The set of issues covered in the first category has been analyzed and discussed extensively by spokesman for the government. They can be summarised as follows:

i.  The UNSG’s justification of the Panel on the ground that it was in pursuance of a joint commitment is not correct. The joint statement did not contain any provision which envisaged or enabled the UNSG to take an independent initiative on “allegations of war crimes.”

ii.  The selection of the Panel by the UNSG violated the standards that should have been applied to the appointment of a panel that was wholly objective and impartial and without any prior involvement in Sri Lankan human rights issues in which positions were taken. From the evidence that was available and the objections raised by the Government of Sri Lanka (GOSL) the panel fell short of these standards. (The Chairperson Marzuki Darusman was a member of the International Independent Group of Eminent Persons (IIGEP) who was invited to serve as observers at the sittings of the Presidential Commission of Inquiry appointed to inquire into alleged violations of Human Rights. Having been present at some sittings, Mr. Darusman subsequently withdrew alleging that the Government of Sri Lanka did not have the will to improve the human rights situation in the country.  Steven Ratner has been an advisor to an NGO called the Human Rights Watch (HRW) one of the organizations which had expressed disappointment that UNHRC had not passed a resolution calling for an international investigation on war crimes committed by the GOSL and LTTE.  Ms. Yasmin Sooka is the Head of the Sooka Foundation, funded substantially by the European Union which had supported an investigation into war crimes and actions of the Sri Lanka government.)

iii.  The UNSG has stated that the panel was an advisory panel appointed to advise him. The report should then have been treated as a document personal to the UNSG and not made public, particularly in view of the fact that the Panel had exceeded their mandate and presented a case against GOSL based on a process of information - gathering which was incomplete.

iv.  The Terms of Reference of the Panel were worded in a manner that left the panel’s mandate ambiguous enough to enable it to undertake what is in fact an investigation into the allegations to establish what the panel termed their “credibility”, thereby permitting an activity which the UNSG could not authorize.

v.  The appointment of the panel and the publication of its report was a questionable method of subverting the objectives of the UN Human Rights Council’s (UNHRC) resolution of 27.05.2011 which effectively thwarted the effort of several powerful countries to initiate an international inquiry into war crimes committed during the last stages of the military operation which ended in May 2009.

While these are valid observations on the processes relating to the appointment of the panel, the criticism of the UNSG’s actions has value only if the GOSL wishes to raise wider issues regarding the UNSG’s non- compliance with the established norms and procedures of UN and the unacceptable precedent it has created.  Undoubtedly, these wider procedural issues have relevance for the conduct of the UN system as a whole and the rights of members. They   would also give some leverage to GOSL in its diplomatic campaign to mobilise support for its position on the panel and the panel report as a whole.

The appointment of the panel has also to be seen in the global political context in which the initiative was taken. It is worth recounting the sequence of events which defined this context.  Several Western powers who had been involved in the peace process in Sri Lanka were gravely disappointed at the unilateral action taken by GOSL to find a military solution to the armed conflict with the LTTE... They had warned the government on what they termed would be “devastating consequences” of such action. Most human rights organizations were also firmly opposed to the government opting for a military solution. Therefore from the outset it appeared that these parties were predisposed to see the outcomes of the operation in the light of their expectations. The complete defeat of the LTTE was also an unexpected outcome.  The attempts made by these powers to rescue the LTTE were not supported by the government of Sri Lanka. Meanwhile the pro-LTTE Tamil constituency in these countries began agitating and exerting strong pressure. Finally the attempt made by these countries at the meeting of the UNHRC in May 2009 to investigate into war crimes alleged to have been committed during the final stages of the war was effectively thwarted. All these could have pre-determined the outcome of the Panel’s work. However placing the work of the panel in this global context is not to attribute any blame to it or impute any sinister conspiracy against Sri Lanka. The facts are straightforward and merely reflect the hard realities of a flawed system of global justice, a system which can readily attempt to hold small and vulnerable nations to account but has to acquiesce in the actions of the strong and powerful. 

<< Truth and Accountability : The Last Stages of the War in Sri Lanka - Introduction

>> Chapter 2 -  Analysis and Appraisal of the Report - Criteria

>> Chapter 3 - The Narration of Events and Allegations

>> Chapter 4 - Issues Concerning the Application of International Law

>> Chapter 5 - Issues of Accountability and Justice

>> Chapter 6 - Measures for Advancing Accountability : The Domestic Justice System and further Obstacles

>> Chapter 7 - The Recommendations of the Panel

>> Chapter 8 - Conclusions