1. UN Secretary General Ban Ki Moon commissioned 3 members (Ban Ki Moon Panel of Experts) selected personally by him to submit a personal report on the ‘final months’ of Sri Lanka’s conflict. This report was not commissioned by the UNGA or UNSC. This report was never tabled at the UNGA, UNSC or even UNHRC. This report was actually leaked to the public. How can the UNHRC head quote from this leaked personal report & how can 3 successive UNHRC resolutions be based on a personally mandated leaked report?
2. How can a personally commissioned report (Darusman Report) become the basis for successive resolutions against Sri Lanka when it was never officially tabled for Sri Lanka to officially respond to it?
3. How legal are these UNHRC Resolutions, OISL investigations & every demand & recommendations given that the Darusman Report is the basis for every action being taken against Sri Lanka? What is the platform within the UN system that Sri Lanka can seek answers for these legally questionable acts? UNSG’s actions are illegal under UN Charter Article 2(7), 99 and 100
4. Article 97, 98 & 99 of the UN Charter covers the role of the UNSG but UNSG can only use Article 99 (Commission report) if there is a threat to international peace & security. UNSG commissioned his personal panel more than a year after Sri Lanka’s conflict ended & there was no threat to international peace & security, if so UNSG was bound by Article 97,98 & 99 to bring that to the attention of the UNSC & seek approval to commission reports on Sri Lanka. These are legal questions for UNHRC to now answer. Isn’t this why the Darusman Report was leaked instead of placing it officially for Sri Lanka to respond to? What UNSG did constitutes an ‘ultra vires’ to the UN Charter & the spirit of goodwill among UN member states. UNSG is violating Article 2(7) REPEATEDLY by meddling in affairs that fall ‘within the domestic jurisdiction of members’.
5. When a UNHRC head demands a sovereign country to change its constitution & openly denigrates Sri Lanka’s judicial system & judges is the UNHRC head not violating Article 2.7 of the UN Charter? Article 2(7):Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; http://www.un.org/en/sections/un-charter/chapter-i/ Not stopping there theUNHRC head has also asked Sri Lanka to delist LTTE fronts, praising constitutional amendments that were promoted by western governments (19a), praising that Sri Lanka is holding a “Remembrance Day’ instead of ‘Victory Day’ while UNHRC is silent about UK & Allies celebrating Victory Day since 1945, demanding the repealing of the terrorism prevention act, commenting on ‘white vans’ when no one can even give a list of the missing or their names or even numbers that warrant it to be regarded as a national issue. UNHRC reports are full of passing comments of ‘some groups’ with sensationalized allegations sans details or evidence.
6. On 21 July 2007 LTTE closed the Mavil Aru sluice gates denying water to some 30,000 farmers in East Sri Lanka – did UNHRC force LTTE to return the supply of water as denying water is a war crime? What did UNHRC do against the LTTE for its actions?
7. Immediately after closing the Mavil Aru sluice gates LTTE began attacking several villages in the East forcing the Govt to order its troops to counter-attack & defend the lives of the civilians. Did UNHRC prevent LTTE carnage? Did UNHRC take action against the LTTE for these acts of terror?
8. LTTE began attacking villages since mid-1980s killing innocent men, women, children babies & even pregnant women. What did UN system do to stop LTTE carnage throughout 30 years? Were these not civilians that LTTE were killing? Give us evidence of how UNHRC or UN system has assisted the victims of LTTE terror? Not once has any UNHRC head visited victims of LTTE terror attacks.
9. What has the UN / UNHRC / International Community done about LTTE fronts that have been providing material support & engaged in propaganda on behalf of the LTTE raising funds that purchased the arms & ammunition for LTTE to fight & controls the LTTE international kitty from illegal & legal business ventures?
10. It is because the LTTE engaged in acts of terror that Sri Lanka’s Government deployed its troops to safeguard the lives of civilians and protect the country’s public property that LTTE was targeting. The list of airports, trains, passenger buses, buildings, banks that LTTE attacked are many. What did UN/UNHRC do to stop these LTTE acts of terror?
11. UNHRC that is today quoting 24×7 on ‘civilians’ must explain why UN did not go after LTTE for targeting and killing civilians throughout 1980s, 1990s, 2000 up to 2009? Were these civilian lives not important? How many innocent farmers, villagers, people going to work, school children were killed by LTTE? Why have they been neglected by UN and their deaths simply subject to an official statement recirculated with every attack.
12. The UN/UNHRC that has become overactive since the fall of the LTTE has never shown the same enthusiasm to go after LTTE as it is doing questioning how the Sri Lanka Army engaged itself in the final months of the conflict. We want to know why?
13. UN speaks so highly about human rights & rights of the child – did UN stop LTTE forcible kidnap & recruitment of children turned into child soldiers? This was happening openly since 1980s. These children were initially trained by Adele Balasingham who now lives in UK where LTTE still remains banned. Adele Balasingham even instructed these children to bite the cyanide capsule & commit suicide in the event they may face capture by the armed forces. Teaching children to kill and training to commit suicide are two crimes that the UN system is well aware of and her own books are evidence enough of her crime. What has the UN & UK done about her crimes against children & their human rights?
14. Allegations of war crimes against Sri Lankan Forces is determined based on evidence of killing. The alleged 40,000, 100,000, 150,000 has no basis without names of the dead or at least skeletons of the dead. We are into the 10th year since the end of the conflict and apart from recirculating allegations there are no list of 40,000 names & there are no skeletons in the area where the conflict ended because 3 days after the conflict ended Ban Ki Moon travelled by helicopter over the year and he & all others travelling with him should have seen newly dug graves – 40,000 is no small number to dig graves for & hide full bodies. Without details of dead or their skeletons how can an army be accused of war crimes is the question UNHRC must answer. OISL investigation should have had 40,000 dead names but no such list has been sent. Presidential Commission on Missing Persons too has a list of less than 20,000 which includes 5000 missing soldiers & missing covering period after 1983.
15. The UNHRC list of war crimes allegations against Sri Lanka include: killing of civilians, shelling hospitals & humanitarian objects, denial of humanitarian assistance, human rights violations suffered by victims & survivors, human rights violations outside conflict zone including media & other critics (last point is outside of the conflict subject) Throughout the conflict the Government of Sri Lanka set up a Consultative Committee on Humanitarian Assistance (CCHA) which met twice a month with foreign envoys, select NGO heads, Sri Lankan Officials, Armed Forces officials. This was the best place to ask direct questions and get direct answers. Meeting minutes has not seen any of the questions asked after the conflict been asked at these bi-weekly meetings. WHY?
16. Though LTTE is not signatory to any international conventions, the laws of war is applicable to LTTE therefore it is LTTE who is at fault for using hospitals to store its military equipment and firing from these sites. LTTE is at fault for firing from among civilians not forgetting that LTTE also had a civilian armed force.
17. The Government transported 534,227 metric tons of food and medicines to the conflict which the ICRC has not disputed. Therefore, the allegation that the GOSL did not supply adequate supplies of food is totally uncalled for.
18. Why has UNHRC ignored the SL Govt census by Tamil teachers in Feb/Mar 2012 placing war dead at 7432 including LTTE killed in combat. Of the 2600 missing 1600 had been with LTTE
19. Why has the UNHRC ignored the population survey by Tamil Teachers of the North in July 2011 covering migration, deaths, untraceable persons from 2005-2009 giving 7896 dead including LTTE and 1102 dead from natural illness & sickness. Assuming 5000 to be LTTE dead, a 30 year old conflict ending with less than 3000 collateral damage deaths is commendable. US war on terror since 9/11 has killed over 1 million people!
20. Why has the UNHRC ignored the UN Country Report 2009 giving estimated deaths between August 2008-May 13 2009 as 7721 (which is close to the 7934 deaths given by the Census Dept of SL)
21. Why has the UNHRC ignored the aerial photos of the conflict zone by the American Association for the Advancement of Science clearly negating the allegation of 40,000 dead
22. How can UNHRC ignore embedded Indian journalist Murali Reddy & instead accept versions of 3rd party/4th parties living overseas? Murali was present in the conflict zone up to 19th May 2009? His reports give detailed accounts & he also claims that ICRC suspended operations on 15 May 2009 (4 days before LTTE was defeated) satisfied that the majority of civilians were in safety & only the LTTE & military were engaged in final combat. His reports cites speaking to civilians none of whom claimed military was killing them. His reports however confirm that LTTE were firing at civilians trying to escape LTTE as well as LTTE denying water & food to civilians who were not family members of LTTE.
23. How can UNHRC ignore David Gray Reuters reporter who toured the battlefield in April 2009 – his report details Sri Lankan forces sharing their own food rations with the civilians.
24. On what grounds is the UNHRC promoting a Truth & Reconciliation Commission for Sri Lanka similar to that of South Africa when the 2 countries cannot be compared? South Africa faced an apartheid problem when invader whites subjugated the black inhabitants. Sri Lanka faced a terrorist problem.
25. Why has UN/UNHRC not appreciated what Sri Lanka has achieved since ending 30 years of terror in just 3 years & within 3 years a magnanimous program launched that covered resettling 295,873 IDPs (while there are still 27.5m IDPs worldwide & over 62m refugees). From 2009-2012 Sri Lanka completed 5000sq.km of demining, rehabilitated & reintegrated 11,989 LTTE combatants that surrendered, 594 child combatants given education, offered vocational training and given a presidential pardon, restoring irrigation infrastructure, canals, tanks, reviving agriculture & farming, restoring over 1000 schools and healthcare facilities, renovated and even built kovils.
26. UN/UNHRC or any other body cannot frame charges of war crimes against Sri Lankan troops without answering these fundamental questions
· Does the UN know how many civilians did not take part in hostilities?
· Does the UN know how many civilians took part in one or two acts of hostilities making distinction further complicated?
· Does the UN know how many civilians volunteered to take part in hostilities?
· Does the UN know how many civilians may have died while taking part in hostilities?
· Does the UN know how many of LTTE’s CIVILIAN ARMED FORCE died during hostilities?
· Does the UN know how many will admit and own up to being a civilian but took part in hostilities during the last phase?
· Can the UN rely on these civilian accounts if all those saved claim they did not take part in hostilities and thus provide them the package of witness protection for no reason?
· How many LTTErs fought in civilian clothing (pl note all 11,989 combatants who surrendered to the Sri Lanka military were wearing civilian clothing)
· How many LTTE combatants died in combat wearing civilian clothing?
· How many LTTE combatants killed were in uniform?
27. UNHRC has no grounds to establish any courts without answering above questions as well as proving that 40,000 were killed. With no names so far even after 10 years what is the case that the UNHRC has against the Sri Lankan troops? OISL does not have 40,000 names, Presidential Commission on Missing Persons (covering 1983-2009 period) as of 16th June 2016 has only 19,006 civilian missing of which 5000 are soldiers. There are no police entries for 40,000 missing the most basic requirement to even investigate a case of missing. “Would Sri Lanka save 295,873 Tamils and accept 11,989 LTTE combatants but kill 40,000, 70,000, 100,000 or 125,000 ‘invisible’ people? The numbers just don’t make sense.
28. Questioning those that made the allegation figures to prove their claims. All of the below must be asked to produce evidence for their allegations. They simply cannot throw numbers & expect to put a national army in prison without evidence or proof.
· Based on what evidence is Robert Blake, former US envoy quoting 40,000 dead at the US Congressional Hearing
· How is Siobhain McDonagh (UK Labor MP) declaring 100,000 dead and 40,000 as civilians.
· How did Charles Petrie reviewing the UNSG’s report come up with 70,000 dead
· How did The Times of London come up with 20,000 dead
· How did Amnesty International quote 40,000 dead
· How did Bishop of Mannar, Rayappu Joseph claim 147,000 as missing but did not log a single name with the Presidential Commission or the OISL investigators
· How did Alan Keenan Project Director of International Crisis Group Sri Lanka come up with civilians killed between 40,000-147,000
· How did UK Guardian quote 40,000 dead
29. UNHRC please answer – How many more Thayaparaja’s are classified as ‘refugees’ ‘asylum seekers’ ‘dead’ ‘missing’ ‘killed’ but actually living overseas – On 5 May 2014 Dhanushkodi police in Tamil Nadu arrested some Tamil refugees one of whom was K Thayaparaja who was listed as being tortured & killed by Sri Lankan Security Forces on 13 September 2009 a story confirmed by the University Teachers of Human Rights report (Special Report No34/Dec 13, 2009) which claims he was tortured in Avissawella by Sri Lankan Army and shot on 13th September 2009 and died while being taken to Kalubowila hospital. His death was mentioned in the Australian Government Refugee Review Tribunal in 2010.How is it that a man supposed to have been killed in 2009 is alive in 2014? How many more people included in these international reports as ‘MISSING’ or ‘KILLED’ by the Sri Lankan Security Forces are actually alive as in the case of K Tharayaparaja has revealed.
30. UNHRC – Name 1 Tribunal that has delivered justice to the victims? While UNHRC must first name who the victims are we would like to first ask the high & mighty UN from all of the international courts/hybrid tribunals held how many have been success stories for the victims? The ICC set up in 2002 spent 10 years & completed 1 trial spending $900m where all investigations were against Africa. The Chief Judge in the ICC case against Kenyan President was not even a lawyer. The Chief Prosecutor was accused of withholding information on Lubanga the Congolese military leader. ICC has never taken up West’s illegal military interventions, war crimes, use of illegal weapons, arming rebel movements & terror groups globally.
The Tribunal against former Yugoslavia in 1993 took 23 years spent $2b and has been accused of selective bias in the indictments and completely omitting NATO crimes from investigations. Serbian leader was exonerated eventually but he died before the verdict in prison. Allegations of war crimes exceeding 100,000 eventually resulted in just 2788 dead bodies and that ended the ‘mass genocide’ story.
Yugoslavia tribunal was established to deter future crimes – indictments in Bosnia didn’t prevent atrocities in Kosovo, indictments for Kosovo didn’t stop atrocities in Sudan nor Libya nor Syria.
Rwanda Tribunal in 1994 again excluded foreign involvement including the UN from investigation & spent 20 years, £1 billion taking 8 years to find 2 arrested in 1999 as not guilty in 2011 citing ‘errors’ in initial judgement. So much for greatness of foreign judges! 95 indictees cost £11 million each.
Cambodia hybrid Tribunal in 2006 took 8 years spent $200m but only 5 indictments and 1 conviction for alleged killing of 1.7m by Khmer Rouge in mid 1970s by Pol Pot! US, UK complicity in these crimes were never taken.
Sierra Leone Special Court 2002 had a 65 hectacre court complex, costing $1,066,300 to the taxpayer (who live on $30 a day), prosecution lawyers were mostly from US or US influenced countries and no local judges. Court spent $23m on every defendant but only 22 have been indicted.
Special Court for Lebanon 2007 tried suspects in absentia. 4 years of investigation cost $325m with 49% of court funded by Lebanese govt where poverty rate is over 60% and money wasted on the court could have easily be spent on the people.
Special Hybrid Court East Timor for crimes committed between 1975-1999. 75% of the people indicted remain at large. Only 1 person is in prison. There was no sovereign East Timor when the Tribunal was created. East Timor became independent in May 2002. UN ended Mission in 2005. Relationship between Indonesia & East Timor can be compared to Sri Lanka & India.
East Timor, Cambodia & Sierra Leone, Kosovo were hybrid courts – combining international & national element. Hybrid tribunals were set up to cover crimes committed prior to establishment of ICC. Hybrid courts do not have direct authoritative backing of the UNSC and will apply domestic & international law & international & domestic lawyers which is probably career prospects for some local lawyers in Sri Lanka.
The answers to the 30 questions posed clearly establishes UNHRC has no case against Sri Lanka or its National Army and looking at the controversial courts that UN has held the wastage of money & years as well as the biased judgements justifies our refusal to agree to such for Sri Lanka while any Truth & Reconciliation cannot omit the role of India, the role of West, the role of UN & INGOS/NGOs and their local stooges, the role of the Church, LTTE Tamil Diaspora and a plethora of others who had been operating from behind the scenes in what is far more than a terrorist problem in Sri Lanka.
Shenali D Waduge
Dharshan Weerasekera: “The Illegality of the UN Secretary General Ban-ki- Moon’s Approach to Sri Lanka,” 19 March 2013, ………………. https://www.foreignpolicyjournal.com/2013/03/19/the-illegality-of-un-secretary-general-ban-ki-moons-approach-to-sri-lanka/4/
Michael Roberts: “Reading ‘Devastation’: Botham, CMJ and Ban Ki-Moon,” in Roberts, Tamil Person and State. Essays, Colombo, Vijitha Yapa Publications, pp. 259-70.
A NOTE from Michael Roberts, 1 January 2019: “I will be commenting on some aspects of this memorandum, those within my partial competence, in due course.”