Referring to the 51st sessions (Sept. 12 to Oct 07, 2022) of the Geneva-based United Nations Human Rights Council (UNHRC), Foreign Minister Ali Sabry, PC, last week bluntly declared that Sri Lanka wouldn’t accept any “external mechanism, external evidence gathering mechanism, charging citizens outside the country, getting hybrid judges to come and hear the cases, all these are against the Constitution. So we can’t agree to that.”
The SLPP National List lawmaker stressed “Sri Lankan citizens will not be allowed to be charged outside the country” and “foreign judges will not be permitted to sit in judgment over cases in Sri Lanka.”
Former People’s Alliance lawmaker M.M. Zuhair, PC, (1994-2000 during the CBK presidency) quite rightly challenged Sabry’s stand on an external evidence gathering mechanism against the backdrop of Sri Lanka allowing the US and Australian investigators probe the 2019 Easter Sunday suicide attacks no sooner they were carried out. Emphasizing such investigations, that had been undertaken by outsiders, weren’t subjected to approval by the relevant judicial authority here, the former Ambassador to Teheran (2006-2012 during MR presidency) questioned the rationale in Sri Lanka’s rejection. Zuhair asked for urgent review of Sri Lanka’s stand.
Minister Sabry addressed the media, with Foreign Secretary Aruni Wijewardane seated next to him, at the Foreign Ministry. Wijewardane was called back from retirement in May this year to succeed Admiral Jayanath Colombage whereas President Ranil Wickremesinghe brought in Sabry as the Foreign Minister in place of Prof. G.L. Peiris, the famed legal academic who joined the rebel SLPP group that made an abortive bid to elect MP Dullas Alahapperuma as the new President, while the party backed eventual successor Ranil Wickremesinghe to complete the remainder of Gotabaya Rajapaksa’s five-year term.
Sabry had been the wartime Defence Secretary and President Gotabaya Rajapaksa’s Counsel in several high profile cases, including the Ukrainian MiG-27 deal and a leading campaigner in the run-up to the 2019 presidential election, which GR won handsomely. When the writer sought a clarification from Sabry regarding the US snubbing President Gotabaya Rajapaksa’s request for a visa against the backdrop of Field Marshal Sarath Fonseka and Maj. Gen. Chagie Gallage being denied visas based on unsubstantiated war crimes accusations, the President’s Counsel pointed out that Western powers had blacklisted not only individuals but entire fighting Divisions deployed on the Vanni front (2007-2009).
The US in Feb 2020 announced that Gen Shavendra Silva and his immediate family would not be permitted to enter the US though they never applied for visas.
This is unlike substantiated crimes committed by the US, the UK and Australian forces as was revealed by their own probes from Guantanamo Bay to Iraq, and Afghanistan, but were swept under the carpet.
With the Geneva sessions underway, it would be pertinent to discuss issues at hand pertaining to accountability issues as the government struggled to cope up with the developing political-economic-social crisis that had overwhelmed the country.
A statement issued by the Foreign Ministry recently disclosed the pathetic situation and its further deterioration. On a request made by Sri Lanka’s Ambassador to Myanmar and Attorney-at-Law, J.M. Janaka Priyantha Bandara, the cash-strapped government recently received 1,000 metric tonnes of white rice worth SLR Rs 170 mn (USD 463,215) from that poor country also struggling with many woes. The Foreign Ministry stated: “The donation was granted in response to a request made by Ambassador Janaka Bandara when he presented credentials to the State Prime Minister of Myanmar Senior General Min Aung Hlaing during the credential ceremony on 7 June 2022 and also in commemoration of the 73rd anniversary of diplomatic relations between the two countries.
The former SLFP National List MP received the diplomatic posting amidst the worst-ever economic turmoil and took over the mission there seven days before Prime Minister Mahinda Rajapaksa quit following SLPP goons going on the rampage at Galle Face on May 09, which was used as a pretext to unleash pre-planned and well-coordinated attacks on mainly SLPP ministers and MPs, which left scores of homes and other properties of such politicians being attacked, looted and torched across the country and also several killings, including that of Polonnaruwa District SLPP Parliamentarian Amarakeerthi Athukorala and his police bodyguard at Nittambuwa, lynched by a mob.
Zuhair pointed out to Sabry the need to change the strategy. Let me reproduce that verbatim. “At a time when the country is increasingly dependent on the assistance of foreign countries to tackle the deepening economic crisis and the steeply rising cost of living, the government must objectively address the human rights concerns alleged against Sri Lanka in the UN Human Rights Council (UN HRC) commencing sittings in Geneva.”
Lanka’s assurance on foreign judges
At the time Sri Lanka brought the war to a successful conclusion on the banks of the Nanthikadal lagoon in May 2009, Rohitha Bogollagama served as the Foreign Minister (2007-2010). President Mahinda Rajapaksa brought in Bogollagama in early 2007 after sacking Mangala Samaraweera. Prof. G.L Peiris served as the Foreign Minister (2010-2015) and was replaced by Mangala Samaraweera in 2015 with the coming to power of the yahapalana (good governance) regime, which proved to be anything but that when its leading lights robbed the Central Bank twice.
The yahapalana administration thereupon moved Samaraweera to the Finance Ministry and brought in the then Finance Minister Ravi Karunanayake as the Foreign Minister in the wake of shocking revelations at the Presidential Commission of Inquiry that probed the Treasury bond scams. In the same reshuffle one-time Attorney General Tilak Marapana received the Foreign Affairs portfolio (August 2017-Nov 2019). Dinesh Gunawardena received the Foreign Affairs portfolio after 2019 presidential election but was replaced by Prof. Peiris in August 2021.
Following a split in the SLPP in the wake of Gotabaya Rajapaksa’s resignation and UNP leader Wickremesinghe being elected the President in July by Parliament, Sabry was brought in as the Foreign Minister.
In spite of the much publicized Sri Lanka’s withdrawal from the Geneva Resolution 30/1, announced by Dinesh Gunawardena, at the 43rd session of UNHRC in March 2020, Sri Lanka firmly remained committed to the process. That is the undeniable truth. Sri Lanka’s Permanent Representative in Geneva Ravinatha Aryasinha accepted the 30/1 on specific instructions issued by Mangala Samaraweera on the advice of then Premier Ranil Wickremesinghe. President Maithripala Sirisena, though he made public statements contrary to the position taken by his government, however did absolutely nothing to alter the status quo.
The yahapalana government entered into the Geneva Resolution on Oct 01, 2015 regardless of the strong criticism of the US-led move by Ambassador Ravinatha Aryasinha. The Tamil National Alliance (TNA) that strangely backed General Sarath Fonseka and Maithripala Sirisena as the common candidates at the 2010 and 2015 presidential elections, respectively, declared its position on foreign judges in June 2016. On behalf of the TNA, the then National List lawmaker M.A. Sumanthiran, PC, disclosed a tripartite agreement among the US, Sri Lanka and the TNA. The disclosure was made in the presence of the then Sri Lankan Ambassador to the US Prasad Kariyawasam, who subsequently returned to Colombo to receive appointment as Foreign Secretary at the time of Foreign Minister Tilak Marapana.
The TNA’s partner Global Tamil Forum (GTF) spokesperson Suren Surendiran at that time told the writer that this tripartite agreement had been the basis for the Geneva Resolution co-sponsored by Sri Lanka.
Sumanthiran didn’t mince his words when he insisted that foreign judges weren’t contrary to the country’s Constitution. Those who opposed Geneva interventions conveniently refrained from challenging Sumanthiran in Parliament. Actually, refusal to allow external evidence gathering mechanism is questionable as the country remains committed to the 2015 Resolution. That is the undeniable truth.
In response to The Island queries at the Foreign Ministry briefing, Sabry acknowledged that Western powers had already taken action against the findings made by the Panel of Experts (PoE) in 2011. Over a decade after the eradication of the LTTE, successive governments hadn’t been able to reach a consensus on a common stand on war against separatist terrorism.
The TNA made available Sumanthiran’s audacious statement, to The Island, soon after he delivered it at the ‘Congressional Caucus for Ethnic and Religious Freedom in Sri Lanka’ in Washington D.C. on June 14, 2016.
On behalf of the TNA, Sumanthiran claimed to have reached a tripartite consensus in respect of foreign judges, defence attorneys, investigators, etc., in a Sri Lankan judicial mechanism to probe war crimes.
Sumanthiran told the gathering that the government of Sri Lanka, the TNA and the US had been involved in the negotiations leading to the agreement.
In his brief remarks, Ambassador Kariyawasam provided an overview of the measures taken by Sri Lanka to promote its two-pronged policy of reconciliation and development since the January 2015 election of the yahapalana government and reiterated in detail, measures taken by that government to vindicate its commitment to these processes and explained the several challenges that militate against government efforts. A statement issued by the Sri Lankan Embassy in Washington didn’t make any reference to Sumanthiran’s shocking disclosure.
In another shameless and impudent act, the same yahapalana administration brought back ex-ambassador Kariyawasam as an advisor to then Speaker Karu Jayasuriya paid for by Washington.
Sumanthiran told the Washington gathering that the resolution was moved in Geneva following an understanding that the participation of foreigners wouldn’t be contrary to the Sri Lanka Constitution.
Declaring that he had been personally involved in the negotiations with the US and also participated in that particular process, Sumanthiran said there were some doubts created, as to whether the Constitution of Sri Lanka would allow for foreign nationals to function as judges and we went into that question, clarified it, and said yes they could.
Sumanthiran told the Congressional Caucus that the resolution accepted at Geneva had been negotiated and they settled for a hybrid model though they originally asked for an international inquiry.
When the writer raised this issue with Marapana immediately after he took over the Foreign Ministry, the former AG declared that the 1978 Constitution wouldn’t permit the inclusion of foreign judges in the proposed domestic Judicial Mechanism under any circumstances.
Marapana quite conveniently forgot that a government appointed body in January endorsed the Geneva Resolution. The Consultation Task Force on Reconciliation Mechanisms (CTFRM) called for full participation of foreign judges, and other personnel, including defence lawyers, prosecutors and investigators, in a transitional justice mechanism to address accountability issues. The CTFRM comprised Manouri Muttetuwegama, Dr Paikiasothy Saravanamuttu, Gamini Viyangoda, Prof. Sitralega Maunaguru, Dr. Farzana Haniffa, Mirak Raheem, Prof. Gameela Samarasinghe, Visaka Dharmadasa, Shantha Abhimanasingham, PC, K.W. Janaranjana and Prof. Daya Somasundaram.
Perhaps, Sabry should receive a comprehensive briefing regarding Sri Lankan’s faltering process in response to the Geneva challenge. It would be pertinent to ask whether the Foreign Ministry submitted the relevant records pertaining to Geneva Resolution, including the entire set of declassified British diplomatic cables from its High Commission in Colombo to the UK Foreign Office (January-May 2009) and WikiLeaks revelations, as the new Foreign Minister.
On the basis of those dispatches, Lord Naseby has repeatedly stressed that the dispatches from Colombo didn’t collaborate the five main accusations levelled against Sri Lanka. The House of Lords member quoted Lt. Colonel Gash (wartime Colombo-based UK Defence Advisor) having denied accusations that the then President Mahinda Rajapaksa ordered the elimination of Tamil civilians, and there was no basis for claims that specific no-fire zones had been established by the military to kill those who gathered in them, and attempts had been made to starve the Vanni population.
There was absolutely no justification for claims of genocide, and the dispatches had cleared Sri Lankan military of holding civilians in clandestine detention camps such as Menik Farm. Lord Naseby pointed out that the ICRC had been present at the Menik Farm from day one. But, Sri Lanka never presented its case properly before Geneva. Sri Lanka lacked backbone at least to go on record how India caused a bloodbath here.
A dismal performance
Sri Lanka should set the record straight. The responsibility on the part of the Ministries of Foreign Affairs, Justice and Defence should be acknowledged. The Lakshman Kadirgamar Institute, National Defence College and Kotelawela Defence University should at least now initiate thorough examinations of accountability issues and make recommendations to the ministries of Foreign Affairs and Defence. Perhaps the Parliament should seriously consider a Select Committee to examine the entire gamut of issues as part of the overall measures to meet the Geneva challenge.
The following are the issues that need attention: (1) Dismissal of war crimes accusations by war time US Defence Attaché Lt. Col. Lawrence Smith in Colombo. The then US official did so at the May-June 2011 first post-war defence seminar in Colombo, two months after the release of PoE report. The State Department disputed the official’s right to represent the US at the forum though it refrained from challenging the statement. (2) Examine the US defence attaché’s statement along with Lord Naseby’s Oct 2017 disclosure based on the then British Defence advisor Lt. Colonel Anthony Gash’s cables to London during the war. Sri Lanka never did so. (3) Wikileaks revelations that dealt with the Sri Lanka war. A high profile Norwegian study on its role in the Sri Lanka conflict examined some cables. However, the Norwegian process never strengthened Sri Lanka’s defence. Instead it merely sought to disown its own culpability in the events leading to the annihilation of the LTTE. One of the most important Wikileaks revelations that debunked the allegation Sri Lanka deliberately targeting civilians. The cable proved that our ground forces took heavy losses by taking the civilian factor into consideration. (4) Wide discrepancies in loss of civilian lives claimed by UN and various other interested parties. The UN estimated the figure at 40,000 (March 2011) The UN in a confidential report placed the total number of deaths at 7,721 whereas Amnesty International (Sept 2011) placed the number at 10,000 and a member of the UK Parliament (Sept 2011) estimated the death toll at 100,000. (5) Disgraceful attempt made by Geneva to exploit so called Mannar mass graves during the yahapalana administration. The Foreign Ministry remained silent on Mannar graves while Western diplomats played politics by quickly putting the onus on Sri Lanka only to be proved utterly wrong. Acting at the interest of those hell-bent on blaming Sri Lanka, Geneva faulted Sri Lanka before the conclusion of the investigation.
The then Northern Province Governor Wigneswaran rejected scientific findings of Beta Analytic Institute of Florida, USA, in respect of samples of skeletal remains sent from the Mannar mass grave site. The then Human Rights Commissioner Michelle Bachelet went to the extent of commenting on Mannar mass grave in her report that dealt with the period from Oct 2015 to January 2019. We come to wonder whether she was actually a victim of Gen. Pinochet or a mere manufactured victim.( UN Secretary-General Antonio Guterres recently announced the appointment of Volker Turk of Austria as the next UN High Commissioner for Human Rights, following approval by the UN General Assembly.)
Had the US lab issued a report to suit their strategy, would they have accepted fresh tests in case the government of Sri Lanka requested? The following is relevant section bearing No 23 from Bachelet’s report: “On May 29, 2018, human skeletal remains were discovered at a construction site in Mannar (Northern Province), Excavations conducted in support of the Office on Missing Persons, revealed a mass grave from which more than 300 skeletons were discovered. It was the second mass grave found in Mannar following the discovery of a site in 2014. Given that other mass graves might be expected to be found in the future, systematic access to grave sites by the Office as an observer is crucial for it to fully discharge its mandate, particularly with regard to the investigation and identification of remains, it is imperative that the proposed reforms on the law relating to inquests, and relevant protocols to operationalize the law be adopted. The capacity of the forensic sector must also be strengthened, including in areas of forensic anthropology, forensic archaeology and genetics, and its coordination with the Office of Missing Persons must be ensured.” (6) Wigneswaran, in his capacity as the then Northern Province Chief Minister in August 2016 accused the Army of killing over 100 LTTE cadres held in rehabilitation facilities. Wigneswaran claimed the detainees had been given poisonous injections resulting in deaths of 104 persons. The unprecedented accusation made by the retired Supreme Court judge had been timed to attract international attention. Wignewaran is on record as having said a US medical team visiting Jaffna at that time would examine the former rehabilitated LTTE cadres, who he alleged had fallen sick because they were injected with poisonous substances at government detention or rehabilitation centres.
Sri Lanka paid a very heavy price for its pathetic failure to counter a web of lies fashioned by interested parties, both local and foreign mainly funded by the West to coerce the country to adopt a new Constitution. Unfortunately, the incumbent government, too, is yet to examine the Geneva issue taking into consideration all available evidence, information and data into consideration.
Views expressed are personal