By Jude Fernando –
Jude Fernando
“Justice will not be served until those who are unaffected are as outraged as those who are.” ― Benjamin Franklin
“Freedom for the wolves has often meant death to the sheep.” ― Isaiah Berlin
While the government may be able to successfully introduce constitutional reforms to curb the powers of the Executive and rehabilitate the electoral system, its economic policies will not produce many tangible results in just 100 days, as the public may expect. The government’s survival in the next general election is likely to be largely determined by how it responds to the two-pronged issue of justice: corruption under the Rajapaksa regime, and accountability for allegations of human rights abuses and war crimes committed during the last phase of the Sri Lankan civil war. These two issues are equally important and interconnected, and prioritizing one over the other could cost the government the next election. The reasons for the Rajapaksa regime’s rise and fall, and the public’s trust in the Maithripala regime’s promise of good governance, are inextricably related to these two issues.
One can understand the Rajapaksa regime’s survival for ten years – despite its record of abuses of power and dismantling of democracy – and its subsequent fall, only in relation to the means by which it maintained power. Its skillful manipulation of public fears legitimized its denial and procrastination of fulfilling domestic and international obligations. In doing so, it was able to avoid accountability for allegations of human rights abuses during and after the war, and deflect attention away from its failure to provide meaningful devolution of power to the country’s northern and eastern regions.
The Maithripala government cannot save the country from such a dark political legacy if those accused of corruption escape scrutiny. Nor can it ignore domestic and international demands for accountability and transitional justice. To do so risks falling prey to diabolical extremists who have made the rather preposterous claim that giving into those demands is hostile and diametrically opposed to the existential interests of the Sinhala community. It is equally important not to provide opportunities for those sinister forces conspiring to prevent the Tamil community from collaborating with government. The government’s responses to these challenges will determine its success in restoring good governance and justice, although these challenges do not necessarily arise from the same context and require different responses.
Corruption
President Sirisena himself acknowledged the slow progress of bringing culprits to justice. The majority welcomes his decision to appoint a presidential commission to investigate corruption charges. However, its success depends on whether the government empowers it to carry out its tasks and insulates it from undue political and other interference. Here, the government faces a dilemma. First, it cannot afford to make legal and political blunders by rushing the investigations just because they form part of an election pledge. Nor can it spend all its time and resources addressing the issue of corruption at the expense of fulfilling its other promises in its 100-day plan.
Second, delaying bringing to justice those responsible will undermine the government’s credibility. More importantly, it will undermine the justice system’s credibility and could even cost the government the next parliamentary election. The government’s opponents will exploit both to destabilize the government, forcing the government to rush and devote the majority of its time and resources to deal with corruption. Any delay could produce similar results, benefiting the opposition. The best option for the president is to fearlessly pursue truth and justice regardless of the short-term political risks, to avoid a backlash will boomerang.
The government may be slow to act on charges of corruption, but those accused are not! High-ranking politicians of the previous regime, including Vinayagamoorthy Muralitharan, a parliamentarian, former minister of the Rajapaksa regime, and LTTE colonel, are aggressively waging a public relations campaign to discredit the charges. Utilizing parliamentary sources, and domestic and international media, their strategy is to raise questions about the consistency and accuracy of the government’s charges. If the government fails to prove the allegations, those accused are likely to be vindicated in the public’s eyes. People will perceive the president as incompetent and untrustworthy, since promises to end corruption brought him to power.
The government worries that its popularity will crumble if the public perceives punishing the culprits as being part of a settling scores campaign. Indeed, the opposition might accuse the government of being vindictive toward its own political opponents. Punishment is not vengeance or retribution when it upholds justice and offers restitution. Nor is it vengeful to prevent the unjust carrying out of public activities, including unlawful attempts to obtain power. Any delay in investigating corruption is unfair even to the accused because they must have an opportunity to clear their names.
For the public, any delay would vindicate claims of innocence and provide opportunities for the opposition to regroup. Having enjoyed power and wealth for nearly a decade, and now vulnerable to being brought to justice, the opposition will do its utmost to regain power. A change of political actors does not automatically transform the values of the entire political culture. The considerable influence those accused still command over different layers of the justice system and mass media may be another reason for the delay in bringing people to justice. We must not forget that the charges of corruption are not limited to members of the previous government, but to everyone. Corruption was widely networked and penetrated into every layer of society. All those connected to corruption will try to conceal the truth and sabotage justice.
Corruption will persist until the primary culprits are prosecuted. The worry now is that the government will prolong the investigations to placate the public until the next election and scapegoat a few lower-ranking individuals while the primary perpetrators, who occupy higher levels of the political, civil, and private sectors, go free. If this occurs, no one will believe the government’s promise to create a corruption-free culture. This would strengthen the opposition. The government must remember that corruption was the main reason for the landslide victory of the Adam Adami Party over the BJP and the Congress Party in neighboring India.
Since many believe the corruption and human rights abuse allegations, the most debilitating consequence of the government’s failure to bring those on the “black list” to justice would be the loss of public faith in the justice system. The public is already suspicious of the justice system, which seems lenient toward select influential politicians and privileged individuals, while being harsher toward others. Would the police department seek the attorney general’s advice before questioning less privileged individuals accused of violating immigration laws and obtaining a diplomatic passport? Why has the government arrested only one senior politician and a few lower level employees of public and private institutions, rather than those occupying higher levels of authority? Why has the government arrested the former head of the Independent Television Network (ITN), but not billionaire business tycoons? Why was the court hearing for a prominent cabinet minister postponed? Why are some people’s passports impounded while under investigation, and others permitted to leave the country, despite public protest? The answers to these hard questions certainly have legal and political implications.
If legitimate reasons exist for these inconsistencies, the government needs to explain them to the public. The police department’s media spokesperson carefully explains the progress of some cases, yet remains silent on others. People should not know every detail, but the government needs to engage the public in such a way as not to provide ammunition to its critics. The government cannot take for granted that the majority is as concerned as the government about corruption compared to other issues ordinary citizens face. It desperately needs a public relations campaign to educate the public regarding short- and long-term consequences of delaying prosecuting corruption cases and progress on good governance and the future of the justice system.
Truth and Accountability
The second area of justice involves international and domestic demands for transitional justice, accountability for allegations of human rights abuses and war crimes, and devolution of power.[1] The Tamils do not expect miracles from the Siresena regime in 100 days. Still, the government is in a much stronger position than the previous regime’s, given that the Tamil political parties have expressed their willingness to work with the government and the international community appears to support this government. The onus is on the government to exploit this opportunity and bring closure to the issue so that the country can move onto other equally pressing issues.
Once its report is complete, the UNHCR will likely refer it to Sri Lanka’s ‘domestic mechanism for action.’ To ensure good governance and transitional justice for the Tamil community and the country as a whole, the international community must consider the government’s request to carefully time the release of the report due to the rather complex and difficult transition to good governance in which the government is involved. However, the government also needs to answer a number of questions. How does the delay in releasing the UNHCR report help the government set up a domestic mechanism for managing human rights and reconciliation issues? Why are releasing the report and strengthening of the domestic mechanisms posited as contradictory? Would the domestic mechanism as an alternative inquiry into war crimes allegations replace the international inquiry or serve as a mechanism to apply the report’s findings to ensure restorative justice? Answers to these questions will enhance the government’s position regarding the accountability and reconciliation process.
Either way, given the complexity of domestic and international politics, a compromise for an inquiry into human rights abuses and war crimes would be a joint committee agreeable to both the government and the Tamil community. Let the committee and the justice system, not the politicians, decide whether the abuses that took place during and after the war constitute war crimes. If the government is opposed to international intervention, it should explain its reasons to the Tamil community, given their reservations about a domestic inquiry as indicated in the resolution passed at the Northern Provincial Council. One might well ask whether a resolution per se creates national disharmony and undermine the government’s attempt to strengthen countries justice system.[2] However, we must try to answer this question in the context in which the resolution was passed before passing any hasty judgments about it.
Northern Provincial Council’s opinion will not affect the findings of the UNHCR report. It is one among many other opinions as to how the Tamil community should corporate with the government and the international community with regard to the future reconciliation process. ‘Smart patriots’, even with a slightest semblance of moral integrity, will assess the merits of the Northern Resolution in relation to Tamils community’s loss of faith in the country’s justice system. Highly politicized justice system failed to reveal the truth about human rights violations during and after the war and to bring those responsible to justice. No impartial domestic investigation could have taken place under the previous government since the culture of fear and intimidation I created prevented people were willing to give evidence. Similar experiences of Sinhalese and other minorities (e.g. abductions, killings, disappearances and deprivations of the due process) reached a deplorable state under the Rajapaksa regime. We also need to empathize with public skepticism over the present government’s ability to expose and silence those who obstruct truth and justice. The current government is a coalition comprised of different political parties known for their different ideological and political positions regarding reconciliation and transitional justice. It has to face a challenging general election in a few months against an opposition that is likely to exploit the government’s responses in this regard.
Evidently, today’s governments respond more when they are under international than domestic pressure, despite the questionable motives of those international actors. An International inquiry as it is envisioned would not be inherently partial, since it promises to expose truths about the massacres, abductions, and use of people as human shields by the LTTE, and does not claim to take away the right of the government to ensure the impartiality of the inquiry. The government has the right to complain to the UNHCR if the committee is acting impartially and is evidence is distorted by any party. If taken with a sense of humility, such an inquiry will have a positive impact on the new government’s efforts to restore the credibility of the domestic justice system, and would help eradicate public doubts about the Sri Lankan government’s commitment to truth and justice.
Discovering truth through an impartial inquiry and strengthening the domestic mechanisms of accountability along with truth and restitution differ markedly. In any justice system, truth is non-negotiable and precedes restitution. In most cases, restitutional relevance and proportionality are negotiable. For these important reasons, the government needs to pay as much attention and due consideration to the Tamils’ perspectives regarding the type of inquiry that would be most impartial, as much as to those who oppose such an inquiry. Equally important is to defuse simplistic arguments accusing Tamil political parties and civil society groups calling for an international inquiry of acts of aggression against the Sinhalese. Nor should the government succumb to the claims that the Tamil parties demand for an impartial inquiry is indicative of their refusal to work within a united Sri Lanka or their lack empathy for the difficult transition process with which the government is faced. Such views will only strengthen both extremes of the ethnic divide and cost both the Sinhala and Tamil votes in the next elections. Not only the Tamils but also the Sinhalese continue to pressure the government to conduct impartial inquiries into charges of corruption and human rights abuses!
Myths and unfounded fears about an impartial inquiry prevent the meeting of public and international demands for accountability. The government should dispel misperceptions and educate the public as to why accountability is a precondition for good governance: to enhance the security forces’ reputation, restore the justice system’s credibility, and even more importantly debunk conspiracy theories about external intervention. The present government cannot pursue the same strategy as the previous government. The purpose of the previous regime’s avoiding an international inquiry was to enhance its public legitimacy by calling such an inquiry a national security threat. This position only safeguarded the regime’s interests. It did not address accountability issues or national security threats, wasted a colossal amount of public funds, and passed the problem onto the present government, along with formidable constraints.
The government should focus on the benefits of an impartial inquiry, proving its ability to pursue truth in an unbiased manner. How will truth contribute to transitional justice and good governance? How might that truth be used as a smokescreen to exert undue pressure on Sri Lanka? How will the revelation of truth and subsequent restitution relieve such pressures and place the country on a high moral footing in the world’s eyes? How would Sri Lanka’s commitment to truth and justice contribute to international human rights? What precedent could Sri Lanka set for international human rights? Such public engagement could create the domestic and international conditions needed to ensure accountability and reconciliation.
Devolution
Transitional justice is non-negotiable and morally desirable, and helps to build trust between the two communities to create the necessary conditions for a long-term political solution to the conflict. The government has already taken a number of steps, including changing the governor, passing a bill to hand over land to the public, and restricting the military’s movements. The government might succeed in implementing the 13th Amendment, but it needs to be attentive to the Tamil community’s reservations. It should demonstrate that it is not simply about administrative decentralization, but actual devolution of power; the two are fundamentally different.
Devolution debates mainly focus on perceived threats to the country. Many see devolution as a step toward separation and antithetical to the ‘unitary’ character of the country. Instead, we should focus on two different questions: How would the substantial devolution of power to the northern and eastern regions contribute to the economic and cultural vitality of the regions and the country? Secondly, how would such devolution contribute to good governance and to reduce the concentration of power at the center? The government could demonstrate its commitment to devolution by involving all the communities as equal stakeholders in the dialogue, as opposed to imposing devolution from the top down. The government should not abrogate this responsibility just because it now commands the goodwill of those countries that demand accountability.
The foreign minister’s speech in the United States regarding the accountability and reconciliation process is welcome. The speech is far more nuanced than speeches made by his predecessor on similar subjects. At the moment, the foreign minister (and rightly so) is busy abroad negotiating with international actors. But similar enthusiasm is lacking in domestic efforts to counter the opposition’s criticism of these negotiations. This will only add to the legitimacy of the opposition’s claim that the government is secretly collaborating with foreign forces hostile to the country’s national interests.
In short, if the present government provides credibility to previous government’s racist slogans and tactics to delay justice, it will runs the risk of losing both Tamil and Sinhala votes at the next general election. This government also risks the majority vote if it permits the opposition to fan the flames of the majority community’s fears of the government’s approach to transitional justice. This would further polarize the country along ethnic lines and cause it to become isolated internationally. The loss of another opportunity to restore public and international faith in the country’s justice system and pave the way for another bunch of crooks to take over governance after next parliamentary election would be devastating.
The government needs a public relations campaign to alleviate the Sinhala fear of an impartial inquiry and candidly explain the meaning and necessity of devolution, dispelling myths and allaying fears. It is the government’s duty to create public awareness that critically examines the assumptions underlying these fears and prepare citizens to accept the hard choices the government needs to make to ensure accountability and good governance.
Good governance does not mean clinging to power at the expense of truth and justice. Failure to honor demands for transitional justice for minorities is not compatible with the moral integrity of good governance, nor could it be sustainable in the long term. The government must remember that the moral decadence of the Rajapaksa regime caused its downfall, despite its control over the state security apparatus and financial and state resources. Even the war euphoria was insufficient for the government to escape this moral indictment.
The morally superior course of action would be to take political risks by punishing those responsible for corruption and addressing the transitional justice concerns of the Tamil community. This would also better position the government to win the next election than abrogating responsibility for political expediency. Coming to terms with truth and justice is an easier way to restore the faith in country’s justice system, and it is inherently uncomfortable and never a risk free process. Such risk might be personal or political (e.g. losing the next election), but that would be a worthwhile price for justice, vouchsafing a victory for society in the long run. This is the lesson learned from the past two centuries’ positive social reforms.
[1] http://dbsjeyaraj.com/dbsj/archives/37631
[2] http://groundviews.org/2011/08/26/war-crimes-investigations-in-sri-lanka-an-unpopular-view/
Thiru / February 15, 2015
So long as Sinhalese politicians are either afraid of losing Sinhalese people’s votes, or opportunistically woo their votes with racist promises, there will never be true democracy in Sri Lanka.
Nor will there be improvement or progress in the lives of the people; it is the curse that was cast by democracy given to the island in 1948:
Nation’s prosperity during colonial rule by Britain came down steadily from 1948.
Result is devastating to the minorities, and not positive to the Sinhalese either.
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Thiru / February 15, 2015
Furthermore, as long as the majority of Sinhalese Buddhists, the Buddhist heirarchy, including the mahanayakes and the the bhikkus believe what is written in Mahavamsa as gospel truth, the Sinhalese politicians are not going to change:
If they don’t subscribe to this Mahavamsa’s distorted writings they have very little chance of winning an election.
Mahavamsa writings are basically INIMICAL to modern democratic philosophy.
so we have a dilemma as to how to establish genuine democracy in the island.
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Sharanga / February 16, 2015
Mahavamsa is inimical to Tamil Nationalist philosophy that is trying to justify its claim with some nonsense about a homeland. Mahavamsa is not history book, and it’s at times fantastical and inconsistent. But I’m pretty sure the Tamils wish they too had a book like that. Unfortunately they have nothing. For a race who have supposedly lived for more than 2000 years in this country, the Sri Lankan Tamils have been astonishingly unproductive. Not only they haven’t been able to create a unique culture, and a language, they haven’t even written a book. Hence the Mahavamsa bashing.
But I fail to see how it’s inimical to a modern democracy, unless you view nationalist self-determination as a feature such a democracy must have.
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Dinuk / February 16, 2015
Some good points. some debatable given need for sequencing reform, and way too long Jude! You lost me before the halfway mark..
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Jude Fernando / February 17, 2015
Hi Dinuk
I totally agree with the your point on sequencing reforms. I will leave that up to the politicians. The trouble is I am not sure whether the government has a clear strategy to do that.
Yes, I am also debating some of my points with myself.
I will try my best to write shorter articles. It is a fare observation on your part. Those take longer time, anyways.
Cheers
Jude
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Punitham / February 15, 2015
John Richardson clearly explained it – the Sinhalese must know the truth as vote-catching leaders don’t tell the masses:
”The three elections prior to the escalation of protracted conflict when a new government was swept into power with overwhelming political support were those of April 5-10, 1956, May 27, 1970 and July 21, 1977. In each, the party previously in opposition gained decisive power on a platform that promised fundamental change. After each election, there were missed opportunities for initiatives that could have addressed many concerns of Tamil community members, while simultaneously respecting the concerns of all but the most radical Sinhalese nationalists. In each instance, however, Sri Lanka’s political leaders chose not to expend their political capital in this way but instead, to accede to demands of the radicals. … it will be useful to seek lessons from periods when Sri Lankan political leaders, like President Mahinda Rajapaksa, had such overwhelming political support that they were in a position, if they chose, to expend political capital by taking concrete steps toward communal reconciliation.” – Prospects For Post Conflict Reconciliation And Development In Sri Lanka: Can Singapore Be Used As A Model? Prof John Richardson’s presentation at Global Asia Institute Speaker Series (2010), National University of Singapore
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Vasu / February 15, 2015
Believe me, we, all Sri Lankans, whether Tamils, Muslims, Burghers or Sinhalese, everyone is going to profit from independent war inquiry.
This will help us to rethink our past actions, not only against Tamils, also againt JVP ( two times), rethink the role of Police, Armed forces, paramilitary and non state actors.
It will reshape or modify the role of politicians in future conflicts in Sri Lanka
LTTE is punished
Tamils independent struggle is on ground zero and will never rise again with arms
Don´t worry
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Punitham / February 15, 2015
Thank you very much for writing this.
We have now learnt to trust this author to exert more and more thrust on
‘icanChangeSL and #wecanChangeSL initiative.
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Navin / February 15, 2015
The author mirrors the deep seated thoughts of the unbiased and fair-minded. However, despite the claim of the President that he risked his life and those of his family, to challenge Mahinda Rajapaksa for the PURPOSE of saving the country, Basil Rajapakse being allowed to depart from the VIP lounge carrying suit cases full of cash, gives the lie to the declared PURPOSE. The others who practiced banditry so brazenly and with such impunity are still breathing the fresh air.
Perhaps, given the cultural mindset of the Sinhala Buddhist, the country has got what the people deserve. That segment of society is incapable of walking the righteous path. S.W.R.D. Bandranaike changing his religion and capturing Buddhist votes, says it all about Sinhala Buddhist politicians and Sinhala Buddhist voters. Money and Power, for them, trumps all higher values. After all Lord Buddha was not Sinhala. So he was able to sacrifice a loving family and his Kingdom. In Sinhala history, is there even one example of such a real life sacrifice? No fairy tales, please.
Maithripala Sirisena cannot and will not do anything, either, to punish the architects of the banditry and impunity of the last six years, or, restore the dignity that was torn off the Tamil community. Even if he wishes to do so he will not be given the co-operation necessary to achieve such aspirations.
I have commented in these columns before that Maithripala Sirisena needs to grow a pair of balls. But now I wonder. Seems he has them – and he is employing them to build the much cherished Sinhala Superiority and consolidate Money and Power in his and his accociates’ hands.
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Jude Fernando / February 17, 2015
Hi Navin
Thanks. I agree with your points. The question is what could we as civilians do to create “co-operation necessary to achieve such aspirations.” This is a longer term task that needs to begin with education and active involvement of the civil society so they could help Maithripala could “grow a pair of balls”
At the moment I think the tendency is to rehabilitate impunity.
Cheers
Jude
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tariq / February 15, 2015
The picture says it all. No human should suffer this indignity at the hands of another. Ever!
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Navin / February 16, 2015
I wonder whether the two[Edited out] who gave the two thumbsdown were looking at the pic and playing with their[Edited out]. Yes I am angry that there are imbeciles reading the Colombo Telegraph; like that imbecile Ayathuray painting Sri Lanka Muslims as terrorists.
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Nathan / February 15, 2015
It is important to defuse simplistic arguments accusing Tamil political parties and civil society groups calling for an international inquiry of acts of aggression against the Sinhalese.
The foreign minister is busy negotiating with international actors. But similar enthusiasm is lacking in domestic efforts … .
What more needs to be said. Hats off to Jude Fernando!
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Unfinished / February 15, 2015
I hug you for your views here.
You’ve used the word ‘closure’ and that is what the ‘affected’ are asking for. The rest of the country found its closure in May 2009, albeit some questionable means. then they received an at least a wholesale form of justice for the violent activities of the LTTE before that. Now, the Tamil people want their closure for their sufferings. Listing those sufferings by an independent institution is the first part of it. It is understandable that the Sinhalese people feel bad about it to feel an urge to resist that from happening. Those effected those sufferings taught the people to feel bad about it and keep insisting them to resist such an attempt. It is indeed the duty of the new government to educate the Sinhala masses about this bias in concience due to those maliciously induced sentiments.
After being unable to stop the creation of this report, it’s not worth spending time and energy in delaying merely the release of this report until ‘August or so…”. It WAS the previous government that created the need for such a UNHRC report. Why should this government be blamed for merely not delaying the Release of it. If not today, it will be released tomorrow, anyway. In fact the government should concentrate more on timing the elections, preparing the voters to accept and digest the report before the elections and to cast any blame on the previous government. Because it was the MR govt. that was the reason for this UNHRC Situation in its totality.
NB: I am worried that you’re going to be called a ‘dumb traitor’ by the ‘smart Patriots’. Please watch it.
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Jude Fernando / February 17, 2015
Thanks. I do not think very many people understand the meaning of closure from the psychological point of view and Why revealing the truth is a moral responsibility.
Cheers
Jude
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Agnos / February 15, 2015
Jude,
I remember talking to you when you were at Peradeniya and later at Pennsylvania. You continue to show you are fair-minded and just in your thinking. Thanks for writing and take care.
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Jude Fernando / February 17, 2015
I am trying to guess who you could be? Any hints.
Cheers
Jude
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Ro Abeysethung / February 16, 2015
An excellent article , very well written. Jude has “hit the nail on the head”.
It is not sufficient that a Govt; is just! it must also be palatable ( remarks Marshall in conquest of Ceylon). The Sinhalese Buddhist must think of the Buddha’s “Asta-loka Dharma, which compares the “ups and downs” of human experience to a wheel ‘s action. The goddess of fortune slowly turns the wheel , to which the helpless victims are bound, the slave in his hour of triumph treads down the crowned king beneath him.
This is so apt to the SL situation today as Goethe said: You must rise or fall. You must rule and win, or serve and lose, you must suffer or triumph, you must be anvil or hammer,” he used an expression in harmony with this idea of the revolving wheel of fate.
As Jude says a true political compromise is not just the best path to peace, but the only path, and it’s high time the southern polity show as much willingness to risk some of it’s hubris for peace.
The present Govt; must realize the depth of the peoples resentment of what the previous Govt; did, with the judiciary emasculated, and the bureaucracy turned into a fiefdom. The judiciary was like a parallel executive by wholesale misappropriation, misrepresentation and misinterpretation of law. Corruption was the order of the day.
If this Govt; doesn’t act fast and bring the culprits to book as soon as possible, things are definitely going to backfire on them the way Jude has very correctly analyzed.
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Off the Cuff / February 16, 2015
Dear Jude Fernando,
Re “An International inquiry as it is envisioned would not be inherently partial, since it promises to expose truths about the massacres, abductions, and use of people as human shields by the LTTE,…”
The problem is that it has already become Partial.
The justification for an International Inquiry was made by the UNSG’s Panel of Experts Mr. Darusman, Ms. Yasmin Sooka and Mr. Steven Ratner in their report.
They in their wisdom have stated that the LTTE is not guilty of using a Human Shield (POE report 237 reproduced below).
237. Common Article 3 of the Geneva Conventions: Credible allegations point to a violation of Common Article 3’s ban on the taking of hostages insofar as they forced thousands of civilians, often under threat of death, to remain in areas under their control during the last stages of the war and enforced this control by killing persons who attempted to leave that area. (With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)
The ICC Statute is the Law.
ICC Statute Rule 156.
Definition of War Crimes
Rule 156. Serious violations of international humanitarian law constitute war crimes.
(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
(note the singular, even using the presence of ONE civilian is enough)
The Key words in the above definition are “Presence”, “Civilians” and “Immune”
The meaning of course is very clear. Anyone holding even ONE Civilian to protect either, military forces (in this case LTTE cadres) or any area or any location from attacks is guilty of the War Crime of using a human shield.
Do you still think this exercise will be IMPARTIAL?
I have shown you only ONE instance of partiality, there are more.
BTW that guy in the picture fondling the girl should be identified and dealt with severely.
Please give your observations.
Kind regards,
OTC
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Anpu / February 16, 2015
OTC,
People you see in the picture – are they part of the HUMAN SHIELD? Where are these people? Is this picture work of the CH4?
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Off the Cuff / February 17, 2015
Anpu,
I can distinguish between stage managed and actual photographs. Can you remember the “Truth Tigres” and their cropped pics carried on Tamilnet?
These Tamil people are LTTE Terrorists who held Tamil Civilians as a Human Shield. Hence they were not the Human Shield but those who got shielded by the Human Shield and has committed a war crime.
However I do not agree with the way that lady’s breast is being fondled. The perpetrator should be given the maximum punishment available under the law.
Anpu it was foolish to ask me about CH4 as this picture is not from CH4. If you are trying to imply that the CH4 was not fabricated you are foolish to do so because you cannot explain why there was NOT A SINGLE LTTE CASUALTY OR DEAD WITHIN THE PTK HOSPITAL, in that CH4 Fabrication. THE PTK was the ONLY HOSPITAL THAT WAS UNDER THE LTTE IN THE WAR ZONE.
Can you do so even now?
Good Luck trying
OTC
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Jude Fernando / February 17, 2015
let an inquiry determine what the picture is all about and who took it. But it is a typical picture of things that happen during wars.
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Off the Cuff / February 17, 2015
Dear Jude Fernando,
No problem with the picture, I have not contested it. I feel that the guy who fondled the breast of that young woman should be punished to the full extent of the law.
But the main thrust of my comment is about the IMPARTIALITY of the UNSG’s Panel of Experts, Mr. Darusman, Ms. Yasmin Sooka and Mr. Steven Ratner who have subverted ICC rule 156 by a putrid misinterpretation.
You overlooked (avoided?) commenting on this act by the UNSG’s POE which underlines the Fact that they were not IMPARTIAL, a prerequisite if Justice is to be served.
I cannot understand why people who have the courage to stand up for Justice, pick and chose when to do so when Justice is denied before their very eyes.
Is the POE statement in section 237 of their report to the UNSG, consonant with the Definition of the War Crime of a Human Shield defined in ICC Statute Rule 156?
Just compare the POE statement with the ICC Statute Rule 156 and state what you understand. That should not be too difficult now is it?
Kind Regards,
OTC
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Jude Fernando / February 17, 2015
I think I responded to your comment. It is after Appu’s comment. Just scroll down and see.
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Off the Cuff / February 17, 2015
Yes I saw it later, I have responded to that too. I am anticipating your opinion as I value an impartial observation. Thank you in advance.
Kind Regards,
OTC
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Kumar / February 16, 2015
Jude Fernando will not respond to Buffoons!
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Off the Cuff / February 16, 2015
But Buffoons do I suppose as you have responded.
Not just Jude, NO ONE can counter what I wrote about the Darusman report. That’s why it has remained unchallenged even by rabid separatists.
All anyone can do is agree if they have the integrity to do so. Otherwise they will keep silent as they cannot challenge it.
Even you, though a buffoon, has realised the futility of challenging it and has avoided doing so.
The reason behind exonerating the LTTE was most probably a massive bribe.
Have Fun
OTC
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Jude Fernando / February 17, 2015
Hi Off the Cuff
Thank you very much for your detailed comments. Yes, I will not take for granted of the impartiality of the UN, since historically it has not been always impartial. We must challenge the UN whenever we see it is acting impartially. But impartially does not mean negation of the truth altogether. So let truth be known and whatever is false in it can be exposed later. The question who fear the truth and why?
I also do not think UN is totally irrelevant at this point in time. Just imagine a world a this moment in time without some sort of transnational mechanism and countries are not accountable to any international body. Aiyo, that would be disastrous ne da? My take is that the UN and the government should work to ensure their mutual accountability and impartiality. It would be easier to do after the the report is out. I am sure people will do that.
“LTTE is not guilty of using a Human Shield”. Let the an inquiry determine that.
I hope that this government will bring closure to this issue, which I think is useful for reconciliation.
Cheers
Jude
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Off the Cuff / February 17, 2015
Dear Jude Fernando,
Thank you for your response. I responded to your comment of February 17, 2015 at 1:40 am (about the picture) before I read this comment of yours.
This is not a simple case of favouritism or loading the scales of Justice, which is abominable by itself. This is an attempt at Deceiving the UN and the World which has gone unnoticed by the UN and the world even up to the present.
It is an attempt to redefine the ICC Statute by corrupting the definition of a War Crime, namely that of a Human Shield, specifically to absolve a Terror Group and their financiers of a heinous crime that DIRECTLY resulted in more civilian deaths than would have happened otherwise.
If not for the Human Shield of the LTTE, where Tamil civilians were used as sand bags, the world would not have had any reason to intervene.
This TAMPERING with the Law has been done by a set of corrupt people, who even today, pose as defenders of Human Rights, Mr. Marzuki Darusman, Ms. Yasmin Sooka and Mr. Steven Ratner. Ms. Yasmin Sooka has been making hay while the sun shines, doing her rounds in the separatist circle!
It was the POE’s Job to establish the need for an International inquiry. In order to do that they sat for months, obtained “Evidence” that remained secret (hence could not be challenged), and produced a report which was submitted to the UNSG, which later wended it’s circuitous way to the UNHRC.
They POE have even gone to the extent of stating that the first CH4 video is AUTHENTICATED footage. It was UN Special Rapporteur Prof Philippe Alston who attempted this “authentication”. He used Dr. Daniel Spitz and Mr. Grant Fredericks as his experts. The former has perjured himself in US courts. The later was discredited by a Canadian Judicial Commission before which he gave evidence as an expert witness. He was found to be a Charlatan who did not posses the expertise that he claimed to posses.
Thus we can see that UN officials has been trying to fabricate evidence where evidence did not exist. In both cases my country is faulted while those who terrorised it are being exonerated.
Something or someone is behind these moves and I believe the immeasurably large LTTE wealth, is behind it.
Re “But impartially does not mean negation of the truth altogether”
I believe the word is “Partial”, impartiality is what is sought and is essential but is absent.
The “Evidence” is locked up and cannot be challenged.
The “Investigators and the Judges” are the POE.
Hence it is their thinking which they have put down in black and white that we can challenge.
Hence we don’t know what is True and what is Fabricated.
Re “So let truth be known and whatever is false in it can be exposed later”
It doesn’t work that way. One truth cannot be allowed to authenticate a dozen Lies. You have to behead the lies from the start. Especially as these lies are the basis for an International Inquiry.
Re “The question who fear the truth and why?”
No one fears the Truth. What is feared is a Kangaroo Court and a Lynching party paid by LTTE wealth.
The POE was secure in their belief that their World Reputation would ensure their invincibility. That confidence led them to CUNNINGLY manipulate the ICC Statute. They referred to the ICRC instead of the ICC, completely ignoring the ICC (only one letter is different in the acronym).
Even within the ICRC (International Committee of the Red Cross) study, rule 97, the word “movement” appears in parentheses and it is not the Sine Qua Non of that war crime as the POE tries to portray.
Definition of human shields by the Red Cross rule 97
(note; ICC Statute is the Law)
extract
Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.
end extract
(https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule97)
Re “I also do not think UN is totally irrelevant at this point in time. Just imagine a world a this moment in time without some sort of transnational mechanism and countries are not accountable to any international body. Aiyo, that would be disastrous ne da?”
Not as disastrous and dangerous as a World precedent set by a Kangaroo Court and Wild West style Lynching Party.
Re “My take is that the UN and the government should work to ensure their mutual accountability and impartiality.”
You have forgotten that there are other parties involved not just the SL government and the UN.
You have been very actively critical. There are others like you who are actively critical. The Tamil diaspora organisations all over the world has been very active and very critical. The LTTE fund raiser’s and those who control that wealth are involved. Fr Ryappu Joseph and his church is actively critical. Unsubstantiated Numbers are thrown about. India has been critical. USA, UK etc has been critical. All seek retribution on behalf of the civilians who were killed mainly because they were being held as Sand Bags, in a Human Shield, to protect a gun wielding, knife toting band of terrorists who had no qualms in chopping off legs and shooting dead those who tried to escape in the back not to mention suicide bombing those who managed to escape. There is evidence for all this and that is not from the SL govt.
What I find strange and what exposes the NUDITY of the activists is not so much the above but their ABSOLUTE SILENCE in not calling for accountability for the 100,000+ Child Soldiers, as young as 9 years and the pain and suffering of their parents from whom they were abducted (some torn from their weeping mother’s grasp and others abducted from school) who were condemned to a certain death by forcing them to go to the war front.
The murderess against whom copious amounts of evidence is available is living right under these ACTIVISTS noses in the UK and within easy reach of ALL and the ICC!!!
This is not about Human Rights and accountability if the Child soldiers and their parents rights are of no concern.
Hence Jude, I request you again, to state without any ambiguity, your opinion on the Action of the UNSG’s Expert Panel, Mr. Marzuki Darusman, Ms. Yasmin Sooka and Mr. Steven Ratner.
Kind Regards,
OTC
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Caligula / February 16, 2015
‘Only Moral Integrity will save the Government’ It should start by not giving jobs to sons, daughters and relatives of Ministers and MPs. This has already begun. It should take a page out of PM Modi’s book. He has ordered that such appointments will not be tolerated!! Wake up Mr. President and PM! Of course Caligula appointed his horse as a senator!!
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kali / February 16, 2015
Jude Fernando;
The government’s survival in the next general election is likely to be largely determined by how it responds to the two-pronged issue of justice: corruption under the Rajapaksa regime, and accountability for allegations of human rights abuses and war crimes committed during the last phase of the Sri Lankan civil war. These two issues are equally important and interconnected, and prioritizing one over the other could cost the government the next election. The reasons for the Rajapaksa regime’s rise and fall, and the public’s trust in the Maithripala regime’s promise of good governance, are inextricably related to these two issues.
*** I entirely agree with you on the above two challenges facing the GOSL. The first one is fairly simple if there is the will.
But the second one is more complicated because of the reluctance by even MS and RW to bring those responsible to book. As I have stated elsewhere MS has a problem as he made it clear in his speeches leading up to the elections that he will protect MR from International Probes. This means that he feels that the right forum to probe allegations on Genocide is an Internal Inquiry. But we know that an internal inquiry is an attempt to save MR and not to get at the truth and the Tamils will never accept that as we have no trust especially when SF says that he will defend GOSL and the Sri Lankan Army. Don’t forget MS is part of the Coalition and he carries a lot of clout.
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Jude Fernando / February 17, 2015
Thanks Kali
What can the civil society to do help the government realize what you say in your comment?
Cheers
Jude
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