Foreign Affairs

Reject The UN War Crimes Report: Mahinda Rajapaksa Tells Govt.

Issuing a statement former President Mahinda Rajapaksa these days urged the new Government to reject the report by the Office of the High Commissioner on Human Rights (OHCHR) on war crimes allegations.

The full statement issued by Rajapaksa

As the former head of state, I feel it would be suitable to make known to the public my observations on the recently released report on Sri Lanka by the OHCHR. My government did not cooperate with this investigation for several motives, foremost of which was that it was instituted outdoors the established procedure of the UN Human Rights Council (UNHRC). The usual process was for the President of the UNHRC to appoint a 3 member independent panel to carry out the investigation after the relevant resolution is passed in the Council. Nonetheless the investigation on Sri Lanka was not carried out by an independent Commission of Inquiry but for the extremely 1st time, by the OHCHR.

President Mahinda Rajapaksa

President Mahinda Rajapaksa

The OHCHR’s independence is questionable simply because it is funded for the most portion not by way of the normal spending budget of the UN but by means of ‘voluntary contributions’ from the quite Western states that sponsored the resolution against Sri Lanka. Additionally all the essential staff positions in this body are held by Westerners who make up half the cadre of the OHCHR. Resolutions are passed with overwhelming majorities at practically each session of the UNHRC calling for an ‘equitable regional distribution’ in staffing at the OHCHR to no avail. Given the composition of the OHCHR, it would not be possible to anticipate an impartial inquiry from them.

The Pakistani Ambassador to the UNHRC, HE ZamirAkram observed for the duration of the debate on the resolution that set up this OHCHR investigation on Sri Lanka, that “No self-respecting nation would agree to the intrusive measures advocated in this resolution.” He also wanted to know how this investigation was going to be funded, and stated that if the ‘donors’ providing the funding were also the sponsors of this resolution, the complete approach would be seen to be tainted. In spite of persistent questioning, he did not obtain a satisfactory answer to his query.

The Indian Ambassador HE Dilip Sinha warned that “an intrusive strategy that undermines national sovereignty” is counterproductive and that what is needed is a “constructive approach for dialogue and cooperation.” India also refused to support the setting up of this OHCHR investigation. The final resolution had the assistance of only 23 members of the 47 member UNHRC despite all the pressure that its strong sponsors brought to bear on the member states. That in short, is the background to the OHCHR investigation that has led to this Report.

Some speculate that this report could have been watered down due to the fact a new government has been elected to energy. If that is correct, then the Pakistani Ambassador HE Akram would have been correct in telling the UNHRC on 27 March 2014, that this resolution is “All about politics and not about human rights.” Be that as it might, I don’t see this report as possessing been watered down. The most that can be carried out with a report of this nature is to recommend the setting up of a war crimes tribunal and that has been accomplished.

Neither the OHCHR nor the UNHRC has the authority to set up an international war crimes tribunal. The only body with the authority to do so is the UN Security Council exactly where the veto power of China and Russia will be a element to contend with. Sri Lanka can not be taken before the International Criminal Court (ICC), due to the fact we are not a signatory to the Rome Statute below which the ICC functions. The other way is for the government of the nation concerned to cooperate voluntarily with the UN to set up a hybrid war crimes tribunal. What has been recommended in the OHCHR report is the only sensible way in which a war crimes tribunal can be instituted in relation to Sri Lanka. So it is incorrect to think that this report has been watered down in any way.

Some claim that this report has been watered down simply because no names have been pointed out in relation to any alleged incidents. That is obviously due to the reality that the OHCHR has no way of justifying such a linkage. But a prominent journalist D.B.S.Jeyaraj has pointed out that the names of crucial military personnel and units have in reality been described in the report in a manner created to incriminate and direct investigations even although those names have not been linked to particular incidents. Although some think that the report is not as negative as was anticipated, I do not share that view.

Even though some politicians claim that the threat of our war heroes getting arrested in foreign nations for alleged human rights violations under universal jurisdiction has receded simply because of this purportedly watered down report, the quite opposite is true in truth. There is a certain request made in this OHCHR  report on web page 252 to member states of the UN to investigate and prosecute those allegedly accountable for war crimes. This is in addition to the proposed hybrid war crimes tribunal they have advised. It is essential that the common public be informed about the genuine nature of this report.

Some appear to believe that had my government nonetheless been in power, this report could have led to economic sanctions getting imposed on Sri Lanka. However, neither the UNHRC nor the OHCHR can impose financial sanctions on a nation. Only the UN Safety Council has that authority and they will not impose financial sanctions except in the most serious conditions associated to a threat to worldwide safety. The USA and the EU could if they so wished, have imposed unilateral sanctions on Sri Lanka as it is their sovereign proper to refuse to trade with any nation. But such measures are extremely seldom implemented because the nation imposing sanctions ends up generating a permanent enemy of the folks of the country at the receiving end. Unilateral sanctions against Sri Lanka was never on the cards for the duration of my tenure.

Whilst there may have been tensions in between my government and some Western nations at particular times, there were Western leaders who understood our point of view as properly. John Kerry when he was the head of the US Senate Committee on Foreign Relations wrote in his December 2009 report titled ‘Sri Lanka: Re-charting US Strategy soon after the War’ that the Obama administration need to take a broader multi-dimensional strategy to Sri Lanka not driven solely by brief-term humanitarian issues but involving political, financial, and security dimensions.

In the course of the war, Sri Lanka and the USA had a mutually useful exchange of information on safety matters. Republican administrations in the USA typically took a much less intrusive strategy to Sri Lanka. There is much more to international relations than just human rights. The purchases produced, contracts awarded and possibilities offered for investors all play an even far more  important part in international relations. So I do not think that the OHCHR report would have led to sanctions getting imposed on Sri Lanka if my government had nonetheless been in power. Throughout my tenure, the main foreign investors in the Sri Lankan long term sovereign bond market and the securities exchange have been from America and Europe. It is only soon after I was voted out of office that these investors started withdrawing their funds from Sri Lanka.
In ruling a nation, there are occasions when one has to go against the wishes of strong nations in order to serve the interests of the individuals. In 1952, when Prime Minister Dudley Senanayake signed the Rubber-Rice Pact with China, the USA had imposed financial sanctions on the new Communist government of China and rubber was on the prohibited list. But Prime Minister Senanayake exported rubber to China even at the risk of antagonizing the USA since the folks of Sri Lanka needed rice. Similarly, I also had to go against the wishes of specific strong nations to defeat terrorism and bring peace to this nation.
Had unilateral sanctions in fact been imposed on Sri Lanka by Europe and the USA throughout my tenure, we would undoubtedly have taken remedial measures. When the EU withdrew the GSP+ trade concession from Sri Lanka in 2010 below stress from the potent Eelamist lobby in Europe, my government saw to it that exports of apparel to Europe continued to develop year after year. In 2008-2009 when the whole world was reeling beneath the worst worldwide depression because the 1930s, the folks of this nation had been not even conscious of the worldwide recession because of the measures that my government took to contain the crisis. My government had an financial track record of which I am justifiably proud.

Several of the suggestions in the OHCHR report give result in for concern. In my view, establishing a hybrid special court to try war crimes integrating foreign judges, lawyers and investigators, and prosecutors is not feasible. If there are allegations of wrongdoing against any member of the armed forces, I strongly think that those must be tried below the existing Sri Lankan law, beneath our present courts system and by our judges and our Lawyer-General’s department. Our armed forces risked almost everything and produced huge sacrifices to save the nation from the scourge of terrorism.

The recommendation that the OHCHR be permitted to establish a permanent presence in this country to monitor the human rights situation makes no sense since the country has been at peace for over 6 years with no allegations of ongoing human rights violations.
The OHCHR has also advised that the Supreme Court of Sri Lanka must retract its refusal to accept the competence of the UN Human Rights Committee to consider person complaints from Sri Lanka. We had a equivalent arrangement with the Privy Council when we were a dominion of the British Crown. In my view, such an arrangement would not be of any advantage to Sri Lanka.

It has also been recommended by the OHCHR report on web page 250 that the Sri Lankan government develop a vetting process to ‘remove from office’ safety force personnel who are believed to have been involved in human rights violations. Nobody can, or should be removed from workplace on the basis of unsubstantiated allegations or on mere suspicions. The government must be mindful of the fact that these recommendations are becoming made by forces that attempted their greatest to quit the final offensive against the LTTE but failed.

The OHCHR has also advisable the repeal of the Prevention of Terrorism Act (PTA) and the Public Security Ordinance and the formulation of a new national security framework. Sri Lanka would not have survived as a state if not for these laws. The public security laws of a sovereign nation ought to be primarily based on an assessment of threats and other such factors and not according to the dictates of an international organization which does not specialize in public security.

I want to request the government to study the legal opinions on the law of armed conflict and humanitarian law given to the Commission of Inquiry on Disappearances by Sir Desmond De Silva QC, Sir Geoffrey Nice QC, Rodney Dixon, David Crane and Paul Newton and contemplate circulating these to UNHRC member states –in certain the detailed report on the law of armed conflict in relation to the allegations produced against Sri Lanka which was submitted to the Commission on Disappearances by Sir Desmond De Silva recently. The views of these international lawyers should in my view, be incorporated in any detailed response to the OHCHR report.

Some politicians have been telling the individuals that all these international initiatives are based on my joint communiqué with the UN Secretary Common of 23 Might 2009. I see that as a deliberate try to mislead the men and women and seek justification for their personal cooperation with interventionist foreign forces. There was practically nothing in my joint communiqué with the UN Secretary Basic about war crimes investigations and hybrid or nearby war crimes courts. All that the Sri Lankan government undertook in that joint communiqué was to address ‘grievances’. The accelerated improvement of the north, the holding of the Eastern and Northern provincial council elections, the setting up of the Lessons Learnt and Reconciliation Commission (LLRC) and the Commission of Inquiry into Disappearances have been all measures taken in that spirit.

In reality in the course of the debate on the resolution that set up the OHCHR investigation on Sri Lanka in March 2014, the Indian, Cuban and Pakistani Ambassadors to the UNHRC taking the floor 1 after the other said in a single voice that the US backed resolution had not taken into account the wide ranging measures taken by the government to address outstanding issues, which includes the setting up of the LLRC. That was one particular of the factors they decided not to support the proposal for an OHCHR investigation against Sri Lanka.

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