Dharshan Weerasekera Anonymous providing a summary & review of Dharshan Weerasekera’s book The UN’s subversion of international law : The Sri Lanka Story
A Sri Lankan attorney has attempted to put together a case study that depicts a very sinister move by the UN to subvert international laws and create precedents that would detrimentally affect other nations as well. Taking the reports of the UN Secretary General’s Panel of Experts, the Human Rights Council as well as the Human Rights Commissioners oral reports and recommendations, Dharshan Weerasekera shows that not only is there an illegality involved in the manner three resolutions led to a call for an international investigation but highlights how resolutions and reports that started out being about the last phase of the war ended up maligning Sri Lanka on a plethora of non-conflict related other matters that should have been dealt through the other UN systems in existence. Dharshan presents a solid case for a Sri Lankan citizen to pursue legal action against the UN, the UN Human Rights Council and the Human Rights Commissioner for the subversion of justice and international laws.
Dharshan Weerasekera’s first book ‘The UN’s Relentless Pursuit of Sri Lanka’ combined 3 essays on the resolutions of 2012, 2013 and 2014 that appeared in the Foreign Policy Journal. The present book relooks at the 3 resolutions alongside the Panel of Expert Reports as well as the Sri Lankan Government’s own domestic mechanism the LLRC (Lessons Learned and Reconciliation Commission) and the National Action Plan.
The author takes the reader through the timeline of events starting out with how a 30 year conflict ended in May 2009. He also points out to the manner that rebel groups are often connected to foreign interests and funded and cites the case of ISIS. It is a known fact that while Tamil militants were initially trained by India in the 1970s the LTTE became a surrogate of the West thereafter as seen by the manner Indian former PM Rajiv Gandhi was assassinated in India.
How is it then that immediately following the May 2009 defeat of the LTTE which led to a Germany-led Resolution at the UNHRC against Sri Lanka ultimately ended up with a counter-resolution favourable to Sri Lanka commending the nation for eliminating terrorism and wishing Sri Lanka for the daunting post-war challenges. This resolution confirms that LTTE kept hostages against their will and that the GOSL liberated tens of thousands of citizens kept by the LTTE.
How did commendations and well-wishes by the UNHRC turn into successive resolutions calling for international investigations? Dharshan Weerasekera takes us to 23 May 2009 days after the conflict ended with the arrival of the UN Secretary General whose joint statement continues to be repeated as confirmation of agreement by the GOSL to conduct an international investigation. However citing the joint statement itself “the Secretary General underlined the importance of an accountability process for addressing violations of international humanitarian law & human rights law, the GOSL will take measures to address those grievances”.
These lines do not show the GOSL agreeing to conduct any such domestic investigation.
However, obviously due to relentless pressures brought upon by Western governments, threats of cutting aid and other under hand tactics diplomatically used the GOSL consented to implementing in March 2010 the LLRC. However, in June 2010 the UNSG appoints a 3 member panel to appraise him of the last phase of Sri Lanka’s conflict.
What readers are required to take note of is that the POE appointed by the UNSG was outside the UN General Assembly and UN Security Council and was a panel appointed in his personal capacity of UNSG to appraise him. This then leads any to ask how such a personal appraisal led to become the foundation on which successive resolutions against Sri Lanka and became quoted by the UN Human Rights Commissioner herself in her 3 reports advocating an investigation against Sri Lanka.
Moreover, Dharshan Weerasekera also highlights that the POE was never officially tabled at the UNHRC officially giving Sri Lanka the right to defend itself.
Dharshan Weerasekera also shows that despite the March 2014 resolution advocating an international investigation in terms of vote while 23 members voted to authorize the investigation, 12 voted against and 12 abstained and the 12 abstentions cannot be taken as being favourable and these included India while the Pakistan ambassador reminded the Council that paragraph 10 of the resolution was inconsistent with the principles of the UN Charter and said that the resolution was about ‘politics’ and not human rights and that it was a ‘crass example of hypocrisy and double-standards’.
The book takes us through the argument that while the GOSL appointed the LLRC and from that took recommendations to draw up a National Action Plan, if the Human Rights Council or the High Commissioner knew of allegations that were not included into the LLRC what they should have rightly done was to give evidence of these allegations and officially requested the GOSL to look into them. Without presenting the allegations, giving the evidence for these allegations or from where they emerged the Council or the High Commissioner has no right to chide Sri Lanka and bring about resolutions accusing the GOSL for not looking into these ‘credible allegations’. When looking at the resolutions together, as advised by Dharshan Weerasekera, it reveals how Sri Lanka is being accused of not investigating credible allegations, but not being told what these allegations are with evidence.
The author takes us back to the POE’s 5 charges: indiscriminate killing, shelling of hospitals, depriving civilians in the conflict-zone of humanitarian assistance, human rights violations suffered by victims and survivors of the conflict including IDPs and suspect LTTE cadres, human rights violations outside the conflict zone including against media and other critics (the last being totally outside the mandate)
The author highlights how POE in accusing the GOSL of not providing humanitarian assistance to civilians cites only the UN/WFP convoys taking 7435 metric tons of food and claiming that was insufficient for the civilians but purposely omits the parallel food convoys of ICRC/GOSL that transported 534,227 metric tons of food.
The author also takes us to the Panels sole source for alleging ‘executions’ against GOSL as being the Channel 4 videos which the POE presents alongside the report by Special Rapporteur Philip Alston whose report attaches 3 technical expert report one being from an American forensic analyst Jeff S Spivack who writes that ‘there is no way to confirm solely from the recordings the identity of the potential victims or the shooters. Neither whether the shooters were actually Sri Lankan military members as opposed to Tamils dressed in Sri Lankan military uniforms’. If so, as the author rightly questions why did the POE conclude that footage showed summary executions of prisoners by ‘Sri Lankan soldiers’. As the author rightly concludes these are serious credibility issues against the POE report.
The author next takes the reader to the LLRC which recommends investigation to see individual perpetrators (rank & file soldiers) can be prosecuted and punished and was not about incriminating the acts to a chain of command (Command Responsibility) and LLRC concludes that the ‘Security forces had not deliberately targeted the civilians in the NFZs’ and reconfirms that ‘offences of a few cannot be allowed to tarnish the honor of the many who upheld the finest traditions of service’. LLRC recommendations were to probe the 7 possible incidents of indiscriminate and/or deliberate killings plus the C4 videos only to see if individual perpetrators could be prosecuted. LLRC also recommended to investigate incidents of shelling of hospitals and inadequacy of medical supplies to the conflict zone.
While these were the areas covered by both the LLRC and the POE, nevertheless the High Commissioner and the Councils reports have taken a whole new dimension to what should remain confined to the last phase of the conflict. The High Commissioner cites 2 cases mentioned in the POE – Trincomalee killing of 5 students, Action against Hunger. Col. Ramesh is mentioned under white flag, Issaipriya is mentioned in POE under C4 video.
However, she also brings out cases not mentioned in the POE – the name of Balachandran Prabakaran, How is it that Jeff Spivack the expert consulted by Philip Alston did not cover this?
While the author reiterates that the High Commissioners sole evidence for the allegation on white flag is a newspaper article only!
What the author argues is that the High Commissioner can only demand the GOSL to investigate what is recommended in the LLRC. The Council or the Commissioner cannot with each year add issues to reports and plug it to the POE or initial resolutions and indict the GOSL and charge Sri Lanka for war crimes as is being done. Paragraph 10 that the Pakistan Ambassador refers to says that the High Commissioners recommendations for ongoing violations are the immediate reason for the investigation’ but is there such a situation of ongoing violations to necessitate an international investigation? Moreover as the author rightly points out she did not initially quote ‘ongoing violations’ to require investigation why is she resorting to that argument now? All these show that in the absence of a prima facie case for an international investigation the High Commissioner and the Council are grasping at straws to validate the recommendation for an international investigation.
What readers are compelled to look at as advised by the author is that calls for the involvement of the Human Rights Council and to conduct investigations to ongoing violations of human rights laws are when there are situations that involve killing hundreds of people, causing immense property damage and as examples the author cites – Israel-Palestine /Congo /Darfur / Libya / Syria / Ivory Coast.
The author takes the examples cited by the High Commissioner
- Former combatants & detainees – there is no allegations of wrong doing by the GOSL in its treatment of former combatants and detainees
- Attacks on religious minorities/human rights defenders and freedom of opinion and expression – High Commissioner states violence by Sinhala Buddhist nationalist groups led by extremist Buddhist monks and cites as source a NGO called Secretariat for Muslims’ which is a ‘lobby’ for Muslims in Sri Lanka which means its reports and statistics are automatically biased. On one statistic, it is unfair for the High Commissioner to reach a conclusion against Sinhala Buddhists
- Attack on human rights defenders – the High Commissioner says that her office continues to receive complaints of widespread harassment and intimidation. The author asks whether these have been submitted to the GOSL by her office or checked as to its credibility?
- Attacks on freedom of speech and expression – author says that 3 attacks are mentioned 2 on the offices of a Tamil newspaper Uthayan and one on the Sunday Leader but no source is cited except for the High Commissioner views. There is also no contention that these attacks were to stifle freedom of expression
- Extrajudicial, summary and arbitrary killings – the 2 incidents mentioned are Weliweriya and the Welikada prison. The sources given for the Weliweriya incident are Human Rights Watch and the Ministry of Defense Communique while the prison incident cites the NGO Centre for Policy Alternatives. The Army had appointed a court of inquiry to investigate the incident and 4 army officers were found guilty and relieved of duty. As for the Welikada incident a committee had been appointed which concluded that ‘the prisoners shot each other’.
- Mass graves – 1st discovery in Nov 2012 near Matale with 155 skeletal remains / 2nd discovery in December 2013 in Mannar with 52 skeletal remains. The comments on these are solely the High Commissioners own comments and no sources are cited. As a response the author had initially advocated that Sri Lanka seek Advisory Opinion of the International Court of Justice – the UN’s official court. The author advises the UNHRC or the General Assembly to request an Advisory Opinion on the legality of the Sri Lankan investigation which Dharshan Weerasekera says would compel the court to look into the entire process through which the investigation was pushed through successive resolutions by a team of the same countries using diplomatic pressures. Even traditionally friendly nations that have backed Sri Lanka can seek on behalf of Sri Lanka such an Advisory Opinion for the precedent being set using Sri Lanka will affect other nations of the General Assembly and that is what the UN Membership must be concerned about. The UN’s subversion of international law: the Sri Lanka Story by Attorney Dharshan Weerasekera is a 135 page book that includes all of the 3 Resolutions, the key points of the UN Secretary General’s Panel of Expert Report, the GOSL’s LLRC and National Action Plan, the oral and other reports filed by the High Commissioner and provides readers a refreshing argument in simple and easy to read language of the illegality of the resolutions and the international investigation being recommended and provides a solution as well – the possibility of taking legal action against the UN, the Human Rights Commissioner and the Human Rights Council.
- The book has been released and is now available in all leading bookstalls priced Rs.45
- Thus in reading the manner in which the High Commissioner has presented arguments for ongoing violations and the lack of credible evidence it is easy to comprehend a sinister plan to unfairly accuse Sri Lanka and draw up a case for an international investigation without a prima facie case. The author concludes that this illegal and a violation of Sri Lanka’s sovereign rights under the UN Charter.
SEE TIMES Aerial Images, NFZ, 23 May 2009 …. These aerial photographs were taken on 23 May 2009 by a Times cameraman [actually a stringer who must have sold the lot to the Times ] who was accompanying the Ban-Ki-Moon entourage on his inspection tour of Sri Lanka after the defeat of the LTTE as a military force in May 2009 They are quite helpful in enabling one to get….. https://www.flickr.com/photos/thuppahi/sets/72157626922360092/
** Michael Roberts: “Reading “devastation”: Botham, CMJ, Ban Ki-Moon,” 10 June 2011, http://thuppahis.com/2011/06/10/reading-%E2%80%9Cdevastation%E2%80%9D-botham-cmj-ban-ki-moon/
** Michael Roberts: “The Landscape of the LTTE’s Last Redoubt, May 2009,” 7 June 2011, http://thuppahis.com/2011/06/07/the-landscape-of-the-ltte%e2%80%99s-last-redoubt-may-2009/
** Michael Roberts: “Death and Eternal Life: contrasting sensibilities in the face of corpses,” 29 June 2011, http://thuppahis.com/2011/06/29/death-and-eternal-life-contrasting-sensibilities-in-the-face-of-corpses/
THESE essays are now available in print in Roberts: Tamil Person and State, Essays, Colombo, Vijitha Yapa Publications, 2014, ISBN 978-955-665-230-7 ….. 423 pages….www.vijithayapa.com