Argie-Bargie: Two Essays on the Geneva Resolution and Present Lankan Politics

A Concerned Citizen and Lucien Rajakarunayake go Toe-to-Toe … without quite knowing that they are so engaged

I. Lucien Rajakarunayake: “Major contradictions in ‘Rise with Geneva’,” Daily News, 24 October 2015

There is a predictable cyclical gathering of the anti-government groups within the UPFA with the approach of any elections in the country. This is now seen in efforts to raise a new political alliance of the minor constituent parties of the UPFA, with the approach of the next round of Local Government elections, and their hope of a section of the SLFP supporting them. Mangala at Geenva

There is hardly any consensus on policy among these allies of discord, other than the hope of getting the twice defeated Mahinda Rajapaksa to lead them once again, in the desperation to avoid a humiliating defeat at local polls. The current indications are that with these polls being delayed due to finalizing of the delimitation process, the SLFP would be in a stronger position to do without its so-called allies in the UPFA, while the UNP retains its own strength and political image without any damage, similar to what the SLFP (within the UPFA) suffered on August 17. The current rise in the probes on corruption and fraud during the past regime, and the increased success seen in police action on major crimes during that period, especially political murders, indicate that the hopes these groups keep fanning of a Mahinda Rajapaksa leadership would be distant from reality.

“Rise with Geneva”: These political groups now moving to the fringes of isolation have no common policy other than that of necessary survival. The majority of them, with the lead given by Wimal Weerawansa’s National Freed Front, Dinesh Gunawardena’s Mahajana Eksath Peramuna and Udaya Gammanpila’s Pivithuru Hela Urumaya have a clearly racist agenda. Their other allies on what is left of the left today, such as the remnants of the LSSP led by Tissa Vitharana, the remainder of the Communist Party led by DEW Gunasekara and the Democratic Left Front led by Vasudeva Nanayakkara, have abandoned whatever socialist or social democratic thinking they once had, and are only carrying on with the slogan of anti-US and Western imperialism.

In this situation, it is inevitable that these forces of defeat that pledged to “Rise with Mahinda” after January 8 and the run up to the August 17 General Election, now see an opportunity for a “Rise with Geneva”. With Sri Lanka co-sponsorship the latest UNHRC resolution on this country, the message they will take to the people is that this co-sponsorship has placed Sri Lanka in great difficulty to ensure good independent investigations into any changes this country may have to face, with regard to events at the end of the war against the LTTE, and events that took place before and after that.

Earlier this week we saw the addition of a religious aspect to this campaign of desperation with the appeal made to religious leaders by GL Peiris, who had been more in the background after the two Rajapaksa defeats. His message was of the country being in such danger that there was an essential role for its religious leaders to play to save the country. The effort to whip up public feeling against the Geneva Resolution, and what will have to be done to implement it, is moving in a trajectory that attempts to show that the necessary legal and judicial actions could not be taken by Parliament alone, and that these would need constitutional amendments, which would require approval by a referendum. This is the angle that will be carried out with the intensity that could be gathered by these groups of desperation, in the coming weeks and months.

The Government must take note of these trends seeking to push the country back to a period of racial, religious and communal strife, and move away from the promise to the country and the world of peace, reconciliation, accountability and development. It will also require displaying agreement, especially among Cabinet Ministers on policies or actions taken by the government. The absence of this could only help support the divisive efforts of the UPFA groups in their struggle for survival. There is also the need for more caution regarding matters such as appointments to key positions in the administration and the state sector to prevent any impression of a rush back to the days of nepotism, even in a scope much more limited than the days of Rajapaksa.

Two Commission reports: To those seeking to “Rise with Geneva”, a very good response has come from the reports of the two important commissions tabled in Parliament by the Prime Minister on Tuesday. The Paranagama Commission on Missing Persons and the older Udalagama Commission on allegations of major breach of the law by security forces personnel, show very good cause for the issues raised about Sri Lanka in the UNHRC report, and the need for proper action on accountability, as well as punishment where necessary, in keeping with the laws of our own land, apart from that of the impact of our policies on the world outside.

We are all glad that the Paranagama Commission has debunked the Darusman Report’s findings of more than 40,000 civilians killed in the last stages of the war against the LTTE, and other aspects of that report not based on proper investigation. There is also the recognition that the majority of the Tamil civilian casualties in the final 12 hours of the conflict was caused by the LTTE.

Yet, those who seek to “Rise with Geneva” should also bear in mind that the Paranagama Commission, appointed by former President Mahinda Rajapaksa, which had the assistance of foreign personnel too, has not given a completely clean sheet to Sri Lanka. Among its key observations is: “There are credible allegations which, if proved to the required standard, may show that some members of the armed forces committed acts during the final phase of the war that amounted to war crimes giving rise to individual criminal responsibility”. The commission has called for an independent judicial investigation into war crimes allegations, and also proposed to set up a separate war crimes division within the Sri Lankan legal system.

This is not very far from the call for a domestic mechanism, with foreign assistance, that Sri Lanka has supported by co-sponsoring the Geneva Resolution last month.

The Udalagama Commission on several alleged actions of violence by the police and armed services, which submitted its report on some of the matters submitted for inquiry, which related to matters after August 1, 2006, (and which report was never revealed by the previous Government), also makes very strong observations on matters of local and international, importance. Due to the confines of space, I will be brief on the observations of the Commission. On investigations into the killing of 17 aid workers, which caused concern both in Sri Lanka and abroad, it says that the manner in which the Police conducted the initial investigation into these killings in early August 2006 lacked professionalism.

The Commission also probed the deaths of 61 persons in Naddamottankulam (Senchoali) in August 2006, the alleged execution at Welikanda of 14 persons from Muttur, while being transported in ambulances, the killing of 10 Muslim villagers at Redalla and the killing of five youth in Trincomalee. Out of 16 cases it was able to conclude proceedings only in seven cases. It is the view of the Udalagama Commission that it is necessary to incorporate a comprehensive component of human rights and international humanitarian law in all police and armed forces training schemes.

Our capabilities: The complete reports of the Udalagama and Paranagama Commissions do show that Sri Lanka does have capable personnel, with necessary knowledge of law and its application, to probe into any allegations. But the refusal of the Mahinda Rajapaksa regime to release these reports did cause a very bad slur on the image of the country, which led to the understanding that had to be reached in Geneva this year.

This should remind those hoping for a “Rise with Geneva” to understand the consequences of refusing to work together with the international community, especially the United Nations, and also to cock-a-hoop to the views of those who can be critical of this country and its policies. These reports show the absence of any possibility to bring the Heroes of Battle to trial, as the Geneva Risers say, except those in the forces who may have violated the law, and therefore fail to be heroes.

In a strange sequence of events, the UPFA opponents of the Geneva Resolution are joined by Jayalalithaa and Vaiko, in Tamil Nadu, who oppose it on racist grounds, and call for an international investigation, and not the foreign assisted domestic mechanism that has been agreed on. It is certainly a political puzzle as to how the racist elements here who oppose Geneva as being pro-Tamil, can agree with the Tamil Nadu leaders who think it is not pro-Tamil, and how the former leftists can stand in the midst of the contradiction. Yet, such contradiction is obviously the way to “Rise with Geneva” today.

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II. A Concerned Citizen: “What we must do to Safeguard the Sovereignty and Integrity of Sri Lanka,” in

Background: The “unacceptability” [to use a polite term] of the Geneva Resolution [L.29] against Sri Lanka, of which the Government of Sri Lanka was a co-sponsor and therefore complicit, which amounted to surrendering Sri Lanka’s integrity and sovereignty to foreign powers, has been the subject of excellent analyses by several individuals and groups of individuals. One such is by the National Committee on the Resolution Co-sponsored by the USA and the Government of Sri Lanka. What has happened is all the more regrettable because the international body/bodies that has/have been also complicit in propagating unsubstantiated allegations, and they have been totally indifferent to the highly flawed and one-sided so-called Reports sponsored by it/them.

This note does not cover the same ground. It seeks instead to ‘throw up’ some ideas as to how those who value our self respect, sovereignty and commitment to not virtually sell the country to foreign powers, not to speak of our fundamental rights relative to other countries, should prepare to respond to the resolution and the various machinations to subjugate Sri Lanka to foreign interests, and to facilitate such subjugation. Such response should include both what should be done before any Tribunal or Court commences hearings; the steps that should be taken before such Tribunal to defend our country and expose the false foundations on which the Resolution itself is based; as well as steps that should be taken to expose to the Sri Lankan public the distorted interpretation of the Resolution being presented to it to lull the public into a sense of false security.

It is necessary to ensure that while there are statements in the media as to the engagement of prosecutors and others for the purposes of the Inquiry, we have yet to hear anything about who would be responsible for ensuring a proper defence against any false evidence that will surely be tendered [unless we are naïve enough to think otherwise], who will cross-examine such witnesses and who will present evidence which paints a different picture to that painted in the reports relied on by the movement to bring Sri Lanka to account before a court or tribunal as envisaged in the Resolution.

Some Concrete Suggestions: Some ideas as to how these objectives could be achieved are set out below. As such, they represent a set of what may loosely be called “implementation steps”. Neither the objectives nor the modalities to achieve them set out below are exhaustive.

An overriding consideration is the fact that achieving the objectives would require a high level of cooperation/collaboration/participation/assistance by a vast number of concerned and committed Sri Lankans both in Sri Lanka and abroad, as well as their organizations and networks.

  1. The first step could be to inform the public at large, not merely in English, about the misinformation being propagated as to the correct meaning, interpretation and implications of the Resolution. The Island newspaper of 29 September 2015 had highlighted the mistranslations into Sinhala allegedly by the Foreign Ministry of crucial parts of the Resolution which gave the Sinhala-speaking public a relatively benign [and incorrect] view of what the Resolution actually states. In “Lies Perpetrated in the Name of Human Rights Resolution” which appeared in The Island of 12 October, 2015, some of the misinformation has been aptly recorded by Mr. Mohan Samaranayake.
  2. 2. A document appropriately worded could be circulated on the Internet, setting out the opposition to the proposed hearings contemplated by the Resolution and the setting up of a court by-passing the Sri Lankan judicial system. The document should explicitly state that the Government of Sri Lanka co-sponsoring the Resolution was inimical to the country. [In effect, it was a betrayal of the country]. Individuals [both in Sri Lanka and abroad] who are prepared to subscribe to this document as a protest, should be invited to do so. The document should also be sent to relevant Associations of Sri Lankans abroad for dissemination among appropriate members in the countries concerned.
  3. If a Court set up pursuant to the Resolution is found to lack legitimacy due to its inconsistency with the Constitution of Sri Lanka, it would be necessary to raise this issue. If the Court were to nevertheless continue to function, the issue of its ‘legality’ and its jurisdiction should be presented and recorded before the Court. All this would require proper planning.
  4. Notwithstanding some vague assurances by the Government, it would be unwise for concerned Sri Lankans to depend on such assurances that there will be a proper defence of the Armed Forces personnel to shield them from false evidence that may be tendered against them. The near certainty that false evidence will be presented should be an inescapable conclusion from the false material on which the Resolution itself is based. It is outside the scope of this note to analyze the reasons why the allegations in the Darusman Report for instance, are untenable. These have already been exposed elsewhere. It is therefore necessary to ensure that those who stand accused are adequately and capably represented at any hearings. Nevertheless, the tip of the iceberg in relation to the unacceptability of the Darusman Report is revealed through the two extracts quoted below from the in-depth analysis by a highly respected Sri Lankan by several generations [whose Report is available]:

The root of the problems in the Report lie in their outrageous interpretation of the Government’s military strategy as designed at the extermination of Tamils without any humanitarian intention or effort at rescuing hostages. With this interpretation the Panel puts on the blinkers that distort all their perceptions of the Government’s actions.”

“The Report also gives a deliberately truncated view of the Government’s action by excluding what would have provided a different and more positive explanation of these actions. This deficiency is seen in every part of the Report that deals with Government actions.”

  1. The Government should be called upon to honour its own promise to present to the Parliament the Paranagama Report. This would also involve the release of the opinions of Sir Desmond de Silva, David Crane and Sir Geoffrey Nice. If this is not done by the Government, there are obvious conclusions that could be reached from such failure, and they should be highlighted and explained to the Sri Lankan public both within and outside the country in the relevant languages.
  2. In addition, steps should be taken to ensure that the services of the above-named are engaged/retained to present before any Inquiry conducted, their views of the laws applicable on all aspects of the proposed inquiry. It should not be left only to the government to do so.
  3. There should be a coordinated effort to present, to whatever court is created, the facts which disprove the false allegations made in UN-related Reports as well as by other sources/bodies, individuals, if such false allegations are pursued in any contemplated proceedings. This should also include military personnel – present or past – who can speak to the events surrounding the last stages of the war.
  4. 8. It is essential that steps are taken to ensure that evidence presented before such Court adequately covers all the criminal actions of the LTTE such as the deployment of child soldiers, civilians used as human shields, and much more.
  5. While such evidence should be presented by the Government, it should not be assumed that it would do so. Consequently, preparations should be made independent of the government to assist in the presentation of such evidence to counter false allegations, and also to prevent whomsoever suppressing the criminal acts of the LTTE throughout the Armed Conflict.
  6. The impact of an “Armed Conflict” [which it was, as has been recognized by the LTTE itself] in International Law. [e.g. in relation to the Geneva Convention] should be presented to the Tribunal. There are Sri Lankans who are more than capable of giving evidence on this matter.
  7. Evidence should be presented before the Court specifically explaining how several “expectations” in the Resolution conflict with the Constitution of Sri Lanka.
  8. Funds and expertise need to be available/raised to mount a credible defence before any Court to counter false allegations. In this regard the following possibilities should be explored:
  9. a) Securing the services of competent local Counsel [lawyers] who would be prepared to provide their services in the interests of the country.
  10. b) Securing the support/cooperation of retired Sri Lankan professionals, international civil servants, academics, high Government officials, etc. who would be committed to participate with other concerned individuals in forming a ‘think tank’ which could “feed” those who will defend the country with material and assist them in any way that the latter may request.
  11. c) A Fund could be created to meet expenditures in implementing strategies to meet the objectives stated e.g. to secure the attendance of Messrs. Desmond de Silva, Crane and Nice. Such a Fund would need to be managed by a body which would have credibility so as to secure the trust of the public [in Sri Lanka and Sri Lankan expatriates] who may wish to make voluntary donations, but may be reluctant to do so unless they are satisfied that the funds would not be misused. A mechanism to account for the expenditure of the funds at the end of the exercise would need to be found. In this regard, any such body should secure the services of an Auditor to ultimately present a Report on the Accounts.
  12. d) Sri Lankans resident abroad, together with any associations that represent them, have a crucial role to play in defending our national interests. For example, they could consider funding the participation of Messrs. de Silva, Crane and Nice at any Inquiry before a Court established pursuant to the Resolution.
  13. Those who are concerned about the non-subjugation of Sri Lanka to foreign powers need to coordinate peaceful campaigns in the appropriate languages to prevent the dangers flowing to our country from the Resolution, identified for instance, in the document titled Statement of the National Joint Committee on the Resolution Co-Sponsored by the USA and the Government of Sri Lanka referred to in the opening paragraph of this Note. Though connected to the court proceedings contemplated in the Resolution, this should be treated as a parallel or on-going exercise distinct from strategies directly relevant to Resolution-based inquiries by a court.

Postscript: Nothing in this document is intended as an argument against a purely domestic inquiry constituted in accordance with our Constitution, and the punishment of any persons found guilty of recognized crimes which also entails a proper, and not a distorted, interpretation of International Law. There are other options available as well in the form of a Special Commission of Inquiry, with a panel consisting for example of retired judges of the Supreme Court. Anyone would have the right to present evidence and retain counsel to lead such evidence and defend whomsoever. Some critics who allege that a purely domestic inquiry can be swayed in one direction or another, and who also criticize our judiciary as a means to promote a court sponsored by foreign powers, would naturally refuse to recognize that there is nothing that could have the potential to be more biased than a procedure essentially dictated by foreign powers to serve their geopolitical interests.

Colombo, 16 October 2015


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