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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2909

OHCHR Report And The Hybrid Special Court

By Lt Col (Retd.) Anil Amarasekera

United States of America presented resolution 25/2 to the UNHRC and it was adopted by a majority vote. This resolution gave a mandate for the OHCHR to monitor the human rights situation in Sri Lanka and to continue to assess progress on relevant national processes and also to undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission with assistance from relevant experts and special procedures mandate holders and to present a comprehensive report at the twenty-eighth sessions.

However after Sri Lanka elected a new government in January 2015 the UNHRC at its 29th sessions accepted a recommendation put forward by Prince Zeid Ra’ad al Hussein the United Nations High Commissioner for Human Rights to defer the consideration of the report until the 30th sessions. Accordingly the OHCHR report that has been released for the 30th sessions recommends among other things the establishment of a hybrid special court to try war crimes and crimes against humanity allegedly committed by both parties to the conflict.

It is noteworthy to remember that the government of Sri Lanka categorically and unreservedly rejected resolution 25/1 and refused to cooperate with the OHCHR investigation or to admit a foreign investigation team to the country because it is imperative that any such investigation should be undertaken by the judicial system within the country to protect and preserve its sovereignty for posterity. Sri Lanka is a Free, Sovereign, Independent and Democratic Socialist Republic that is a Unitary State in which the sovereignty that includes the powers of government, fundamental rights and franchise is in the People and is inalienable. Therefore can the government of Sri Lanka ever agree to establish a hybrid special court as suggested in the OHCHR report where foreign judges, lawyers and prosecutors caste judgment on our citizen that include our former elected leaders who gave the necessary political leadership to the security forces and our soldiers who defeated LTTE terrorism and separatism to usher in peace and tranquility to our nation after nearly three decades.

The OHCHR report has been compiled possibly taking into consideration many false allegations made by the Darusman panel that was appointed by the Secretary General of the UN for his guidance. It should not have been officially or unofficially released to the High commissioner of UNHRC.

The evidence collected or the witnesses who gave evidence to the Darusman panel have not been made public for the purpose of verification. The OHCHR is also funded by volunteer contributions from Western states and not by the regular budget of the UN.

Nearly half the official cadre of OHCHR consists of westerners. Though resolutions were passed with overwhelming majorities at sessions of the UNHRC calling for equitable regional distribution in staffing at the OHCHR this has not been implemented.

Therefore given the composition of the staffing at the OHCHR it is difficult if not impossible to expect an impartial inquiry from them. When the 25/2 resolution was taken up for debate the Pakistani Ambassador to the UNHRC HE Zamir Akram wanted to know how this investigation was to be funded and pointed out that if the donors providing the funding were the sponsors of the resolution the whole process would be seen as stained. He also said “No self-respecting country would agree to the intrusive measured advocated in this resolution.” The Indian Ambassador to the UNHRC Dilip Sinha warned that “an intrusive approach that undermines national sovereignty is counterproductive and what was needed is a constructive approach for dialog and cooperation.” Both Pakistan and India voted against the resolution.

The advanced unedited version of the OHCHR report released on 11th of September 2015 vivifies and tarnishes the image of Sri Lanka and its security forces, probably in line with the requirements of America and its western allies to destabilize the country.

This report in most of its findings suggests that the allegations found therein if established before a court of law may amount depending on the circumstances, to war crimes and /or crimes against humanity. It is to obtain convictions based on these allegations in OHCHR report that an effort is now being made to establish a special hybrid court in the form of an international war crimes tribunal.

However neither the OHCHR nor the UNHRC have the authority to setup an international war crimes tribunal. Only the UN Security Council has this authority but with the veto power exercised by Russia and China it will not be possible to set up such a tribunal for Sri Lanka. Sri Lanka cannot also be taken before the International Criminal Court (ICC) because this country is not a signatory to the Rome Statute under which the ICC functions.

The only other way for the American super power to achieve their objective is to obtain the willing corporation of the present government in Sri Lanka to work with the UN to set up a hybrid war crimes tribunal. It is sincerely hoped that the government of Sri Lanka does not get caught to this trap.

The allegations made in the OHCHR report can be very effectively neutralized if the Sri Lanka government tables Paranagama Commission report at the ongoing Geneva sessions of the UNHRC. The Paranagama Commission report contains legal opinion with regard to international humanitarian law, international human rights law, customary international law and the laws of armed conflict that were submitted to it by leading internationally renowned legal and military experts like Sir Desmond De Silva QC, Sir Geoffrey Nice QC, Professor David Orane and Major General John Holmes the former commander of the SAS. Without releasing the Paranagama Commission report with these submissions at the UNHCR sessions to present same to the parliament after the UNHCR sessions are over would amount to closing the door of the stables after the horse has bolted. Is the minister of external affairs Mangala Samaraweera who wanted a very well prepared Sinhala Commission report thrown into the dustbin of history continuing with the same attitude with regard to the Paranagama Commission report?

The attitude of America that brought forward resolution 25/2 against Sri Lanka was well explained in 2005 by the US ambassador to the United Nation John R. Bolton who said “There is no such thing as the United Nations. There is an international community that occasionally can be led by the only real power left in the world and that is the United States when it suits our interest we can get others to go along.”

In a book titled ‘Rogue State’ written by William Blum, he explains in detail the assassinations, bombings, chemical and biological warfare, overthrows of governments, invasions, interference in elections and so on in which America has been involved since the end of the Second World War.

With regard to interference in elections there is a school of thought that America was actively involved in an effort for a regime change in this country too during the presidential election and the general election. With such a track record will America sponsor a resolution favorable to Sri Lanka at the ongoing UNHRC sessions?

The report prepared by OHCHR fails to recognize the fact that the war against LTTE terrorism and separatism was conducted by the security forces in Sri Lanka with utmost care always giving maximum possible protection to civilians. There was in fact zero tolerance on civilian casualties. Unlike the US forces that dropped two atom bombs in Japan, used Agent Orange in Vietnam, depleted uranium during the gulf war, cluster bombs in Libya and drones in Afghanistan with absolutely no regard for the death and destruction that was caused to the civilian population, the security forces in Sri Lanka used heavy weaponry only when absolutely necessary to neutralize enemy artillery fire.

During any war some collateral damage is inevitable. However what needs to be ascertained is whether such collateral damage was intentional or unintentional. While it is evident that much of the collateral damage caused by the US forces was intentional it can be proven sans any reasonable doubt that the collateral damage caused by the security forces in Sri Lanka was totally unintentional and resulted due to the LTTE retaining the civilian population as a human shield without allowing them to escape to conflict free areas under government control. There is adequate proof that the LTTE even shot and killed civilians who tried to escape into government controlled areas. The OHCHR report fails to take into consideration these very important facts.

The OHCHR report also fails to give due credit to the government of Sri Lanka for providing not only food supplies but even medical facilities, education facilities and local government administrative facilities to the people living in the LTTE controlled area. All these facilities were available to members of the LTTE and their sympathizers who made use of them and continued to wage war against the government of Sri Lanka. This may perhaps be the one and only war in world history where the army of a country allowed all such facilities to be extended to their enemy. Therefore any impartial report dealing with the war against LTTE terrorism in Sri Lanka should have come to the conclusion that this was indeed the most humanitarian war ever fought in the history world warfare.

It is only the people who lived in Sri Lanka for the past three decades that are aware of the death and destruction caused by the LTTE. The LTTE was identified as “probably the most sophisticated terrorist organization in the world” by Dr. Magnus Ranstorp the terrorist expert and Chief Scientist at the centre for Asymmetric Threat Studies in the Swedish National Defence College and described by some others as the world’s most ruthless terrorist organization. As the OHCHR report only considers the situation that prevailed during the last stages of the Eelam war it is very badly flawed.

Therefore the establishment of a hybrid special court as suggested in the OHCHR report must be opposed by both the government and the people of Sri Lanka because no foreign lawyer, prosecutor or judge who has not lived in this country through three decades of LTTE terror can be aware of the ground realities to be considered competent enough to prosecute or pass judgment on citizens of this country be they political leaders or members of the security forces.

- Asian Tribune -

OHCHR Report And The Hybrid Special  Court
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