United Nations Investigation is against both the Crimes of the LTTE and the Crimes of the Regime”- TNA

I wish to make a statement to place on record the position of the Tamil National Alliance regarding the Motion that has been put forward for debate and related matters of public importance. It is indeed ironic that the government now at this late stage seeks the imprimatur of Parliament for its own dire failings. This government, which has so brazenly turned Parliament into an object of ridicule – by enticing unscrupulous members of the opposition to cross over for personal gain and by providing executive posts to almost half the members of the house – now turns to Parliament on a question of fundamental importance to the country.

It is plainly clear to the entire country that this turn to Parliament is nothing but a cheap political sleight of hand, and it is a great misfortune to the people of this country that their government is more interested in playing immature political tricks than in dealing with important matters of national reconciliation and foreign policy with sobriety and wisdom.

Sri Lanka’s Permanent Representative to the United Nations in Geneva has already announced the country’s “non-cooperation” with the envisaged investigation. What then is the point of this exercise in Parliament? Is the government so insecure with its isolationist policy that it wishes to share the blame with Parliament and use Parliament to rubber stamp the obnoxious pronouncement by the government’s representative abroad?

The Motion before us is illustrative of the frivolity that has characterised the government’s attitude to reconciliation and accountability. The Motion refers to a resolution by the “Human Rights Commission”, although the United Nations (UN) Commission on Human Rights was replaced by the Human Rights Council more than eight years ago. Further, the Motion refers to the Council resolution as one that is “against Sri Lanka”. The resolution affirmed the Council’s “commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka”. How then can the government claim that this resolution is “against” the country?

On that point, I wish to raise the question as to whether, by the government’s own logic, His Excellency the President was acting “against the country” when he issued a Joint Statement with the UN Secretary General Ban Ki-moon on 26 May 2009 where it is stated that:

“The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law” and where the President made an undertaking that:“the Government will take measures to address those grievances.”

Mr. Speaker, the internationalisation of the question of accountability and justice in respect of violations committed by both sides during the war was entirely on account of a considered decision made by the government and the President in May 2009. That decision was a correct one, and the governance of the country would have been significantly smoother if the government had only made good on its own assurances to the Secretary General. But that was not to be. The government reneged on its promise to the Secretary General, which led to him appointing a Panel of Experts to advice him on implementing his agreement with the Sri Lankan government.

Instead of keeping his promise to the Secretary General, President Mahinda Rajapaksa appointed the Lessons Learnt and Reconciliation Commission (LLRC) on 15 May 2010. The LLRC released its final report on 16 December 2011. The TNA welcomed a number of the LLRC’s recommendations dealing with human rights issues including displacement, land dispute resolution, detention, media freedom and investigations into extra-judicial killings and enforced disappearances. To date merely a handful of these constructive recommendations have been implemented. The government’s own claims about progress have been contradictory. In February 2014, Minister of External Affairs, G.L. Peiris asserted in Parliament that 85% of the recommendations had been fully implemented. Meanwhile, the President himself informed the UN Secretary General in May 2014 that only 30% of the LLRC recommendations had been fully implemented. We recall that the Minister of Plantations Mahinda Samarasinghe at a press conference in March 2013 claimed that 99% of recommendations had been fully implemented. We therefore note that the government has been completely disingenuous in reporting progress with respect to implementing these recommendations. Moreover, many recommendations the government deems ‘fully implemented’ have in fact not been implemented at all. For instance, in January 2014, the government claimed to have fully implemented the recommendation on investigating past attacks on media personnel. In proof of such a claim, the government cited the online complaints mechanism available to journalists to complain to the Sri Lanka Press Council, which is a highly ineffective mechanism that contributes more towards restricting media freedom rather than promoting it. Meanwhile, investigations into the assassination of the Editor of The Sunday Leader, Lasantha Wickrematunge, the disappearance of journalist Prageeth Eknaligoda and the numerous attacks on the staff and offices of the Jaffna-based Uthayan newspaper, are either incomplete or nonexistent. Moreover, in January 2014, the government claimed it fully implemented the LLRC recommendation on the investigation and prosecution of illegal armed groups. Yet many identified perpetrators of gross human rights violations, who belonged to these groups and enjoyed the patronage of the government, continue to enjoy impunity.

Though the LLRC did not have a direct mandate to address accountability issues, it did, however, possess a mandate with respect to ensuring “national unity and the non- recurrence of ethnic tensions in the future”. It is in this context that the LLRC sought to also deal with the question of accountability. The TNA in its response to the LLRC published in January 2013 expressed disappointment with respect to the Commission’s findings on accountability. The LLRC’s analysis was flawed for a number of reasons including weaknesses in methodology and in the application of international law to the facts surrounding the last stages of the war. We note, however, that the LLRC called for investigations into specific incidents involving the death of civilians.

These include the alleged attack on civilians in Chundikulam by the Navy on 10 May 2009, an incident at Mathalan on 20 April 2009 where the Army allegedly prevented civilians from crossing over to government controlled area, and the government shelling of civilians in Pokkanai. Yet no genuine steps have been taken to investigate these incidents. The Army Board on the Recommendations of the LLRC, in its report released on 24 January 2013, observed that “the questions whether civilian casualties in fact occurred or whether such incidents were collateral or incidental damages that are inherent with the vagaries of war have not been answered affirmatively by the LLRC” [sic]. The Board recommended the appointment of another Army Board of Inquiry to investigate allegations contained in the LLRC Report and the Channel Four footage. The Army then appointed a Court of Inquiry to investigate these allegations, which concluded in February 2013 that “instances of shelling referred to in the LLRC Report were not caused by the Sri Lanka Army.” Moreover, a Navy Board of Inquiry concluded that “the allegations made against the Sri Lanka Navy that it fired at civilian targets are baseless as there is no evidence to indicate that the Navy personnel were responsible for any attacks on civilians or civilian property either deliberately or by negligence.” The reports of the Army Court of Inquiry and the Navy Board of Inquiry have not been published to date. This policy of secrecy and non- transparency is entirely consistent with the government’s failure to publish the Report of the Udalagama Commission, which made certain crucial findings on certain gross human rights violations, including the killing of five students in Trincomalee and the killing of 17 aid workers in Muttur in 2006.

It is precisely because of the failure of the government to conduct a credible domestic inquiry that the Secretary General was compelled to take steps himself to give effect to his agreement with the President. The Terms of Reference provided to the UN Panel of Experts on accountability in Sri Lanka was fundamentally based on the Joint Statement made by the President and the Secretary General. In fact the very purpose of the Panel was stated in the Terms of Reference as “advis[ing] the Secretary General on the modalities, applicable international standards and comparative experience relevant to the fulfilment of the joint commitment to an accountability process having regard to the nature and scope of violations.”

When the Panel presented its report on 31 March 2011, it was clear that they had conducted a meticulous study of the steps that needed to be taken, both by the Sri Lankan government and the United Nations, “having regard to the nature and scope of the violations”. The Panel’s examination of the nature and scope of the violations – a necessary part of their mandate – revealed credible allegations of war crimes and crimes against humanity committed by both parties. The allegations laid down in detail in the Report were a shocking revelation of the barbarity and unlawfulness that characterised the conduct of both parties during the last stages of the war. In respect of the government, the Report found credible allegations of a number of war crimes and crimes against humanity of murder, extermination, imprisonment, persecution and disappearances. Critically, the Panel found that the majority of civilian casualties during the last stages of the war were on account of indiscriminate shelling by government forces. On the part of the LTTE, the Panel found credible allegations of war crimes and the crimes against humanity of murder. The Panel found that the credible allegations suggested criminal culpability on the part of senior military and government leaders as well as senior LTTE leaders.

Mr Speaker, the government has, as is typical of their engagement with the United Nations, sought to vilify the eminent members of the Panel, which included Mr. Marzuki Darusman – a respected diplomat and former Attorney General of Indonesia, Ms. Yasmin Sooka – a former commissioner of the South African and Sierra Leone Truth and Reconciliation Commissions, and Professor Steven Ratner – a credentialed academic from the United States. Despite the indecent vitriol of the government on the home front where it equated these respected international experts with terrorists, it cannot ignore the fact that it participated of its own volition in the deliberations of the UN Panel of Experts. While posturing to its domestic audience as defiant champions of non-interference, the government dispatched a high level delegation to New York which made comprehensive submissions to the Panel on 22 February 2011. The members of the delegation are named at page 127 of the Panel’s Report. They included the then Attorney General and incumbent Chief Justice Mohan Pieris, Foreign Secretary Romesh Jayasinghe, the Sri Lankan Permanent and Deputy Representatives to the UN in New York and an Adviser to the Foreign Ministry.

Based on its finding of credible allegations of international crimes committed by both sides, the Panel recommended that the government “immediately commence genuine investigations into alleged violations of international humanitarian and human rights law committed by both sides involved in the armed conflict.” It also recommended that the UN Secretary General establish an independent international mechanism to: (1) monitor and assess the extent to which the government is carrying out an effective domestic accountability process; (2) conduct investigations independently into the alleged violations; and (3) collect and safeguard for appropriate future use information provided to it that is relevant to accountability for the final stages of the war. It also recommended that the UN Secretary General conduct an internal review of the actions by the United Nations system during the war, and that the UN Human Rights Council be invited to reconsider its 2009 resolution in light of the Panel Report.

Mr. Speaker, it is notable that pursuant to the release of the Panel Report, the Secretary General transmitted the Report to the President of the Human Rights Council and to the Government of Sri Lanka. He refrained from constituting an international investigation himself, even though that course of action was recommended by the Panel of Experts and the Secretary General’s legal advisers at the Office of Legal Affairs advised him repeatedly that he had the legal power to do so. The Secretary General’s immense caution in this regard exposes the government’s untruths about an international conspiracy against it. The reality is that the Secretary General was exceedingly generous towards the government by providing it the time and space to do what it had promised, even at the cost of failing to heed the recommendations of his own Panel.

Mr. Speaker, in light of the Panel Report and the government’s prevarications, the UN Human Rights Council was compelled to act when it passed Resolution 19/2 in March 2012 titled “Promoting Reconciliation and Accountability in Sri Lanka.” The resolution was mild; it merely called on the government of Sri Lanka to implement the constructive recommendations of the LLRC and to take all necessary additional steps to fulfil its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans. In short, Mr. Speaker, the Human Rights Council did precisely what the Secretary General himself had done previously: give the government further time and space while encouraging it to make progress on its guarantees. And yet, the government’s injudicious outbursts against the co-sponsors of the resolution was totally at odds with the courtesy it had been provided. We must recall that this resolution was passed nearly two and a half years ago. I ask, why was the government so hostile to this friendly exhortation by the very countries that supported its war? Would this country not have benefited from a more mature response by its government? Instead of making progress as requested, the government became even more intransigent. Notwithstanding this attitude, the Human Rights Council adopted a very similar follow-up resolution in March 2013. Again, the government failed miserably to accept the offers of engagement from a restrained Human Rights Council. Instead, it continued to attack those concerned over its post-war trajectory.

Mr. Speaker, it was inevitable that in 2014, the patience of Sri Lanka’s friends had worn thin. The recent resolution finally established a comprehensive investigation to undertake the inquiries which the government had failed to undertake for five long years. Today, that investigation has been constituted and by finally establishing the truth of what happened during and after the final years of the war, it will provide some respite to victims who continue to endure the stifling oppression of a triumphalist military presence. We continue to hope that even at this late stage, the government accepts the invitation of the High Commissioner for Human Rights to participate constructively in the investigation, including by providing investigators access to victims, witnesses and forensic evidence. It must be known, Mr. Speaker, that the failure of the government to accept the offer to cooperate with the investigation will only send Sri Lanka further down the path of isolation. This is indeed a strange path for Sri Lanka to take. Sri Lanka has a proud history of active participation in the field of international criminal law, far surpassing the contributions of other similarly circumstanced countries. In fact, Sri Lankan judges and lawyers from the Attorney General’s Department have worked at all levels of international tribunals as judges and prosecutors. Sri Lankan lawyers – including incumbent Justices of the Supreme Court – have helped prosecute heads of state, senior government functionaries, military commanders and rebel leaders from the former Yugoslavia, Rwanda and East Timor. Meanwhile Sri Lankan judges – including former Chief Justice Asoka de Silva, former High Commissioner to the United Kingdom Justice Nihal Jayasinghe and the late Justice Raja Fernando – have served on tribunals for Rwanda, Cambodia and Sierra Leone. Moreover, the Permanent Representative of Sri Lanka to the United Nations, Palitha Kohona was the Chairman of the Special Committee to Investigate Israeli Practices affecting the Human Rights of the Palestinian People and other Arabs of the Occupied Territories. The government did not treat such participation as a violation of the sovereignty of any nation. In fact Mr. Kohana’s report to the UN General Assembly was sharply critical of Israel’s treatment of Palestinian civilians.

Today, the government’s isolationism provides a stark contrast with its enthusiastic participation in international justice processes for other countries.

Mr. Speaker, the government’s current course is also at odds with the conduct of its own leaders in the past. President Mahinda Rajapaksa was some time ago a leading champion of the rights of victims. On 11 September 1990, he attended the 31st session of the UN Working Group on Enforced or Involuntary Disappearances in Geneva. He was prevented from carrying documentary evidence to the Working Group, when the police confiscated 533 documents containing information about missing persons and 19 pages of photographs of missing persons and extra-judicial killings. Upon his return, he filed a fundamental rights application before the Supreme Court, whereby he claimed that his fundamental rights to freedom of expression and freedom from arbitrary arrest had been violated. He subsequently made several remarkable statements in this very House. On 25 October 1990 he justified his decision to engage the international community on the matter of Sri Lanka’s human rights record at the time. He stated: “I took the wailings of this country’s mothers. Do I not have the freedom to speak about them? It was the wailing of those mothers which were heard by those 12 countries” (page 366 of the Hansard, 25 October 1990). He even admitted to asking donor countries to impose human rights conditions to giving aid (page 365 of the Hansard, 25 October 1990). The most striking of Mahinda Rajapaksa’s statements in Parliament at the time was perhaps his avowal that “If the government is going to deny human rights, we should go not only to Geneva, but to any place in the world, or to hell if necessary, and act against the government” (page 424 of the Hansard, 25 January 1991).

Mr. Speaker, recent history bears out that countries which have cooperated constructively with UN human rights mechanisms have emerged from those processes for the better – as respected members of the international community and with stronger domestic institutions to protect human rights. The approaches of Sierra Leone, Colombia, Mexico, Nepal, Mali, Togo, the Ivory Coast and many others are available as examples to the government. Instead, the regime has chosen the path of the despots of North Korea and Syria which incidentally are now being debated in the Security Council. The lesson, Mr. Speaker, is clear – isolationism breeds further isolation and international censure. Instead, if Sri Lanka is to rehabilitate its image, it must deliver on its promises to the international community – both to devolve power in a meaningful way and ensure accountability for serious crimes.

Mr. Speaker, it now appears that the government has set its mind on defiance and seclusion. That is their prerogative. But one day, this country must and will reverse the choices of this regime. We hope that day will come soon, and when it comes, that reversal will benefit all peoples of this country. The scourge of impunity has affected the Tamil people in particular, but it is no stranger to peace-loving citizens of the South. We all remember the insurrections by youth in the South being brutally crushed, with credible estimates of tens of thousands of disappearances. This behaviour was later repeated in the North, and now, racist forces are only beginning a pogrom of violence against the Muslim community. The black past of thousands of disappearances, killings, rapes, burnings and state brutality are not just a distant memory. Today, non-violent protestors in the South are shot at. Journalists are killed or sent into exile. Dissenters are not welcomed. In the North, the situation is even worse. People are not even allowed the troubled comfort of remembering their dead. Journalists from the critical press are routinely attacked, including in broad daylight. The recent report “Stop Torture” provides medical and forensic evidence suggesting that sexual violence and torture against Tamil women and men continues, with reports emerging from as late as January 2014. Further, the evidence suggests that this sexual violence is targeted systematically to suppress the political rights of the Tamil people.

Mr. Speaker, the government invokes national sovereignty to reject expressions of friendly concern and offers of international cooperation and assistance in the area of human rights. But the government’s notion of sovereignty is deeply flawed. Sovereignty does not mean seclusion; it does not entail the right to remain isolated. A proper understanding of the idea of sovereignty holds that it belongs to the people of a country and that it empowers them to engage confidently with the world as respected and equal members of the global community. Today, the most significant obstacle standing in the way of people exercising their sovereignty is this regime. This regime has stripped the people of this country their sovereignty by denying their rights, isolating their country and distancing its friends; this undermining of our sovereignty can never be countenanced for the purpose of protecting the narrow interests of a few. So today, when the government is called into question when it undermines the sovereignty of the people, the government has no right to complain of a breach of sovereignty. In fact, international expressions of concern and actions to express that concern strengthen the sovereignty of the people by making its exercise more real for the citizens of the country in whom sovereignty is reposed.

The forthcoming investigation by the United Nations is not “against” Sri Lanka. It is against perpetrators of gross violations of humanitarian and human rights law. It is against the culture of impunity that has victimised the whole country. It is against the disappearances of youth in the North as much as it is against past disappearances of youth in the South; it is against the crimes of Weliveriya, Mullivaikkal, and most recently Dharga Town. It is against the crimes of the LTTE and it is against the crimes of the regime. For these reasons, the TNA unequivocally welcomes this investigation into both sides. Just as we look forward to the investigation as an opportunity for the Tamil people to introspect on the crimes committed in our own name, we call on the government to use the investigation as an opportunity to dramatically break with the past and usher in a new era of justice, reconciliation and harmony amongst all Sri Lanka’s peoples.