In June 2010, UN Secretary General Ban Ki Moon appointed a panel to investigate and and advise him on the possibility of large scale human rights violations in the closing stages of the war in Sri Lanka, primarily in the first quarter of 2009. This was done close on the heels of the UN Human Rights Council’s rejection of a call by advocacy groups for a full-scale international investigation. Ban appointed his Special Rights Investigator to North Korea, Marzuki Darusman, as the panel’s chair and, in April 2011, the panel released its report. This report has been variously viewed by the different parties. At one end of the spectrum it is seen as totally biased and unfair by the government of Sri Lanka, and at the other end as proof of genocide by the Tamil nationalists. Somewhere in the middle, most balanced observers have seen it as a scathing indictment against both the victorious Sri Lankan military and the defeated Liberation Tigers of Tamil Eelam (LTTE). Certain international advocacy groups such as Amnesty International, the International Crisis Group, and Human Rights Watch, then immediately mounted a media campaign accusing the GoSL of war crimes, and one particularly contentious issue is that in this campaign, the panel’s use of the phrase “credible allegation” has been replaced by that of “credible evidence”, giving the impression that the panel has evidence of war crimes committed by the GoSL. The recently aired Channel 4 documentary, Sri Lanka’s Killing Fields, opens with this lie.
In reality, the panel uses the phrase only twice; in the positive, saying that it had credible evidence that superiors in the Sri Lankan chain of command were responsible for any violations committed by their subordinates; and in the negative, claiming to have no credible evidence of the LTTE’s use of human shields. Everywhere else, the term used is that of credible allegations. At no point does the Darusman Report reveal what evidence it examined, which portions were deemed credible, and which portions were rejected. Nor does it explain how an allegation was deemed credible, and whether this credibility was based on actual evidence, eyewitness testimony, or both. In spite of this, legal minds contend that credible evidence is necessary for an allegation to be termed credible, though it is unclear as to how the Darusman panel adjudged credibility.
Let’s take the statement by the panel that they cannot find credible evidence of the Tigers using civilians as human shields. This is what the report says:
“…With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study).”
Rule 97 of the Customary International Humanitarian Law, as set out by the ICRC, prohibits the use of human shields, and is based on a number of customary practices, international conventions, military manuals, and state laws which are cited in support of Rule 97.
Now, given that in addition to eyewitness testimonies to the fact, there exists video footage shot by unmanned aerial vehicles (UAVs) of the Sri Lanka Air Force which clearly show violations of Rule 97, the Darusman report seems to fly in the face of the actual evidence. Continue reading
Out in the Wilderness — Dayan Jayatilleka on Pleading the 13th, Being a Hippy, and Getting Sacked by Boggles
Sri Lanka’s soon-to-be-ex-Permanent Representative to the United Nations in Geneva took time off from his busy schedule of sipping martinis, getting up the Americans’ noses, and fighting on the Western Front, to have a little chat with us. This is his first interview since the Foreign Ministry announced that he has been recalled from Geneva, effective August 20th.
David Blacker: First off, there seem too be two opinions on your sacking. One, that you were too pushy about the 13th Amendment. Two, that you pissed off the Israelis. Which is it?
Dayan Jayatilleka: It could be either, both or neither. The editorials in The Island and the Daily Mirror on July 20th, indicate that it could have a personal aspect. Let’s unpack the other opinions. If I were ‘pushy’ about the 13th amendment I was only pushing a line that was the official stance of the government of Sri Lanka as contained in two post-war joint statements, of May 21st and 23rd. I was doing so in the English language, trying to convince the international community and the Tamil Diaspora of the sincerity of the Government’s commitment to devolution and a political solution, in a context where there was and is a powerful campaign calling for international intervention of one or other sort on the grounds that the Government will not implement such reforms. I was also waging an ideological struggle against those hard-line fringe elements who were opposed to the 13th amendment and playing into the hands of Sri Lanka’s enemies. I was not instructed to do otherwise.
As for the charge that I should not write to the papers or express my views in the media, I have always done so with the disclaimer that these are strictly my personal views. There are other diplomats who have done the same. The controversial articles in the New York Times and the International Herald Tribune, by Dimitri Rogozin, Russia’s serving ambassador to NATO in Brussels, and a political appointee, not a professional diplomat. The respected diplomat, Kishore Mahbubani of Singapore was a star speaker in New York’s seminar circuit where he would preface his remarks by saying ‘these are not the views of the permanent representative of Singapore but simply of Mahbubani’. In our own diplomatic history, there is the example of Ambassador Ernest Corea, the former editor of the Daily News who was posted by President Jayawardene to Washington DC, precisely so he could use his journalistic skills.
The Israeli story is old hat. That issue came and went, and I was sent a letter signed by the Secretary to the Foreign Ministry which said that H.E. the President wished me to stay on in my post until May 31st 2010. Furthermore, after I received instructions, I have stayed off the Israeli issue. Therefore, that is probably just an excuse.
DB: For months, there have been ominous warnings of your head being on the block — particularly over the Israeli issue, but these seemed to come to nothing, and you say you were personally assured of your position by The Man himself. So is this sacking in deed a personal vendetta by the Foreign Minister? The Island suggests he feels upstaged by you. What do you have to say about that?
Dayan Jayatilleka: What I have is a letter dated March 26th, signed by the Secretary to the Ministry of Foreign Affairs which says that H.E. the President has decided that I should stay on until May 2010. This was after the initial controversy involving Israel. Even if some one had a personal vendetta against me, I am not naive enough to think that this sort of decision, in the wake of an earlier unsuccessful effort to remove me and in the aftermath of the successful Special Session of the Human Rights Council, would have been implemented without some semblance of a green light, however fleeting and flickering, from the top political leadership. So it was probably a confluence of factors.
DB: Many people feel you’d make a better Foreign Minister than Rohitha Bogollagama, and he knows it. Do you agree?
Dayan Jayatilleka: Is that meant to be some kind of a compliment? Continue reading