Senior Lecturer in Law at the Open University of Sri Lanka Raja Gunaratne, in an interview with Dailymirror, says the OHCHR report entails grave danger for the country. He says it is baffling to see the government co-sponsoring the UNHRC resolution as no responsible state would do so in any part of the world. Mr. Gunaratne, as a legal academic with a nationalist bent, played a key role drafting a report countering the allegations against the military in the OHCHR report. That report was presented to the UNHRC by former MP Sarath Weerasekara. He shared the following:
Q What compelled you to compile this report?
The simple reason is that the OHCHR report is very serious. It makes very serious allegations against our armed forces. The question is that such a serious report of that magnitude has been just ignored by the incumbent government and its officials without countering or answering the charges levelled against the armed forces. Therefore, as responsible citizens of this country who received free education, we felt obliged that we should respond to those allegations.
QHow serious are these allegations?
This report is called OISL- Office of High Commissioner’s Investigation into Sri Lanka. This report is the result of the resolution 25/1 passed by the UNHRC in March 26, 2014 directing the High Commissioner for Human Rights to undertake a ‘comprehensive investigation’ into serious violations and abuses of human rights and related crimes ‘alleged’ to have been committed by our armed forces. On this direction, the Office of High Commissioner of Human Rights started investigations on July 1, 2014 and continued until September, 2015. The report makes 11 allegations of which, seven are against the armed forces. The allegations against armed forces include unlawful killings, violations related to deprivation of liberty, torture, sexual and gender based violence, the impact of hostilities on civilians and civilian objects like shelling on hospitals, indiscriminate shelling and enforced disappearances etc.
Another serious allegation is the denial of humanitarian assistance-medical and food stuff to the internally displaced persons housed in various camps, towards the end of the last phase of humanitarian operations. The report also makes certain allegations against the LTTE. They are abductions, forced recruitments, the use of children and controlling the movement of people living in enclosures etc. When the report was handed over to the UNHRC,the Sri Lankan government sent a reply - a strange reply - saying that it accepts the report since paragraph 5 in part 1 of the report says that it is not a criminal investigation.
For such a huge report consisting of three parts and nineteen chapters in 262 pages, the government has sent a terse response saying that it accepts it. It is in this context that we felt we should counter these allegations. If you look at the recommendations of the report, there are 39 of them; you would realize the gravity of this matter. Especially, the recommendation No 20 and 36 make it ample clear that it is not only a mere fact finding investigation. Although it is a preliminary investigation in nature, the recommendations make it abundantly clear that on the basis of its findings criminal investigation under universal jurisdiction can be initiated. For example the recommendation 20 says, “Adopt specific legislations establishing an ad-hoc hybrid special court integrating international judges, prosecutors, and investigators mandated to try war crimes and crimes against humanity including sexual crimes and crime committed against children’.
This stance is further expanded and strengthened under recommendation 36 which provides that “Whenever possible notably under universal jurisdiction, investigate and prosecute those allegedly responsible for violations such as torture, war crimes and crimes against humanity”. Therefore, there is not an iota of doubt about what the report recommended and what the UNHRC has in its collective minds. Yet, what is more baffling is that the government accepted the report and the resolution based on appreciation. Then, subsequent to this report, the UNHRC passed another resolution. That resolution was sponsored by the United States of America. That resolution incorporates all the recommendations of the OISL report.
The government co-sponsored it. It is like an innocent person offering the sword to the executioner to behead him.
In this context, now, the government is completely bound to implement and enforce the obligations arising under this resolution. The government lost the grip and the principled stance which it strongly maintained previously with the support of friendly countries. So, in that context, the government has no options but to implement the resolution obligations. Accordingly, the government took several measures to implement these obligations. They enacted the OMP Act. That is a part and parcel of these recommendations. Also, they ratified the International Convention on Enforced Disappearances. That ratification was done completely against the procedure. Not a single translated copy of this convention was tabled in Parliament. Our legislators never knew what it is and the gravity of this process and the danger it poses on us.
Another measure the government took was the appointment of eleven member Consultative Task Force on Reconciliation Mechanism. This task force filed its final report in which they endorsed the recommendation of establishing hybrid court with foreign judges and prosecutors. So, you can see the direction where this entire process heading and its end result.
QAs for this Office of Missing Persons Act, the government says there is no criminal liability arising from findings under it. What is your view?
It is a very flimsy argument put out by the government without analysing its provisions with the contents of the Convention of Enforced Disappearances. Very clearly, the OMP Act says that the provisions of Evidence Ordinance do not apply. It says priority should be given to investigations into cases of missing persons in the northern and eastern provinces. The officials attached to this office have all the powers to enter into any premises, any establishment, police, and armed forces and investigate any officers and obtain any records, documents etc. Even on hearsay evidence, they can commence an investigation. That is like starting investigations based on rumours and gossip. Therefore, under no circumstances, it can be expected that such investigations and its findings would be of any benefit to our country or the armed forces. The real objective of this legislation is to attribute blame to the armed forces and punish them. Once investigation starts, they can come out with findings that are always in favour of complainants. Ultimately, action can be taken against the so-called culprits later. If somebody says that criminal liability cannot be imposed, that maybe due to lack of understanding about the OISL report and international law. In fact, under the relevant articles in the Rome Statute, even non signatory party to the Rome Statute can also be tried and punished under universal jurisdiction if the matter was referred to ICC by UN Security Council etc. Also, under Article 9 (2) of the International Convention for the Protection of All Persons from Enforced Disappearances, any state party to the convention can exercise its jurisdiction whenever an offender of another country (even non state party) appears in its territory.This means, whenever members of our armed forces or political leadership visit any such country, that country can exercise jurisdiction over them and if that country is a state party to Rome Statute, they can be handed over to that country to be tried under ICC etc.
Also, under Article 12(3) of the Rome Statute, a non-state can accept the jurisdiction of the ICC by lodging a declaration of acceptance of ICC jurisdiction, and then also ICC can exercise jurisdiction over nationals of non-state party. Although Sri Lanka is not a party to Rome Statute, the way how the incumbent government acts, no one can rule out the possibility of accepting the ICC jurisdiction in this manner and thereby subjecting our members of armed forces into ICC jurisdiction. So, you can see there are many possibilities that action can be taken against armed forces and Sri Lanka under international human rights law, international criminal law and international humanitarian law.
QThere is yet another bill now before Parliament to give effect to the International Convention to Protect All Persons from Enforced Disappearances. How do you juxtapose it with the OMP Act?
All these are interconnected. So, there is not an iota of opportunity for any suspects accused of these allegations to escape. They just become mere victims because of these one sided legislations. Sri Lanka signed the International Convention for the Protection of All Persons from Enforced Disappearances in 2015 and ratified in 2016. So now, in order to give effect to the treaty within local jurisdiction, government intends to pass this Act. It is another treacherous act that this government is trying to do to tighten the noose on armed forces. The members of the parliament with conscience must take all possible measures to prevent the passage of this law.
QThe government always says there is nothing to worry for military personnel if they have not done anything wrong in the conduct of the war. What is your response?
I must say there are philosophical poverty, ideological paucity and practical immaturity in this argument. Before I answer your question, I must say what the British Prime Minister is supposed to have said at a recent meeting with the top commanders. The British Army has been accused by the ICC for killing about 1,200 civilians in Iraq. The allegation is now being investigated by ICC. In this backdrop, new British PM Theresa May came to power. Now the matter is before her. She was quoted to have said at that meeting that she would not allow any person to abuse UN human rights or legal mechanism to level unfounded allegations against UK armed forces. That is the stand of her government; a response from a responsible Head of State. When coming back to your question, who are those people who say there is nothing to worry if nothing wrong has been done. Anywhere in the world, things that could happen could be distorted, used by the interested parties to make a case in their own favour by abusing the legal system. Human rights are now an industry. In every legal system, we find loopholes. Any person who wants to creep through these loopholes can do so making arguments and defences.
That is why, we have two lawyers appearing for both sides. It is the sitting judge who decides on the basis of evidence. If the law is perfect, there will be no need for two lawyers. Judge alone can decide. Law is not perfect. There are gaps. Through these gaps, any person can make bogus allegations. They can even manufacture evidence. The good example is the recent judgment by UK appeal court dismissing an appeal by a Tamil LTTE supporter. It has revealed that he has consented to a doctor to burn him by a hot iron to make case for torture by the armed forces. So, this is only one case, how many Tamils would have claimed the refugee status in those developed countries by manufacturing evidence of this nature and in this manner with the collusion of NGOs? This in fact is a lucrative business. The countries like Sri Lanka can easily become victims as we do not have sufficient resources to counter such moves. If everything is run perfectly, there is nothing for us to worry. We know how the UN system is abused by the super powers for their own benefit. That is the reason for the British PM to say that she will not allow her forces to be victims of the abusers of UN human rights legal mechanisms.
QThere are varying figures about the number of civilian casualties. There is an allegation against the military in the UNHRC report. In your view, how legitimate is the charge against the military?
You know, the number wise, there are different figures. Earlier, it was said 100,000. Later, it came down to 40,000 etc. A few weeks ago, the Amnesty International came here and had a press conference. Director General of Amnesty International (AI) disputed those figures. He even admitted that figures given in their report too is not correct. In our report also, we disputed these figures saying they were not factually correct. Under the International Humanitarian Law, there is no provision prohibiting wars. What it does is the regulation of the conduct of the war. You can conduct the war. But, the manner in which you conduct is managed by law. If you conduct your military operations according to rules and principles, under the Humanitarian Law and International Law, the death of civilians during an armed conflict , no matter how grave and regrettable, does not constitute a crime, even any number provided that you keep to the principles of proportionality, distinction, etc.
The International Humanitarian Law and the International law on war permit to carry out proportionate attacks against the military objectives even if it is known that some civilian deaths or injuries will occur. It is proportionality what matters. You have a higher military objective, to achieve that, if it is known to military personnel that higher number of civilians is going to be killed yet taking all precautionary measures to mitigate the impact such as prior notice, evacuation etc, it is permissible. If higher number of civilians is killed to achieve a small military objective, then, it will be against the principle of proportionality. During the last phase of internal armed conflict that we had in Sri Lanka here, LTTE deliberately drove a large number of persons to be entrapped in a narrow strip of land and LTTE used them as a human shield. To save these people, the military carried out humanitarian operation. Is it unlawful?Is it not the official duty of any legitimate armed forces in any sovereign country is bound to do? Is it not the same legitimate duty that US Navy SEALs carried on through covert operations to capture Osama bin Laden, and killed him together with several unarmed civilians including women? Why OHCHR did not conduct an investigation into these killings or operations? So, those are the pertinent questioned to be raised by any rational person in anywhere in the world demanding replies from UN Human Rights bodies. In case of Sri Lankan conflict, how many unarmed civilians including women and children were killed by LTTE in every parts of the country? Are those not deliberate and intentional killings? The LTTE killed their own civilians as well. LTTE installed weapons in and around no-fire zone and fired from this area towards armed forces violating the principles of IHL. So, those facts speak for themselves.
QWhen there is firing by both sides to the war, how can one party be implicated then?
That is the whole issue. The government forces have taken all precautionary measures possible during that time. The LTTE installed its weapons in and close to the no-fire zone. The LTTE fired at the military from no-fire zone. It is very clear that it is the LTTE who used this zone to carry out operations whereas the government’s intention was to create a safer place for people to be evacuated. So, according to principles of IHL, as long as proportionality and distinction is complied with and there is no intentionally targeted killing, no party can be made liable. Of course there is another principle called collateral damage that also can be used to justify the damages.
QWhen it comes to accountability issues, there are some high profile cases. It is alleged that some LTTE leaders were handed over to the military, and after that, they went missing. How do you counter that allegation?
Handing over is not a single handed action. It is always a two-way transaction. It means one party hands over and another party accepts. So, before handing over, somebody from the LTTE side might have contacted someone with command responsibility in the military. That has to be established first. It is a war situation. It could be a ploy to enter into this side to carry out bomb explosion. Therefore, in surrendering, someone with authority in the LTTE should have contacted the military authorities. Until that happens, any information related to surrendering should be construed as a ploy. When considering these high profile cases, we have to ask who surrendered to whom. First of all, that contact points should be established. The OISL report does not give any credible evidence on that allegation too. Of course in some allegations, report says evidence is in the file but file is not available for independent scrutiny.
The other allegation is depriving civilians of food and medical needs. That is a serious allegation. We looked at all the evidence in the report. We compared this evidence with what we could gather. In coming to that finding, they have counted on evidential information gathered from various sources such as reports published by the NGOs and other civil society organizations, information given by UN officials, staff members, information given to investigators by victims etc. Victims are direct stakeholders of the conflict but who those informant victims were; remain undisclosed in the report, so they could be anyone. If they cannot disclose their identity due to fears, they still can use various new techniques to disclose parts of their verbal evidence. So, if you look at the type of evidence they used to substantiate the allegations, it is clear that they are indirect evidence coming from third parties. Basically, it is hearsay evidence.
QWhat are the implications arising from the government’s decision to co-sponsor this resolution?
It is a tragedy and a colossal diplomatic blunder. The whole issue is not human rights or war crimes. It is a game of global power politics. You know that western forces vehemently pressurized the Sri Lankan government at the heat of the operations to halt the operations. However, government had a well-established policy against the LTTE terrorism and well-balanced diplomacy; especially with India. The western powers directly influenced the government demanding to stop the operations because LTTE was one of the powerful agents of those forces. So, those forces and their sub-agents who run the UN show in human rights bodies, having planted their puppet government in Sri Lanka,went against the previous government by passing those resolutions for not heeding them, and killing their most favoured agent in the south-east Asian region. They had a grand strategy according to which they would have come to an understanding with the would- be- rulers in Sri Lanka to prosecute the military and political leaders when there were planted at the helm of political authority. The evidence to this effect is given by none other than the former vice president of USA.In such a pre-planned grand strategy, would you think that the incumbent government would not co-sponsor the resolution tabled by their grand master? This is what they are doing now. So, in order to keep this government in power, the western forces gave them a period of relax until the next election due in 2020.
QHow do you see the proposed hybrid judicial mechanism?
Nowhere in the world, has a responsible government agreed to this kind of mechanism. Our country has been endowed with a well established judiciary. What those forces seem to say is that our judiciary is not impartial enough to determine those cases. It implies that they know, they cannot get the type of judgments they want from our judiciary but, surely, under a hybrid court where foreign nationals chosen by them would sit as judges would do what they want. In fact, our judiciary has acted impartially and independently when this kind of matters came before it. For example, consider the Krishathi Kumaraswamy rape and murder case; five members of armed forces were accused and the case was heard by the courts and they were found guilty and punished.
Take another example of clearing lodges in Colombo city due to the fact that they were used by terrorists as transit houses. When FR petitions were filed, court granted reliefs to the affected parties. Look at the way how the powerful countries handled war crime allegations against their armed forces.
On, February 7, 2002, the US presidential memorandum authorized US interrogators of prisoners captured during the war in Afghanistan to deny the prisoners basic protections required by the Geneva Conventions. That amounts to a war crime. Accordingly, the US personnel carried out cruel and inhumane treatment on captured enemy fighters as it was sanctioned by the presidential order. It is a deliberate and intentional plan to commit war crimes sectioned by the top political authority. A case was filed against the then secretary of state. US Attorney General Alberto Gonzales argued in that case (Hamdan v. Rumsfeld) that detainees should be considered as unlawful combatants and as such not protected by Geneva Conventions and therefore cannot be prosecuted under the domestic War Crimes Act either. The U.S. Supreme Court held that Common Article 03 of the Geneva Conventions applies to detainees in Guantanamo Bay and that the military tribunals used to try these suspects were in violation of U.S. and international law. So, what happened after this ruling? They passed another law called Military Commissions Act of 2006 and abolished the War Crimes Act shutting all chances of detainees to challenge the crimes committed against them. This is how a Head of Sate and commander-in-Chief protects the armed forces that defended the nation against internal and external aggression. What reminds me in this context is the poem supposed to have been written by a great Buddhist monk Ven. Kunkunawe during the British colonial period depicting the anguish of the people over the absence of competent protector king to guard over the people at that cruel time of the Sri Lankan history. So, that history repeats now.
QNow the resolution has been passed by the UNHRC. What is the way for Sri Lanka to get over this?
Well, I think, government should muster the support of all friendly nations that helped us previously to get the UNHRC to convince the impropriety of OISL report and its recommendations. So, the government should try to revisit report and the resultant resolutions.