By Rajiva Wijesinha –

I have refrained thus far from getting involved in the debate over the Geneva Resolution for a number of reasons. One is a commitment to finalize a few books, and in particular an account of what Sri Lanka did right, in winning the war, and then did wrong in losing the peace.

Secondly, I had long felt that the last government was destroying the country by its ostrich approach to the allegations made against us. As I told Al Jazeera on the day I expressed publicly my support for the Maithripala Sirisena candidacy, when hardly any one else who was part of the previous government took the plunge, I felt that a continuation of the Rajapaksa Presidency would lead to disaster. I was glad someone who had stood foursquare behind the President during the war years was the challenger, because while I hoped he would correct the faults that had arisen after the war, I assumed he would stand by the achievement of the first Rajapaksa Presidency in eradicating terrorism from Sri Lanka.

I was deeply disappointed that the new government did not embark on the reforms it had promised, and also disappointed that it did not move swiftly towards transparency on the question of accountability. I proposed at my first Parliamentary Group meeting that we should publish the Udalagama Commission Report, because I believed its findings would make clear that our judiciary was perfectly capable of conducting a credible inquiry. I had also long argued that justice needed to be done for the boys killed in Trincomalee, and had repeated urged the President to ensure that indictments were made.

The Prime Minister said he would look into the matter, but it was not even minuted – as opposed to mechanisms to find vehicles and provide jobs for supporters – and after I left the group it was forgotten. The same seems to have happened to the Paranagama Report, to which, belatedly, the Rajapaksa government had added value through the advice of international lawyers who were aware, unlike the Foreign Ministry, of the danger of the charges made against us.

Just as, alone of Parliamentarians, I had two years ago signed a petition about the killings at Weliveriya, I signed this year a petition asking the President to ensure that justice was done to our forces by publicizing the Report. While I had no doubt that, like the LLRC, it would demand accountability with regard to events as to which there was prima facie evidence of abuse, it would make it clear that the worst charges against us were incorrect.

Sadly my detailed defence of the errors in the Darusman Report was completely ignored by decision makers in the last government, except for the one person who understood the importance of our image. When nothing was done and we subscribed to a resolution that detracts from the very principles on which the UN had been established, I feared that the same lack of intelligence was now affecting our decision makers and those advising them. The consequences to the country will be equally disastrous. But to go on telling decision makers they are being silly did not help in the last few years, and I did not think one should continue beating one’s head against yet another brick wall.

However what seems to be subterfuge in Parliament makes me wonder whether I am wrong to assume just incompetence, and whether I should worry about an agenda that will strip this country of all self respect. After all, eight years ago, I recall those now in authority trying to stop our defeat of terrorism by invoking foreign assistance.

I have therefore engaged in some study of the issues through experts on the subject, and would like to bring the following facts into the public domain, through a simple question and answer exercise

Question 1:

Do you accept the statements made by the Government in relation to the 1st and 2nd mandate reports issued by the Presidential Commission to Investigate Missing Persons, otherwise known as the Paranagama Commission?

Answer :

No, because the statements made are misleading, and in large measure lacking in truth. They strike at the very heart of good governance, especially when Parliament and the country as a whole are seeking to discover the truth.

It is essential that the Government briefs Parliament correctly about the various allegations made against the Government of Sri Lanka and our Armed Forces by two key UN reports known as the “Darusman Report” and the “ OISL Report”. The Government also has the duty to inform the nation about what it has committed to implement in terms of a judicial mechanism in the co-sponsored UN resolution. The fact that these important reports were not translated into our National languages Sinhala and Tamil, and also there was no effort made to make them available widely, through both the release of an electronic soft copy version of it and printed versions, appears to be a deliberate strategy to keep the public in the dark.

The Government failed during the Parliamentary debate to truthfully point out the positive aspects of the recommendations contained in the 2nd mandate report of the Paranagama Commission and how the conclusions of the international experts consulted by the Paranagama Commission have exonerated the armed forces of Sri Lanka from the suggestion of “genocide” that maligned our country after the release of the Darusman Report. The Paranagama Report also refutes the crimes against humanity charges against Sri Lanka.

Question 2:

Is it true or false that the Paranagama Commission recommended a hybrid court similar to the Gambian Model to be implemented in Sri Lanka as suggested by the Government?

Answer:

It is false. The Paranagama Commission’s Second Mandate report that was tabled in Parliament proposed ONLY a pure domestic mechanism and not a hybrid court. Under Chapter 8 of the Report, paragraph number 625 and 626, it explicitly explains this mechanism.

In order to deal with an accountability mechanism suitable to Sri Lanka, it was incumbent upon the Commission to embark upon a review of measures taken in other countries before proposing a specific mechanism for Sri Lanka.

In paragraph 624, the Paranagama Commission lists out several different options available to the Government to consider, providing a review of all the mechanisms. In paragraph 625, the Paranagama Commission sets out the proposed mechanism under the sub-heading “Proposed Mechanism”. The Mechanism that the Paranagama Commission had recommended here is wholly domestic and coupled with a TRC that makes it a unique mechanism for Sri Lanka.

Thus the reference to the Gambian example being advocated by the Paranagama Commission is misleading, especially when a clear mechanism, purely of a domestic kind, without foreign judicial intervention of any kind had been proposed by the Paranagama Commission.

In Paragraph 616 of the Report, The Commission says “In the event Sri Lanka was to set up a purely domestic tribunal without the participation of any foreign judges, it is the view of the Commission, that there should be international technical assistance and observers”. International technical assistance does not equal foreign judges sitting in judgement over Sri Lankan citizens.
At paragraph 625 under the heading, “A proposed Mechanism”, the Commission goes on to set out a mechanism without reference to foreign judges, foreign investigators or foreign prosecutors. The actual process of a trial is dealt with at paragraph 625.V. (d), where the trial process is set out as follows, “The matter will proceed in the same way as any other criminal trial within the jurisdiction of Sri Lanka”.

Thus, there is no reference to a foreign judge component. There is Latin legal maxin “Expressio unius est exclusion alterius” meaning the express mention of a thing, person or method implies the exclusion of all others.

Question 3:

Is it true or false that the conclusions and the recommendations contained in the Paranagama Commission Report are worse than the Geneva OISL Report on Sri Lanka as alleged by the Government?

Answer :

This is not true. On the contrary, it is the OISL report prepared by the Office of the High Commissioner for Human Rights (OHCHR) that makes the most damning condemnation of Sri Lanka and it is the UNHRC resolution that the Government co-sponsored that binds our country to foreign judicial personnel participation and to untenable compliance obligations.
For instance, paragraph 113 of the Geneva OISL Report issued by the OHCHR says as follows:

“The sheer number of allegations, their gravity, recurrence, and the similarities in their modus operandi, as well as the consistent pattern of conduct they indicate, all point towards system crimes.”
To anyone who knows anything about international law, this is an allegation of crimes against humanity, because such crimes are described in international humanitarian law as crimes which are “widespread or systematic”.

This is one of the gravest allegations that can be made against a Government or the armed forces, and it has been made by the OISL report. By co-sponsoring the UNHRC resolution, the Government has in effect, failed to rebut the allegations of crimes against humanity, when, in fact, the Paranagama Report, in paragraph 49, provides a robust rebuttal of these grave allegations. The Government had the report at their disposal from August 15th onwards to submit to the UN, but for some unexplained reason did not do so.

Question 4:

Thus, for the Government, to argue that the Paranagama Report is worse than the OISL report, does that mean that they had not read paragraph 49 of the Paranagama report or not understood the implications of the OISL report? Or is it that they have realized their inexcusable mistake and are now attempting to cover it up by misleading Parliament and the country by making unwarranted accusations against the Paranagama Report?

Answer:

The President may have to call for an inquiry into this matter, as it is very serious. It begs the question, as to whether vested interest groups deliberately kept the Paranagama Report away from the UNHRC in order to allow these grave allegations to remain intact and damage Sri Lanka.

If the OHCHR had the benefit of reading the Paranagama Commission’s 2nd mandate report, they may have revised their conclusions and also, applied far less severe measures upon Sri Lanka, especially because the OISL investigative team would have had the benefit of considering the key conclusions of the Paranagama report, which had drawn upon the considerable experience of its international advisory panel (well known to the OHCHR) that contributed Opinion papers to it.

A most significant reference is provided in the Paranagama Commission report, which explicitly states that in a US diplomatic cable, dated 15th July 2009, the US Ambassador Clint Williamson, clears the Sri Lankan army of Crimes Against Humanity during the Wanni offensive.

Question 5:

The Government alleged that the Paranagama Report has named names of the armed forces in their report. Is this true?

Answer:

There is no mention of any names of individual officers of the armed forces in the 2nd Mandate Paranagama report. The Commission prepared the second mandate report with the advice and the inputs of the international advisory council chaired by Sir Desmond de Silva, Q.C. that dealt with only the last phase of the conflict.

However the OISL report, which the Government embraced by co-sponsoring the Geneva UNHRC resolution, made the clear allegation of crimes against humanity against Sri Lanka, and went into great detail from paragraphs 105 onwards (page 23 of OISL report) to list the names of every single senior officer in the armed forces, including mid ranking officers and their functions, and to whom they were answerable during each different phase of the conflict period. The need to do this in such detail would only be relevant if there is an intention by Geneva to point a guilty finger at some of these named individuals for crimes against humanity.

Question 6:

If that is so, has the Government completely misunderstood the principal allegation against the Government of Sri Lanka and the armed forces as stated in the OISL report?

Answer:

Sadly, this would appear to be the case.

Question 7:

If the Government has failed to understand this principal allegation made in the OISL report about crimes against humanity, does it mean that it appears to have accepted the commission of such terrible crimes by the Armed forces of Sri Lanka, thus endangering officers in the armed forces?

Answer:

Unfortunately, a valuable opportunity to present a robust defence of the Armed Forces has been lost.

Question 8:

How does the Paranagama Commission deal with the overall conduct of the armed forces of Sri Lanka and this grave allegation that crimes against humanity were committed as alleged in the OISL report?

Answer:

The Paranagama Commission’s 2nd Mandate report rejects that there was any overall scheme by the armed forces or the Government to kill civilians deliberately, thus rejecting the concept of crimes against humanity and indeed system crimes.

Question 9:

What does the Paranagama Report say about the allegation of Genocide as applied to the last stages of the war in 2009, which prompted the Northern Provincial Council led by the Chief Minister Wigneswaren to pass a resolution stating that genocide took place in Sri Lanka?

Answer:

The Paranagama Commission’s 2nd Mandate Report has carefully analysed the notion of genocide as a matter of law at paragraphs 48-50. The Commission has found no support for the allegation of genocide. They have even cited recent international judicial decisions to completely refute this preposterous allegation of genocide against Sri Lanka.

It is a mystery to me as to why the Government did not use this Paranagama Commission’s 2nd Mandate Report in Geneva to once and for all clear Sri Lanka’s good name on the genocide charge, as reconciliation with the Tamil community can only begin to happen once they have been provided with facts to come to the realization that all these years they have been misled to hate the Sri Lankan Government and the Armed forces on this allegation of Genocide.

It is vital that this preposterous allegation of genocide is shown to be an absurdity by the application of the principles of international law, most recently underlined in the case of Croatia versus Serbia in the International Court of Justice.

Question 10:

The Government has alleged that the Paranagama Report agrees with the Channel 4 video allegations. Is that true?

Answer:

Not at all. It is a deliberate misreading of the Paranagama Report. At paragraph 428, the Paranagama Report states explicitly “ the authenticity of the video footage is not an issue that the Commission can resolve…”.

If, of course, the authenticity of the video is proved, that would establish a prima facia case. The Paranagama Commission goes on to advocate that there should be a proper judicial inquiry.

Indeed the very same was suggested by the LLRC report, which called for an independent investigation. Thus to say that the Paranagama Commission has validated the genuineness of the Chanel 4 footage is false. Because if it had, what would be the necessity to call for an inquiry to ascertain the authenticity of the footage? Indeed the Paranagama Commission criticizes Chanel 4 in paragraph 432 (page 105) for failing to supply the original film footage. Why would the Paranagama Commission do this, if it had accepted the film footage as authentic?

Question 11:

What is the link between the OISL report and the Darusman Report with respect to the gravity of the allegations made against Sri Lanka?

Answer:

The answer to this question is to be found in paragraph 22 (page 8) of the OISL report which reads as follows: “ Another key source of information was the United Nation’s Secretary General’s panel of experts headed by Mazuki Darusmann with experts Yasmin Sooka and Steven Ratner.”

Thus, it is quite clear, that the OISL report is firmly grounded in the grave allegations made by the Darusman Report. Therefore it raises the question as to why the Paranagama Commission 2nd Mandate Report which dealt with most of the allegations in the Darusman Report was not tabled in Geneva by the Government.

In addition to that, the OISL report has been prepared during a period when the co-author of the Darusman Report, Yasmin Sooka has also provided additional independent reports against the present Government of Sri Lanka, under the heading of “ Torture and Sexual Abuse Under the New Government in Sri Lanka”. The reason to target both the past and present Government of Sri Lanka is a deliberate strategy by those wanting to establish a separate state in Sri Lanka, as they want to use the UN process to create the impression that regardless of who is in power, the minority community is targeted deliberately as part of an overarching plan to intimidate, torture, and kill civilians. Once again it underlines the question, why did the Government not table the Paranagama 2nd Mandate Report in Geneva, when it also addressed this very issue in a very neutral and detached way.

Question 12:

When the Darusman Report alleged the killing of upto 40,000 civilians in the final stages of the war and the 2nd Paranagama Mandate Report deals with this so effectively, the question is raised once again as to why the Government failed to table the Paranagama Report in Geneva?

Answer:

The most explosive allegation in the Darusman Report is that upto 40,000 civilians may have been killed in the last phase of the conflict in Sri Lanka. This is a genocidal figure. The Paranagama Report from paragraph 115 (page 19) to paragraph 128 (page 21) completely proves that this allegation in the Darusman report was wrong in fact. Thus for the Government to suggest that the Paranagama Report was far worse than the OISL report, without even once referring to the positively balanced aspects of the Paranagama Report in dealing with the allegations of genocide and crimes against humanity to portray the correct position with respect to the last phase of the conflict, was yet another attempt to mislead the country.

Question 13:

The impression given by the Government to Parliament was that the OISL report is in no way damaging to Sri Lanka and there was nothing to fear. Is this true?

Answer:

If this is true, what is the need to set up an accountability mechanism with or without foreign judges, with or without foreign investigators, and with or without foreign prosecutors? And what is the need to have the whole process monitored by Geneva as the resolution purports to do?

The onerous judicial mechanism imposed on Sri Lanka that was included in the UNHRC resolution would not have arisen if the Darusman Report, which is the principal document upon which the OISL report was based, was shown to be mistaken in both its findings on facts and in relation to the application of the proper law to those facts. The tabling of the 2nd Mandate Report of the Paranagama Commission in Geneva would have achieved that, and it is a matter of grave concern to me as to why the Government went to great lengths to prevent its circulation at the UNHRC.

Question 14:

Can the Government at this late stage, having co-signed and passed the resolution, now go back and submit the 2nd Mandate Paranagama Report for the consideration of the OHCHR and OISL?

Answer:

Of course we still can table it. They must do that. It is never too late to submit reports to the UNHRC, as the intention of the proposed judicial mechanism is to arrive at the truth and ascertain what happened during the conflict. Although it was a historic mistake on the part of the Government to have failed to table the report earlier, i.e. prior to the passing of the Geneva resolution, it would have a considerable influence in bringing about a more positive outcome for Sri Lanka, even now.

The report is still a relevant and important document for the UN to consider. After all, the 2nd Mandate Paranagama Report prepared with inputs from the International Advisory Council chaired by Sir Desmond De Silva Q.C. was directed at answering the very questions that needed to be answered to arrive at a fair minded conclusion as to what the truth is, having applied the correct laws of armed conflict to the circumstances of the war.

I have no doubt that they would have greatly appreciated the benefit of reading the Paranagama 2nd Mandate report and revisiting their previous conclusions that were largely influenced by the inaccurate Darusman Report. Getting to the truth of the matter is the foremost objective of any UN official and to have denied them the benefit of the Paranagama Report will go down in our history as a lost opportunity. I hope the Government realize this and send this report to all the members of the UNHRC and its High Commissioner, without any further delay.