Sarath Weerasekera’s Geneva adventure

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By 2017-04-10




Rear Admiral Sarath Weerasekera returned from Geneva to a hero's welcome. It was a welcome organized by no one. There was some talk of welcoming him in various informal forums, but nothing was definite. Yet, hundreds came to greet him and show their appreciation for his single handed feat. However, he insists that he was just the messenger.

"What we had in our country was a non-international armed conflict. This was first mentioned by Neville Ladduwahetty, who is a regular writer to The Island newspaper. He started highlighting this fact since 2008, but unfortunately no one understood the significance of his words."

In his book, Sri Lanka's Armed Conflict – A collection of articles, NL explains why our war against terrorism is an armed conflict.

"The Liberation Tigers of Tamil Eelam is an organized group capable of sustained conflict, with all the equipment and capabilities of a conventional force. It has Naval and Air capabilities. Its combatants wear uniforms with assigned ranks and are organized with a command structure. Its estimated strength is reported to have been over 20,000 at one time."

As such, the democratically elected Sri Lankan Government was in conflict with a non-state entity resorting to terrorism. Thus, he points out the laws applicable are International Humanitarian Laws (IHL) and not International Human Rights Laws (IHRL).

"Being an armed conflict," he explains, "the treaty sources applicable in non-international armed conflict are Article 3 of the Geneva Conventions of 1949 and the Additional Protocol 11 of 1977."

The difference between the two are thus:

HR are inherent entitlements which belong to every person by virtue of being human. In a conflict, HR anyway deteriorates and is "unrealistic to expect HR norms under conditions of peace and stability to remain in areas of conflict." Even in the West, due to terrorist threats civil liberties have been drastically reduced and the situation in Sri Lanka was no different.

Humanitarian law on the other hand "deals specifically with armed conflict, no derogation from its provisions are permitted."

These laws prohibit acts such as murder, cruel treatment such as torture; collective punishment; taking hostages; acts of terrorism; any form of indecent assault; slavery, pillage and threats to commit any of the foregoing acts.

NL explains that by holding the security forces to observe IHL gives the forces "the opportunity to provide greater security to the public whose right to life would otherwise have been denied." Trying to hold on to IHRL would violate the HR when even the basic cordon and search operations are conducted.

The West-led IC however ignored this distinction. The previous UN Secretary General Ban Ki-moon played a significant role to embroil us on this current situation, notes Rear Admiral Weerasekera.

"Before we won the war, he never sighted Sri Lanka though the LTTE had forcibly conscripted over 3,000 children to be used as cannon fodder, and held 300,000 civilians as a human shield. Likewise, when France was bombing Syria, he never bothered to go to Syria. But just three days after winning the war, he was here asking us for accountability."

NL notes, "The process of accountability started with the joint statement signed between the UNSG and the former President Mahinda Rajapaksa on 23 May 2009 that stated: 'The Secretary General underlined the importance of an accountability process for addressing violations of IHL and IHRL. The government will take measures to address those grievances'. In keeping with this commitment Sri Lanka set up the Lessons Learnt and Reconciliation Commission (LLRC) on 15 May, 2010. Five weeks later, UNSG engaged a Panel of Experts (PoE) on 22 June 2010 led by Marzuki Darusman to address issues of accountability in complete disregard to the initiative taken by Sri Lanka as if the Sri Lankan initiative did not exist, thereby trivializing the efforts of the government.

"Although the LLRC was still in the making, the PoE report stated as long as eight months before the LLRC report was published (15 November 2011), that: 'in sum, the LLRC is deeply flawed, does not meet international mechanism and therefore, does not and cannot satisfy the joint commitment of the President of Sri Lanka and the UNSG to an accountability process'. Such prescience reflects a patently evident prejudice against the domestic process."

Weerasekera recalls, "On 27 May 2009, Germany with 17 countries tried to request a special session and wanted to propose a resolution against us. However, all the non-aligned countries with our allies defeated it and congratulated us for defeating and destroying the LTTE. Dr. Dayan Jayatilleke who was our ambassador then played a pivotal role. So, the first resolution against us was a positive one."

Falsehood, half truths and omissions

"Thereafter, the LTTE Diaspora and the Western countries took charge and gradually, year by year, they improved the resolutions against us."

At a recent press briefing, Amnesty International – an organization that has been relentlessly pushing for the UN resolution was exposed by Shamindra Ferdinando. He pointed out the discrepancy between AI estimate of those perished during the final phase, which is around and UN's figure at over 40,000.

Shetty, who at the beginning of the briefing claimed that the enforced disappearances could be as many as 100,000 ended admitting that a credible investigation was required to ascertain the number of civilians killed and forcefully disappeared in Sri Lanka.

Due to these efforts, in 2014, the council adopted a resolution by a vote of 23 in favour, 12 against and 12 abstentions for the Commissioner of HR to undertake a comprehensive investigation into Sri Lanka. Zeid Hussain's report however is full of contradictions, falsehood, half truths and omissions.

deliberately prevented aid

"For example," notes Weerasekera, "one of the war crime charges against us mentioned in Hussain's report is that we had deliberately prevented aid to Tamil areas."

However, food, medicine and all essentials were sent through a body called Coordinating Committee for Humanitarian Assistance, headed by Minister of HR Mahinda Samarasinghe and comprised all the UN organizations' Heads, Co-Chairs and government secretaries.

The meeting minutes clearly show that there were no issues with food or medicine, notes Gotabaya Rajapaksa. "If there were, will they be talking of fuel, cement and such things?" he asks.

"This report," states Weerasekera, "Foreign Minister, Mangala Samaraweera accepted with appreciation and cosponsored with the U.S. the resolution against Sri Lanka."

used to prosecute members of armed forces

This resolution, if implemented, will compromise our sovereignty. For instance, the Office for Missing Persons is sanctioned by our Parliament. Its officers, explains Presidential Counsel Manohara de Silva, will be vested with powers to access any kind of document or object from any security establishment. These findings can be used to prosecute members of armed forces in a war crimes tribunal. As such, he warns that the OMP is a Trojan horse and a prelude to future prosecutions.

The bill for enforced disappearance provides sanctioning of superiors who, by commission or omission, are party to such crimes.

"If it becomes law, it targets the hierarchy," elaborates Weerasekera. "If they find a group of soldiers have raped a woman, they can even charge the commanding officer for allowing that to happen, who can be jailed for 20 years and fined one million rupees."

The controversial Hybrid Courts are as damaging. Weerasekera explains, "According to our Constitution, all citizens are equal before the law. When there's a special court to try the soldier, then the soldiers become unequal before the law. It was our soldiers who brought peace to the country."

Therefore, Federation of National Organizations spearheaded to represent Sri Lankan war heroes at the UN and was sponsored by the Global Sri Lanka Forum. Subject experts like Dharshana Weerasekera, Raja Gunaratne, Kalyananda Thiranagama, Shamindra Ferdinando, Shenali Waduge and Kanishka Vitharana prepared the report, "A Factual Appraisal of the OISL Report: A Rebuttal to the Allegations Against the Armed Forces", which was vetted by former Chief Justice, Sarath N Silva.

Weerasekera went to Geneva with this report and another compilation from seven specialists on war crime investigations as Sir Jeffery, Sir Desmond Silva, and General John Holmes. The second volume clearly showing that it was the LTTE and not the security forces who had committed war crimes had never before been presented to the UNHRC.

widely misinterpreted by many

"We have asked", explains Weerasekera, "to appoint special Rapporteurs as to how this High Commissioner has submitted this false report and to impose a moratorium on UNHRC on pursuing any further this resolution until such investigation is complete."

This request for a special rapporteur was however widely misinterpreted by many quarters. They thus alleged that Weerasekera had asked for a special rapporteur to visit and investigate on Sri Lanka.

"We are the people from the beginning against any foreign interference in our affairs," he responds. "So, will we allow any foreign people to come if even suggest it? That's all false propaganda."

Speaking of his experience, Weerasekera recalls, "We only had one and a half minutes to speak. Our main aim was to table that report in the UN. Now in HR council, just anyone can't go and speak. It's either the government representative, or through an NGO registered in the UN. There was one temple in Geneva that was registered in the UN that I first tried to go through. But at the last movement, due to some unfortunate reason, they refused me. So, I had to find another registered NGO.

"Because of this, I couldn't speak on the 22nd, when Sri Lanka was taken as a subject. But on the 20th and 23rd – at the general debate I spoke and tabled these reports.

"On the 22nd, Zeid Hussain chaired the meeting. He started by saying he's happy with the government's progress, but a lot more needs to be done. When our own government says that we have committed war crimes, which country will refute.

totally false picture of Sri Lanka

"Harsha de Silva stated that we are abiding by that resolution and this was followed by 27 countries including China and Russia telling us to abide by the resolution. This was followed by seven or eight pro-LTTE NGOs giving a totally false picture of Sri Lanka and our armed forces. The UN was full of LTTE diasporas represented through various NGOs.

"Only I spoke and another Tamil gentleman called Jeghan spoke on behalf of our country. His father was killed by the LTTE. He also spoke on the first day for one and a half minutes of the LTTE atrocities and that the LTTE was not the only organization representing Sri Lankan Tamils. Unfortunately the LTTE diasporas convinced the particular NGO he was been represented and managed to cancel his second speech.

"Unfortunately, people like Nimalka Fernando and Sunanda Deshapriya also spoke against Sri Lanka. Nimalka Fernando started her speech by stating that, "I'm a victim of the last regime" and that "I'm the only survivor" of the last regime. Afterwards, she drank coffee with father Emanuel and the LTTE diasporas.

"I saw how the HR council is dominated by the LTTE diasporas. Very unfortunately even our embassy kept quiet at these wrong allegations. I can understand that our embassy people have to draw the line with government policy. But they should be able to deny when these people are talking of Tamil genocide, been driven off the land, militarization, torture, Tamil women used as prostitutes inside the camps and so on."

Whether the UN accepts these reports or not is immaterial, says Weearsekara. What is important is that our side of the story too should be represented and all falsehood countered.

"After I spoke, I think four or five foreign delegates and came smiling and spoke to me. They said, 'it's not that we're agreeing with you, but thank you very much for telling us the other side of the story'.

"So, maybe next time we should be able to go as a team and get five or six one and half minute slots and then tell our side of the story and also have some side events."

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