{"id":72520,"date":"2017-12-06T15:19:59","date_gmt":"2017-12-06T21:19:59","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=72520"},"modified":"2017-12-06T08:16:30","modified_gmt":"2017-12-06T15:16:30","slug":"the-pros-and-cons-of-over-reliance-on-lord-nasebys-revelations","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2017\/12\/06\/the-pros-and-cons-of-over-reliance-on-lord-nasebys-revelations\/","title":{"rendered":"The Pros and Cons of Over-reliance on Lord Naseby\u2019s Revelations"},"content":{"rendered":"

Dharshan Weerasekera, Attorney-at-Law<\/strong><\/em><\/span><\/h2>\n

One can hardly open a newspaper these days without seeing something on Lord Naseby\u2019s revelations about the number of civilians that may have been killed during the last phase of the war, and their significance to countering UNHRC Resolution 30\/1 of October 2015.[1]<\/a>\u00a0 I am informed on good authority that a group of enthusiasts have even undertaken a campaign to push the Government to renegotiate Resolution 30\/1.<\/p>\n

At first glance one tends to think that a campaign to persuade the Government to renegotiate the Resolution will have absolutely no chance of success.\u00a0 For instance, why would the Government want to renegotiate Resolution 30\/1 when at the most recent UPR review the Government pledged to do its utmost to implement all the recommendations of that Resolution?<\/p>\n

However, the Government is now in desperate straits.\u00a0 It has to survive the upcoming Local Government elections, but more importantly ensure that the new Constitution is passed.\u00a0 Otherwise it will have no pretext to postpone the 2020 General Elections and avoid the inevitable drubbing it will receive at those polls.\u00a0 In this article I shall briefly explain why the Government may be amenable to \u2018renegotiating\u2019 Resolution 30\/1 and the inherent dangers to the long-term interests of the Sinhalas if this happens.<\/p>\n

Why the Government may be amenable to renegotiating Resolution 30\/1<\/strong><\/p>\n

The following three matters are not in dispute.\u00a0 First, if the LG polls are held, Sirisena and his SLFP\u2019ers will be completely discredited and the whole world will see that they have no mandate to carry on a \u2018National Government\u2019 with the UNP including to bring a new Constitution.\u00a0 Second, without a new Constitution, the UNP cannot postpone the 2020 Elections and thereby continue in power at least until 2025.<\/p>\n

Third, the United States and India (India is actually piggybacking on the U.S.\u2019s initiatives on Sri Lanka at the moment) need Sri Lanka to have a new Constitution in order to facilitate turning this country into a true \u2018Client State.\u2019\u00a0\u00a0\u00a0 The key element they need in order to accomplish this purpose is to dilute the power of the Central Government and thereby the power of the majority Sinhalas to have an effective voice in determining the overall policies of the State.<\/p>\n

To turn to a possible renegotiation of Resolution 30\/1, the U.S. and India have very little to lose if Paragraph 6 of the Resolution (Paragraph 6 calls for a \u2018special court\u2019 including a Special Prosecutor to try Sri Lanka\u2019s war-time leaders for war crimes) is deleted but all the other provisions of the Resolution are retained, especially Paragraph 16.\u00a0 Paragraph 16 is really the crucial paragraph in the entire Resolution.<\/p>\n

Paragraph 16 calls for a \u2018Political Settlement\u2019 to the ethnic problem and specifically recommends constitutional reforms involving the 13th<\/sup> Amendment.\u00a0 It says:<\/p>\n

\u2018Welcomes the commitment of the Government of Sri Lanka to a political settlement\u00a0 by taking the necessary constitutional measures, encourages the Government\u2019s efforts to fulfill its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and also encouragers the Government to ensure that all provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka.\u2019[2]<\/a><\/p>\n

A moment\u2019s reflection is enough to realize that, the formulation above covers, or can be interpreted to cover, all<\/em> of the recommendations made in the Interim Report of the Constitutional Steering Committee with respect to Center \u2013 Periphery relations including especially the recommendation to turn Sri Lanka into an \u2018Urumittu Nadu,<\/em>\u2019 i.e. a Confederation<\/em> of Provinces.<\/p>\n

To repeat, the Americans and the Indians will be quite happy to permit a renegotiation of Resolution 30\/1 to delete paragraph 6 while retaining everything else, if they can get a renewed commitment by the Government to bring a new Constitution including to fully implement the 13th<\/sup> Amendment as soon as possible.<\/p>\n

Under the circumstances, an enterprising spirit might dangle the following type of bait in front of Sirisena\u2019s nose:<\/p>\n

\u2018If you get Paragraph 6 deleted, you\u2019ll be a hero, \u00a0and this might just be enough to help your SLFP\u2019ers make a good showing at the LG polls, perhaps even to draw with the JO.\u00a0 More important, you will gain enough credibility with the Sinhala masses to prevent a general uprising when you and your SLFP\u2019ers (and a section of the JO) approve the new Constitution in Parliament.\u00a0 Your new-found credibility will also be helpful in neutralizing the opposition of the Buddhist priests to the new Constitution.\u00a0 Once the Constitution is enacted, you (and friend Ranil) are home free, because you\u2019ll never have to face your \u2018Day of Judgment\u2019 in 2020.\u2019<\/p>\n

Sirisena\u2019s political position is so precarious at present that he just might swallow an argument such as the above, and it is important for the Sinhalas to be aware of this.<\/p>\n

The Inherent dangers of over-reliance on Lord Naseby\u2019s revelations <\/strong><\/p>\n

The General Picture<\/strong><\/p>\n

To the best of my knowledge, Lord Naseby\u2019s revelations are contained in his speech to the UK House of Lords on 12th<\/sup> October 2017.[3]<\/a>\u00a0 They are most directly relevant to countering, one, the allegation that 40,000 or more civilians were killed during the last phase of the war, and two, the allegation that civilians were also denied humanitarian assistance during that last phase.\u00a0 These were first made in the Report of the Secretary General\u2019s Panel of Experts on Sri Lanka, also known as the Darusman Report, in 2011.<\/p>\n

The contention of the enthusiasts is that one can use Lord Naseby\u2019s revelations to rebut the Darusman Report and thereby to discredit resolution 30\/1, because according to them the Darusman Report is the basis, or at any rate one such basis, for Resolution 30\/1.\u00a0 In my view, the aforesaid contention of the enthusiasts is wrong, because of the following reasons.<\/p>\n

The Darusman Report was indeed the basis for a number of UNHRC Resolutions against Sri Lanka \u2013 for instance in 2012 and 2013 \u2013 but not after 2014.\u00a0 The Darusman Report was commissioned by the U.N. Secretary General for his personal use and was not a document produced at the behest of the General assembly, the UNHRC or any such organ, but subsequently indirectly submitted to the UNHRC.<\/p>\n

The UNHRC was aware of the legal problems involved in continuing to rely on the Darusman Report as a basis to recommend actions against Sri Lanka, and gradually reduced such reliance.\u00a0 Then, in March 2014, the Council by Resolution 25\/1 authorized the U.N. High Commissioner for Human Rights (OHCHR) to conduct a war crimes investigation on Sri Lanka.<\/p>\n

The final report of the aforesaid investigation is called the OISL Report (OHCHR Investigation on Sri Lanka) and was released on 16th<\/sup> September 2015.\u00a0 This is the one and only official<\/em> report of the Human Rights Council to level charges of war crimes against Sri Lanka \u2013 i.e. the State<\/em> as opposed to individuals.\u00a0 Resolution 30\/1 was adopted on or about 29th<\/sup> September 2015.\u00a0 So, it is the OISL Report that is the basis for Resolution 30\/1.<\/p>\n

The proof of the above is inter alia<\/em> that, a) Paragraph 1 of the Resolution explicitly endorses the conclusions and recommendations of the OISL Report; b) there are only two footnotes in the entire Resolution, the first refers to the OISL Report and the second to the synopsis of the OISL Report that the High Commissioner submitted to the Council along with the longer report; and c) all the substantive provisions of the Resolution exactly mirror the recommendations made in the OISL Report.<\/p>\n

The OISL Report levels seven charges against the State: three having to do with alleged violations of international humanitarian law, and four having to do with alleged violations of international human rights law.\u00a0 It also levels four charges against the LTTE but we need not worry about them here.\u00a0 The 3 humanitarian law charges are: indiscriminate shelling, denial of humanitarian assistance to civilians, and unlawful killings (i.e. incidents such as the purported \u2018White Flag\u2019 incident, etc.)\u00a0 The 4 charges under human rights law are:\u00a0 arbitrary arrests, enforced disappearances, torture and sexual violence.<\/p>\n

The point is this.\u00a0 Even if we take Lord Naseby\u2019s revelations at their strongest, they can only help rebut the charges with respect to indiscriminate shelling and denial of humanitarian assistance.\u00a0 They do nothing to rebut the charges with respect to unlawful killings, i.e. purported incidents such as the \u2018White Flag\u2019 killings, etc.<\/p>\n

Meanwhile, it is a fact that, with respect to purported violations of humanitarian law, the UNHRC along with other critics of Sri Lanka have since about 2015 been focusing on allegations of unlawful or deliberate killings, i.e. White Flag\u2019 incident, purported killing of Balachandran Prabakaran, etc.\u00a0 It is also not insignificant that, the OISL Report never cites the figure of 40,000 dead, no doubt because of the difficulty in proving that number.<\/p>\n

In short, taken by themselves, Lord Naseby\u2019s revelations do not help one take down Resolution 30\/1.\u00a0 So, that is the general picture.\u00a0 I discuss below two more specific dangers in over-reliance on Lord Naseby\u2019s revelations.<\/p>\n

Specific Dangers<\/strong><\/p>\n

    \n
  1. Let\u2019s suppose we base our entire defence on Lord Naseby\u2019s revelations and ask the UNHRC to revisit Resolution 30\/1, and the Council agrees. Recall that, Lord Naseby\u2019s revelations are based on diplomatic dispatches \u2013 that is, documents we must accept or reject at face value, we cannot interrogate those documents, including the persons who prepared them.<\/li>\n<\/ol>\n

    Suppose that, a few days before the \u2018dabate\u2019 on Resolution 30\/1, the British Government suddenly \u2018discovers\u2019 another batch of dispatches, some of which say that there is evidence of unlawful killings, torture, and so on.\u00a0 What then?\u00a0 Since we had put our entire defence on Lord Naseby\u2019s revelations, which is to say we had completely accepted the credibility of the British dispatches, how can we now reject or even question those very dispatches when they reveal things unfavorable to us?\u00a0 In short, we are trapped.<\/p>\n

    To digress a moment, the reader will recall that, since about August 2017 the Tamil Diaspora has been pursuing a novel tactic to try and bring Sri Lanka\u2019s war-time leaders before international tribunals under universal jurisdiction.\u00a0 They fired the first salvo with regard to this by filing a case in Brazil against General Jagath Jayasuriya.<\/p>\n

    A key point to note is that, U.N. High Commissioner for Human Rights Zeid Al Hussein has endorsed this new tactic, which ironically is an admission on his part of the failure of his own report \u2013 the OISL Report \u2013 to establish the relevant charges, since the Tamils will not have had to go to countries such as Brazil and file cases if the OISL Report had done its job properly in the first place.<\/p>\n

    The point is this.\u00a0 The threshold of proof to initiate proceedings under universal jurisdiction is very low \u2013 usually \u2018reasonable grounds to believe\u2019 \u2013 but the Tamils have not been able thus far to reach even that low standard.\u00a0 But, diplomatic dispatches, if their credibility has been conceded by the Sri Lankans themselves, might just be enough to meet the \u2018reasonable grounds to believe\u2019 standard.<\/p>\n

    In short, over-reliance on Lord Naseby\u2019s revelations might legitimize the reliance on diplomatic dispatches, which in turn will have the inadvertent consequence of helping the Tamils circumvent the OISL Report in pursuing war crimes charges against our leaders in international tribunals.<\/p>\n

      \n
    1. The Island<\/em> of 4th<\/sup> December 2017 has an article titled, \u2018Truth, Justice, Reconciliation and Non-Recurrence Commission the answer \u2013 Dr. Saravanamuttu.\u2019 According to the article, The Island<\/em> had asked Pakiasotty Saravanamuttu to comment on the repercussions of Lord Naseby\u2019s revelations, and he had written back saying inter alia<\/em> the following:<\/li>\n<\/ol>\n

      \u2018The Task Force or CTF was mandated to ascertain the views of the Sri Lankan public in respect of the four mechanisms outlined by the Sri Lankan Foreign Minister to the UN Human Rights Council in 2015 and incorporated in the resolution 30\/1 of the Council thereafter\u2026.One of the mechanisms consulted on was the Truth, Justice and Reconciliation Commission.\u00a0 In response to your query re Lord Naseby\u2019s claims, may I direct you to the CTF report and its recommendations \u2013 all contained in the report \u2013 reiterating the importance of such a Commission.\u2019[4]<\/a><\/p>\n

      The \u2018CTF Report to which Saravanamuttu refers is the once much-touted but now defunct \u2018Muttettuwegama Report.\u2019\u00a0 It should be recalled that, Saravanamuttu was also a key member of that Commission.\u00a0 In any event, Saravanamuttu forgets to mention a few important details in his effusions above.<\/p>\n

      First, the four mechanisms that the \u2018Foreign Minister outlined to the Human Rights Council in 2015\u2019 came from the OISL Report.\u00a0 In other words, those four mechanisms were the four recommendations of the OISL report, which recommendations were endorsed by the Council in Resolution 30\/1.<\/p>\n

      The fatal flaw in the CTF report (or \u2018Muttetuwegama report\u2019) is that it never subjects the OISL to an assessment in order to verify whether the conclusions of that report follow from its evidence.\u00a0 Instead, the CTF simply \u2018rubber stamps\u2019 the OISL Report\u2019s recommendations.<\/p>\n

      When independent researchers began to show that the OISL Report was unreliable, the con that the CTF tried to pull off \u2013 i.e. to legitimize the OISL\u2019s conclusions by claiming that the Sri Lankan people had been consulted<\/em> about those conclusions and the related recommendations \u2013 was exposed.<\/p>\n

      Once the problems with the OISL report\u2019s evidence began to surface, the UNHRC also realized that the CTF was a liability \u2013 because every time one mentioned the CTF the spotlight naturally fell on the OISL Report also.\u00a0 Hence, we have not heard anything about the CTF since about March 2017.\u00a0 The point is this.\u00a0 What Saravanamuttu is trying to do, under the pretext of addressing the concerns raised by Lord Naseby\u2019s revelations, is to call for the launch of yet another investigation into purported war crimes.<\/p>\n

      In short, he wants to go on another \u2018fishing expedition.\u2019\u00a0 And if that expedition fails (as indeed it is bound to, because everyone except diehards such as Saravanammutu now understands that only about 3000 civilians died during the last phases of the war) he\u2019ll find a different excuse to call for yet another investigation, and so on, ad infinitum<\/em>!\u00a0\u00a0 These scoundrels never give up.\u00a0 Suffice it to say that, the Sinhalas don\u2019t have to indulge the whims and fancies not to mention obsessions of the Saravanamuttu\u2019s of this world.<\/p>\n

      Recommendations\u00a0 <\/strong><\/p>\n

        \n
      1. Lord Naseby\u2019s revelations are valuable as corroborative evidence. They can support the conclusions one can draw from primary evidentiary sources such as contemporary reports, satellite imagery, eye-witness testimony and so on, and should be used only for such purpose.<\/li>\n
      2. The Sinhalas must not permit themselves to be lulled into complacency thinking that the Government is now no longer interested in a new Constitution. A new Constitution is the only way for Government bigwigs to ensure their political survival beyond 2020, so they will do everything in their power to try and push one through.\u00a0 Therefore, any \u2018deals\u2019 that are struck with respect to Resolution 30\/1 should not provide an opening for the Government to advance its plans with respect to the new Constitution.<\/li>\n
      3. Resolution 30\/1 must be rejected in toto<\/em> and rendered null and void. The Sinhalas can hope to achieve such an outcome only if they negotiate from a position of strength and not from weakness, and they will be in a position of strength only when they have their own Government.\u00a0 So, the Sinhalas should wait until 2020 before they begin to renegotiate<\/em> Resolution 30\/1.<\/li>\n<\/ol>\n

        [1]<\/a> See for instance, \u2018UNSG Spokesman:\u00a0 Decision to revisit Resolution in the hands of the UNHRC members,\u2019 Shamindra Ferdinando, The Island<\/em>, 1st<\/sup> December 2017; and also, \u2018Renegotiating resolution 30\/1,\u2019 Rajeewa Jayaweera, The Island<\/em>, 3rd<\/sup> November 2017<\/p>\n

        [2]<\/a> Paragraph 16, A\/HRC\/30\/L.29<\/p>\n

        [3]<\/a> Hansard, Volume 785, 12th<\/sup> October 2017, www.parliament.uk<\/a><\/p>\n

        [4]<\/a> \u2018Truth, Justice, Reconciliation and Non-recurrence Commission the answer \u2013 Dr. Saravanamuttu,\u2019 The Island<\/em>, 4th<\/sup> December 2017<\/p>\n","protected":false},"excerpt":{"rendered":"

        Dharshan Weerasekera, Attorney-at-Law One can hardly open a newspaper these days without seeing something on Lord Naseby\u2019s revelations about the number of civilians that may have been killed during the last phase of the war, and their significance to countering UNHRC Resolution 30\/1 of October 2015.[1]\u00a0 I am informed on good authority that a group […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[117],"tags":[],"class_list":["post-72520","post","type-post","status-publish","format-standard","hentry","category-dharshan-weerasekera"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/72520","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=72520"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/72520\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=72520"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=72520"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=72520"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}