15 August, 2020

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Incompatibility In The Roles Of Sri Lanka’s Advisors In The Disappearances Commission: SLC

A fundamental incompatibility exists between the tasks that have been set by the Disappearance Commission for the recently appointed international advisors and the statements given by these Commissioners on their engagement with the Sri Lankan government, the Sri Lanka Campaign – a group lobbying for just and lasting peace in Sri Lanka notes.

Sir Desmond de Silva - Chairman of the Advisory Panel

Sir Desmond de Silva

In their piece on the six international advisors who were appointed to consult with the Disappearances Commission, SLC notes that although the advisors have been describing their engagement with the Commission in terms of a lawyer-client relationship with the Sri Lankan government, their role has been noted as one that would ‘advise the Chairman and Members of the domestic Commission of Inquiry, at thier request, on matters pertaining to the work of the Commission. . .”

SLC points out that although international lawyers can play an important and valueable role in domestic transitional justice mechanisms, the same cannot be said in the case of Sri Lanka since repeated mechanisms to establish and achieve justice has failed, which in turn prompted the creation of an international accountability process by the UNHRC.

The group has also stated that this contradiction in the roles of the newly appointed international advisors has only gone to substantiate various allegations being levelled against them including:

– the possibility that their work is being used by perpetrators to evade international justice

– the very serious allegations that the proceedings of the Commission are now being used as a vehicle for witness intimidation by Sri Lankan security forces

SLC has further noted that as a result a strong need has arisen both morally and professionally, for the advisors to clarify their precise mandates, and have added that failing to do so would only continue to fuel the suspicion that they have been hired by the GoSL to support its goal of undermining the international investigation.

We publish below the article in full;

Designing Justice, Advising the Accused: The Strange Case of Sri Lanka’s ‘International Advisers’

In March of this year, the Human Rights Council passed a resolution mandating the Office for the High Commissioner of Human Rights (OHCHR) to undertake a comprehensive investigation into alleged serious violations and abuses of human rights in Sri Lanka between 2002 and 2011. But despite hopes that the inquiry might begin to pave the way for the Government of Sri Lanka to move towards genuine accountability and reconciliation, it quickly became clear that the government –fearful that the inquiry might recommend prosecuting some of its own members – would seek to obstruct it.

To that end, the Sri Lankan government has deployed a three-pronged strategy: ensuring that government departments and other state-controlled entities do not cooperate with the inquiry; criminalizing and obstructing the flow of information between witnesses and the investigation team through a renewed crackdown on civil society; and undercutting support for the international inquiry by beefing up – if only in appearance – its own (discredited) domestic accountability mechanisms.

The Presidential Commission on Disappearances (and other Failed Domestic Mechanisms)

In August this year the third element of this strategy received a boost when President Rajapaksa announced that he had appointed a panel of international legal experts to advise his Commission on Disappearances, whose mandate (it was declared at the same time) was to be radically expanded to investigate abuses committed during the final stages of Sri Lanka’s civil war, including violations of international humanitarian law and international human rights law. Given the strong evidence presented by the UN in support of allegations that between 40,000-70,000 civilians were killed during the final stages of the war, mostly by government shelling, it was a mandate that was pointedly phrased:

“[To investigate] Whether such loss of civilian life is capable of constituting collateral damage of the kind that occurs in the prosecution of proportionate attacks against targeted military objectives in armed conflicts and is expressly recognized under the laws of armed conflict and international humanitarian law.”

Originally established in August 2013, the Commission is the latest in a string of domestic accountability mechanisms with a severe credibility deficit. As the 2009 Amnesty International report “20 years of make believe”highlights, no less than nine presidential commissions have been established between 1993 and 2009, none of which resulted in significant change and many of which did not even produce published reports. The Centre for Policy Alternatives has listed eleven further bodies that have been established since then.

During its first year, the low expectations surrounding the launch of the latest Disappearances Commission have largely been confirmed. Not only has it been mired in allegations of witness intimidation, evidence tampering,outrageous mistranslations of testimony and procedural partiality – overseen as it is by a government with a track record for eliminating witnesses to war crimes – but it has proceeded so slowly that it has been estimatedthat it would take the Commission 13 years to hear all the complaints that have been lodged before it. [1]

In this context, the appointment of three international legal experts, David Crane, Geoffrey Nice, and Desmond de Silva, to oversee this process, was greeted by many human rights observers with surprise.

Why had a group of seemingly distinguished lawyers, with a wealth of experience in prosecuting war criminals across the world, chosen to act as a convenient political cover for a government itself accused of the gravest war crimes? And why had they agreed to associate themselves with a process so obviously flawed, and so clearly designed and timed to undermine a credible and independent international inquiry? On what specific basis had they been hired by the Sri Lankan government, and how, given the seeming conflict of interest between providing legal counsel to the Sri Lankan government and advising a domestic accountability mechanism, was their role to be defined?

Advisors on Accountability or Counsellors to the Accused?

Several of these questions were recently posed by the Sri Lanka Campaign to the group of advisors – now recently expanded to include the Indian development activist Professor Avdhash Kaushal, the Pakistani lawyer Ahmer B Soofi, and former international judge Motoo Noguchi.

Only two of the experts replied, and while the Sri Lanka Campaign agreed to keep the correspondence private, we can reveal that Professor Kaushal’s response was brief and evasive, and Professor De Silva’s response was in line with his public utterances – that he sees his role as analogous to that of a barrister representing a client. This was a view echoed by Sir Geoffrey Nice, who, in response to our questions at a public event in October, invoked his professional obligation under the ‘cab rank rule’ to offer legal counsel to clients irrespective of his personal views about them. This is a defence that does not stand up to scrutiny.

To begin with, the Code of Conduct of the UK Bar Standards Board (of which Sir Geoffrey was formerly vice-Chair) clearly states that foreign work – i.e. services relating to legal proceedings taking place outside of England and Wales – is not subject to the cab rank rule. The suggestion that the advisors are therefore compelled by professional duty to provide legal services to the Rajapaksa government is therefore spurious.

Second, by invoking the cab rank rule the legal advisors give the impression that there is some sort of credible prosecution mechanism underway against the Rajapasksa which would cause them to require legal advice. There is not, and indeed this appointment seems to be an attempt by the Sri Lankan government to influence the politics of the case to ensure that there never is.

Lastly and most importantly, by outlining their engagement in terms of a lawyer-client relationship with the Sri Lankan government, the advisers reveal the fundamentally flawed nature of their dual appointment. For while they have been eager to present themselves as legal counsellors to the Sri Lankan regime, their stated official role, as specified the revised mandate of the Commission, is: “to advise the Chairman and Members of the [domestic] Commission of Inquiry, at their request, on matters pertaining to the work of the Commission”.

It is our view that there is a fundamental incompatibility between these two tasks – and moreover, that there is a direct conflict of interest between advising a Commission designed to investigate serious violations of law and the task of providing legal advice and representation to the individuals and agencies who stand accused of them.

Outstanding Questions

In certain circumstances, international lawyers can play an important and valuable role in the design of domestic transitional justice mechanisms – providing as they often do, the impartial and non-political expert legal advice that their credibility requires. However, it is clear that in the case of Sri Lanka, where the repeated failure of such mechanisms to achieve justice prompted the creation of an international accountability process in March of this year – and where such mechanisms continue to be used to undercut support for that very process – no such useful role is possible.

This international mechanism must be allowed to do its work and the eminent international lawyers should take great care to avoid being complicit in undermining it. While they may claim that they are bound by ‘client confidentiality’, the controversial dual nature of their role, the possibility that their work is being used by perpetrators to evade international justice, and the very serious allegations that the proceedings of the Commission are now being used as a vehicle for witness intimidation by Sri Lankan security forces, all place a strong moral and professional obligation on the advisers to clarify their precise mandate – the lack of clarity over which has been noted by both the Sri Lankan think-tank the Centre for Policy Alternatives (p. 7-8) as well the Office of the High Commissioner for Human Rights in his recent oral update (para 34).

In failing to do so, they will continue to fuel the suspicion that they have been hired by the Sri Lankan government to support its goal of undermining the international investigation. And while it may seem absurd to suggest that the addition of individuals who regards the Government of Sri Lanka as their client to an accountability process can in any way give added credibility to that process itself, that appears to be precisely what the Sri Lankan government is hoping to achieve.

Footnote

[1] For a comprehensive and up to date critique of the work of the Presidential Commission on Disappearances, see: ‘The Presidential Commission to Investigate into Complaints Regarding Missing Persons: Trends, Practices and Implications’, Centre for Policy Alternatives (17 December 2014)

Richard Gowing is the Deputy Campaigns Director of the Sri Lanka Campaign for Peace and Justice. He holds an MSc in International Development and Humanitarian Emergencies from the London School of Economics where he graduated with Distinction. He currently also works at the Chatham House US Project.

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  • 2
    4

    “Richard Gowing is the Deputy Campaigns Director of the Sri Lanka Campaign for Peace and Justice. He holds an MSc in International Development and Humanitarian Emergencies from the London School of Economics where he graduated with Distinction. He currently also works at the Chatham House US Project.”

    A degree from the LondonSchool of Economics!! Ha.. Ho.. How valuable is that? LSE have been at it since the time of Harold Laski who managed to fool our “old Left” with the Trotsky (US spy) bullshit.

    Alas, a LSE degree reveals nothing other than the fact that the guy is trained to be a spy operating to undermine developing countries. His involvement at the Chatham House US project confirms it.

    Down with foreign spies trying to udermine us.

    • 2
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      “”Down with foreign spies trying to udermine us.””

      Gandaya Koon

      preek preek control freak!!

      Opportunity makes a thief.

  • 1
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    Dear Sir,

    As a British journalist who follows events in Sri Lanka, I feel driven to reply to disingenuous allegations that have been made in your newspaper against the international experts, appointed to assist the Disappearances Commission. The article headed ‘ Incompatibility In The Roles Of Sri Lanka’s Advisors In The Disappearances Commission: SLC ’, is based on a fundamental misunderstanding of the role of these experts.

    The client of the appointed lawyers is the Commission and NOT the Government. The appointed lawyers are professionals who are there to be consulted on complex issues of law on which, in some cases, there is no universal agreement. It is vital that the end of the war in Sri Lanka is seen in the light of the proper law that attaches to internal armed conflicts. Thus the suggestion that there is a ‘seeming conflict of interests between providing legal counsel to the Sri Lankan Government and advising a domestic accountability mechanism’ is wholly wrong. The appointed experts do not report to the Government.

    Compounding the error, is the single line sentence ‘Advisors on Accountability or Counsellors to the accused’. The suggestion that these distinguished lawyers involved, have ‘chosen to act as a convenient legal cover for a government itself accused of war crimes’, is more than wide of the mark, it is highly defamatory. Were it true, they would be acting improperly and in flagrant contravention of their professional ethics.

    Your journal is normally fair and reliable. I hope you will quickly print my rebuttal, both for the record and for the edification of your readers.

    Yours sincerely

    Nicholas Monson

    Room 343 Mount Lavinia Hotel

  • 5
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    “”The client of the appointed lawyers is the Commission and NOT the Government.””

    Convenient indeed!!

    Remember there is precedence as to why previous left disenchanted.

    So you have grown up in the era of “consultants, to consultant to consultant …
    A good run down is how T bLiar and his new labour to all and sundry with his spin doctor journalist advisor’s- like Campbell the social engineer etal to the Tory in jail.

    Take a stride to Gary’s Inn and find out how VAT evasion is carried out from any barrister and who gives the order. Why the design engineer pays a clerk of works and not the owner who pays this to the engineer to pay- UK law.

    Imagination was given to man to compensate him for what he is not; a sense of humour to console him for what he is.–Francis Bacon

    Imagine if you had no imagination?? You knowledge is of no consequence then.

    Go down to inner temple library and see how would be parasites refer for that golden word in Latin to win a case that has cost millions to the tax payer.

    Common sense, in so far as it exists, is all for the bourgeoisie.
    Nonsense is the privilege of the aristocracy.

    The worries of the world are for the common people.
    It takes long to be young.

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