As UN probe begins, controversy over local inquiry

POL-CARTOONThe first phase of the international investigation into alleged war crimes in Sri Lanka has begun in Geneva. The exercise, the Sunday Times learnt, is the study of voluminous material including complaints which the Office of the High Commissioner for Human Rights (OHCHR) has received. The idea is to categorise them before the formal process begins towards the end of this month. Originally they were expected to begin this task in mid-July. That will include testimony from witnesses. A source familiar with the process said on the telephone from Geneva that Skype interviews have been carried out with related parties in Sri Lanka to clarify or corroborate matters referred to in the material available. This is being described as a preliminary measure.

With hardly a month to go when the formal investigative process gets under way, the new UN Human Rights High Commissioner Prince Zaid Ra’ad al-Hussein could only tell the 27th sessions of the Council in Geneva that the international investigation had begun and is now under way. These sessions which begin on September 8 will continue until September 26. Thus, he would add that its findings would be reported to the 28th sessions, as mandated, in March next year.

The three-member international investigation team functioning under the OHCHR is headed by Silvia Cartwright, former Governor General and High Court Judge of New Zealand. She was also Judge of the Extraordinary Chambers of the Court in Kampuchea as well as former member of the UN Committee for the Elimination of Discrimination against Women. The other members are Martti Ahtisaari, former President of Finland and Nobel Peace Prize winner, and Asma Jehangir, former President of Pakistan’s Supreme Court Bar Association and of the Human Rights Commission of that country.

The trio are expected in London in the coming week for informal meetings. They are also recruiting skilled experts from different parts of the world to assist them. Already, Sandra Beidas, a British diplomat heads a team of 12 OHCHR staffers. The same source said the investigation team had so far made no decision on venues outside Geneva where it would hear evidence. Hence, claims of different foreign capitals being identified for the purpose are baseless, the source added.

Though late, thus, the UPFA Government’s timing of a domestic inquiry into alleged war crimes appears to run parallel with that of the OHCHR international investigation. A proclamation issued by President Mahinda Rajapaksa on July 15 has extended the scope of the Commission on Disappearances to be a domestic inquiry. So far, three members have been appointed to an Advisory Council to “advise” the Commission, “at their request” on matters pertaining to their work. They are Sir Desmond de Silva, QC (Chairman), Sir Geoffrey Nice, QC and Prof. David Crane.

As exclusively revealed in these columns the Advisory Council is the outcome of back channel diplomacy carried out at considerable expense by the Monitoring MP for the Ministry of External Affairs, Sajin de Vass Gunawardena. He has been at the helm of a lobbying campaign in the United States with the help of Imad Zuberi, a partner in a venture capital firm in Los Angeles. Zuberi who has tied up with the lobbying efforts boasts of his credentials to spearhead the paid campaign. Among them is being Co-Vice Chair of the National Finance Committee (NFC) of Obama for President. Among those involved in identifying members of the Council is a British politician of Sri Lankan origin with local business interests. It is well known that he has been cosying up to successive governments obtaining different favours.

Maxwell Paranagama, the Chairman of the Commission on Disappearances, told the Sunday Times: “I am planning to invite the three members to come over and observe some of our sittings.” However, it would not be for the next sittings in Mannar from August 8 to 11, but they would be invited for a future sitting, he said. He added that the Commission hoped to take up 280 complaints from some 380 received from the district. Paranagama said last week that the Commission would publish a public notice about the extended scope and mandate.

Discontent among opposition political parties to the Government’s move to conduct an unpublicised domestic inquiry is now gathering momentum. Despite the presidential proclamation, no statement on why the Council was named has been made clear by any Government personality. The Democratic Party led by former General Sarath Fonseka, who led troops to militarily defeat the separatist Tiger guerrillas said, “It would complicate matters even further.” Fonseka was stripped of his title as a four-star General in the events that followed differences of opinion that developed between him, the UPFA leaders and those at the helm of the defence establishment after the defeat of Tiger guerrillas. He told the Sunday Times: “Though the Government says it will not allow an international investigation on alleged war crimes, it is President Rajapaksa who agreed with the UN Secretary General Ban Ki moon that such a probe should be held.”

He was alluding to the joint statement issued by the UN Secretary General and the Government of Sri Lanka at the conclusion of Ban Ki-moon’s visit to Sri Lanka on May 23, 2009. The final paragraph in that statement said: “Sri Lanka re-iterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances.”

Fonseka said: “The Government cannot ignore the UN investigation. It is bound to heed it. Now the Government is trying to appoint its own ‘international’ Advisory Council and trying to overcome the UN investigation. This has turned out to be a joke. We can defend ourselves regarding the allegations over war crimes. Therefore, what the Government should have done is to face the investigation and prove that no war crimes took place. What the Government is trying to do is to get the Advisory Council to give a favourable report by paying money. Though the Government is spending money to get such a report, it should not forget that there are more powerful persons who can pay more money to get their views included in this report. The Government will face a difficult situation if adverse points are included. The Government’s foolish action is only complicating matters. The decision to expand the scope of the Presidential Commission to probe disappearances is also going to complicate matters.”

The Janatha Vimukthi Peramuna (JVP) also wants to raise issue over the matter. Its leader Anura Kumara Dissanayake, who is now recovering after a miraculous escape from a motor accident near Ratnapura, is to pose questions when Parliament meets on Tuesday (August 5). JVP sources said yesterday he would seek an explanation from the Government why such a course of action was taken after repeatedly claiming for five years that the troops were not responsible for any war crimes.

Last week, the main opposition United National Party (UNP) asked in a statement why a major policy change was effected by the UPFA Government without consulting either the Cabinet of ministers or Parliament. There was no Government response to this query. The UNP is to now ask for a debate in Parliament and make this one of the key issues during its campaign for the Uva Provincial Council polls. The UNP’s Political Affairs Director Mangala Samaraweera, one-time Foreign Minister in the first Rajapaksa cabinet, told the Sunday Times: “The UNP has consistently maintained that opening of the floodgates of international scrutiny can be avoided only by an independent and credible local investigation to look into the serious allegations of violations of human rights and international humanitarian law against the Rajapaksa regime. Whenever this suggestion was put forward in Parliament, we were verbally hounded by catcalls accusing us of being ‘traitors.’ This was by many of our ‘honourable colleagues’ of the Government benches.

“However, when President Mahinda Rajapaksa issued a proclamation on July 15 announcing the launch of a domestic investigation into alleged war crimes and the conduct of his armed forces in the final days of the war, many hoped that sanity had at last prevailed. The Government named Sir Desmond de Silva QC, Sir Geoffrey Nice QC and Dr. David Michael Crane as advisers to the ‘local commission investigating allegations of war crimes by all parties to the conflict. Seeking the expertise of three of the world’s top war crimes prosecutors was seen as a move by a government keen to mend its earlier ways and to rebuild its strained relationship with the international community.
“On closer examination of the credentials of the ‘advisers’, however, it is obvious that the motives may not be pristine and altruistic as it may seem at first glance. As the role of Sir Desmond de Silva, as an apologist for the excesses of the Rajapaksa regime during the last days of the war is well known, the lesser known backgrounds of the other two advisers are important in understanding the real motives of the Presidential proclamation.

“Geoffrey Nice, QC, a Professor of Law at Gresham College, is an expert on ‘Head of state immunity’ and was contacted by the Muammar Gaddafi regime in Libya in its last days to challenge the referral to the International Criminal Court. Sir Geoffrey Nice QC later filed an application with the International Criminal Court on January 30, 2012 asking that the Court grant leave for observations to be made concerning the violation of human rights of Gaddafi’s son, Saif. Nice’s expertise on the head of state immunity question has obviously found resonance with the higher echelons of the Rajapaksa Government.

“The background of the second expert, Dr. Crane, may also be useful in working out the true motives behind the regime’s sudden U-turn. Dr. Crane’s role in a war crimes probe commissioned by the military regime in Guinea in 2010 has been widely criticised after it allegedly played down the violence and that regime’s role in the incident. International media reports said Crane was one of two war crimes specialists who were hired as consultants by Guinea’s former military leader, President Moussa Dadis Camara who stands accused by a UN Commission of Inquiry of responsibility for the September 28, 2009, murder and disappearances of more than 156 civilian protesters in the country’s national soccer stadium. The Crane report places responsibility for the violence on a commander of the elite Guinean presidential guard, accusing the guards of violating orders by President Camara. Crane, therefore, has experience in saving the ‘skins’ of dictators facing war crimes charges and pinning the blame further down the line on the armed forces.

“The background of these two experts gives further credence to the reports doing the rounds in the international grapevine that officials of the regime have been secretly negotiating for an amnesty for the chain of command: in the face of damning evidence the only way to save the skin would be to pin the blame further down the line on the armed forces. The credentials of Nice and Crane are impeccable in this respect, if that is to be their brief.”

Senior Government ministers are reluctant to explain the July 15 presidential proclamation. The only one to go on record is Media Minister Keheliya Rambukwella, who is the official Government spokesperson. He told a news briefing after the weekly ministerial meeting on July 17, “If there is an internal panel it could support our cause. We have not been in isolation. We have been discussing with international organisations and even people like (Yasushi) Akashi. A guideline can be drawn how internal activities are carried out. If they feel something more should be done that can be taken into consideration. They can make their comments. The thinking of the Government is that it is better to have some advisors backing the decisions already taken. This does not mean it is guided by them. As advisors they could give advice whether it could be done in a better form. If it is acceptable to us, we could implement it. Advice is not always to be taken or practised. You do not have to take it at all. Advice is an advice. That is why you call it an advice, otherwise it is an obligation.”

Other than the usual wry humour that comes as entertainment every week, Minister Rambukwella’s remarks underscore important factors. He confirms Japan’s request for a domestic process though what Tokyo intended would have been different in character. More significantly, either wittingly or unwittingly, he reveals that only views of the advisors which the Government considers appropriate would be taken on board. That clearly defines the parameters the Government has set for itself in conducting the domestic inquiry into alleged war crimes. If Minister Rambukwella is to be taken seriously, the character of this inquiry would be restrictive and focused on specific areas. However, a lot will depend on the public announcement which Commission Chairman Paranagama says would be published in the media. The Sunday Times has learnt that some groups who want to make representations to the Commission expect the Protection of Victims of Crime and Witnesses Bill to become law. Whether such a law will be in the statute books when the Commission probes alleged war crimes remains a critical question.

Justice Ministry officials say the 38-page Bill, for which approval has been given by the Cabinet of Ministers, is now being translated. The Bill provides for different parts of the Act to be brought into operation on different dates so as to enable the necessary infrastructure and other requirements to be in place before the entirety of the Act becomes operative. An example — the Inspector General of Police is required to establish a special division to provide assistance to victims of crime. Another is the establishment of a mechanism for the inquiry into complaints against infringement or imminent infringement of rights or entitlements of victims of crime or witnesses.

The salient feature of the new law that is relevant to the on-going Commission, among others, is: “A witness shall be entitled to protection against any real or possible harm, threat, intimidation, reprisal or retaliation resulting from such witness having provided information or lodged a complaint or made a statement to any law enforcement authority or for having provided any testimony in any court or before a Commission or for instituting legal proceedings, pertaining to the commission of an offence or for the infringement of a fundamental right or for a violation of a human right, by any person.” The Bill makes provision for those threatening or hurting a victim, if found guilty, to be sentenced to a term not less than three years and not exceeding ten years. They are also liable for a fine of Rs 20,000.

For a second week in succession President Rajapaksa at Thursday’s ministerial meeting did not make any reference to the domestic inquiry into alleged war crimes. Nor did any cabinet minister raise the question. Other issues, however, were to generate heated discussions. One related to an initiative by Education Minister Bandula Gunawardena to set up five schools in the immediate outskirts of Colombo. He expects to ‘annexe’ them to schools like Royal College, Ananda College or S. Thomas’ College. The idea, he said, was because the high end schools in Sri Lanka could not accommodate the growing population of students. Gunawardena is no stranger to controversies. He once declared that the Grade V scholarship scheme was being abolished. The matter came, as expected, for discussion at a ministerial meeting. Questions were raised why his colleagues were not consulted and a decision taken. Soon, an announcement was made that the Grade V scholarship exam, a gateway for students to join, elite schools, would not be cancelled. More recently, he caused a storm with a proposal that students in international schools should not be allowed to join GCE Advanced Level classes in state-run schools and sit for exams. This is because some international schools do not have GCE (AL) classes for the lack of a sufficient number of students. After several ministers protested, the matter has been put on hold. A decision is pending.

Minister Gunawardena said his proposal was only because there was so much pressure on the leading schools. Minister Patali Champika Ranawaka who voiced objections said it was not workable. Moreover, the financial inputs would be enormous. He pointed out that Minister Susil Premajayantha was behind a school project at Narahenpita. Spaces for such schools were not available and land costs were high. Minister Vasudeva Nanayakkara was to point out that parents would not wish to send their children to such schools. He complained that Chief Ministers were not doing their bit though the subject of education also came within the purview of Provincial Councils. He said the Government’s ambitious project to open up 1,000 schools fell by the wayside. If they were in place, the issue could have been resolved countrywide. Minister Dinesh Gunawardena said the real pressure for admissions came from Colombo city’s outskirts like Dehiwala and Kaduwela. There was also a similar situation in Kandy. Parents were criticising the Government. It was decided that Minister Gunawardena should further discuss his initiative with the Colombo District Co-ordinating Committee where the Chief Minister too would be present. Thereafter, he has been advised to brief his ministerial colleagues.

A discussion ensued on the abandoned Embilipitiya paper mill and the water distribution scheme located within its precincts. State Resources Minister Dayasritha Tissera has brought to the attention of his colleagues the ruined state of the mill. Plant and equipment have been stripped from the paper mill. President Rajapaksa ruled out a recommendation that the provisions of the Revival of Underperforming Enterprises or Underutilised Assets law be invoked. He said this piece of legislation was introduced to deal only with certain specific situations. However, it was pointed out that the entire premises could be re-acquired and developed. A minister said a Gazette notification was likely to re-acquire the paper mill and the areas including the water supply system.

Minister Vasudeva Nanayakkara was to raise issue over admissions to the Law College, a controversy that has been raging among ministers for many weeks now. Justice Minister Hakeem was to point out that he was meeting President Mahinda Rajapaksa later that day to discuss the issue and would hence brief his colleagues next week. Hakeem called on Rajapaksa last Thursday afternoon for an hour-long discussion but details were not immediately available. He appears to have re-established rapport with Rajapaksa after an informal meeting at an Eid dinner hosted by Minister A.H.M. Fowzie. He had assured Sri Lanka Muslim Congress (SLMC) support for Rajapaksa at the upcoming presidential elections. On his part, the President had also acknowledged there were ups and downs in politics. A Justice Ministry official said Ministry Secretary Kamalini de Silva would meet President Rajapaksa to finalise changes. One change, the official said, would be the issue of question papers in both Tamil and Sinhala in addition to English. At present question papers are issued in English but a candidate is allowed to answer in the language of his or her choice. Whilst age restrictions on candidates would remain, there is to be a closer scrutiny of the degree certificates candidates would offer for admission.

With a presidential election due next year, a UPFA source said, several ministers were fast tracking their own proposals to win the support of their respective electorates. Minister Gunawardena’s proposal for five new schools linked to elite schools, the source said, was one such measure. He represents the Colombo District. Another is a move by Construction, Engineering Services, Housing and Common Amenities Minister Wimal Weerawansa. He has proposed that plots of land over ten perches in extent belonging to the National Housing Development Authority (NHDA) and encroached upon be “regularised.” In other words the encroachers will be legally allowed to remain there by clearing official formalities. The land is to be given on lease at “estimated market value” with an addition of five per cent annual incremental value.

Minister Weerawansa notes that “the National Housing Development Authority will make a significant contribution towards realising the objective of ‘Mahinda Chinthana’ Vision for the future which states that “every family in Sri Lanka should own a house.” If his National Freedom Front (NFF) is not contesting the Uva Provincial Council elections on the UPFA ticket because an erstwhile party member is being given nomination, he will not face action from the alliance. Said a UPFA leader, “We can then see how many votes he will poll without us.”

Some of the major issues that stare in the face of the UPFA now, will no doubt come up for test at the Uva polls. This is why the UPFA sans the NFF and the Jathika Hela Urumaya (JHU) is set to go full steam ahead to prove a point.

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