{"id":56063,"date":"2016-06-27T23:01:23","date_gmt":"2016-06-28T05:01:23","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=56063"},"modified":"2016-06-27T15:55:18","modified_gmt":"2016-06-27T22:55:18","slug":"the-patriotic-national-movement-writes-to-icj-to-delay-unhrc-hearing","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/06\/27\/the-patriotic-national-movement-writes-to-icj-to-delay-unhrc-hearing\/","title":{"rendered":"The Patriotic National Movement writes to ICJ to delay UNHRC Hearing"},"content":{"rendered":"

Dr. Wasantha Bandara\u00a0Secretary\u00a0Patriotic National Movement (PNM) \u00a0Nawala, Sri Lanka<\/em><\/span><\/h2>\n

26th<\/sup> June 2016<\/p>\n

Hon. Ronny Abraham
\nPresident of the International Court of Justice
\nInternational Court of Justice
\nPeace Palace, Carnegieplein 2
\n2517 KJ, The Hague,
\nThe Netherlands<\/p>\n

Dear Sir,<\/p>\n

We are an Organization of Sri Lankans dedicated to protecting the sovereignty and territorial integrity of our country.\u00a0 Dr. Gunadasa Amarasekara, the well-known Sri Lankan novelist and commentator on national issues, is the President of this Organization.\u00a0 He has filed a fundamental rights application in the Supreme Court of Sri Lanka, which has implications to discussions of Sri Lanka that are about to take place at the 32nd<\/sup> Session of the United Nations Human Rights Council.<\/p>\n

We fear that decisions regarding Sri Lanka, in particular with respect to initiating special prosecutorial and\/or judicial mechanisms to pursue war crimes allegations made in a report of the United Nations High Commissioner for Human Rights, will be made at the said 32nd<\/sup> Session, and are writing to request you to take whatever actions may be necessary to prevent such decisions being made until the concerns raised by Dr. Amarasekara have had the necessary hearing.<\/p>\n

The facts are briefly as follows.\u00a0 In March-2014, the UNHRC adopted resolution A\/HRC\/25\/L.1 which authorized a comprehensive investigation inter alia<\/em> into war crimes allegedly committed during the last phase of the war, to be carried out by the Office of the United Nations High Commissioner for Human Rights.<\/p>\n

On 16th<\/sup> September 2015, the OHCHR released the final report of the said investigation (OISL report) to the public.\u00a0 It concluded that the State (as opposed to individual soldiers) committed war crimes, and recommended that special prosecutorial and\/or judicial mechanisms be set up to try certain of Sri Lanka\u2019s war time leaders, both civilian and military, who were in overall charge of the war, to whom the said crimes could ultimately be attributed.<\/p>\n

On 29th<\/sup> September 2015, the United States tabled resolution A\/HRC\/30\/L.29 co-sponsored by Sri Lanka, at the 30th<\/sup> Session of the UNHRC, and the said resolution was adopted without a vote.\u00a0 Since then, the GOSL has taken various steps to implement the recommendations made in the OISL report, one of which is to establish special prosecutorial and\/or judicial mechanisms, to try suspects for war crimes, pursuant to the recommendations of the said report.<\/p>\n

An update on the GOSL\u2019s progress in implementing the recommendations of resolution A\/HRC\/30\/L.29, including establishing the said prosecutorial and\/or judicial mechanisms, is scheduled to be presented on 29th<\/sup> June 2016 at the 32nd<\/sup> Session of the UNHRC.<\/p>\n

Dr. Amarasekara\u2019s grievance, highlighted in his application, is as follows.\u00a0 So far, the OISL report has not been officially translated into either the Sinhala or Tamil languages.\u00a0 (Of the population of Sri Lanka, 70% are Sinhala, whose mother tongue is the Sinhala language; 20% are Tamil, whose mother tongue is Tamil, and 10% are Muslim, who speak both Sinhala and Tamil.\u00a0 English, generally speaking, is familiar to only about 10% of the population.)<\/p>\n

We must tell you that we along with many Sri Lankans consider that this country\u2019s war-time leaders acted in the service of the country including its national defence.\u00a0 If decisions are made at the UNHRC with respect to prosecutorial and\/or judicial mechanisms to try some of the said leaders for purported war crimes, the majority of people in this country will not have been able to read the OISL report in their mother tongue, in order to assess whether the charges in question warrant being pursued any further.<\/p>\n

It is not in dispute that a Government conducting military operations including combating terrorism must operate within the bounds set by domestic as well as international law, in particular international humanitarian law and international human rights law, as applicable.<\/p>\n

Our point, however, is that where allegations of wrong-doing are leveled against a State, they must be prima facie<\/em> credible, before the State can be expected to pursue them further.<\/p>\n

We have two concerns:\u00a0 first, the OISL report, even at a cursory glance, contains a multitude of lies, obfuscations, and other problems that make it difficult to accept the related allegations at face value; second, in any event, since there is no official Sinhala or Tamil translation of the OISL report, the majority of the people of this country are unable to read the report for themselves, to assess the related allegations for themselves.<\/p>\n

With respect to the aforesaid problems with the OISL report, we shall be happy to send you detailed information, but just to give you an idea of the magnitude of said problems, we cite just one example.\u00a0 The greater part of the photographic and video evidence cited in the OISL report, particularly in support of charges relating to deliberate killings, is from the British TV Station, Channel 4.\u00a0 Therefore, the integrity of the said \u2018evidence\u2019 is crucial to assess the credibility of the related allegations.<\/p>\n

The following is a review that appeared in the London Sunday Times<\/em>, of a Channel 4 video (Killing Fields), which video is one of the main sources of Channel 4 material cited in the OISL report:<\/p>\n

The Channel has accumulated a large collection of samizdat amateur footage from mobile phones and video cameras\u2014mostly un-attributed and uncorroborated.\u00a0 It mixes that footage with comment from unnamed sources with distorted voices and shadowed faces.\u00a0 And human rights lawyers.\u00a0 It was brutal.\u00a0 It was shocking, but it wasn\u2019t journalism.\u00a0 Not a second of this has been shot by Channel 4:\u00a0 none of the eye-witness accounts come from journalists.\u201d\u00a0 (A. A. Gill, \u2018Judged,\u2019 London Sunday Times<\/em>, 30-6-2011.)<\/p>\n

Our point for now is this:\u00a0 it is on evidence such as the above that the OISL has tried to make a case for war crimes against Sri Lanka, and it is on those allegations that the UNHRC is about to take further actions against this country with respect to the said purported crimes.<\/p>\n

More important, Operative Paragraph 3 of resolution A\/HRC\/30\/L.29 makes explicit reference to a commitment by the GOSL to engage in \u2018broad national consultations\u2019 before initiating \u2018processes of truth-seeking, justice, reparations,\u2019 (which must necessarily include special prosecutorial and\/or judicial mechanisms to pursue war crimes allegations) pursuant to the recommendations of the said report.<\/p>\n

We take as self-evident that it is impossible to have \u2018broad national consultations\u2019 if more than 90% of the people of the country haven\u2019t been able to read and understand the key document whose allegations are to be pursued by some of the mechanisms that are to be devised after the said \u2018consultations.\u2019<\/p>\n

Therefore, we reiterate that if the GOSL agrees on 29th<\/sup> June or thereafter to take further measures towards establishing the said prosecutorial and\/or judicial mechanisms, it will be doing so in express violation of the very terms of resolution A\/HRC\/30\/L.29.<\/p>\n

It is in the above situation that Dr. Amarasekara has filed his fundamental rights application, asking as relief that the GOSL be ordered to produce official Sinhala and Tamil translations of the OISL report and make them available to the general public.\u00a0 He has filed the said application in the public interest.\u00a0 The said application will be taken up for hearing after the 29th<\/sup> June,<\/p>\n

As indicated earlier, we fear that, in the meantime, the GOSL will have made certain additional commitments with respect to the aforesaid prosecutorial and\/or judicial mechanisms, which will cause irremediable harm to the people of this country, harm that can be avoided if Sinhala and Tamil translations of the OISL report were available, and decisions concerning the said mechanisms were reached after the \u2018broad national consultations\u2019 mentioned in resolution A\/HRC\/30\/L.29 itself.<\/p>\n

The International Court of Justice is the judicial arm of the United Nations Organization, and the Statute of the Court is an integral part of the United Nations Charter.\u00a0 We are aware that the jurisdiction of the Court is limited to hearing complaints by countries, and to requests for advisory opinions by the UN itself, but we cannot imagine that, where the UN is about to commit a gross injustice, and the Court is made aware of it, the Court will look away.<\/p>\n

It is our hope that Inherent Jurisdiction<\/strong>, which is the prerogative of every Court, (and one must presume is the prerogative of the highest court in the entire world) will operate in this instance, and allow the ICJ to take appropriate action.<\/p>\n

Under the circumstances, we are writing to you to request that you take whatever steps may be necessary to prevent irremediable harm from coming to the people of Sri Lanka by actions of the UNHRC, for which the United Nations Organization must bare ultimate legal responsibility.\u00a0 We shall be happy to testify in writing or in person with regard to any of the matters discussed in this letter, at any venue suggested by you.<\/p>\n

Thank You,<\/p>\n

Respectfully,<\/p>\n

 <\/p>\n

Dr. Wasantha Bandara, Secretary, PNM<\/p>\n

Copies to:<\/p>\n

    \n
  1. Ban Ki Moon, Secretary General of the UN<\/li>\n
  2. Zeid Al Hussein, United Nations High Commissioner for Human Rights<\/li>\n
  3. Mogens Lykketoft, President of the Unite Nations General Assembly<\/li>\n
  4. Chiu Kyonglim, President of the UNHRC<\/li>\n
  5. Maitripala Sirisena, President of Sri Lanka<\/li>\n<\/ol>\n

     <\/p>\n

    Fundamental Rights Application filed against GOSL by Dr. Gunadasa Amarasekera for failure to translate OISL report in Sinhala & Tamil language<\/a><\/p><\/blockquote>\n