Sunday Times 2
“External mechanism” conspiracy: Whither public responsibility
View(s):By Rear Admiral (Dr) Sarath Weerasekera, VSV RWP USP Ndc Psc
The next session of the UNHRC is scheduled to be held on September 8. There will be another resolution against Sri Lanka, and the war heroes who had defeated the most ruthless terrorist organisation in the world would continue to face the danger of being prosecuted on false war crime charges/false evidence in local/foreign courts.
We have already apprised the people by various newspaper articles and seminars on the conspiracy against Sri Lanka in Geneva after we terminated the war against the LTTE, disregarding appeals from the western countries.
The SL forces comprehensively defeated terrorism on May 19, 2009. Even up to the last moment before the final assault into Nandikadal, Prabhakaran believed that western countries would make arrangements to evacuate him to safety. Britain’s then Foreign Minister David Miliband and France’s then Foreign Minister Bernard Kushner met President Mahinda Rajapaksa and proposed (can even be taken as a command) to stop the war and allow Prabhakaran to leave the island safely. Mr. Rajapaksa told them his people had suffered for 30 years facing the LTTE’s atrocities, and therefore, as the head of state, it was his responsibility to continue the operation, finish the war and protect the country.
Humanitarian operation: The last stages of the war
There is another important matter to be reminded of. Almost the same situation arose in 1987 when Prabhakaran was surrounded by SL troops led by General Denzil Kobbekaduwa at Vadamarachchi. However, at that crucial moment, India violated our airspace and coerced President J.R. Jayewardene to cease the operation. This was followed by the infamous Indo-Lanka peace accord, culminating in the 13th Amendment. This is another fine example to confirm that it is the politician who is responsible for winning or losing a war and not the generals or admirals.
In summary, what happened afterward was as follows: on May 27, eight days after the victory, Germany, with 17 countries, brought a resolution in Geneva accusing the Sri Lankan troops of committing war crimes. That resolution was defeated, and a counter-resolution was passed praising the troops for defeating LTTE and condemning the atrocities of LTTE.
However, three days after the war, United Nations Secretary-General Ban Ki-moon arrived in Sri Lanka to educate us on accountability. It should be noted that he did not visit SL or speak about accountability when the LTTE was holding 300,000 Tamil civilians as a human shield or when about 3000 child soldiers were used as cannon fodder.
The UN Secretary General then appointed a panel of experts (POE) (Darusman Committee) to apprise himself about the conduct of the war, and the committee reported that about 40,000 Tamil civilians were killed during the last phase of the war. (The six international war crime experts attached to the Paranagama Commission, including Sir Desmond De Silva, in their reports, have mentioned that the POE’s observations had no proper professional basis but were mostly made on hearsay evidence!)
When Ban commissioned the POE report, Russia, in the UN Security Council, raised a number of procedural objections. Russia blamed the UNSG, stating that appointing the POE should have been done in consultation with the Security Council, the General Assembly and Sri Lanka. That decision was taken without regard to the position of a sovereign state and a member of the UN, i.e., Sri Lanka. Russia said the POE was designed solely to advise the UNSG on accountability, and it is not a fact-finding or investigation mechanism.
However, based on that POE report, resolutions against Sri Lanka were adopted in 2012, 2013 and 2014 at the UN Human Rights Council to conduct an investigation. India and Pakistan objected to it, stating that it was a blatant intrusion into the sovereignty of a nation. That report (OISL) accused SL forces of violating international human rights laws and international humanitarian laws. (We handed over to the HRC a rebuttal, proving that all the charges were baseless and false, together with the six reports of the six international war crime experts attached to the Paranagama Commission.)
Based on the OISL report, the USA brought the infamous 30/1 resolution and as the then Yahapalana government co-sponsored the same, it was approved in the council without a vote or a debate. The patriotic citizens of the country condemn the act of Mangala Samaraweera for co-sponsoring the resolution when all the facts to reject it were available to him.
In 2020, the Gotabaya Rajapaksa government withdrew from the co-sponsorship of the 30/1 resolution. In 2021, the UK, with Canada, brought Resolution 46/1 against Sri Lanka, para 6 of which authorised the OHCHR to establish a mechanism to “collect, consolidate, analyse and preserve” evidence of alleged war crimes committed by Sri Lankan troops and explore strategies for holding them accountable. The UN has, to date, released 16 million dollars for the mechanism.
The danger of the external mechanism is that the accused is not aware of the identity of the witnesses and the type of evidence/charges levelled against him. The report of the Human Rights High Commissioner states that the OHCHR is collaborating with other states to use the database collected by the committee in pursuing legal action. The end result would be that if an officer (against whom such evidence is available) goes abroad, a citizen in that country could file a case against him on the evidence collected by the external mechanism, and if that country is a signatory to the Rome Statute, he could be taken to the International Criminal Court (ICC). On the other hand, under universal jurisdiction too, he could be arrested by the magistrate of the state and commence prosecuting in the local court.
Sri Lanka is not a signatory to the Rome Statute, and in the HC’s report, he urges the government to sign the Rome Statute, which clearly indicates how the UNHRC is getting prepared to prosecute our war heroes abroad.
In establishing the mechanism, the UNHRC has exceeded its mandate given by the UNGA vide resolution 60/251, which prohibits the council from interfering in the internal affairs of a country and also requires the council to be guided by cooperation and constructive dialogue.
As per the resolution, the HC is not obliged to submit the mechanism’s data to the council, and it deprives the men, against whom such evidence is collected, of the opportunity to scrutinise/challenge the same before such data is transmitted to other countries for legal action. Hence, they face legal consequences abroad without any knowledge of the data/material held against them.
In addition, the government is now preparing to bring the Independent Prosecutor Office Act, which is a legal body independent of the Attorney General’s Department. This institution, if it comes into operation, could utilise the material collected by the external mechanism to prosecute the war heroes without the supervision/participation of the AG’s Department.
We do not forget how our war heroes have sacrificed their lives (29,000 killed and 14,000 critically wounded) to defeat the most ruthless terrorist organisation in the world and brought peace to the island. We could vividly remember how Sri Lankans lived in fear, not knowing whether the loved one who left home in the morning would return alive in the evening or not. Hence, when such men, who brought peace to the country, are being penalised unnecessarily, should the public remain silent?
We observe only one or two generals in the army criticise this issue. All the senior officers are vulnerable to this danger, but they remain silent. There is a Flag Rank Officer Association whose members have fought bravely to preserve the unitary state of the Motherland.But unfortunately they too are silent. Today only a handful of national organisations and a few patriots have come forward to protect the war heroes.
Aragalaya was a result of the acute shortage of gas and fuel and consequent blow to the belly. It is very unfortunate to observe that the people who have the potential to overthrow a government when their bellies get affected are not concerned when there is a treacherous attempt to penalise our war heroes on false evidence given by unknown people. Is it because our public lacks national feeling, and if so, who is at fault?
If there is solid evidence to prove that a soldier/officer has committed a crime, he should be prosecuted and punished. Such a soldier/officer should be given a chance to cross-examine the witnesses. There are many who were punished either by military court marshals or in civil courts. But when there are plans to penalise war heroes on fabricated evidence given by people whose identities are not revealed, the patriotic citizens must come forward to protect them, because the war heroes came forward, sacrificing their entire lives, to protect the citizens of the country.