Geneva Resolution and Federalism as it is Today

කතෘ:යුතුකම     9/08/2016   No comments

On September 5 this year, the Global Sri Lankan Forum conducted a public seminar titled ‘Geneva Resolution and Federalism as it is Today.’ It focused on the Sri Lankan co-sponsored Geneva Resolution projected on the backdrop of the recently concluded visit by the Secretary-General of the United Nations, Ban Ki-moon. The discussion featured Rear Admiral Sarath Weerasekara (Rtd.), Mr. Shamindra Ferdinando, a veteran journalist of The Island, Mr. Manohara Silva PC, Mr. Gomin Dayasiri PC and Mr. Mohan Samaranayake, the former Head of the UN Information Centre in Colombo.
“The war we fought was not against another country, but against a terrorist organization. They were not a group of thugs with machetes. Instead they had a conventional Army, a Naval and Air wing, as well as a proper command and control structure supported by separatist diaspora in the West.”

The Rear Admiral went on to compare the Sri Lankan conflict to the American Civil War where the situation that arose was between ‘a group that would wage war rather than let the union survive and another group that would accept war rather than let the union fall.’

“The dilemma faced by us was nothing different. The Sri Lankan troops had no option other than to accept war as the LTTE was all out to battle, and only former President Mahinda Rajapaksa had the political will to defeat it.”
“After we won the war, Ban Ki-moon came and appointed a panel of experts together with Zeid Al Hussein, and the ultimate result was a Geneva resolution against us, implying that we have committed war crimes and Human Rights violations, forcing us to take punitive actions as per their instructions.

What we had was a non-international armed conflict which was confirmed by the Paranagama Commission as well as the panel of experts appointed by the Secretary-General of the UN. As such, a separate set of rules govern these conflicts as mentioned in the Additional Protocol of the Geneva Convention 1949. As per the Article 3, nothing in the protocol shall be invoked for affecting the sovereignty of a State or the responsibility of a government to defend national unity or territorial integrity of the State. By waging the war, we exercised our sovereignty to defend both national unity and territorial integrity of the State. Article 3.2 states that nothing in the protocol can be used to intervene for any reason in the internal affairs of a contracting party.

Therefore, Zeid Al Hussein’s recommendations of a special council to investigate Human Rights violations, a new judicial system and devolution as per the 13th amendment to the Constitution, are close to intimidations that amount to intervening in our internal affairs in violation of the article.

This is why all these reports could not be submitted to the United Nations General Assembly and Security Council. Hence, Ban-Ki moon and Zeid Al Hussein violated their own rules. In addition, international legal luminaries Sir Geoffrey Nice QC and Rodney Dixon say findings in respect of alleged criminal violations fall well-short of legal standards, and that all the evidence was virtually unsourced.

Despite all this, Foreign Minister Mangala Samaraweera co-sponsored this resolution with the US. I personally think that he should be tried for treason for letting down the entire nation and those who have protected this country. Every country has established its judicial system as per the mandate given by its people. The present government has, in a cowardly and shameless manner, handed over that inalienable right of its people to an individual called Zeid.

With regard to these allegations of Human Rights violations during the last stage of war, Prabhakaran had about 350 human shields while he dug trenches and planted anti-personnel mines. We could have easily fired and destroyed the LTTE forces then, but to save the lives of the human shields, 300 soldiers walked over the trenches and died without firing guns. However, I have gone with the ICRC to bring back our soldiers who have been taken hostage. When I get there, I see the brutally murdered bodies of soldiers. That is the extent to which they safeguarded the Human Rights of our heroes.

Sir Desmond de Silva, a British authority on war crimes, has stated that the LTTE waged a ruthless separatist campaign in the final phase and when they were facing inevitable defeat, resorted to holding hostages and human shields so as to force the Army to run the risk of causing civilian casualties. Furthermore, there is evidence that the LTTE fired on their own people providing propaganda to invite international intervention. It was in his opinion that war crimes cannot be ascribed to the government on the facts mentioned.

Ban Ki-moon did sweet nothing when the LTTE held 350,000 civilians as human shields, but he visited Sri Lanka just one week after the war asking us to initiate an accountability process. In 2012, a committee submitted a report concluding that events in Sri Lanka marked a great failure by the UN in responding to early reports to execute a coherent strategy. The Secretary-General has admitted to this failure. We will never allow our motherland to be federated, nor allow our valiant soldiers be taken to international criminal courts. We will sacrifice our lives to safeguard the unitary nature of our country.”

“The HR High Commissioner presented a report after an investigation detailing reasonable grounds to believe that the SL security forces had violated humanitarian law. Based on this, the US drafted a resolution adopted in 2015, co-sponsored by our own government.

In 2002, the US, under George Bush, formulated a document called the ‘New National Security Strategy’ which has three primary components. Last in it is that the US should not allow any power to take US soldiers to international courts. That is how they treat their own people. The US waged war against Vietnam with Vietnam not doing anything wrong to them. A staggering four million Vietnamese were killed. But there are celebrations for it. Combating against poor nations is an ideal of the US, but they never admitted to war crimes.

The purpose of the resolution is not to promote reconciliation at all. The reality cannot be seen since false stories are being spread by our own government and the so-called international community. The present government, from the President to lowest level, repeatedly states that the Geneva resolution is the outcome of an agreement the former president entered into with Ban Ki-moon during a visit to Sri Lanka immediately after the end of the war in 2009. But, what is noteworthy is that he has so far not even visited Iraq or Syria, but arrived just three days after the end of our war. He is not bothered to go there and see, but he comes here and had discussions. He left after issuing a joint statement. The government says there was an agreement, but I couldn’t find it anywhere. Only a joint statement, but not an agreement. Even if it is an agreement, it is natural for some time to be given to implement it. Just six days after the Secretary-General left, the HR Council had a special session on SL.

The Commission on Human Rights that was in the UN prior to 2006 was criticized by many as being ineffective. Therefore, the UN General Assembly adopted a resolution in 2006 to establish the HR Council. When a vote was taken, the US was 1 of 3 opposing this formation. This is the very country that now uses the very mechanism it opposed to punish a poor and weak country for defeating armed terrorists.

In the 19th century when 13 States wanted to secede President Lincoln did the same as MR to save the union. In the US, Lincoln is considered a hero, but when MR does the same, he is taken to the HR Council. This is the duplicity. The US has killed millions of people after Christopher Columbus. In Mexico alone, in less than 100 years, the population was reduced by 90%. That is their history. They exterminated entire races. The US says that they are now democratic, but there is hardly any evidence to support their claim. They have attacked Iraq and Afghanistan, and what has happened to those countries. How is it that we don’t have a right to attack terrorists in our own country as a sovereign nation, but the US invades Afghanistan to eradicate terrorists? Therefore, this is a sinister process using the guise of peace. It is because we live in a world order that is hierarchically structured.”

“The Geneva resolution is not about Human Rights violations or accountability. It is about Federalism with the ultimate objective of a separate state.

The 1st operative clause of the resolution states that the co-sponsors take note with appreciation the update presented by the High Commission to the Human Rights Council at the 20th session, the report of Office of the High Commission, the report of investigation, including its findings which conclusions and encourages the GoSL to implement recommendations contained therein. As such, we have accepted every finding in the resolution.

There are remarkable similarities to the Kandyan Convention by which we handed over territory to the British. The first clause in it is about murders, crimes and violation of civil rights by King Rajasinghe. It was entered on the basis that the ruler had committed all those crimes. So is this. We accept every finding and conclusion. The sources of the report are the Darusman Report and statements made by the LTTE cadres. The Darusman report is one that speaks about amputations performed using the patient’s own blood filtered through a cloth due to shortage of blood. Do you believe this kind of nonsense Darusman relied on?

The second and third clauses of the Convention state that by the conduct of ruler Rajasinghe, he is not entitled to hold title any longer for crimes committed and therefore should be banished from the country with his relatives.

That too is included in the resolution. The preamble to the resolution speaks about rejoicing at the victory on January 8. This was sending MR home. It also rejoices in the 19th Amendment to the Constitution. Lots of people think about the 19th as good governance and doing away with executive power. It is in fact attempting to take away the power of the President who is elected by 50% of supporters voting in favour of him and giving it to a Member of Parliament elected from the roads of Colombo 7.

There are also three disqualifications to the presidential election in the 19th amendment. A president cannot contest a third time. That is to disqualify the former President from contesting even as a normal citizen sans power.

It also has a strange provision to increase the age from 30-35 years. We don’t have youngsters contesting, but the draftsman thought it fit to include this. They did it to prevent Namal. He wouldn’t be 35 at the next presidential elections.

Another disqualification is for dual citizens. Some say two members of the Rajapaksa family
are dual citizens.

The resolution also wants our PTA legislation repealed. What did the GoSL do with the Office of Missing Persons Act? It says that statements are to be recorded not by policemen but normal individuals. Under evidence orders, confessions given to policemen cannot be admitted in court. Why was it that they established a separate office? A designated officer, who could even be a foreigner, records your statement. This can be accepted in courts of law since they are not given to policemen. They will use these statements against our soldiers. What a pathetic state of affairs.

We live in a country where its own ruler abdicates the sovereignty of the people. He is a mere custodian with power for five years. Do they have a moral right to sell out the rights and self-respect of the people of this country? That is that plan. That is why in every paragraph you find a reference to
foreign intervention.”

“The Government of Sri Lanka (GoSL) ignored two critical events. In June 2011 (over two years after the war), the then Colombo-based US Defence Attaché Lt. Colonel Lawrence Smith defended the GoSL at a seminar organized by the Army. The seminar dealt with ‘Defeating Terrorism: The Sri Lanka Experience.’ In response to a question regarding the alleged move by some LTTE cadres to surrender during the last few days of the war, the US official denied that possibility, thereby effectively contradicting those propagating the massacre of the surrendering persons.

The GoSL refrained from referring to the US statement. It also never bothered to take advantage of leaked US diplomatic cables (Wikileaks) in spite of them being crucial for its defence. One leaked cable dealt with a discussion Geneva-based US Ambassador Clint Williamson had with ICRC Head for Operations for South Asia Jacques de Maio. The US envoy declared on July 15, 2009, that the Army actually could have won the battle faster with higher civilian casualties, yet had chosen a slower approach which led to a greater number of Sri Lankan military deaths.” He also spoke about several false allegations.

“Allegations, in respect of the Vanni population being denied medicine, food and other basic needs, should be probed against the backdrop of supplies made available to Puthumathalan, until the second
week of May, 2009.

Further, the GoSL never sought an explanation from Geneva in respect of the number of civilians who perished during the Eelam war IV. British Labour Party MP Siobhan McDonagh (Mitcham and Morden-Labour) told the House of Commons in September, 2011, that 60,000 LTTE cadres and 40,000 Tamils perished during January-May 2009. She made the only specific reference to the number of LTTE cadres killed during a certain period. Special Amnesty International report titled ‘When will they get justice: Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission,’ also released in September, 2011, estimated the number of civilian
deaths at 10,000.

A confidential UN report placed the number of dead, and the wounded, including LTTE combatants, at 7,721 and 18,479, respectively. The report dealt with the situation in the Vanni, from August, 2008, to May 13, 2009. The war ended a week after the UN stopped collecting data due to the intensity of fighting. The GoSL should seek the presence of Amnesty International, UK MP as well as the wartime UN head, before the judicial inquiry.

Sri Lanka never bothered to conduct a comprehensive inquiry taking into consideration all relevant information. Furthermore, the UN engaged in covert negotiations with the LTTE even after the group detained Tamil UN workers for helping people leave the Vanni west in early 2007.

Co-Chairs to Sri Lanka Peace Process knew what was happening. They too remained silent. The UN mission in Colombo kept UN headquarters in the dark.

The ICRC Foreign Ministry and the Paranagama Commission have furnished vastly different numbers with regard to missing persons. The UN too discusses the issue. They ignore the issue of thousands of Sri Lankans living overseas though being listed missing. A comprehensive investigation will expose those hiding overseas. Let me highlight three cases: (A) Frontline Socialist Party leader Kumar Gunaratnam received an Australian passport bearing the name ‘Noel Mudalige,’ (B) The Army was accused of killing wartime Vanni Tech Director Thayapararajah in September 2009.

Thayapararajah was arrested along with his wife and children in Tamil Nadu in May, 2014, (C) ex-LTTE cadre Anthonythasan, declared missing since early 90s, appeared in an award-winning French movie Dheepan last year. The media quoted the ex-Tiger as having said: “I came to France because at the time I was able to only find a fake French passport and not a fake British or Canadian passport.” Those opposed to the UN intervention should now pressurise the government to take up all available information to defend Sri Lanka’s image. It would be pertinent to mention that none of the aforesaid facts has been formally taken up with the UN, or the countries involved in the Geneva project

-By Rashmin Tirimanne de Silva

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