Marga/CHA confront the OISL Investigation in Geneva, September 2014: Godfrey Gunatilleke in Q and A with Lasanda Kurukulasuriya

Courtesy of The Sunday Times, http://www.sundaytimes.lk/140914/columns/margacha-to-sandra-beidas-remove-war-crime-charges-revisit-ihl-117469.html, where the title read  “Marga/CHA to Sandra Beidas: ‘Remove war crime charges, revisit IHL” … with emphases inserted by The Editor Thuppahi

 An NGO submission to the OHCHR investigation on Sri Lanka (OISL) presented in Geneva on Monday has demanded that war crimes charges relating to indiscriminate artillery fire, driving civilians into No Fire Zones and causing a large number of casualties tantamount to genocide be removed from the slate of allegations against the Sri Lanka Army (SLA). It also asked for a revisiting of International Humanitarian Law (IHL), which in its present form does not adequately take into account the context of extraordinary circumstances such as those that prevailed in the last stages of the war in Sri Lanka.

In a two and a half hour discussion with Sandra Beidas who heads the OISL, a team comprising Dr. Godfrey Gunatilleke – Chairman Emeritus of the Marga Institute, Jeevan Thiagarajah – Executive Director of the Consortium of Humanitarian Agencies (CHA) and Asoka Gunawardena – Chairman of the Marga Institute, presented their findings on the way the war was fought, based on their joint publication titled ‘Issues of Truth and Reconciliation: Narrative III – the Last Stages of the War in Sri Lanka.’  Dr Gunatilleke in an exclusive interview with the Sunday Times described the Marga/CHA interactions with the OISL chief, the diplomatic community and at a side event in Geneva.

Excerpts are given below.

Q. To whom did you make your presentation in Geneva, based on the ‘Third Narrative?’   

Our main intention was to make a presentation to the chief coordinator of the investigative team Sandra Beidas. We met her on the 8^th morning which was the day the UN sessions were beginning…  We met a number of missions; we thought we would try to make our presentation to a cross section of countries, some supportive of us, some who supported the resolution.  We met the Canadian mission and had a long session … We met the Russian PR (Permanent Representative), the Indian PR and the South African PR on the 5^th .  On the 6^thand 7^th which were non-working days we met our PR and our ambassador in Washington who was in Geneva (these were like working dinners where we discussed the text).  On the 8^th from 1-3 p.m., we had a side event.  We were warned that often the Sri Lankan side events were poorly attended unless they were organised by western nations, for example on Channel 4.  But we had a good audience. Hall 23 had about 100 seats for accommodation and there must have been at least 70-75 attendees. From the questions, we found Amnesty International, representatives of the Tamil diaspora (‘Kirumal’ if I am not mistaken — an important LTTE spokesman). There was David Waley, a Britisher (seen as an anti-Sri Lanka).

Q. What did you tell Sandra Beidas and how did she respond?

She said she had a quick look at Third Narrative. We gave a brief statement of Chapter 1 … The main thrust was to tell her that we examined the issues of accountability in the context of how the war was fought. We filled a crucial gap in the information available in the other reports. We went on to say — exactly how you put it in your article — we looked at the war in three stages — the Eastern Province war and how it was fought with minimum casualties, then the first stage of Kilinochchi, why the war changed and the way in which accountability — the principles of distinction and proportionality have to be applied in the context of the NFZ and the fighting. I must say that we had a cordial reception. She said this will be taken into account.

She asked “what do you expect to come out of this?”  We said it was clear to us that the first set of charges doesn’t stand serious scrutiny in the light of what we have described — charges of indiscriminate artillery fire, driving civilians into the NFZ, targeting civilians, of a large number of casualties tantamount to genocide.  We said these have to be removed from the slate.  Individual war crimes are another matter …  We think the position taken in the LLRC where there are allegations of individual war crimes — that these  have to be investigated. The general set of charges that it was a war fought against civilians is untenable.

Q. On revisiting International Humanitarian Law (IHL)

I told her very clearly, where we say you need to revisit IHL; we are not saying IHL should not be applied — that we should condone what has happened. We are saying IHL does not take into account adequately the context. IHL needs to be revisited in order to better protect civilians in extraordinary circumstances. … It failed to protect civilians in this context, e.g. dealing with hostages, human shields, the mingling of combatants with civilians.

Q. On the credibility of witnesses in the Darusman report

I asked Sandra Beidas how to establish the credibility of witnesses.  We are going on Skype with them to discuss this.  She said they can’t remove the confidentiality of witnesses in the PoE report but will try to establish credibility.  They need corroborative evidence. The Darusman report admits they couldn’t do it — they were not able to verify witness testimony.

Q. Does your team plan to have an ongoing dialogue with the OISL?

Yes. … We said we are making another formal submission on the legal aspects of distinction and proportionality … as they apply to the allegations. An IHL lawyer is already engaged in preparing it. We are doing a close study of the issue of civilian casualties. We told her the estimates of civilian casualties were so highly speculative, to the extent that they became irresponsible.

Q. Who funded the Marga/CHA exercise?       

Actually … the whole of the work till the writing of the report was born by CHA and Marga Institute with the resources it had. Marga pulled out about Rs. 100,000 from its capital. … Then when it came to the text — we presented it to various groups — we were told this must go into print. At that point of time Jeevan raised some funds which came entirely from the private sector, from various groups. It is that (funding) that is being used — to go to Geneva, to travel, the cost of the book launch, the printing of the book. .. Both CHA and we (Marga) were keen there should be no direct government funding of this — though if we had approached the Government we might have had some support from it.

Q. Did the LTTE representatives at the side event challenge what you were saying?

They asked two questions: Why do you always refer to this as the ‘Darusman report,’ it is a UN report. The second question was ‘why have you not told what the Government did and what the army did.’ I said, I should have called it the ‘UN Secretary General’s Panel of Experts report.’ But it is not a UN report. That distinction must be made quite clear. Second, I said you have to realise the Government waged a legitimate war. That was accepted by the western countries … I have described how the war was fought.  I said if you have anything to add please do — we are trying to get an account we can agree on.

Q. What did they say to that?

They didn’t answer. All the questions were put in a very aggressive way. But the answers didn’t elicit any retort. They asked (questions) but then went quiet.

Q. Your critique of the international community and the UN seems to be on the basis of R2P (Responsibility to Protect). It seems that you are accepting the concept of R2P, which is the very concept that underlies the resolution. R2P has itself been critiqued as a ‘tool of western imperialism’ etc.  Do you see this as problematic?

Sri Lanka was signatory to the world summit declaration in 1995 which made a strong commitment to R2P … that the international community has a responsibility protect citizens against crimes against humanity, torture and so on. It was enunciated with a view to protecting civilians against abuses of the state.  It does not talk about the non-state actor…. We are not challenging the principle of R2P. We think that in Rwanda, Cambodia, in all these places the international community has an obligation to protect citizens against crimes that may be committed. In Sri Lanka it is to protect civilians not against the state but against the LTTE…. I think the Government and the international community could have got together more strongly and prevented this tragedy. That would mean that it’s an intervention, but an intervention along with the state, not against the state.

Q. There have been some critiques of ‘Third Narrative’ – Jean Pierre Page, former leader of the French trade union confederation ‘Confederation General de Travail (CGT) for example wrote that it is naïve. That the objective of the resolutions for the US and its allies goes beyond regime change, and that the US has geostrategic objectives. Your comments?

In a framework of world political processes – one of US struggling to maintain hegemony, you would have to say the ultimate decision with regard to Sri Lanka will be made on political grounds. All efforts would go only to influence that decision. We were told this by the Russian  ambassador when we met him in Geneva. The way in which that can be countered is to build coalitions. In that setup our text the Third Narrative is only providing the ammunition for a coalition to work effectively. …We get the impression there is a coalition working towards regime change. The coalition stretches from western states wanting a more friendly government, the pro-LTTE diaspora wanting… destabilization of conditions here, and camps in Sri Lanka wanting regime change. That’s a powerful coalition – that convergence is there.

There’s another thing that came across very clearly.  People like the Indians and South Africans think that  OP-2 (Operative Para 2) in the resolution — which calls for a domestic process — that we have gone far in satisfying that by expanding the mandate of the Disappearances Commission, and having an international advisory group.  If you do your work within OP-2, then it makes it easy for countries which are friendly to champion your cause. If the government goes ahead demonstrating they are really implementing OP2, it makes their task easier. One can then make OP-10 (which calls for an international investigation) redundant.  The diplomats who opposed OP-10 were saying that.