By Dharisha Bastians –

Dharisha Bastians

Is the sudden announcement of a local war crimes inquiry including expertise from top foreign prosecutors intended to mount a legal defence for the Government against the UN investigation or will it be a parallel process against international moves unfolding in Geneva over the next few years?

The Presidential Proclamation came like a bolt from the blue. For one endlessly suspended moment, the world according to the Rajapaksa administration had turned topsy turvy.

After five years of stringent denials and rejections, zero casualty claims, military courts of inquiry and war censuses, President Mahinda Rajapaksa issued a proclamation last Thursday announcing the launch of a domestic investigation into alleged war crimes and the conduct of his armed forces in the waning days of the war.

He has sought the expertise of three of the world’s top war crimes prosecutors, all of them renowned for serving on UN tribunals and special courts to try political regimes accused of crimes against humanity.  Sir Desmond De Silva QC, Sir Geoffrey Nice QC and Dr. David Michael Crane confirmed this week that the Sri Lankan Government had appointed them to advise a ‘local commission investigating allegations of war crimes by all parties to the conflict.’. The three expert advisors are to be remunerated for their services by the Presidential Secretariat.

“As a practicing attorney, like all attorneys in practice, I am being compensated by the Sri Lankan Government for being a legal advisor,” Dr. Crane told Daily FT by email earlier this week.

The three experts are yet to receive their terms of reference, but they expect to go deep into material already available in the public domain regarding alleged violations that occurred in the final stages of the war, such as the UN Panel of Experts report, more commonly known in Sri Lanka as the ‘Darusman Report’. The appointment of a fourth advisor, likely to be Asian in origin, is also expected shortly.

The Proclamation issued last week, made it abundantly clear that in the highest corridors of power, the potential implications of a UN investigation into alleged atrocities committed during the war had ruffled more feathers than the Government was willing to admit. Outwardly, the regime has been full of bravado, bragging about the toothlessness of the UN Human Rights Council and rock solid support from Moscow and Beijing at the Security Council if the matter were ever taken up there.

Behind the scenes

But last Thursday’s announcement was the fruition of months of behind the scenes maneuvers to loosen the international bind in which it has found itself since the UN probe became an unshakable reality in March this year. For months now, countries supportive of Sri Lanka at the UNHRC and the President’s most senior legal advisors have been warning the Government about recognising the UN investigation for the threat that it poses to Sri Lanka’s political leadership in the future. These are far off dangers and threats unlikely to materialise. But for a political regime whose greatest fear remains losing its grip on power, the kick off of the UN probe has acted like a stimulant.

The Government has never shown itself willing to submit to a credible investigative process that may raise tough questions and dig up things about the last days of the war the regime would preferred to have buried forever.

Call after call internationally for a domestic investigative mechanism in the lead up to UN Human Rights Council sessions in March this year, were rebuffed by the Sri Lankan Government since the war ended in 2009. The measures already taken had been sufficient, the Rajapaksa Administration told diplomats around the world, they just needed time and space to take effect. Amid stoic Government denials, a voluminous body of evidence has been building, pointing to grotesque violations of human rights and international humanitarian law during the last days of the vicious battle between Government forces and the LTTE in the island’s northeast. Each time new allegations cropped up, the international community urged Sri Lanka to investigate. Every single time, the Government has sought to discredit the purveyors of evidence and insisted every shred of it was fabricated as part of a grand conspiracy to de-stablise the country. It has thumped its chest about sovereignty and principles of non-interference, refusing to accept that it is the 21st Century and not Westphalian Europe. In the post Srebrenica, post Rwanda world, the universality of the human rights doctrine is redefining these age-old concepts that have formed the bedrock of the Sri Lankan Government’s response to international calls for action.

Yet suddenly, soon after the wheels of international justice have begun turning in earnest, the Sri Lankan Government awoke from its stupor.

The suddenness of the move surprised even the Chairman of the three-member Commission, whose mandate had been broadened by the proclamation to include an investigation into civilian deaths in 2009. Maxwell Paranagama, a respected High Court Judge who has been leading the Commission of Inquiry was notified of the new scope of his mission the day before the Gazette was made public.

Realistically, it is mind boggling that the President’s move to launch a domestic inquiry has come about so late in the game. Established even six or eight months earlier, the investigation would have been in motion by March 2014, potentially stopping the US led resolution in its tracks in terms of setting up an UN inquiry.

The Paranagama Commission already has nearly 20,000 complaints of missing persons to investigate and report on. It must now also navigate the procedural morass of its expanded mandate, which if it is to include a full-fledged domestic level investigation, assisted by foreign experts, which could take years.

Too little too late?

The UN probe will happen much faster and its consequences may be felt long before the local Commission begins to show progress. A more effective strategy for the Government may have been to cooperate with the Office of the High Commissioner for Human Rights (OHCHR) and agree to take legal action against any persons against whom conclusive evidence emerged from the probe and attempt to stem the international pressure that way.

A different motive?

So the question that arises now is whether the purported launch of a domestic inquiry at this juncture, is in fact the execution of a slightly different strategy to combat the Government’s international challenges. The Paranagama Commission was a conveniently placed, independent body whose credibility has remained intact in the one year since it was established. The Government has been cautious in its public statements about enlisting the support of international experts, weaving the appointments into the Disappearances Commission and the broadening of its mandate. In the guise of setting up a domestic inquiry, the Rajapaksa Administration has managed to retain the world’s foremost international war crimes prosecutors to study the same evidence that will go before the UN probe. Why did the Sri Lankan Government that is so vehemently opposed to processes of international justice, pick three prosecutors with a history of indicting former Presidents and political regimes on war crimes charges in the Hague?

The De Silva-Nice-Crane team have taken up similar assignments collaboratively before. This year, the three prosecutors released a report on the torture of detainees in Syria. The report, that Dr Crane presented before the UN Security Council earlier this year, found that photographs and documents provided ‘clear evidence’ of systematic killing of 11,000 detainees in Syria. The report was commissioned by British Law firm Carter Ruck, which was funded by the Qatari Government to have legal and forensic experts examine the evidence.

They are, by all accounts eminently capable, credible, legal minds. But upon closer examination, the reasons for the Sri Lankan Government to choose these three experts become slightly clearer.

#1 Desmond De Silva, QC

Queens Counsel Desmond De Silva has his roots in Sri Lanka, being the grandson of George E De Silva, a member of Independent Ceylon’s first cabinet of Ministers. De Silva’s sentiments on the last phase of the war in Sri Lanka are already in the public domain. In Colombo to attend a Defence Ministry conference entitled ‘Defeating Terrorism, the Sri Lanka Experience’, De Silva expressed the view that blame for the civilian casualties during the final phase of the war ‘lies squarely at the door of the LTTE.’  The eminent lawyer noted that even Marzuki Darusman who had headed the UN Panel of Experts investigating the last phase of the war in Sri Lanka had acknowledged that towards the end of the conflict some 300,000 Tamil civilians were being held hostage by the LTTE, who shot those trying to escape in cold blood. “Therefore, this must be one of the biggest hostage dramas in the history of mankind. Accordingly, this would amount to one of the biggest war crimes to have been committed ever. The blame lies squarely at the door of the LTTE,” he remarked during the conference.

De Silva observed that no country when confronted with a hostage situation can guarantee that an attempt to free the captives will not result in some civilian casualties. “In fact, the death of some hostages has occurred in many operations that are directed against hostage takers. The crime therefore is not committed by the forces of law and order, but by the hostage takers, in this case the LTTE,” he noted.

#2 Geoffrey Nice, QC

Geoffrey Nice, QC, a professor of law at Gresham College presented a lecture on 14 May, entitled Head of State Immunity – A Useful Relic. In the latter part of his lecture, Nice noted that Libya was a case where the issue of Head of State immunity might have been raised, after the International Criminal Court (ICC) “cooperated in regime change” by indicting Libyan President Col. Muammar Gaddafi with greater speed than it has ever done in any other case. “Libya had not signed up to or ratified the Rome Statute.  He could challenge the referral in the ICJ – and he had nothing left to lose but his life.  Rodney Dixon and I were instructed – sadly too late – to appear to do just that.  Tripoli fell as did the Colonel.  The issue could not be argued.  (And here is the power of attorney we got as one of the last acts of the former regime),” Nice observed during his lecture.

Subsequently, Sir Geoffrey Nice QC and Rodney Dixon, filed an application with the International Criminal Court on 30 January 2012 asking that the Court grant leave for observations to be made concerning the violation of Saif Gaddafi’s human rights. Saif Gaddaffi is the son of deposed and assassinated Col. Gaddafi of Libya. The application was filed by the two senior lawyers upon the instructions of human rights advocate Mishana Hosseinioun, a close friend and confidant of Saif Al-Islam Gaddafi.

Nice’s position on the head of state immunity question, would find resonance with the higher echelons of the Rajapaksa Government.

#3 Dr David Crane

The third of the President’s experts, Dr. Crane, is an American professor of Law and former Chief Prosecutor at the Special Court for Sierra Leone who was responsible for indicting then President of Liberia, Charles Taylor. Taylor was found guilty of war crimes in 2012 and sentenced to 50 years in prison.

Dr. Crane’s role in a war crimes probe commissioned by the military regime in Guinea in 2010, has been widely criticised after it allegedly played down the violence and the regime’s role in the incident. International media reports said Crane was one of two war crimes specialists who were hired as consultants by Guinea’s former military leader, President Moussa Dadis Camara who stands accused by a U.N. commission of inquiry of responsibility for the 28 September 2009, murder and disappearances of more than 156 civilian protesters in the country’s national soccer stadium. The report found no evidence that crimes against humanity had been committed at the stadium. But perhaps more interestingly, the Crane report places responsibility for the violence on a commander of the elite Guinean presidential guard accusing the guards of violating orders by President Camara.

“The report places most responsibility on the unit’s commander, Lt. Aboubacar Cherif Diakite (a.k.a. Lt. Toumba), noting that President Camara had instructed the military to stay out of the stadium. “Those military personnel who responded to the stadium were in violation of a direct order issued by President Camara,” the report stated.” (Foreign Policy Magazine, 24 February 2010)

From the perspective of the ruling Government, the most dangerous aspect of launching a war crimes investigation either locally or with external assistance has been exposure of the chain of command. Vindication of the political leadership in any of the alleged atrocities, if the facts merit such a vindication by an expert team would make the ruling powers infinitely more comfortable with a probe.

Counter narrative

However their opinions may differ from other international experts, and whatever positions they may have adopted in the past, the advisors chosen by President Rajapaksa are men of international stature. Under the circumstances, they would be loathe to compromise their credibility by rubber stamping a flawed process of inquiry. Advocacy groups both locally and internationally will impress upon the team of foreign experts, the need to ensure a transparent, credible process. These groups may also call upon the three experts to define their role – whether it is to advocate the Commission undertakes an independent, rigorous process to ascertain the facts of what happened in the last months of the war or conversely, whether its intention is to present a legal case for the Sri Lankan Government.

Either way, President Rajapaksa would seem to have played his hand well. It is his Government’s first acknowledgment that it requires a professional defence against mounting allegations of major violations of international humanitarian law during the execution of its war. If this is the ultimate goal of the three appointments, then the Government has done well to hire three of the best war crimes prosecutors in the world.

For the longest time, the Sri Lankan Government has been striving to draft a counter-narrative to the growing international storyline about post-war Sri Lanka and the allegedly brutal way in which it fought the last days of its war. Glimpses of this counter narrative have already emerged in several Government documents, including the LLRC report, which concedes that there may have been firing and civilian deaths in the NFZ but persists in laying most of the blame at the LTTE’s feet for using civilians as human shields.

Given their record and previous positions, these three high powered experts offer the Government an unique opportunity to fully develop that counter narrative and build a comprehensive legal argument against the international humanitarian law challenges the administration is facing overseas.

Less ferocious bite

Whatever conclusions the three experts reach therefore will prove highly useful to the Sri Lankan Government going forward. Even if the advisors do not find the Government to have been entirely blameless in its conduct of the war, the bite will almost certainly be much less ferocious. Their legal arguments will be solid . And despite the fact that they have been retained by the Government of Sri Lanka, the experts could make a case that they were working with an independent, credible Commission of Inquiry.

From the point of view of the Government, it could be the strategic masterstroke that has been some time coming. Simply having a legal brief in its arsenal as it goes up against a major UN inquiry, by high powered Western lawyers gives the Government major international leverage. Next year at the UNHRC, armed with this legal brief, the Government could sway member states of the Council that were already feeling arm-twisted into voting for an intrusive resolution by Washington and other major powers this year.

The pinch of skipping Glasgow

President Rajapaksa, as chair in office of the Commonwealth, was unable to make the trip to Glasgow in Scotland this week to attend the Commonwealth Games. Sri Lanka played a major role in ensuring Fiji, which had its membership from the grouping suspended, would be allowed to participate in the colourful sporting event. Yet with international opinion building against the Sri Lanka and Tamil lobby groups mobilising in frenzied fashion the moment visits by President Rajapaksa are announced in Britain and across Europe, attendance at the Glasgow games proved too risky for the Commonwealth Chairperson.

Sri Lanka is a long way from any prospect of prosecution at international tribunals. The country is too small and geo-politically insignificant to merit that kind of sustained attention for the length of time it would take to execute international criminal cases. But the sustained international action and a growing reputation for autocracy and disdain for human rights, still has ways of clipping the regime’s wings. After the UN investigators release their report, the regime may find its movements even more restricted as pressure for action against Sri Lanka builds on both multilateral and bilateral levels.

Having to forego Glasgow for instance, hurts the administration much more than it cares to admit. Last Thursday’s proclamation to finally allow a domestic inquiry to play out, could be a last ditch attempt by the Rajapaksa administration to alter the course of its international destiny.

Courtesy Daily FT