Responses by Prof Rajiva Wijesinha, MP to a questionnaire received in connection with a dissertation on Foreign Policy behavior of post conflict Sri Lanka: response to war crime allegations and human rights violations

( Created date: 28-Dec-2013 )

Why did Sri Lanka not make a formal and credible reply to the expert advisory report to the UNSG. Was just rejection sufficient?

No, that was an inadequate response as we can see from the follow up. I think we did not respond because we felt the UNSG was wrong to have commissioned such a report. However, given that he had sent it to us, we should have made a formal response. That response could have been in the form of questioning the procedure that had been followed, to draw attention to inadequacies in the report.

I actually sent some suggestions at the time to the Secretary to the Ministry and to the Attorney General who was supposed to be assisting the government with the issue, but nothing was done. I was told to write myself to the UN, and I did so, on a couple of issues, but when I got no response it was clear that there had to be official questions raised. However the Ministry of External Affairs failed to understand this, which is why the report – and the sequel which I warned them of – are now seen as credible documents.

I give below the list of possible questions which I sent to the authorities who did nothing –

1. Did the Panel consult the heads of UN agencies in Sri Lanka with regard to the various allegations contained in the Panel report, and in particular those concerning

Alleged rape
Deliberate deprival of humanitarian assistance
Unnecessary suffering for the displaced
Lack of information about rehabilitation sites?

It would be useful to ask the UN Secretary General to circulate the letter of the UN Resident Coordinator with regard to conditions at the camps, and request reports from him as well as the heads of the WFP and UNHCR with regard to these matters. In particular the UN Secretary General should be asked to share with the panel the reports of the various protection agencies that functioned during this period.

2. Did the Panel consult the head of the ICRC with regard to the various allegations contained in the Panel report, and in particular those concerning

Transportation of the wounded and others from conflict areas to government hospitals, and the treatment received by these
Transportation of food and other supplies to the conflict area
Information provided by the ICRC to government about conditions in the conflict area, and in particular the establishment and operation of medical centres

It would be useful to ask the UN Secretary General to circulate the letter of the ICRC head to the navy regarding its support for ICRC operations, and to request reports from him with regard to these matters.

3. Were there reports prepared by the UN or the ICRC which were shared with the panel, but which were not provided to government?

4. Did the UN set up a ‘networks of observers who were operational in LTTE-controlled areas’, as claimed in the report. Was this with the authority of the UN Resident Coordinator, and how did it fit within the UN mandate? With whom were its reports shared?

5. Did the UN obtain other reports from international UN employees in Sri Lanka, and were these with the authority of the UN Resident Coordinator? How did these fit within the UN mandate? If these reports were intended to improve the condition of affected Sri Lankans, why were they not shared at the time with government?

6. Did the Panel consult the UN Special Representative on the Rights of the Displaced, Prof Walter Kalin, and use the reports he published? Were they aware that he visited Sri Lanka three times during this period?

7. Will the Panel explain errors such as the attribution to government of actions relating to the LTTE (Footnote 92), the attribution to government of an inappropriate response (at the end of January) to an ICRC statement issued on February 1st, the assumption that food was only sent to the conflict zone through the ICRC, the attribution (though obscurely) to the terrorist associated Tamil Rehabilitation Organization of the claim that individuals died of starvation, the claim that Manik Farm did not have its own water source, the claim that psychological support was not allowed by the Ministry of Social Services, etc?

8. Will the Panel study the analysis of its claims with regard to attacks on hospitals, in the light of claims made at the time, and in the context of official ICRC documentation of what was conveyed to government?

9. Will the Panel explain its selective characterization of participants in the conflict, including its description of the LTTE as disciplined, while bribery is attributed to the military as a whole, with positive actions being attributed to individuals?

10. Will the Panel provide sources for the various estimates mentioned in Para 133, as well as all alternative estimates with regard to the given figures? Will it also explain the sentence ‘Depending on the ratio of injuries to deaths, estimated at various times to be 1:2 or 1:3, this could point to a much higher casualty figure’ and how it relates to the figure of 75,000 given immediately afterwards?

11. Will the Panel explain what it means when it uses the word ‘Government’, and in particular its source for various critical commensts such as those in Paras, 131 and 136 and Footnote 77?

12. Has the Panel studied the reports of UN committees which make clear the reluctance of agencies entrusted with funds for the benefit of Sri Lankan displaced citizens to upgrade facilities at Manik Farm despite numerous requests, as well as the manner in which funding was squandered on international personnel who were unable to ensure adherence to national and international standards with regard to sanitation?

2. Sri Lanka has not started any investigation itself into war crime allegations. Do you believe this is a weakness in the Sri Lanka response?

Yes, though I would not use the word war crimes. The President pledged in 2009 to look into accountability issues, and had the LLRC been appointed then, we would have saved ourselves a lot of trouble. As it is, the LLRC produced a report which made it clear that there was no basis for allegations of war crimes in the sense in which the word is now used. But it did say that there was evidence that needed to be looked into with regard to the treatment of surrendees, and we should have investigated that immediately, and with transparency.

3. Has there been an adequate Sri Lankan response to the Channel 4 films, including the ‘Killing Fields’?

No, though recently there has come out a book which is quite comprehensive. It should have come out three years ago, with follow ups whenever a film was shown. There were some good analyses of the technical aspects of the video, including a brilliant dissection by Siri Hewavitharna but none of this was systematically and clearly disseminated. Indeed, until recently, the only formal response was what I had written, which I know the UN Special Rapporteur thought good, but which no official body in Sri Lanka took notice of, except for the Central Bank, which bought some copies for distribution.

It looks like those in authority simply thought the problem would go away if they attacked those responsible for the films, rather than addressing the questions raised.

4. The independence of the panel of experts appointed by the government of Sri Lanka to investigate the authenticity of the Channel 4 videos was questioned as two of the panel worked for the Sri Lanka military. Do you agree that this is a weakness of the Sri Lanka response?

Not at all, since the credibility of expertise depends on its quality, not the background of those advancing it – just as we cannot discredit the Channel 4 films by exposing the motivation of the producers, flawed though it might be, we need to address the purported facts. Of course it would have been better if the presentation were by civilians, with the evidence provided by people like Siri brought to the fore, since it is better not to allow those who attack us to raise issues that will distract from the facts the experts pointed out.

We also failed miserably in not responding formally to the UN Special Rapporteur, as I used to do promptly when I was Secretary to the Ministry of Human Rights. Unfortunately I was stopped by the Ministry of External Affairs letting me down on one occasion for electoral reasons. After that they seem to have hardly responded when the UN wrote, even though the responsibility had passed to them completely after the Ministry of Human Rights was abolished. The responsibility of the Ministry of External Affairs for so many of the problems we now face cannot be underestimated, but when the Minister is protected – even to the extent of being proposed to be Prime Minister - because of his ties with those influential with government, we will continue to suffer.

5. The expert advisory report to the UNSG, the US congress report and thepermanent peoples’ tribunal report were completely rejected by the Sri Lankan government. Do you agree that this was a mistake?

The problem is that they were not rejected, they were ignored. This was a grave mistake. With regard to the first two, though there is no need for government to respond to an unofficial report – though I should note that I used to respond immediately, as head of the Peace Secretariat, when we were under severe threat, and this led to far fewer loose attacks on us.

With regard to the US Congress report, which was very helpfully brought to our attention, it was appalling that nothing was done. The President appointed a committee which seemed never to meet, and when it finally did, it had been overtaken by the LLRC. I would keep telling the Attorney General that we should sit down and answer this swiftly, since we could easily do it on the basis of the information I had at SCOPP, and he agreed, but I suppose he was so busy that we never got down to it. Then, as I mentioned, we acted as though the Darusman report could be ignored, while at the same time we prepared two lengthy reports which were supposed to provide answers, but which did not address the issues clearly.

Also the two reports were prepared separately, with the lack of coordination which is one of our great problems. Responding to the claims that we failed to provide humanitarian assistance was taken on by Mr Basil Rajapaksa, and he had a very good case given all the assistance that had been provided. I was asked to help initially, and we produced I think some clear answers, but then the report was expanded so that everyone could tell their stories, so it became unreadable and failed to make the necessary points clearly.

The Secretary of Defence prepared a narrative of the war which was a good narrative of the achievements of our forces under difficult circumstances, though it should have come out much earlier. I was asked in to help at the end, and I asked why the allegations were not addressed. The response was that this was not what this report was about. When I said that they needed to be addressed, I was told that that task had been entrusted to the Chief of Defence Staff, but it seems it was not treated as an urgency. Nothing official has come out, and instead government seems to think commissioning publications by others will solve the problem, but this is absurd. Government must take clear responsibility for answering allegations, and not rely on reports whose ownership is not clear.

As a result of this neglect by those formally responsible, I asked to be taken around the relevant areas, to respond to the questions about shelling of civilians and attacks on hospitals, and the army assisted my visit. In fact the officer who took me round said he was pleased I had come because he had all the files, but no one else had shown interest in them, and he was sure they would be misplaced after he was transferred, which happened soon enough. I did ask whether no one else had looked at the evidence, and he told me that, soon after Darusman came out, Mr Gomin Dayasiri had been sent, and toured the areas including the hospitals, but he had not produced a report. This is understandable since he was probably one of those who thought we should ignore the allegations, which he may have thought were not especially serious.

I produced a detailed rebuttal then of the main charges in the Darusman report, but as I said no one, except the Governor of the Central Bank, was interested.

6. After the war the Sri Lankan government has sent army high level officers as diplomats. Do you think this could be a problem as they could be questioned regarding war crimes allegations and the country could be adversely affected?

No, I don’t see that as a problem, since there are conditions when we appoint diplomats which countries will not readily violate. The problem is those in the Ministry of External Affairs who spread panic about such matters, as they have done on two occasions, advising General Gallage to flee England when the President was to deliver a speech at Oxford, and then advising Minister Douglas Devananda to flee from Geneva during the 2012 Human Rights Council sessions.

The first incident was disastrous, since it gave the impression that General Gallage was frightened and had something to hide, which was not the case at all. He did not want to leave, but was asked to. I think the adverse publicity then contributed to the cancellation of the Oxford speech, after which it has been downhill for our reputation all the way, even though before then we could hold our heads high.

On the second occasion, fortunately Ambassador Tamara Kunanayakam was able to stop Douglas leaving. That was important, because can you imagine the publicity if he had left and it was announced that a Sri Lankan Minister flees questioning? Tamara however called up the President who said he had authorized Douglas coming back, but only because he had been told Douglas was nervous; whereas Douglas told Tamara he did not want to leave but had been told the President wanted him to.

Typically, Tamara was punished by being sacked, while those who wanted to bring us into disrepute, and had succeeded in London, but failed this time, were kept on to do further damage.

7. Do you believe the lack of democracy in government has helped to increase the pressure with regard to questions on war crimes and human rights violations from international community?

Again the question is not well worded, because Sri Lanka is a democracy and there is no doubt that this government was fairly elected and is the choice of the people. But if you mean that shortcomings as to human rights have helped build up pressure, yes, that is quite correct. Unfortunately, though I believe the basic principles of this government are decent, as is clear from our commitment to the National Human Rights Action Plan, and also the LLRC Action Plan, work on these is slow and not systematic, while individuals who violate basic principles of human rights are able to go scot free. We need to ensure punitive action when there are violations, and also follow up on those plans more consistently. The only way that can be done is through a dedicated Ministry. I think we have a couple of Ministers in other portfolios who would do a good job, but if the President wants to hold onto the responsibilities himself, he could be the Minister. But he would need an excellent Secretary, who can act on his own, such as we have now for Defence and Finance. Fortunately there is one available in our most senior Secretary, the present Vice-Chairman of the LLRC Action Plan Task Force, who really has to do all the work but has no formal authority. Such a step would make clear our commitment to making things better, and also enable us to show that things are not as bad as some people make out.

8. Do you believe that HE the President is concerned about responding to war crime allegations against Sri Lanka?

I think he would have to be, since as President he is responsible for safeguarding the country’s sovereignty and these allegations are a great threat to that sovereignty as well as to our economic stability. I think he is in fact concerned, as was seen first by his prompt publication of the LLRC action plan and his request for an action plan. But the President is often too indulgent to those who let him down, and he did nothing when he found, after nearly six months, that there was no action plan – except to appoint his efficient secretary, who is already overburdened, to draft a plan.

That was swiftly done, and adopted by Cabinet, but then the Task Force to promote action never met, just as the Committee that was supposed to implement the interim recommendations of the LLRC had never met. The President knew about this, but did nothing, and even ignored the fact that efficient people he appointed were not allowed any involvement. He had for instance wanted Civil Society Representatives involved in drafting the Action Plan, but they had been vetoed by one individual, and were then not asked. Sometimes you get the impression that the excellent instincts of the President are deliberately subverted by individuals who believe that they must take their orders not from the President but from their own patrons who will promote their careers.

But the continuing commitment of the President seems clear to me from the fact that, the moment there was a vacancy with regard to implementation, he appointed a very capable person to take over. She had not previously been invited to meetings, doubtless because she is efficient. Since then there has been some movement, even though her hands are tied in some respects, which only a separate Ministry will resolve.

9. Do you accept the LLRC report as a good response to allegations?

Firstly, the LLRC report should not be seen as a response to allegations, since it arose from a commitment made by the President, to look into a number of issues.

Sadly, because it was not appointed until after the Darusman panel had been appointed, we allowed people to get the impression that it was our response. Then, we failed to ensure implementation of the interim recommendations and monitor and report on what was done, so that the Darusman panel report, when it came out, seemed the main catalyst for action. Then, when the LLRC report finally came out, we did not move quickly.

But, while the LLRC deals with a number of issues, all of which are important, we need to pay special attention to its recommendations in this area, of allegations. These include references to some possible abuses, and investigation and publicizing the results of our investigation, and taking punitive action where necessary, would help to overcome the charge that we have allowed impunity to wrongdoers – which in turn contributes to the belief that those wrongdoers were following government policy.

My own view is that those who allow the country and the armed forces to be thus insulted, by not holding our people to high standards of behavior, are wronging the country grievously. I don’t think we have yet understood the damage done to the country by the failure to deal with the killing of the five students in Trincomalee, and indeed the ignoring of the President’s instructions about taking action. I would characterize those that subverted the President’s instructions in these matters as the real traitors to Sri Lanka, not those who believe Sri Lanka should uphold high standards with regard to Human Rights.

10. What is your idea about government implementation of LLRC recommendations?
As mentioned, I think government is being far too slow, and is allowing those who do not mind what damage is done to this country to hold things up.

11. Do you know if government has a plan to respond to war crime allegations?

I don’t think government has any plan at all in this regard. Government sadly does not believe in careful planning, and in monitoring, as can be seen from the abolishing of the Ministry of Policy and Plan Implementation – a big mistake, which sends the wrong message, within the country too, as was the abolishing of the Ministry of Human Rights.

I think some in government hope the problem will go away if we attack the motives of those who are criticizing us. Others with no awareness of history or international relations, or even the capacity to count, think we can win any vote. And of course all those who hold office by grace and favour do not want to damage their standing by admitting that there is a serious problem. Contrariwise, many senior government ministers have told me about their fears, and there is general agreement that the Ministy of External Affairs is not in control of the situation, but there seems no possibility of reform in this regard. I am very pessimistic, and sad because I think the President achieved a great deal in 2009, and our forces by and large fought a fair and just war. They should not be exposed to such insults, and the country should not be endangered.

12. Do you believe the Sri Lankan media does its job well in responding to war crimes allegations when compared with the international media?

Not at all. We seem to think attacking anyone we who is not totally on our side is the way to win support. The treatment of India in the press has been appalling, and interestingly it is two pronged. What I call the Foreign Ministry groupies, who want us to slavishly follow the West, joined in attacking India after the 2012 vote along with the die-hard nationalists who dislike India, and believe that abolishing the 13th amendment is the answer to all our problems, when it will only increase them immensely. Sadly I am reminded of the government press in the mid-eighties, when the assumption was that accepting everything government did, even when it engaged in changes of direction, was the duty of the press. This is compounded by individuals having great influence by claiming they are fulfilling the President’s vision, when they are doing nothing of the sort. And unfortunately even when they act contrary to what the President is trying to do, they are not corrected – as for instance the attacks on Dayan Jayatilleka in the state media even when clearly the President was concerned enough to invite him to participate in official events.

13. According to your view, what are the weaknesses of the government to responses to war crime allegations and human rights violation?

The main difficulty is a lack of responsibility, since everyone weighs in with their views which has made our approach seem totally inconsistent, and confined to responding to criticism rather than dealing with issues. I feel at fault because, when in 2010 I asked what was happening to Human Rights, and I was told it would be handled by the Foreign Ministry, I did not protest. I thought then that the Minister understood about human rights and was concerned about them. I was wrong, but in any case that Ministry was inappropriate, because it gives the impression that such matters are the business of foreign governments , whereas they are our business. If we are to safeguard our sovereignty, we must also safeguard the rights of our people, and for that we need a dedicated agency. I think we will not improve the situation until we have a Ministry, which will also look after Reconciliation.

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