Bold call for objectivity by Sri Lanka

By Lucien Rajakarunanayake

“In the light of this commitment by Sri Lanka, there is no justification or urgency whatsoever in floating a resolution calling for the implementation of the LLRC’s recommendations and engagement with the High Commissioner, when this has already been effectively undertaken by the Government. What we now need from the international community is objectivity in assessing Sri Lanka’s efforts.”

This was the key observation of Minister Mahinda Samarasinghe, the President’s Special Envoy on Human Rights to the United Nations Human Rights Council, at the High Level segment of UNHRC’s 19th Session earlier this week. It was a preemptive dismissal of the moves by the United States, EU and other Western countries, who have taken on the mantle of the “international community” to wage new attacks on Si Lanka, via the LLRC, which they were initially very sceptical about.

In a strong request to allow Sri Lanka’s efforts at reconciliation to proceed unimpeded, Minister Samarasinghe said: “More than anything we need to ensure that the process is allowed to advance unimpeded. We do not need unwarranted incursions that will compromise successful implementation. Such interference by way of redundant resolutions before this Council, would only undermine the sentiments of this Council as expressed in the decisive adoption of the Special Session resolution on Sri Lanka in 2009.”

Commenting of the new trend of many voices in the west who are unquestioningly following the ill-concealed propaganda trajectory of the pro-LTTE Tamils, who are carrying on a concerted campaign against Sri Lanka, he said: “Delivering homilies about human rights in Sri Lanka at fora such as these would be much more meaningful if they were supported by real and substantial cooperation and assistance in keeping with this Council’s Resolution on Sri Lanka in 2009. Enabling a member state to overcome the undoubted challenges it faces in reconciliation and restoration of normality and productive civilian life – particularly amongst those worst affected by the scourge of terrorism – would be much more tangible and helpful to all concerned, rather than the mere repetition of unsubstantiated allegations and unconscionable finger-pointing directed at Sri Lanka.”

With the latest figures on actual mortalities and casualties in the North during the period of the armed terrorism by the LTTE and the moves to defeat it, Minister Samarasinghe was emphatic in declaring that the highly inflated figures that were being readily bandied about did not bear any connection to the truth. He said that according to latest scientific census reports “One thing is certain,” …“the story of ‘tens of thousands’ of civilian deaths that supposedly occurred during the final phase of the humanitarian operation, is very clearly proved to be a gross exaggeration and a deliberate misrepresentation of fact.”

Darusman secrecy

As is necessary in view of the manner in which the Darusman Report is referred as the ultimate fact sheet on alleged war crimes and crimes against humanitarian law by Sri Lanka, by those ranged against Sri Lanka who refer to it as the “UN Experts Panel Report” which it is not by any measure of judgment, Sri Lanka’s Special Envoy made a compelling comparison of the LLRC Report and the tendentious “expertise” of Darusman & Co.

“In our view,” he said, the LLRC report contains a detailed and perceptive analysis of past errors, including those that led to the failure of the peace process, and several recommendations for the future. The Report is comprehensive and contains detailed annexes, compiled following interviews with over 1,000 persons who gave evidence before the Commission, and over 5,000 submissions received. The proceedings were largely open and persons testified freely and openly before the Commission in public hearings unless exceptional circumstances required in camera proceedings.

In sharp contrast the LLRC procedure “was quite different to the Secretary-General’s Advisory Panel which held closed door hearings with unnamed witnesses who were guaranteed 20 years anonymity to secure their statements. This meant that the testimony could not be verified or tested for its probative value. The LLRC Report, on the other hand, places before us material of the basis on which the Commissioners arrived at their conclusions, which are substantive and verifiable.

“The Commission has dealt with and made recommendations on a whole gamut of issues including aspects of accountability – something which several of our partners and interlocutors have failed to acknowledge; the resettlement of IDPs; the rehabilitation and re-integration of ex-combatants, the detention of suspects; bringing an end to the possession of unauthorised weapons; the deployment of security forces; land issues; issues with regard to restitution; implementation of the language policy; socio-economic and livelihood development; administrative issues; and on the need to arrive at a national consensus with regard to fulfilling the legitimate aspirations of all communities living in Sri Lanka.”

Clearly identifying the source of the pressure that is being faced by Western governments to take strong anti-Sri Lankan positions, which are contrary to their position on human rights and related issues in other countries, Minister Samarasinghe said: “We categorically reject such undue pressure from sections of the international community which have fallen prey to the propaganda, coercive tactics and electoral pressures of these elements. We are conscious of their need to portray a negative picture of Sri Lanka and unreasoning pessimism in order to justify their continued presence in these host countries. Instead of accepting our President’s invitation to become constructive partners in development and building a renewed Sri Lanka, it is most regrettable that these elements devote their time, effort and resources in defaming their motherland and denigrating the genuine efforts of the Government to consolidate peace, development and prosperity for all Sri Lankans.”

Immunity in Washington

As the debate in Geneva goes on with that city of diplomacy and Western culture being transformed into a phony pilgrim centre for pro-terrorist Tamil activists from many parts of Europe gathering there to keep the pressure on Western leaders, a US federal judge has dismissed a lawsuit filed against President Mahinda Rajapaksa, by similar activists, noting that President Rajapaksa is immune from lawsuits as a sitting Head of State.

The Associated Press report on the case by ABC News said a US judge threw out a lawsuit Wednesday against Sri Lanka’s president over killings allegedly carried out by his forces during the country’s ethnic civil war.

US District Judge Colleen Kollar-Kotelly ruled that she must dismiss the suit against President Mahinda Rajapaksa because the Obama administration says he is immune from the litigation as a foreign head of state.

“The court does not take this step lightly,” Kollar-Kotelly wrote. “The plaintiffs’ complaint contains shocking allegations of human rights abuses and violations of United States and international law. The court’s dismissal of this case is in no way a reflection of the merits of plaintiffs’ claims or defendant’s defences. Rather, two centuries of case law and basic constitutional and statutory principles prevent this court from allowing plaintiffs’ complaint to move forward at this time.”

The fact is that Judge Colleen Kollar-Kotelly is unable due to the laws of her own country, which she has to respect and enforce, to proceed with this case.

Her personal opinion of the merits of the allegations made have no relevance in this instance, because they remain allegations, however serious they may seem, which have not been put to the test of a trial with witnesses and other evidence.

What is significant about this move and the comments of this judge is that it very easy for persons who can be well advised, even by a partisan lawyer such as Bruce Fein, to string up a whole lot of unfounded charges of the most serious nature and bring them to a court, with maximum publicity, knowing very well that they will not be heard, even at a preliminary level due to the law on immunity for heads of state that prevails in the United States, and has been observed for more than 200 years.

This is not dissimilar to the many charges brought against the Sri Lankan armed forces and government by those who we are told had given evidence before the Darusman Committee, but whose evidence cannot questioned, verified or challenged for 20 years because of the guarantee of anonymity for this period.

Judge Kollar-Kotelly must surely be aware of the possibility and reality of trumped up charges being brought to a court where it cannot be heard, with even a little knowledge of jurisprudence.