Dharshan Weerasekera exposes Sri Lanka’s External Affairs Ministry’s deficient legal work

 

– by Shenali D. Waduge  –

Lawyer Mr. Dharshan Weerasekera’s highly analytical and insightful article titled “Illegality of UN Secretary General Ban Ki Moon’s approach to Sri Lanka’ appearing in ‘Foreign Policy Journal’ of 19 March 2013 and published in several Lankan internet websites and mainstream newspapers i.e. Daily News (November 28 and 29, 2013) in the last few days, has reinforced the huge public disappointment bordering disgust at officials appointed to defend our nation internationally. For over 4 years we have seen Sri Lanka being subject to deplorable foreign and local overtures which our supposedly ‘legal luminaries’ and other loud mouthed ‘intellectuals’ (some with Oxbridge qualifications) enjoying plums of office, hobnobbing with the jet set, moving in and out of six star hotels abroad at public expense, excessive air plane travel using first class tickets, and enjoying the sweet life with undue privileges, should have pointed out and not allowed the nation’s President, its armed forces and the entire nation to be humiliated in the international arena, diplomatically snubbed and admonished as the ‘guilty party’ without a proper trial conducted at least according to rules of natural justice.

https://www.onlanka.com/news/the-illegality-of-un-secretary-general-ban-ki-moons-approach-to-sri-lanka.html

Summary of legal submissions of Dharshan Weerasekera

We now bring out salient points raised by Mr. Weerasekera who using his legal training has argued Sri Lanka’s case skillfully concluding that the UN Secretary General has no real mandate, no legal basis and no moral justification to carry out a virtual witch hunt against a UN member nation.

We shall first highlight the key areas that Mr. Dharshan has based his argument upon and thereafter proceed to ask where our Oxbridge legal luminaries have failed the nation and question whether it was a natural error of judgment or deliberate inaction purposely committed given their unconcealed allegiance and pathetic subservience to western colonial norms, standards and western institutions.

Mr. Dharshan Weerasekera points out the following:

• The 4 attempts by UNSG to pursue ‘accountability’ for ‘alleged war crimes’, committed during the last phase of the war.
• The 2 attempts on a personal initiative by the UN Secretary General – namely Darusman Panel of Experts and the Petrie Report which was a review of the UN office in Sri Lanka that concluded that UN had failed in its humanitarian mission. Petrie Report states that ‘“Seen together, the failure of the UN to adequately counter the Government’s under-estimation of population numbers in the Wanni, the failure to adequately confront the Government in its obstructions to humanitarian assistance, the unwillingness of the UN in UNHQ and in Colombo to address Government responsibility for attacks that were killing civilians, and the tone and content of UN communications with the Government on these issues, collectively amounted to a failure by the UN to act within the scope of institutional mandates to meet protection responsibilities.”

Allegations of War Crimes against Sri Lanka

1. killing of civilians through widespread shelling – accusing the GOSL of shelling UN hub, food distribution lines and near ICRC ships coming to pick wounded

2. shelling of hospitals and humanitarian objects – accusing the GOSL of hitting all hospitals in the Vanni by mortars and artillery, some repeatedly.

3. denial of humanitarian assistance – accusing GOSl of denying people food, medical supplies, surgical supplies, purposely underestimating numbers of civilians

4. human rights violations suffered by victims and survivors of the conflict including both IDPs and suspected LTTE cadre

5. human rights violations outside the conflict zone including against media and other critics of the Government.

Mr. Weerasekera response to the allegation of killing civilians (quoted between 40,000 and 125,000) by giving the following examples to negate the accusations made by the UNSG’s Panelists and their ultimate report conclusions.

a) 2011 Census by the Dept of Census and Statistics/Sri Lanka of the North

• 22,329 deaths (2005-2009) of which 11,172 occurred in 2007 and 2523 due to natural causes and 7934 classified as ‘other deaths’ (could be from accidents, homicides, suicides etc.)
• An estimated 8000 had died between Jan-May 2009 inclusive of LTTE combatants. General belief that 5000 combatants died during final phase of war which leaves 3000 civilian deaths.

b) UN Country report in 2009 carried out during the conflict gave estimated deaths between August 2008-May 13 2009 as 7721 (this number is close to the figure of the Census Dept.)

c) American Association for the Advancement of Science – Aerial photographs of the conflict zone – in particular gravestones/mass graves found no such evidence implying that the allegations of 40,000 deaths or more was impossible.

If roughly 3000 civilians through 6 months did die this number however does not constitute indiscriminate targeting of civilians. The question is why has the GOSL legal defense team not demanded evidence to establish the allegations of 40,000 – 125,000 civilian deaths and repeated this demand through official statements each time allegations were being made from whatever sources. Why have our legal representatives not continuously demanded their names and other crucial details which would have stopped the barrage of lies and numbers that are dropping from the sky.

Why have our representatives not said enough times giving examples drawn from the reports of the embedded journalists like the Indian media that were present throughout the conflict inside the conflict zone along with the ICRC.

Mr. Weerasekera takes excerpts from Murali Reddy: as follows:

• Murali Reddy (Frontline) present up to the end of war 19 May 2009 as an ‘embedded’ reporter.” There were no conditions spelled out on the coverage from the war zone.  We were allowed unfettered and unhindered movement up to 400 meters from the zone, where pitched battles were fought between the military and the remaining cadre and leaders of the LTTE….Most important was the fact that we had interference-free access to the internet, including Tamilnet, the website perceived to be pro-LTTE and based somewhere in Europe.  Within the constraints of internet time available, and not-unexpected problems of connectivity and speed in a war zone, there was just enough time to read and absorb the reports on the websites before sending news dispatches to our headquarters.  No questions were asked”.

He also states that ICRC suspended operations on 15th May 2009 (4 days before victory) having being satisfied that the majority of civilians were in safety and the military and LTTE were engaged in final combat. Murali Reddy would have also spoken to civilians and it confirmed if alleged massacres were taking place. However, none of his articles has indicated such. Spontaneous witness testimony by civilians becomes valid above the coached testimony currently taking place. Mr. Reddy’s commentaries highlights

1. civilians speaking to him did not accuse military of killing them

2. the Tamil civilians were attempting to escape LTTE  without being detected – which means they wanted to run towards the army

3. Tamil civilians were not looked after by the  LTTE and were deprived of food and water.

• David Gray (Reuters) correspondent taken on a tour of the battlefield in April 2009. In his accounts he declares that he saw ‘civilians being given small amounts of food and drink by the soldiers’ – soldiers were feeding the civilians not killing them and small amounts obviously must be sharing what they had been allocated.
• The fact that ICRC suspended its operations on 15th May 2009 goes to also show that it would have done so after being satisfied that majority of civilians were no longer with LTTE and the final battle between LTTE and the Army could take place without any injury to the civilians.

When allegations have been made on civilian killings why have our officials not immediately responded by giving the names of journalists like Murali Reddy whose accounts of the war does not mention anything of civilians fearing or fleeing the Sri Lankan armed forces?.

Why has the Government not cited Murali Reddy being physically present, with access to internet and to civilians wherein none of his articles have touched on civilian massacres or that civilians speaking to him coming out of the warzone made allegations of such?

Why has the Ministry of External Affairs not gathered accounts of people like Reuters correspondent Mr. Gray as testimony in view of the allegations of indiscriminate attacks against civilians and Mr. Gray’s own assertion that the soldiers were feeding civilians? Surely the Ministry should have compiled a list of all such statements which could have been annexed to the Government response at the successive Geneva sessions?

These examples should have been used to counter the false allegations made by the 2 UNSG panels and clearly the first hand accounts of the embedded journalists and those taken on tour go to show that there was no indiscriminate shelling of civilians or deprivation of food.

BBC, Channel 4 and LTTE use Goebbels theory of propaganda – ‘The Big Lie’

If Dharshan Weerasekera can produce excerpts from Mr. Reddy why have our representatives not done the same – not once but continuously for is this not how the LTTE propaganda machinery is working with lies? When we have the truth why are we not saying it loud and repeatedly? The LTTE, its fronts, its apologists and supporters are telling lies enough times and repeatedly and getting away with it because of their heavy reliance on Josef Goebbels theory of propaganda ‘ The Big Lie’ working in their favor.

The ‘Big Lie’ works on the principle that when one lies, one should lie big, and stick to it; keep up the lies, even at the risk of looking ridiculous. In the Big Lie there is always a certain force of credibility; because the average people in any nation are always susceptible to brain washing by big lies rather than small lies.  Even though the true facts revealed later may disprove the big lie, the average person will still entertain doubt and waver and continue to think that there may be some other explanation. The lie always leaves traces behind it, even after it has been nailed down. This is a fact which is well known to both the BBC and Channel 4 funded by the Tamil Diaspora and all other LTTE supporters.

When the factual truth is on our side why have our representatives failed to resort to well – known techniques of both propaganda and counter – propaganda, lack the political will to say out loud and repeat it even every day so that other people would begin to see our side of the story?

Even for the charge of indiscriminate shooting at hospitals – why have our representatives not kept repeatedly saying that LTTE used the hospitals to store its military equipment and fired from these sites and questioned if they were functioning as hospitals for civilians? Our representatives has not told enough times that even the Panel mentions of LTTE using the hospitals and if so the army cannot be faulted for firing if LTTE fires from ‘hospitals’ for if LTTE wishes to seek protection from Geneva Conventions it must follow them and Rule 1 is to ensure civilians are removed from combat – LTTE herded people with them and this is where the violation of the Convention lies. Why have we not kept on punching these faults?

Why have Sri Lanka’s representatives NOT repeatedly given examples of

• ICRC presence in conflict zone throughout the final phase and participating in and coordinating the food and medicine convoys to the battle-zone with dates/amounts and other details
• Government records that it transported 534,227 metric tons of food and medicine to the conflict zone – quantities that ICRC did not dispute.
• Government records of continuing supply of food and medicine convoys right up to end of war
• Why did the Government representatives not object to and demand official explanation and apology from the Experts for purposely omitting mention ICRC/Government convoys of food and medicine running parallel to UN/WFP convoys? This intended omission should have been raised and demanded a convincing explanation.

UN Charter not used for Sri Lanka’s benefit

If Dharshan Weerasekera says that the UNSG can commission reports on success and failures of UN offices but he does not have authority to submit these reports indirectly to official UN organs (ex: UNHRC) to compel action against a fellow Member country, and that UNSG’s actions are illegal under UN Charter Article 2(7), 99 and 100  – why has the External Affairs Ministry and other legal luminaries not thought of this and tendered an official complaint and demanded the UNSG to produce evidence to back allegations thereby giving Sri Lanka an opportunity to respond. Instead what has now happened is that an illegally sanctioned report that has nothing to do with the UN General Assembly or the UN Security Council has become the basis for cross examining and international bullying of Sri Lanka by third parties which is contributing towards the denigration and destabilizing of Sri Lanka.

Is it not the job of the External Affairs Ministry and the legal teams and other experts who had been tasked and handsomely paid with additional perks to travel overseas at the drop of a hat, to save the nation to table and tell enough times out loud without being prompted to table that the UNSG’s ‘reports’ have not been ‘authorized’ or ‘requested’ by the UN General Assembly or the UN Security Council or the UNHRC and these have not been filed either? Yet, Sri Lanka is being asked to respond to a REPORT that has no legal basis and our question is what have our teams been doing all this while not pointing this out to the country’s President and the people, being the ultimate masters of this country.

Supposed ‘Verbal agreement’ legally unsustainable

Mr. Dharshan Weerasekera argues quite rightly that a supposed verbal agreement with the UN Secretary – General (UNSG ) and the Sri Lanka President in May 2009 does not empower or authorize him to pursue the role of ‘monitor’ on the accountability process in Sri Lanka and thus denies him a legal basis for action.

Mr. Weerasekera says that UNSG can resort to Article 99 of the UN Charter granting him discretion to bring matters to the attention of the UN Security Council but even that is without legal sanction.

The UNSG has cited a meeting with Sri Lankan President in May 2009 as a term of reference for personally commissioning two Panels to report on Sri Lanka though not at the behest of either the General Assembly or the UN Security Council or even an official UN organ.

Why did the Sri Lankan authorities not read the Joint Statement issued for both reports and not agree to such a joint statement while being fully aware that the UNSG is commissioning reports without any requests from the General Assembly, UN Security Council or even an official organ? Did our representatives with sufficient legal qualifications to back their role and involved in UN mechanics not realize the game plan being contrived? From the clauses that Mr. Weerasekera picks in the joint statement as he rightfully says the Joint Statement implies that the GOSL has admitted accepting violations of humanitarian laws – “The Secretary General underlined the importance of an accountability process to address violations of international humanitarian and human rights law committed during military operations between the Government of Sri Lanka and the LTTE” (emphasis added). Surely, our legal luminaries should have picked up this very simple English to realize the adverse ramifications accruing to Sri Lanka in agreeing to endorse such a joint statement.

Our next question is, who representing Sri Lanka actually committed the Government to agreeing to such a joint statement and if we did not agree why have we not objected to using this term of reference? Should our people not continue to object to its inclusion and demand its omission if we had not agreed to such a joint commitment as that the Office of the UNSG is officially stating through its two commissioned reports. Though these sentences are loose and have no legal basis Sri Lanka has been unnecessarily and unduly taken before the informal world court and humiliated undeservedly and repeatedly. Who is responsible for allowing this state of affairs detrimental to Sri Lanka’s standing and best interests to take place? The buck cannot be allowed to stop at the gates of favourite Ministries.

UNSG uses Article 99 of the UN Charter – to commission reports and inquiries on a personal initiative by using the joint-statement with the Sri Lanka President (which has no legal basis) in spite of UN legal experts rejection of use of Article 99 because it is related to Articles 97 and 98.

Article 97: The Secretary General shall be the chief administrative officer of the organization

Article 98: The Secretary General shall act in that capacity in all meetings of the General Assembly, of the Security Council, of the Trusteeship Council, and shall perform such other functions as are entrusted to him by these organs.

Article 99: The Secretary General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security

Thus as Mr. Weerasekera points out the 3 relevant Articles related to the functioning of the UNSG makes the UNSG function according to Article 98 first and he can use Article 99 only if he thinks there is a threat to international peace and security but that too he has to bring this to the attention of the UN Security Council. Sri Lanka posed no such threat and UNSG did not inform the UN Security Council of his intent to commission two reports.

Mr. Weerasekera gives as examples Honduras coup in 2009 helped by US and the crisis in Congo, Rwanda and Uganda where UN peacekeepers have lists of accusations against them. As Mr. Weerasekera rightly points out why has the UNSG not commissioned Panel of Experts on ‘accountability’ or reviews of UN ‘failures” which ideally should also immediately include Haiti where UN has been found guilty of spreading cholera?

Is it not because UNSG could not use Article 99 that in spite of its lack of legal basis the UNSG is quoting the agreement with the Sri Lankan President as ground for commissioning the 2 reports. If so, why have our Sri Lankan luminaries not taken this and given it full international publicity and condemned the act continuously for we would not have had to be fooled into establishing LLRC and other such international commitments when we defeated the terrorists.

Mr. Weerasekera also points out an untruth and obfuscation when UNSG statement states ‘“In March 2010, in the absence of Government initiative on the issue, the UN informed the Government and Member States of plans to establish a UN Panel of Experts on accountability in Sri Lanka.”

The Panel of Experts is NOT a UN sanctioned Panel. It is a PERSONAL initiative by the UNSG. Why have Sri Lanka not rejected the Report and refused to use this as a basis for any of the Resolutions brought against Sri Lanka for every nation is using these reports as a basis to crucify and defame Sri Lanka.

What Sri Lanka should have done was to officially object to the UNSG exceeding the powers granted to him by the Charter. It is a classic example of ‘ultra vires’ (beyond the powers) as we well know of the application of the term in Municipal Law. In addition Sri Lanka should have officially objected to the appointment of Navi Pillay functioning as UNHRC head on Sri Lanka and the blatant conflict of interest citing the examples of the biased stand taken by her over the years. Simply reporting this matter to us in Sri Lanka and not doing anything further when our representatives have the full freedom and power to exercise the rights of a member nation at the UN in an effective way is simply unpardonable. This is tantamount to a gross dereliction of public duty for which both the Ministry of External Affairs and its team of advisers and decision makers, is answerable in no uncertain terms to the President, the State and the public.

Mr. Weerasekera opines that UNSG has violated Article 100 and Article 2(7)

Article 100 – UNSC and UN staff will not allow themselves to be influenced in their duties by any ‘external authority to the Organization’ and

Article 2 (7) – UN Charter prohibits UN from interfering in the internal affairs of nations.

To justify his argument that UNSG has violated Article 100 (1), Mr. Weerasekera brings out the Ellenborough Principle (criminal law of England) where a strong prime facie case can be made against an accused in a situation where it is in the power of the accused to explain certain suspicious circumstances or events that tie him to the offence, and when he either refuses or fails to explain those away, an inference of guilt can be drawn against him.’

Mr. Weerasekera raises the question where in a situation the UNSG has no legal basis for his action whether he can use moral grounds for taking action.  But UNSG has not been able to establish beyond reasonable doubt (the criminal burden of proof) that the GOSL committed war crimes to refer to moral justice to warrant a prima facie case. Mr. Weerasekera discounts UNSG’s personal sentiment for he is neither a Sri Lankan, a Tamil, has kith or kin in Sri Lanka or has been affected personally directly or indirectly by the conflict.

As Mr. Weerasekera rightly fully asks, a question many people in Sri Lanka have been asking for some years now which our representatives are not articulating or pushing enough using the powers given to them is why we have failed to advocate that the UNSG has neither legal basis or moral justification and is violating all ethics. Why has Sri Lanka not brought to the attention of the UN that UNSG is violating Article 2(7) REPEATEDLY by meddling in affairs that fall ‘within the domestic jurisdiction of members’. If he strongly feels that crimes were committed he needs to compile these crimes and place them officially before the UN General Assembly or the UN Security Council. We are well aware of the fallacies that have taken place – with the false accusations of WMDs that enabled the invasion and occupation of Iraq. As Mr. Weerasekera rightly summarizes the biased and illegal actions of the UNSG have greatly contributed to third parties interfering and attempting to destabilize and balkanize Sri Lanka.

International Court of Justice

Mr. Weerasekera does not stop at placing the facts before the public, he goes on to suggest that Sri Lanka should go before the International Court of Justice (now called the World Court) at the Hague and request an Advisory Opinion on the actions of the UNSG. He states the ICJ statute “The court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.” Sri Lanka is perfectly within its rights to take the aforementioned matter before the court and obtain an Advisory Opinion that may block the efforts of the UNSG and other interested parties determined to punish Sri Lanka for winning the war against terrorism in this country.

Mr. Weerasekera also says that if the ICJ declares that the UNSG’s actions are legal the UNSG would next demand an international inquiry on the final stages of the war but this is something he is anyway pursuing now backed by several countries like UK, Canada, without a proper legal basis.  However, if the ICJ does call the UNSG he would have to produce cogent evidence of allegations and apart from reports there is nothing he or his legal team can produce. The Expert Panel’s methodology is questionable – only 4000 submissions on ‘cases’ were received from 2300 senders and the Panel has denied access to these submissions for a period of 20 years on the ground of secrecy to protect the lives of complainants and witnesses.  The ICJ would demand that these seals be removed on the ‘secret submissions’ and this may expose the Machiavellian ‘game plan’ of the UNSG and his team of ‘experts’.

An Unwarranted Truth and Reconciliation Commission for Sri Lanka

In order to escape the unrelenting pressure the Government is about to commit another huge blunder i.e. hara kiri, at the behest of the very people in the Ministry of External Affairs who have committed so many blunders in the past in recommending the likes of Agreements that betrayed Sri Lanka, e.g. the Ceasefire Agreement, Interim Self-Governing Authority (ISGA), P -TOMS, and the like, to establish a Truth and Reconciliation Commission in Sri Lanka, similar to what took place in South Africa. This mechanism is totally unwarranted given the huge contrast in the situations that prevailed in the two countries. Sri Lanka never had an apartheid system like in South Africa under which the rights of the majority black inhabitants of South Africa were oppressively curtailed and white Afrikaner minority rule was maintained. It was an appalling structure that imposed racial segregation which began in colonial times under Dutch and British rule, neither of which countries had been called to account and pay reparations for the crimes committed against Black Africans. The UN under the current UNSG has shown no interest in shining the light of international law or International Criminal Court (ICC) on western colonialism or establishing an International Commission on Truth and Reparations to investigate both genocide and crimes against humanity committed all around the world during the western colonial era spanning over 500 years.

The only relief that these luminaries of the Government has presented as their proposed solution has been to compromise our land, our heritage (which is the ultimate goal) and our people and open up the country to far more dangers than the existence of the LTTE – when will the leaders realize the treacheries of these traitors?