Relevance of Wiki Leaks and UN’s 20-year confidentiality clause
by Shamindra Ferdinando
After having consulted, either the Geneva-based United Nations Human Rights Commission (UNHRC), or UN headquarters, in New York, or both, the UN mission, in Colombo, in April, last year, said that the issue of confidentiality of sources/eyewitnesses needed to be considered at a later stage.
The Colombo mission was responding to a query by The Island whether the UN would review UNSG Ban ki moon’s Panel of Experts (PoE) recommendation, pertaining to confidentiality of sources/eyewitnesses for a 20-year period, with effect from the date of the release of the report. The recommendation was made in PoE’s report, released on March 31, 2011.
The Island raised the issue with Subinay Nandy, UN Resident Coordinator and UNDP Resident Representative, in Colombo, in the wake of 22 countries voting for this US-led resolution, meant to empower the High Commissioner for Human Rights to conduct an external inquiry into accountability issues, between Feb, 2002, to May, 2009. The resolution was passed in March, 2014.
The following response was received from the UN mission in Colombo after several reminders: “The High Commissioner for Human Rights will now be making arrangements for a comprehensive investigation, requested by the United Nations Human Rights Council, and these are issues which will need to be considered at a later stage. In any case, the protection of witnesses and their consent to sharing their identities remain the overriding considerations when dealing with these matters,” (UN to review 20-year confidentiality clause ‘at a later stage’ with strap line War crimes probe targeting Sri Lanka, The Island, April 7, 2014.
With the UNHRC now scheduled to receive the external investigation report, at the next Geneva session, in September, the UN can not further delay taking a decision on this matter. The September report, too, is most likely to reiterate the UN policy that identities of sources/eyewitnesses can not be revealed. The Maithripala Sirisena-Wickremesinghe administration should examine all avenues to verify accusations made by various persons. Accusations, regarding the new government continuing to hold political prisoners, as well as existence of secret detention camps, prompted Premier Wickremesinghe, Foreign Minister Mangala Samaraweera, as well as Justice Minister, Wijeyedasa Rajapakshe, PC, to strongly counter them. But they shouldn’t forget that no less a person than US Secretary of State, John Kerry, repeated the lie in Colombo recently.
To make matters worse, a section of the state media, too, referred to those who had been convicted on terrorism charges and suspected terrorists as political prisoners. The new government should formulate a cohesive strategy to respond to war crimes accusations. Anyone found guilty of specific atrocities must be dealt with accordingly. There cannot be a dispute over that. But the Sri Lankan military, or the previous political leadership, shouldn’t be humiliated on the basis of unsubstantiated allegations.
War crimes allegation, directed at Sri Lanka, in the UK parliament, is evidence of the manipulative power of those working overtime against the country.
The UK parliament, taking up the issue of human rights violations, in the Indian sub-continent, is a case in point. The British parliament, in September, 2011, debated human rights violations committed by India and Sri Lanka, much to the discomfort of the previous Indian government. India strongly disputed the UK stand, whereas Sri Lanka remained silent. The GoSL mission didn’t even bother to raise the issue with the British, though the UK parliament was told of the Sri Lankan military killing 100,000 – LTTE combatants (60,000) and civilians (40,000) during January-May 2009. The British obviously couldn’t stomach Sri Lanka restoring peace.
Asked whether the US would request the UN/PoE to review their stand on the confidentiality clause, the US embassy in Colombo responded: “The United States urges the Government of Sri Lanka to cooperate with the Office of the High Commissioner and accept technical assistance from the United Nations, as well as help from the international community. Specifics regarding the investigation should be addressed to the Office of the High Commissioner for Human Rights.”
UK-based Suren Surendiran, told The Island: “Until proper practicing and functioning democracy returns to Sri Lanka, and proper governance of government is in place, with independent institutions, like the state police, judiciary, etc., and, above all, some kind of international protection mechanism for witnesses is in place in Sri Lanka and abroad, there will be no reason for GTF to call for breaking confidentiality of witnesses who have already given evidence.”
The Island carried US, UK and GTF statements in its April 7, 2014, edition.
The European Union, too, asserted that there was no reason to review UN confidentiality clause, pertaining to Sri Lanka (EU, too, won’t call for review of 20-year UN confidentiality clause, The Island, April 9, 2014).
Now that Navi Pillay’s successor, UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in his inaugural statement to latest Geneva session, on June 15, 2015, has advised the Maithripala Sirisena-Wickremesinghe administration to consult those who had suffered during the conflict, as well as their families, as regards accountability issues and post-war national reconciliation, the UN should help the new Sri Lankan government to get in touch with those who endured the most under the previous government. Among those who had suffered most, undoubtedly, were men and women making submissions to the UN PoE between, Dec 27, 2010 and Dec 31, 2010. The PoE received over 4,000 submissions from over 2,300 persons whose identities still remained confidential
Responding to Zeid Ra’ad Al Hussein, Foreign Ministry. Mahishini Colonne, told a news conference, in Colombo, that talks, at the highest levels, were on to commence the domestic inquiry into war crimes accusations.
Would the UN now review its stand on the confidentiality clause, as promised in April last year? The writer raised the issue with President Maithripala Sirisena, on May 20, during a meeting between the president and the print and electronic media. The President assured that the proposed probe would be carried out in conformity with international, as well as domestic standards. The president was responding to a query by The Island whether he would join Prime Minister Ranil Wickremesinghe in requesting the UN to facilitate the new probe by lifting the ban information received by the PoE.
The Maithripala Sirisena-Wickremesinghe administration should take up the issue with the UN in the wake the UN, rights chief calling for consultations between Sri Lankan investigators and victims, as well as their families. President Maithripala Sirisena had a special responsibility in defending the country due to him being the General Secretary of the SLFP responsible for Sri Lanka’s triumph over the LTTE, during the eelam war IV (Aug 2006 to May 2009).
Now that the Rajapaksas had been removed from power, there couldn’t be any reason for Western powers, as well as India, to deprive the Maithripala Sirisena-Wickremesinghe administration of an opportunity to inquire into accountability issues. As the UN rights chief has emphasized recently, the proposed domestic mechanism, set up in line with international standards, should have access to evidence received by the PoE, as well as the Ms Sandra Beidas’ investigation team, set up in accordance with the US sponsored resolution, endorsed in Geneva, in March, last year.
Perhaps, the most important, as well as, comprehensive evidence available to the UN, as regards the ground situation in the Vanni region, during August, 2008, to May 13, 2009, had been so far denied to Sri Lanka. For some strange reason, those who had been responsible for Sri Lanka’s defence never really pursued the matter. Sri Lanka should request the UN to share the secret UN dossier prepared on the basis of information provided by Tamil speaking civilians, clergy, ICRC, and Tamil government servants, based in the Vanni. The PoE has acknowledged that the UN report estimated 7,721 persons killed and 18,479 wounded during Aug, 2008, to May 13, 2009. The UN report disputed the much touted accusations of over 40,000 massacred during the final phase of the offensive on the Vanni east front.
Would the new government request the UN to share the secret dossier with those in charge of the proposed domestic inquiry? It would be pertinent to mention that the UN had given the PoE access to the dossier though it is yet to be shared with Sri Lanka.
Interestingly, the UN dossier tallied with Enumeration of Vital Events (EVE) conducted by the previous government, during the months of June and July, 2011. The government ordered the EVE in the wake of persistent allegations regarding deaths of over 40,000 civilians due to military action. The EVE placed the number of persons, both civilians and LTTE killed, during January 1, to May 31, 2009, at 7,896 whereas the UN dossier placed the figure at 7,721, during August, 2008, to May 13, 2009. Perhaps the new government should seriously consider carrying out a fresh EVE under the supervision of the civil society organizations. Let the UN, too, participate in the process. Perhaps, the Diaspora can also supervise the process to ensure transparency.
The Diaspora, too, shouldn’t hesitate to fully cooperate with the government. In April, last year, the GTF spokesperson, Suren Surendiran, flatly refused to share information with what he called dictatorial Rajapaksa administration. Surendiran insisted that they wouldn’t cooperate unless Sri Lanka transformed itself to a democracy. The GTF called for change of government/system to pave the way for them to work with Sri Lanka. At that time, no one believed the then President would call for early presidential election. However, as the main impediment for the Diaspora extending cooperation to Sri Lanka had been removed, the GTF and other like minded groups should share information with the government. The government should request Diaspora organizations to share information available with them. Those who had provided information to PoE and Ms Beidas’ investigators (their report will be presented to the Sept. Geneva sessions) should be able to brief the proposed domestic investigation. There can not be any plausible reason for them to take cover behind the UN confidentiality clause any longer.
Missing Persons Commission Chairman, retired Justice Maxwell Paranagama, asserted that their investigations had been seriously hampered due to foreign governments refusal to cooperate with Sri Lanka to establish the whereabouts of those who had been categorized as missing. Paranagama said: “We are keen to establish true identities of those who had sought political asylum overseas and perhaps already taken new identities. During the previous administration, I on behalf of the Commission, wrote to several countries, through the External Affairs Ministry, seeking information on those who had reached their shores through legal or illegal means. Unfortunately, they declined to cooperate, citing domestic laws.”
Paranagama said that a sizable number of Sri Lankan Tamils, including some of those who had fought for the LTTE, had escaped during eelam war IV (Aug 2006-May 2009) and after the conclusion of the conflict.
The retired judge welcomed the UN rights chief’s call for Sri Lanka to consult the victims and their families. Perhaps those governments, which had accommodated refugees of Sri Lankan origin, over the past several years, would take notice of the UN rights chief’s statement.
Responding to a query, Paranagama said that after having received a complaint from a woman, regarding the disappearance of her husband, during the conflict, the Commission immediately initiated inquiries. Investigations led the Commission to the missing man, living at a refugee camp in India, Paranagama said, adding that he was brought to Sri Lanka.
Paranagama insisted that Sri Lanka needed maximum possible international cooperation to establish the whereabouts of the missing.
Paranagama acknowledged that the UN prohibited the release of the identities of victims and their families who had complained to PoE as regards war crimes/ accountability issues, until March, 2031, in accordance with UN confidentiality clause.
The government should invite both the ICRC and the UNICEF to establish the whereabouts of those categorized as missing. The government should consider carrying out fresh investigations with the support of the ICRC and UNICEF to verify accusations. The previous government involved the UNICEF in a special project conducted by the Vavuniya Government Agent and the Probation and Childcare Commissioner (Northern Province). The joint effort was meant to reunite families, displaced during the conflict. The UNICEF report placed the number of missing persons at 2,564, including 676 children. Of those categorized as children, 64 per cent were named as LTTE child soldiers.
The LTTE forcibly conscripted children even at the last phase of fighting. Those shedding crocodile tears for Tamils today never condemn the LTTE or at least issued a statement urging Prabhakaran not to deploy children. They chose to remain silent as long as they felt the LTTE could some how achieved its objectives. Prabhakaran made a desperate bid to thwart the army on the Vanni east front until the international community intervened on his behalf.
Although the previous government executed the combined security forces offensive superbly, it failed badly on the diplomatic front. For want of a post-war cohesive strategy, those who couldn’t stomach Sri Lanka’s triumph, over terrorism, moved several resolutions in Geneva, culminating with the one last year that paved the way for an external investigation.
Sri Lanka should closely examine the entire set of Wiki Leaks cables pertaining to Sri Lanka. The previous government never made an attempt to study Wiki Leaks cables, thereby missing an excellent opportunity to establish the circumstances under which the LTTE finally collapsed on the banks of the Nanthikadal lagoon. Those who had been spearheading Sri Lanka’s defence, on the human rights front, didn’t at least bother to take up relevant Wiki Leaks in spite of Norway publicly acknowledging the importance and relevance of secret US diplomatic cables. Wiki Leaks hadn’t been taken into consideration by UNSG Ban ki moon’s PoE and whether Ms Sandra Beidas team examined them can be known in September when the report is tabled in Geneva. The Norwegian government, in September, 2011, revealed that an investigation undertaken by experts on behalf of the government examined several Wiki Leaks documents pertaining to Sri Lanka and they were proved useful. Norway regretted that as the report titled, Pawns of Peace: Evaluation of Norwegian peace efforts in Sri Lanka (From 1997 to 2009), being published, new Wiki Leaks material for assessing Norwegian peace efforts in Sri Lanka was released. Norway hadn’t been able to evaluate them.
The proposed Sri Lankan domestic inquiry, in accordance with international standards, should take Wiki Leaks into consideration. If Norwegian use of Wiki Leaks was acceptable to those pursuing war crimes probe targeting Sri Lanka, the Maithripala Sirisena-Wickremesinghe administration cannot be faulted for using them.
Perhaps, the new government should consider inviting war-time US Defence Advisor in Colombo, Lt. Colonel Lawrence Smith, to appear before those tasked with conducting fresh war crimes inquiry. Smith publicly defended the Sri Lankan military, in June, 2011, over two years after the conclusion of the war. Would a US officer come to Sri Lanka’s rescue if he had the slightest doubt regarding the intentional massacre of civilians, including those surrendering LTTE cadres and their families. In fact, Wiki Leaks as well as the Norwegian note, in Sri Lanka’s possession, can prove Lt. Col. Smith right.