[IDPs in SriLanka 2009; Indybay photo]
By R. Sampanthan –
I wish to first refer to the investigation which has been mandated by the United Nations Human Rights Council, which has appointed a panel of investigators and a panel of experts. These persons have been appointed by the UN establishment. They have not been allowed to enter the country. They cannot carry out any investigations or record any evidence in Sri Lanka. If I might say so, with respect, this is clearly not consistent with the conduct of a party that proclaims innocence. At the time of the military operations and until shortly thereafter, the Sri Lankan Government’s position was that it was conducting a humanitarian operation with the policy of zero civilian casualty.
This was the Sri Lankan position when the war came to an end. The true position, however, seems very different. No one can blame the Sri Lankan Government for conducting a war against the LTTE. Different considerations apply in relation to civilians.
The Government estimated the civilian population in that area, the Wanni, where the war was raging at around 70,000. Eventually around 290,000 civilians came out from that area. The true figure of the people there is believed to be over 350,000 civilians. Government officials and civil society activists have testified to that effect.
It was a war conducted without any independent witnesses. Members of Non-Governmental Organizations and International Non-Governmental Organizations were asked to leave that area in September, 2008 without consideration of the consequent harm to the civilian population in that area, because it was these voluntary organizations that were till then largely responsible for supplying the population in that area with drinking water, food, medicine and shelter, particularly in the context of the Government’s gross underestimation of the total population in that area. The ICRC and the UN personnel were asked to leave that area. They were not able to fulfil their mandate in regard to humanitarian and protection issues. The media, both domestic and international, were kept out of that area. Members of Parliament were not permitted to go to that area. Persons who came out of that area – eventually about 290,000 persons came out – were detained in detention centres called, “welfare centres”.
We placed on record in Parliament all that happened at that time, as and when, it happened. What we said in Parliament was not contradicted. Grave civilian casualties raised issues in regard to violations of International Human Rights and International Humanitarian Laws. The matter was eventually taken up by the Human Rights Council. Three Resolutions have been adopted by the UN Human Rights Council, the latest one being in March 2014, which authorized an independent international investigation. This could have been averted if the Sri Lankan Government had set up a credible, transparent, domestic investigation after the adoption of the Resolutions in 2012 and 2013.
Now, the international investigators and the Panel of Experts appointed by the UN establishment are being denied entry into Sri Lanka. Citizens of this country who are possessed of the knowledge and information and who are able and willing to testify before the international investigators in regard to what happened to them and their compatriots are being denied their legitimate right to do so.
This is a denial of their fundamental rights as citizens of this country. This is also a blatant denial of their right to justice. Meanwhile, the Sri Lankan Government, through persons in authority, has been publicly stating that any one who testifies before or assists the investigation in any way would be violating Sri Lanka’s Constitution or its laws and would be prosecuted. This is clearly intended to intimidate witnesses and prevent them from making available information or giving evidence on matters within their knowledge, matters that are known to them.
I wish to pose the question whether such action would serve the long-term interests of this country though it may serve the short-term interests of some individuals. No witnesses and victims protection law exists in this country. A Bill was brought to Parliament sometime around 2007/2008, at the time when the Udalagama Commission was investigating certain grave violations of human rights. The Bill was taken up for debate and thereafter, it was abandoned. There had been commitments made to the international community that the victim and witnesses protection law will be passed in this country, but that commitment has not yet been kept.
While on this matter, Sir, I need to refer to a news item that appeared in “The Island” newspaper on Saturday, the 1st of November. I want to specifically deny the correctness of that report. The TNA has no official by the name referred to in that report, nor has the TNA engaged in collecting any such documents as is alleged in that report.
While the TNA laments that citizens of this country are being denied the opportunity of appearing before and testifying before an investigative panel appointed by the UN, the TNA is certainly not engaged in any activity, which would not be in conformity with the required standards of such investigative processes.
In the Joint Communiqué, Sir, issued by the President and the Secretary-General of the United Nations on the conclusion of the visit of the Secretary-General of the UN to Sri Lanka on 23rd May, 2009, the Sri Lankan Government committed itself to address the question of accountability.
Accountability and reconciliation can be addressed meaningfully only through genuine, credible processes. They cannot be addressed through processes that are spurious and such processes cannot achieve the desired results. The Sri Lankan Government, in my submission, needs to rethink its whole approach to this question of accountability and reconciliation in the long-term interests of this country.
Before I get on to my next point, Sir, may I have your indulgence to refer to some observations made by the Internal Panel appointed to review the working of the UN during the crucial stages of the war in Sri Lanka, certain observations made by the Secretary-General of the UN himself and also certain observations made by the International Independent Group of Eminent Persons who served in Sri Lanka at the time of the functioning of the Udalagama Commission that was tasked with the responsibility of investigating certain grave violations of human rights.
Sir, this is what the Report of the Internal Panel appointed to review the working of the UN during the final stages of the war stated. In fact, there was some dissatisfaction with the way in which the UN establishment functioned during the final stages of the war and this Panel was appointed to go into that question.
The Panel stated, I quote:
“Between August 2008 and May 2009, as the war between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE) entered its final stages, an estimated 360,000 or more civilians were crowded into an ever smaller part of ‘the Wanni’ area of Northern Sri Lanka where many died as a result of sustained artillery shelling, illness and starvation. Almost 280,000 survivors were forcibly interned in military-run camps outside the area of conflict.”
A further observation they make is, I quote:
“The UN’s failure to adequately counter the Government’s under-estimation of population numbers in the Wanni, the failure to adequately confront the Government on its obstructions to humanitarian assistance, the unwillingness of the UN in UNHQ and Colombo to address Government responsibility for attacks that were killing civilians, and the tone and content of UN communications with the Government and Member States on these issues, contributed to the unfolding of dramatic events.”
The third observation in regard to the Report of this Panel is, I quote:
“Sri Lanka’s peaceful and stable progress will require a process of accountability and reconciliation and a political solution to the long-standing grievances of all communities, as well as a response to ongoing and new concerns, and prevention and protection in the future. Working closely with the Government of Sri Lanka, the UN needs to take on this further challenge.”
The Panel of Experts, Sir, in their Report, emphasized the need to address accountability and reconciliation in a meaningful way and also emphasized the fact that if accountability and reconciliation were to be addressed in a meaningful way, in a way in which the entire citizenry in this country could accept it, there had to be a political solution. That political solution would enthuse the question of accountability and reconciliation to be addressed in a moderate, reasonable and sensible way.
I wish to quote, as I mentioned earlier, certain remarks made by the UN Secretary-General in September, 2013. In fact, when he made these remarks His Excellency President Mahinda Rajapaksa himself was personally present.
I quote :
“In a rare admission of “systemic failure” of the UN, its chief has said the world body had failed during the final stages of Sri Lanka’s ethnic war in 2009 that saw military defeat of the LTTE.
Ban made the remarks while addressing the UN General Assembly’s 68th session on Tuesday where Sri Lankan President Mahinda Rajapaksa was also present.”
These remarks were made in the presence of President Mahinda Rajapaksa.
I further quote:
“The Secretary-General said as an immediate step, he will organize a senior-level team to give ‘careful consideration’ to the report’s recommendations and advise him on the way forward. ‘Other action will follow in short order’, he said”
So, in other words Sir, the Secretary-General himself had accepted the fact that there have been certain failures by the UN establishment during certain crucial stages of the war, which needed to be addressed and that those issues are being investigated by the UN system through their internal processes.
I also want to refer finally, Sir, to certain observations made by the International Independent Group of Eminent Persons – IIGEP – when they were in Sri Lanka assisting the Udalagama Commission at the final Press Conference they held on 14th April 2008 before they withdrew from their mandate and left the country. At the final media briefing of the IIGEP on 14th April of 2008, the results of intense military action taken by the Sri Lankan Government against the LTTE having a harmful impact on the Tamil civilians came up and the IIGEP’s response was that such a situation would amount to a clear violation of international human rights and humanitarian laws and would inevitably have its own consequences. The International Independent Group of Eminent Persons comprised of 11 persons from different countries the world over, was chaired by the retired Chief Justice of India, Justice P.N. Bhagwati. This is the observation they made, Sir.
Finally they said, I quote:
“Summary executions, massacres, disappearances, wanton destruction of property and forcible transfer of population can never be justified. No efforts should be spared to uncover responsibility, including recognition of command responsibility, for such actions. The IIGEP has, however, found an absence of will on the part of the Government of Sri Lanka in the present inquiry to investigate cases with vigour, where the conduct of its own forces has been called into question.”
That was in reference to the matters being investigated by the Udalagama Commission and the role of the International Independent Group of Eminent Persons to assist and guide that Commission. In the course of that final interview, Sir, it so happened that a journalist who was aware of the situation in the North and the East at that point of time, raised this question of what the impact would be on international human rights and humanitarian laws if the Sri Lankan Government disregarding the rights of civilians, disregarding the safety of civilians, disregarding the entitlement of civilians, carried out a ruthless operation against the LTTE and the answer given by them clearly was that it would be unacceptable; that it would be in violation of international humanitarian and international human rights laws. And, exactly all that they quoted as being the possibility: massacre, summary executions, disappearances, displacement, destruction, all of it happened in the course of the war in its final stages.
[From the speech made by Hon. R. Sampanthan on the 4th of November 2014 in parliament.- TNA Media Offcie ]