By September 28, 20170 CommentsReport

Why Geneva wants new Constitution to address accountability issues?

By Shamindra Ferdinando

President Maithripala Sirisena’s meeting with UN High Commissioner for Human Rights, Zeid bin Ra’ad Zeid-Hussein, on Sept 22, 2017, on the sidelines of the 72 United Nations General Assembly (UNGA), underscored Sri Lanka’s pathetic failure to counter a high profile propaganda project that brought about Geneva Resolution 30/1, on Oct 1, 2015.

Sri Lanka created history by co-sponsoring a resolution against itself in spite of it being severely inimical to its interests. The unprecedented resolution has paved the way for a new Constitution, in addition to implementing four specific measures meant to address accountability issues, namely (1) a judicial mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international human rights law (2) A Commission for truth, justice, reconciliation and non-recurrence (3) An Office for Missing Persons (OMP) and finally (4) An Office for reparations.

In support of the OMP, that has been established, the government intended to introduce the Enforced Disappearances Bill, though President Sirisena, before leaving for UNGA, stayed it from being debated in parliament, on Sept 21.

Had Sri Lanka succeeded in thwarting the Geneva project, President Sirisena wouldn’t have had to meet Zeid-Hussein in New York. The Geneva Resolution facilitated the Western powers’ led project meant to undermine post-war stability in Sri Lanka. Sadly, our political parties hadn’t realized how Western powers and India had set in motion a mega political project to change Sri Lanka’s Constitution in response to still unproven war crimes allegations.

Although war crimes allegations hadn’t been at least verified let alone proved, Geneva has prescribed a change of Constitution as the remedy. Perhaps, their intention has been to bring about far reaching constitutional changes to achieve what Velupillai Prabhakaran couldn’t accomplish through terrorism. It seems unsubstantiated war crimes allegations have been propagated to justify Constitutional changes. It would be pertinent to mention that the change of the Constitution, in response to war crimes allegations, would also justify LTTE’s terrorism, on the basis that the group, too, sought the same.

Sri Lanka brought the war to a successful conclusion, in May, 2009. During the conflict, various interested parties, as well as the LTTE, proposed different arrangements to bring the war to an end.

Perhaps those who had been propagating lies regarding massive human rights violations, during the last phase of Eelam War IV, never really expected a war crimes probe to take place. Instead, what they had been really craving for is a new Constitution which could weaken parliament, vis-a-vis provincial administrations.

The much hyped 19 Amendment to the Constitution that had facilitated the UNP-SLFP marriage, in 2015, is meant to keep the two major parties together to ensure the implementation of the project. Their decision to put off Local Government polls, as well as the Provincial Councils polls, should be examined against the backdrop of the implementation of a far bigger political project to bring in constitutional changes. The UNP-SLFP coalition cannot suffer a political setback, at any level, amidst the project to bring in a new Constitution.

Last week, the ruling coalition overlooked the Supreme Court ruling in respect of the proposed 20 Amendment to the Constitution as it put off scheduled PC polls through other means.

The day before President Sirisena met Zeid-Hussein, in New York, Prime Minister Ranil Wickremesinghe submitted the Interim Report of the Steering Committee, tasked with framing a new Constitution to the Constitutional Assembly. Unfortunately, the Joint Opposition (JO), loyal to former President Mahinda Rajapaksa, still remains involved in the constitutional making process though Wimal Weerawansa, MP, pulled his five-member parliamentary group out of what he called a mechanism to divide the country.

Zeid-Hussein, at the 32 session of the Geneva sessions, on June 28, 2016, dealt extensively with Sri Lanka. The former Jordanian career diplomat, in a statement headlined ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, explained, in no uncertain terms, what Geneva expected Sri Lanka to do.

 The 30/1 should be examined along with Zeid-Hussein’s statement, on June 28, 2016, and the findings and conclusion of the so-called comprehensive investigation undertaken by the Office of the United Nations High Commissioner for Human Rights (OHCHR).  Zeid-Hussein wanted Sri Lanka to implement recommendations contained therein. He also wanted other countries to abide by the recommendations, in line with Zeid-Hussein’s request, Australia, several months ago, denied a visa to Maj. Gen. Chagi Gallage, Director General of Infantry. They found fault with the Gajaba Regiment veteran for commanding a fighting formation, on the Vanni east front, during the last phase of the offensive. 

 The bottom line is that Zeid-Hussein unveiled a political agenda meant to transform the country, at the expense of its unitary status. Western powers, at the onset of 2015, caused the change of government to enable the intended transformation. Sri Lanka’s triumph over terrorism, in May 2009, had been used as a rallying point, twice; against the war-winning President on the basis his armed forces committed war crimes. Although the first project, in which they used General Sarath Fonseka, had failed, in January 2010, the second attempt succeeded. Maithripala Sirisena’s election was meant to ensure political transformation. Last Thursday’s handing over of the Interim Report of the Steering Committee, tasked with framing a new Constitution, to the Constitutional Assembly, by Premier Wickremesinghe, marked an important step towards achieving overall political objective, namely a brand new Constitution.

Although, the Geneva project has been delayed, obviously, it is on track.

Let me reproduce verbatim what Zeid-Hussein stated in his June 28, 2016, address in Geneva:

* Significant momentum has been achieved in the process of constitutional reform. On 10 March 2016, Parliament adopted a resolution establishing a constitutional assembly to draft and approve a new constitution or amendments by the end of 2016, which would then be put to a referendum in 2017. The drafting process has benefited from an inclusive public consultation process overseen by a Public Representations Committee that received submissions and held district level consultations in the first quarter of 2016.

* From a human rights perspective, the constitutional reform process presents an important opportunity to rectify structural deficiencies that contributed to human rights violations and abuses in the past and reinforce guarantees of non-recurrence. These could include a more comprehensive Bill of Rights, stronger institutional checks and balances, enhanced constitutional review, improved guarantees for the independence of the judiciary, effective individual complaints mechanisms and greater direct enforceability of international human rights treaty. Also, as demonstrated by other countries’ experience, is the strengthening of civilian oversight over the military in the form of multiple oversight and accountability mechanisms over defense policy, discipline and promotion, budgeting and procurement. The new Constitution will also be important in facilitating the establishment of the transitional justice mechanisms envisaged by the Government, for instance the criminalization of international crimes in national law or allowing for the involvement of international judicial personnel. At the same time, the High Commissioner hopes that the political process of adopting constitutional changes will not involve tradeoffs and compromises on core issues of accountability, transitional justice and human rights.

For some strange reason, the previous government steadfastly refused to make representations on behalf of Sri Lanka. In fact, their refusal facilitated the UN project.

Zeid-Hussein’s predecessor, Navanethem Pillay, gave the former government an opportunity to cooperate with the investigation or face the consequences. Obviously, the then government wasn’t in a mood to defend Sri Lanka at that time, having decided to advance presidential polls by two years. President Maithripala is on record as having said that his predecessor called early polls as he couldn’t face accusations in respect of war crimes and tackle a deepening economic crisis. The government certainly believed that it could exploit the battle with the UN to its political advantage whereas the UNP-led campaign warned of international sanctions in case President Rajapaksa secured a third term.

THE FOLLOWING IS THE FULL TEXT OF THE LETTER RECEIVED BY EXTERNAL AFFAIRS MINISTER PROF. G.L. PEIRIS, ON JUNE 5, 2014, from FORMER UN HUMAN RIGHTS CHIEF, NAVANETHEM PILLAY

 Further to a meeting between the Permanent Mission of Sri Lanka and my staff in Geneva, on 30 May, 2014, I am writing to Inform you about the steps we have taken in setting up the comprehensive investigation into alleged serious violation and abuses of human rights and related crimes committed by both parties in Sri Lanka, as mandated by the Human Rights Council resolution 25/1.

I am in the process of forming a dedicated investigation team composed of OHCHR staff. I am pleased to convey that, after a competitive and thorough selection process, I have appointed Ms. Sandra Beidas as the Coordinator of the Investigation team, and she will be shortly assuming this position. Ms. Beidas is a senior staff member with more than 20 years of experience in the field and extensive expertise to conducting human rights investigations. We will introduce Ms. Beidas to the Permanent Representative and his colleagues in Geneva as soon as she commences duty. The selection of other members of the Investigation Team is currently underway, and is expected to be finalized soon.

In accordance with the resolution, I have also decided to appoint senior external experts who would advise and support the investigation team. Some of the experts I have approached are former Heads of State or of major international organizations, or specialists in international human rights and humanitarian law. The experts would play a supportive and advisory role to the investigations team, and would not lead the investigation. Their purpose would be to provide expert advice and guidance to the investigation, but also to accompany the process and provide an Independent verification of the investigation. I am currently reaching out to these senior experts to ascertain their availability and interest. Once confirmed and accepted by them, I will convey their names and titles to the Government of Sri Lanka. I will also be encouraging relevant Special Procedure mandate holders to provide inputs to the process in accordance with the resolution.

The budget for the Investigation has now been cleared by the Advisory Committee on Administrative and Budgetary Questions of the United Nations Secretariat in New York. The Investigation Team will be operational for a period of 10 months, from mid-June 2014, and will be based in Geneva. The first meeting of the investigation team with the senior experts is expected to be held in Geneva in July 2014, and this will be an early opportunity for the Government of Sri Lanka to establish formal contact with the investigation team. The investigation team hopes to undertake field visits to Sri Lanka and one or two other locations where information is available between July and November 2014.

Considering the public and media interest in the Investigation, the Office will prepare a facts sheet for public information purposes about the commencement of the investigation. As requested by resolution 25/1, the High Commissioner will provide an oral update to the 27th HRC session in September 2014, and a comprehensive final report to the 28th session in March 2015.

As per usual practice, my Office will ensure that the Government of Sri Lanka has the opportunity to provide comments on both the oral and comprehensive report before they are issued.

I sincerely hope that the Government of Sri Lanka will cooperate fully with the investigation, including by providing the investigation team with regular access to the country, and by sharing information and interacting regularly with the team in Geneva. In this context, I encourage you to appoint a focal point on the Government side.

I would like to take this opportunity to once again encourage the Government of Sri Lanka to conduct an Independent and credible domestic investigation into allegations of violations of international human rights and humanitarian law. OHCHR will continue to assess the progress made in national accountability processes, and the next High Commissioner will report accordingly to the Human Rights Council, in accordance with resolution 25/1.

I trust that the Government of Sri Lanka will take all necessary measures to ensure the safety and security of witnesses, victims and other individuals who may come forward to share information as well as to prevent any reprisals against those who cooperate with the international and national investigation.

Please accept, Excellency, the assurances of my highest consideration.

 Navanethem Pillay,

High Commissioner for Human Rights

MAIN ALLEGATIONS PROPAGATED BY WESTERN POWERS/MEDIA

 (A) GoSL ordered UN/INGOs to quit Kilinochchi in early September, 2008, to facilitate an all-out attack. British media outfit Channel 4 News alleged the government wanted to conduct a war without witnesses.

(B) Vanni population denied medicine, food and other basic needs.

(C) Coordinated mortar/artillery/MBRL attacks on civilian population. Channel 4 News alleged that the Secretary Defence and the then Army Commander executed the project. GOSL allowed the use of cluster bombs.

(D) At least 40,000 civilians killed.

(E) Rape of combatants/civilians. Subsequently, the military was accused of abusing men.

CRITICAL FAILURE

The Lessons Learnt and Reconciliation Commission (LLRC) didn’t directly address the above mentioned allegations. The LLRC didn’t counter specific allegations. The LLRC made a series of important recommendations to promote post-war national reconciliation, though it failed to tackle specific accountability issues.

The Paranagama Commission, subsequently, appointed, didn’t address the main allegations. The Commission simply ignored evidence and various statements which could have been used in Sri Lanka’s defence.

If not for the former President Mahinda Rajapaksa’s much delayed decision to expand the scope of the Paranagama Commission, on July 15, 2014, to accommodate a team of international legal and military experts, to assist the domestic mechanism, Sri Lanka would never have received the benefit of Wiki leaks revelations. The team comprised Sir Desmond de Silva, QC, Chairman of the legal advisory council (UK), Professor Sir Geoffrey Nice QC. (UK), and Professor David M. Crane (USA). They were backed by Rodney Dixon, QC. (UK/ South Africa), Professor Michael Newton (USA), Commander William Fenrick (Canada), Professor Nina Jorgensen and Major General John Holmes, DSO, OBE, MC (UK) former Commanding Officer of the Special Air Service (SAS) Regiment, Paul Mylvaganam (UK) and Victoria de Silva and Delarney Uyangodage.

The expanded Paranagama Commission, too, overlooked some critically important developments, such as wartime US Defence Advisor in Colombo Lt. Col. Lawrence Smith’s comment on war crimes allegations, including white flag executions.

The former government failed to bring up the following at the correct forum:

(A) Although the UN vacated Kilinochchi, in September 2008, the ICRC was allowed to continue in the Vanni east for many more months. UN international staff was also allowed to accompany food convoys to the Vanni east. Some of them remained there, even in early part of 2009. GoSL also allowed an Indian medical team, at Pulmoddai, in the early part of 2009. The Indian team remained there until the very end. When overland movements weren’t possible, GoSL allowed ICRC to operate ships between Pulmoddai and Puthumathalan (Feb 10, 2009, to May 9, 2009 -16 movements/14,000 wounded and their relatives evacuated). Although ICRC staff left the rapidly shrinking LTTE held area on Feb 10, 2009, they returned and stayed onshore several hours each time ICRC-chartered ships came back.

Having completed its assignment at Pulmoddai, the Indian team moved to Menik farm, the main displaced camp.

Would a government, hell-bent on genocide, give a foreign medical team access to people arriving from the LTTE held area? Would it permit ICRC and WFP to move supplies to the war zone? Would it engage in deliberate massacre of people knowing that those trying to arrange a ceasefire had the wherewithal to closely monitor what was happening on the ground?

Norwegian government (Pawns of Peace: Evaluation of Norwegian peace efforts in Sri Lanka-released in September, 2011) acknowledged that Sri Lanka was under surveillance by both Indian Intelligence as well as NATO (page 100). International powers had the means to monitor deployment of weapons.

(B) The ICRC and WFP can reveal data as regards the amount of food, medicine and other items moved overland, and by ships, to Vanni east since Oct 2008 until May 9, 2009. The war ended 10 days later. Sri Lanka never deprived civilian population of food and medicine. In fact, the GoSL launched food ships to Jaffna peninsula, way back in 1990, after having lost the Kandy-Jaffna A9 road. Except during on and off peace talks, the road remained closed until the SLA regained full control, in January 2009.

(C) and (D) Unsubstantiated claim of over 40,000 civilians’ deaths during the final phase of the assault was blamed on mortar/artillery/MBRL attacks as well as the use of cluster bombs. According to The Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, it had received altogether over 4,000 submissions from 2,300 persons (page 5/point 17).

But the UN report released on March 31, 2011 declared that the identities of those who had made submissions wouldn’t be revealed for two decades. Even after two decades, information cannot be released without a declassification review (page 6/point 23)

How could such allegations be accepted without verification? Even four years after the release of the UN report, the issue hadn’t been resolved.

In the backdrop of the UN Panel of Experts’ directing that ‘sources’ wouldn’t be released for two decades (March, 2031), various claims as regards the number of civilians killed should be examined. Unfortunately, the government never highlighted the discrepancy in various figures quoted by interested parties.

* British Labour Party MP Siobhan McDonagh (Mitcham and Morden-Labour) told the House of Commons, in September, 2011, that 60,000 LTTE cadres and 40,000 Tamils perished during the period January-May 2009. She made the only specific reference to the number of LTTE cadres killed during a certain period. Obviously the British MP categorized the January-May 2009 period as the final phase of the conflict. The British High Commission declined to comment on the MP’s claim. She didn’t even respond to The Island queries. The UK-based Global Tamil Forum (GTF) asserted that it couldn’t force the MP to respond to The Island queries.

* Special Amnesty International report, titled “When will they get justice: Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission”, also issued in September 2011 estimated the number of civilian deaths at 10,000. From the Amnesty International Report: Amnesty International’s conclusions, derived independently from eyewitnesses’ testimony and information from aid workers, are at least 10,000 civilians.” According to London headquartered Amnesty International report, thousands died in the final months, though the figure couldn’t be more than 10,000 (page six).

* Western powers, international human rights organizations and the Panel of Experts continue to ignore a confidential report prepared by The United Nations Country Team during the conflict. The report that dealt with the ground situation from August 2008 to May 13, 2009 placed the number of dead (including LTTE combatants) at 7,721. The report estimated the number of wounded at 18,479. (War ended less than a week after the UN stopped collecting data due to the intensity of fighting. point number 134/page 40 of the Panel of Experts report).

Sri Lanka should push the UN to release the report/make it available to UN investigators. Important to remember, the UN report was based on information provided by those who had been trapped in the war zone and even today further verification could be made. Very surprisingly the UN Panel of Experts refused to accept the report. Why? The UN’s own report can easily contradict the exaggerations of its own investigation.

Except for the British MP’s foolish claim that 60,000 LTTE cadres killed during January-May 2009, all those wanting to haul Sri Lanka up before an international war crimes tribunal remain silent on losses suffered by the LTTE. As the Army headquarters admitted losing 2,350 officers and men during January-May 2009 period on the Vanni east front, the government should make every effort to establish the number of LTTEers killed during the same period.

(To be continued on Oct 4)


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