{"id":47819,"date":"2015-09-13T15:48:27","date_gmt":"2015-09-13T22:48:27","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=47819"},"modified":"2015-09-13T15:48:27","modified_gmt":"2015-09-13T22:48:27","slug":"the-ohchr-investigation-some-predictions","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2015\/09\/13\/the-ohchr-investigation-some-predictions\/","title":{"rendered":"THE OHCHR INVESTIGATION:\u00a0 SOME PREDICTIONS"},"content":{"rendered":"

DHARSHAN WEERASEKERA<\/em><\/span><\/h2>\n

The report of the OHCHR- investigation is to be discussed by the Human Rights Council\u00a0on 30th September, and also to be released to the public before that.\u00a0 It is possible to\u00a0predict what will be in it, because of the recent proposal by the United States, the chief-sponsor of the investigation, to introduce a \u2018collaborative resolution\u2019 with the\u00a0Government agreeing to a domestic inquiry.<\/p>\n

In my view, the proposal for a new domestic inquiry is a trap, far more dangerous than\u00a0anything hitherto sprung on Sri Lanka in Geneva.\u00a0 It is designed to pave the way for a\u00a0\u2018fishing expedition\u2019 that will generate evidence to be used against this country at\u00a0international venues, evidence that could not be generated by the present investigation.<\/p>\n

In this article, I make two predictions about the upcoming report, explain the reason for\u00a0the demand for a new domestic inquiry, and suggest some counter-measures.<\/p>\n

a)\u00a0 Predictions<\/strong><\/p>\n

The Report of the Secretary General\u2019s Panel of Experts on Accountability in Sri Lanka\u00a0(POE) released in 2011 set out three charges against the Government with respect to\u00a0alleged violations of humanitarian law:\u00a0 indiscriminate shelling, shelling of hospitals, and\u00a0depriving civilians trapped in the conflict-zone of humanitarian assistance.\u00a0 (POE, Pages\u00a055-60.)<\/p>\n

In February-2014, however, just two weeks before the Human Rights Council\u2019s March-\u00a02014 sessions, then High Commissioner for Human Rights, Navineethan Pillay, released\u00a0a report where she introduced a new charge against the Government:\u00a0 Deliberate\u00a0killings.\u201d<\/p>\n

(Under international law, \u2018Indiscriminate Killings\u2019 and \u2018Deliberate Killings\u2019 are separate\u00a0crimes, the first is where an attacker does not discriminate between civilian and military\u00a0objects, and the second where an attacker deliberately targets civilians.)<\/p>\n

The High Commissioner\u2019s report had a section titled, \u2018Emblematic cases,\u2019 where she\u00a0cited incidents such as the purported killing of Prabakarn\u2019s son, the purported killing of\u00a0LTTE \u2018reporter\u2019 Isaipriya, the White Flag\u2019 incident, and so on.\u00a0 Her primary source of\u00a0evidence for these allegations was the Channel 4 videos.<\/p>\n

To turn to the upcoming report, I predict the following:\u00a0 with respect to the three older\u00a0charges, the report will say there\u2019s insufficient evidence to come to any definitive\u00a0conclusions on any of them.\u00a0 With respect to \u2018Deliberate killings,\u2019 the report will say\u00a0there\u2019s sufficient evidence to warrant trials against certain individuals.<\/p>\n

In short, where the main thrust of the case for war crimes right up to March-2014 came\u00a0from the three charges related to indiscriminate shelling, shelling of hospitals and denial\u00a0of humanitarian assistance, from the upcoming report onwards, the main thrust of the\u00a0case against Sri Lanka will be \u2018Deliberate Killings.\u2019<\/p>\n

b) The reason for the demand for a new domestic inquiry<\/strong><\/p>\n

To understand the reason that the U.S. and other critics of Sri Lanka are calling for a new\u00a0domestic inquiry, it is necessary to understand two things:\u00a0 first, the legal grounds on\u00a0which a case for war crimes can be made against the Government of a country, and\u00a0second, the problem the U.S. and other critics of Sri Lanka have at present in establishing\u00a0those grounds using the findings of the present report.<\/p>\n

The only way to make a case for war crimes against the Government of a country\u2014as\u00a0opposed to individual soldiers who may be responsible for offences\u2014is to make a case\u00a0for \u2018Command Responsibility.\u2019 There are only two ways to do this:<\/p>\n

One, show that persons high-up in the chain of command ordered the crimes in questions;<\/p>\n

or two, that there were so many crimes that it was simply impossible for the higher-ups\u00a0not to know of them, and, since they didn\u2019t do anything to prevent the crimes in question,\u00a0they are responsible for them.<\/p>\n

The second principle mentioned above was established in a famous case, Yamashita v.\u00a0Styer (1946),\u00a0 and is called the Yamashita Doctrine.\u00a0 In my view, this Yamashita Doctrine\u00a0will become very important to Sri Lanka in the coming weeks and months, so it is worth\u00a0digressing a moment to discuss the related case.\u00a0 The facts and ruling in the case are as\u00a0follows.<\/p>\n

Tomoyuki Yamashita was the commander of Japanese forces in the Philippines during\u00a0the Second World War.\u00a0 He surrendered to the Americans at the end of the war, and was\u00a0put on trial for war crimes.\u00a0 The military tribunal that heard the case found him guilty,\u00a0and sentenced him to death.\u00a0 He appealed against this ruling to the U. S. Supreme Court.<\/p>\n

His defence was that, although it was true that atrocities were committed by Japanese\u00a0troops in various parts of the Philippines, at the time those atrocities were taking place,\u00a0his lines of communication with the troops had been destroyed.\u00a0 Therefore, he never\u00a0ordered those troops to carry out any of the related atrocities, which means he cannot be\u00a0held responsible for them.<\/p>\n

The court did not buy this argument.\u00a0 The court said that there was a duty on a\u00a0commander to ensure that no atrocities were committed, and if he neglected that duty, he\u00a0can be held personally responsible as if he ordered the acts himself.<\/p>\n

The court said, inter alia:<\/p>\n

\u2018It is urged that the charge does not allege that the petitioner either committed or directed\u00a0the commission of such acts, and consequently that no violation is charged as against\u00a0him.\u00a0 But this overlooks the fact that the gist of the charge is an unlawful breach of duty\u00a0by petitioner as an army commander to control the operations of the members of his\u00a0command by \u2018permitting them to commit\u2019 the extensive and widespread atrocities\u00a0specified\u2026<\/p>\n

The question is whether the law of war imposes on a commander a duty to take such\u00a0appropriate measures as are within his power to control the troops under his command for\u00a0prevention of the specified acts which are violations of the law of war and which are\u00a0likely to attend the occupation of hostile territory by an uncontrolled soldiery, and\u00a0whether he may be charged with personal responsibility for his failure to take such\u00a0measures where violations result.\u2019\u00a0 (Yamashita v. Styer, 327 U.S. 1(1946))<\/p>\n

To make a long story short, I think the U. S. and other critics of Sri Lanka are planning\u00a0on arguing that a case for \u2018deliberate killings\u2019 can be made against the Government,\u00a0because, one, there were so many such killings, and two, even if commanders did not\u00a0directly sanction the killings, the fact they didn\u2019t do anything to prevent them, makes the\u00a0commanders liable under the Yamashita Doctrine above.<\/p>\n

I shall now turn to the problem that the critics are facing at present.\u00a0 In my view, the chief\u00a0problem the critics are facing at present is that the upcoming report, if subjected to a\u00a0proper assessment and evaluation, does not establish to any reasonable degree of\u00a0certainty that a vast amount of deliberate killings took place.<\/p>\n

(I suspect that the evidence the report has relied on to suggest that a vast amount of\u00a0deliberate killings took place comes from sources such as the Channel 4 videos, the\u00a0testimony of witnesses who have come forward after many years, hearsay, and so on, all\u00a0of which can be challenged relatively easily in a court of law.)<\/p>\n

The upcoming report is the sole official report produced by the Human Rights Council\u00a0with regard to violations of human rights law and humanitarian law allegedly committed\u00a0by the Government during the last phases of the war.\u00a0 If such a report cannot establish\u00a0that the alleged violations took place, then the international community has no right to\u00a0continue making accusations against Sri Lanka, and the whole issue must end here.<\/p>\n

So, the problem the critics are facing at present is this: one, to ensure that the upcoming\u00a0report is not subjected to a thorough assessment and evaluation by members of the public\u00a0or by independent experts, and two, to put in place a mechanism that will allow them to\u00a0continue the \u2018accountability\u2019 campaign against Sri Lanka, even if, in the future, the report\u00a0is released, and members of the public discover that in fact it fails to establish a credible\u00a0case with respect to any of the related allegations.<\/p>\n

The critics have accomplished the first of the tasks above by not releasing the report to\u00a0the public even at this late date, though the Human Rights Sessions are set to begin on the\u00a015th of September.\u00a0 They plan on accomplishing the second, through the proposed\u00a0\u2018collaborative resolution,\u2019 where the Government will agree to a domestic inquiry.<\/p>\n

For instance, once the domestic inquiry gets underway, it will dig up information about\u00a0purported \u2018Deliberate killings\u2019 independently of the information dug up (or generated) by\u00a0the OHCHR\u00a0 investigation.\u00a0 The critics are then in a position to call for international\u00a0tribunals by citing the new information.\u00a0 In short, they can continue the \u2018accountability\u2019\u00a0campaign against Sri Lanka indefinitely, without being handicapped by the conclusions\u00a0of the upcoming report, where those conclusions are inimical to their goals.<\/p>\n

c) Counter-measures<\/strong><\/p>\n

If the Government becomes party to a \u2018collaborative resolution\u2019 and agrees to launch a\u00a0domestic inquiry, the options for challenging the inquiry in the domestic courts diminish\u00a0considerably.\u00a0 This is because the Government will claim that it has a new mandate from\u00a0the Human Rights Council to look into the related allegations.\u00a0 Nevertheless, I believe\u00a0challenges can, and must, be made.<\/p>\n

I think the immediate need is to convince the Human Rights Council not to endorse a\u00a0collaborative resolution\u2019 or any other measure against Sri Lanka until the citizens of this\u00a0country have had a chance to read and reflect on the upcoming report, and, at a minimum,\u00a0to postpone any decision on Sri Lanka until the Council\u2019s March-2015 sessions.<\/p>\n

To that end, I suggest the following three measures:<\/p>\n

a) Inform individual Members of the Human Rights Council who opposed the\u00a0investigation in March-2014, that the citizens of Sri Lanka have not had a chance\u00a0to read and reflect on the upcoming report, which is a gross injustice and a\u00a0violation of their human rights, and to consider urging the Council to postpone\u00a0any measures on Sri Lanka until at least the next sessions.<\/p>\n

b) Petition the President of the U.N, General Assembly, acquainting him with the\u00a0matters mentioned in the paragraph above, and asking him to initiate a \u00a0iscussion\u00a0on those matters at the General Assembly.<\/p>\n

c) Petition the Sri Lanka Human Rights Commission to urge the Government not to\u00a0pursue any \u2018collaborative resolutions\u2019 at the Human Rights Council until the\u00a0citizens of the country have had a chance to read the upcoming report, and to\u00a0properly assess and evaluate it.<\/p>\n

 <\/p>\n

Dharshan Weerasekera is an Attorney-at-Law.\u00a0 He is the author of two books:\u00a0 The UN\u2019s\u00a0Relentless Pursuit of Sri Lanka (2013), and The UN\u2019s Subversion of International Law:\u00a0The Sri Lanka Story (2015)<\/em><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

DHARSHAN WEERASEKERA The report of the OHCHR- investigation is to be discussed by the Human Rights Council\u00a0on 30th September, and also to be released to the public before that.\u00a0 It is possible to\u00a0predict what will be in it, because of the recent proposal by the United States, the chief-sponsor of the investigation, to introduce a […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-47819","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/47819","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=47819"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/47819\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=47819"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=47819"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=47819"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}