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‘I have asked to visit Sri Lanka but this has so far been denied’ – Heyns

However, I had some frank and I thought constructive meetings with government representatives in Geneva, including the attorney general, who briefed me on legal developments in Sri Lanka and explained to me the agony caused by the allegations that are being made. I told him that if we can be of any assistance with the investigations we will be happy to do so. It is in everyone’s interest to find a way to move forward.

25 June 2011,
An Interview with UN Rapporteur Christof Heyns by Namini Wijedasa

QUESTION: The Channel 4 documentary calls on viewers to make many inferences regarding the footage used. It suggests, for instance, that women were raped although it is not possible to determine from the bodies whether sexual abuse had in fact occurred. Never once did footage show government shells landing on civilian areas, etcetera. How would you analyse the Channel 4 documentary from a journalistic perspective and from a rights perspective?

Christof Heyns, Special Rapporteur on extrajudicial, summary or arbitrary executions present his report during the 17th Session of the Human Rights Council, May 30, 2011. UN Photo / Jean-Marc Ferré

ANSWER:I think the video has to be seen in the context of all the available evidence, which includes what has been investigated and published by NGOs and the panel of the Secretary-General. The cumulative effect of the available evidence makes a coherent case that there is reason for serious concern about what both sides did during the war, and in particular what happened during the last stages, when the government gained the upper hand, and that there were no outside witnesses.

The conclusion that I draw from all the evidence that I have seen, is that there is sufficient reason to ask for a comprehensive and independent investigation into what really happened. Journalists and UN agents, like me, are not in a position to make final determinations of culpability; this should be done through a body that has the appropriate mandate and capacity to investigate all the evidence, doing so in an independent and unbiased manner. International law requires such investigations to be done where credible claims are made that illegal killings have occurred.

You have concluded that definitive war crimes occurred in the Sri Lankan conflict. You have said there was a prima facie case to proceed to the next level. On what basis did you make this statement?

The five minute video that I have examined in detail shows textbook examples of extrajudicial killings – naked, blindfolded people whose hands are tied, are being shot through the head by people in military uniform. They speak Sinhalese. This clearly raises major concerns that cannot be ignored by someone tasked to investigate arbitrary executions. We do not know the chain of custody of these videos, and as a result it would have been irresponsible for me to comment on it if it had not been examined for authenticity.

How did you authenticate the footage?

In order to do this in a scientific way I got two independent experts to examine the video and audio quality of the video. They concluded that the material had not been tampered with – what you see on the video really happened. This, of course, does not answer the question whether these were not actors playing the different parts. So I also got a ballistics expert, who concluded that the recoil of the guns used were consistent with live ammunition being fired into the heads of the victims. A forensic pathologist confirmed that the body movements when the shots are fired – which are different from what one sees in the movies – were consistent with real people being killed.

My confidence in the opinion of the experts was strengthened by the fact that three of these experts also examined a section of the video which had become available a year earlier at the request of my predecessor, Philip Alston. They had then pointed out four questions about that section of the video that they could not answer. This confirmed to me that they were not out to prove a point – they made a scientific assessment, and simply gave their conclusions, and pointed out the constraints. On the basis of the newly available, extended video, they have now revisited the material, and were able to answer these questions.

The government has rejected the conclusions of your experts.

When I first saw the video, I was hoping that something as horrific as this would turn out to be a fake. The government’s response however did not help in this regard. For the main part they focussed their energy on trying to find fault with what we had to say, which I appreciate because it allows us to evaluate our own processes, but they focussed very little attention on the video itself.

To the extent that they did this, they relied on the opinion of members of their own military, as well as others whose expertise it is difficult to verify, in respect of the video, audio, ballistics and medical aspects. We examined what they said very carefully and it was difficult to find a scientific basis for the allegation they made.

In essence, the official response has been a blanket denial of any wrongdoing, even by a small group of ‘bad apples’, which is difficult to accept in view of the evidence.

I have asked to visit Sri Lanka, but this has so far been denied. However, I had some frank and I thought constructive meetings with government representatives in Geneva, including the attorney general, who briefed me on legal developments in Sri Lanka and explained to me the agony caused by the allegations that are being made. I told him that if we can be of any assistance with the investigations we will be happy to do so. It is in everyone’s interest to find a way to move forward.

What should this next level be? Should it be domestic or international?

I think a proper domestic investigation is of prime importance. Societies have to come to terms with their own past, their own realities. So far, however, there is little evidence that progress has been made on this front, or that there is the political will to make such progress. Instead, there are blanket denials that anything wrong has happened. For that reason I think a parallel international investigation is called for. The one does not exclude the other.

Do you personally feel, on the basis of evidence you have examined, that there was a policy to systematically target civilians and to subject them to torture, rape and extrajudicial killing?

I think there is enough reason to investigate this in full.

You have yourself said that it is very rare to have actual footage of people being killed. Did you not at any point find this material suspicious or questionable on the basis of your own conclusion that such footage (which appears to be widely available in large quantity) is usually “very rare”?

Are you aware of video footage of people being killed other than the five minute video (the one that I have examined), and the footage of the three people being shot in the Channel 4 video? If there is more material that purports to show executions available as you say, it should be submitted for investigation, to determine whether it is credible, because otherwise people will be acting on rumours and what really happened will be distorted. I do know that there are a lot of still pictures of dead bodies available. I have personally passed the pictures that have been submitted to me on to the government on their request, but this is different from the videos of executions that your question refers to.

You have said that we have so far not seen any concrete results on the domestic level. What type of concrete results were you anticipating?

Let me give you a concrete example from the material that I have examined: One can clearly see the faces of some of the soldiers involved in the shooting. I would expect that, two years after the end of the war, some of these people would have been brought to book. It concerns me that the official reaction, in spite of all the evidence to the contrary, still appears to be that nothing went wrong – there were zero civilian casualties. It should not be too difficult to accept that, as is the case in many armed conflicts, especially such bitter ones, at least some transgressions may have occurred, and to investigate them and bring the perpetrators to book.

Would you say that the Lessons Learnt and Reconciliation Commission, which appears to be as far as the government is willing to go in tackling with accountability issues, is adequate?

Their mandate is very limited, and they are yet to show evidence of ensuring accountability.

If you feel it’s inadequate, wouldn’t you say the government is fair in saying let the LLRC first do its job before you judge?

The danger is that witnesses and evidence disappears with time. It is two years after the end of the conflict already and the general response remains a flat denial that anything went wrong. This is difficult to reconcile with the available evidence.

What consequences would Sri Lanka have to bear if she keeps rejecting an inquiry?

There is every reason to believe that Sri Lanka wants to take its rightful place in the community of nations. Unanswered questions about what really happened to such a significant segment of the population will continue to cast its shadow into the future. My advice is to establish what had really happened, come clean on it if there were transgressions, and move forward on, what will then be, a solid basis.

One party to the war, the LTTE, is considered to be eliminated and therefore not liable for the heinous war crimes it committed during the conflict. However, the organisation has some top level leaders still alive. Do you think in the interest of fairness and justice that they should be held accountable for the LTTE’s actions?

Absolutely, any individual who was involved in international crimes should be held accountable, including those who were affiliated with the LTTE. The question is not political affiliation – it is simply who committed crimes. And this applies not only to Sri Lanka, but to all countries in the world and to all political parties.

Judging from developments in international criminal justice, are Sri Lankan leaders and officials in danger of prosecution on foreign soil? Are there countries they are better off avoiding?

Over the last few years the doctrine of universal jurisdiction has been used in new and, in some cases, extended ways. People with dual nationalities may be under the jurisdiction of the International Criminal Court.

Do you think the government is lying when it continues to claim that it pursued a zero civilian casualty policy?

See above – I am not in a position to make a judgement on this, but I have seen enough to say this should be investigated in a proper manner.

Would you consider the killing of the unarmed Osama Bin Laden, his wife and several others by US troops under the watchful eye of US President Barack Obama to be a war crime?

As you may have seen in the media, when Osama bin Laden was killed, the Special Rapporteur on Combatting Terrorism and I engaged the US government on the factual and legal basis of their actions.

However, it has to be recognised that there is considerable controversy not only about the facts of that case, but also about the applicable legal principles. There is no controversy about shooting blindfolded, naked prisoners with their hands tied behind their backs in the head; it cannot be justified under any conceivable circumstances.

Would it not be better to put the war behind us and to help Sri Lanka go ahead with post-war development that benefits all ethnic groups in the country? Why is it so important to harp on the past?

The central issue in this matter as I see it involves the value of human life, which is not confined to any specific period of time. If people are arbitrarily killed, especially civilians, and there is no accountability, that diminishes the value of the lives of everyone. There is a need to deal with the past in order to move into the future.

In addition to the interest that the country has in maintaining the value of human life, the international community has the same interest. The footage shown is an affront to human conscience.

Aren’t many Sri Lankans justified in feeling that powerful Western nations and their “agents” are picking on a small country to cover up the misdeeds of other countries like the US, UK in Iraq, Afghanistan, and so on?

I must have taken up cases concerning extrajudicial executions in some 45 countries over the last year, in all the UN regions. Some cases are more blatant than others. This one clearly stood out because the executions were captured on film, and additional evidence suggested that it happened on a large scale, possibly involving tens of thousands of people. It is irrelevant how large or small the country concerned is. It will be a serious dereliction of duty for someone appointed by the United Nations into my position, tasked with bringing evidence of arbitrary executions to the attention of the UN, not to investigate such material.

Why are the attacks on Libya, including air raids on areas heavily populated with civilians, not attracting the same level of outrage as alleged Sri Lankan war crimes?

On the contrary, the situation in Libya has been referred to the International Criminal Court, and the Security Council has authorised the use of force against the government to protect civilians. Even as we speak, NATO is bombing targets in Libya. Libya has been met with much higher levels of outrage than Sri Lanka. In fact, one of the arguments for stronger involvement by the international community in respect of situations such as the one in Sri Lanka is precisely the actions that are being undertaken in respect of Libya.

How much of this outrage is funded by the Tamil diaspora?

I do not have specific information on this topic, but accept that there will be many agendas. That is why it is so important for an investigation such as the one I conducted to be disinterested and scientific, as opposed to political.

The government says there is an international conspiracy to embarrass Sri Lanka although the country achieved a great feat in defeating terrorism for the first time in history. Is there such a conspiracy?

I do not know what the basis of such a conspiracy would be. I think there is wide acceptance that the Government of Sri Lanka was fighting a terrible enemy: terrorists who performed outrageous acts against their own and other people. But one cannot fight terrorists using their own weapons. There is no glory in merely defeating terrorism; the challenge lies in doing so in a way that preserves the very values that the terrorists deny.

Let me conclude by saying it is very understandable that ordinary citizens are shocked by the allegations that are being made; they will be as surprised as anyone else that something like this may have happened, since they were not involved or informed, and this is not in conformity with their values. The way to deal with this, however, is to establish the true facts, and to proceed from there to restore the value of the sanctity of life. courtesy: Lakbima news


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