May 2009 in the Eelam War IV as this was the final military offensive.

The Panel was appointed by UN Secretary General Ban Ki-Moon in June 2010.  The Panel started investigation in September 2010 and the report appeared in   September 2011. It is a voluminous report of nearly 200 pages, said analysts. About 80 pages are appendices and the text is around 120 pages. The most important section is p 20-51 where the Panel looks at allegations of war crimes and human rights violations.

As soon as he received the report, the Secretary General sent it  on to the UN Human Rights Council and the UN Office of the High Commissioner for Human Rights . There, the report hit a snag. The report had not been authorized by the UNHRC or any other UN body.  UNHRC therefore refused to recognize it as a UN document and    did not give it a UN document number. The Darusman Report does not carry a UN document number.

Sri Lanka had   told the Secretary General,    well before he appointed the Panel,   that such a Panel could only be appointed with the approval of either the UN Security Council, UN General Assembly or the UN Human rights Council. Secretary General   took no notice.

There is clearly a compelling motivation for the Secretary General of the UN to go to such an extent in violating UN regulations, observed Neville Ladduwahetty.  This step had been taken, perhaps with the planned intent to serve the agenda of the member states on whose behalf the Secretary General was acting. The Secretary General is not going to take this step without some motivation.

Secretary General initially said the Panel was set up only to advise him and that it was not an investigative or even a fact finding body. However, the way the Panel set about it, makes it clear that this was an investigation all right, said Chandraprema. Allegations against the government are,  that it killed civilians through wide spread shelling,  shelled hospitals and other civilians objects,  denied humanitarian assistance  and  did not look after IDPs when the war  ended.

The main purpose of this Panel report was to legitimize the submissions made to the Panel by interested parties, observed Ladduwahetty. This data would be the groundwork for the next phase. That phase is unlikely to be through the Security Council, because   some of its members will use the veto.  So they will probably go thought the Human Rights Council in Geneva, he concluded.

UN Secretary General sent a copy of the Report to Sri Lanka. The Government of Sri Lanka   rejected the report, saying it was fundamentally flawed. But the Tamil Separatist Movement loved this report. It contained all the data and utterances that the Tamil Separatist Movement needed.

The Darusman Report became the basis of the ‘war crimes’ dances performed by the Tamil Separatist Movement. Its contents have been quoted over and over again. They were used in reports, declarations,  statements and also in Channel Four documentaries. The Darusman Report quickly became part of the modus operandi of the Eelam project.

For my discussion on the Darusman Report. see https://www.lankaweb.com/news/items/2018/04/15/the-darusman-report-part-1/

http://www.lankaweb.com/news/items/2018/04/16/the-darusman-report-part-2/ (continued)