by Palitha Senanayake

The United Nations Human Rights Council at its 57th session adopted a resolution extending the mandate of the Office of the High Commissioner for Human Rights (OHCHR) Project on Sri Lanka Accountability by one year. Babu Ram Pant, Deputy Regional Director for South Asia at Amnesty International, has commented extensively on this resolution.

International perversion

The source of these allegations of human rights violations against Sri Lanka is the controversial report called the ‘Dharusman (UNPOE pr United Nations Panel of Experts.) report,’ which the UN Secretary-General commissioned in 2010 after Sri Lankan forces defeated LTTE terrorism. The Secretary-General justified the commissioning of this report, stating that ‘the report is for his personal knowledge.’ This is a strange move to start with because in the UN, HR violation investigations are commissioned by resolutions of the UN Security Council and never by the UN Secretary-General ‘for his knowledge’ in his personal capacity. However, since the report was published, it received authenticity and UN and international blessings to make a case against Sri Lanka.

This ‘international perversion’, however, does not end there. In its mandate, the report further maintained that its task was to look into the ‘accountability to the International Humanitarian and Human Rights law, on the final stages of the Sri Lankan conflict’. This, again, is twisted advocacy to suit one’s agenda as what logically applies to the situation is only international humanitarian law and certainly not Human Rights law.

Expert Opinion

Confronted by these allegations of the UNSG and his ‘experts’, the Sri Lankan government in 2012 hired a team of independent experts, whose expertise in international conflicts and international law was beyond question. This team comprised

Professor DM Crane
Sir Desmond De Silva QC
Rodney Dixon QC

Professor Michael Newton -Professor of the Practice of law, Vanderbilt University School of Law.

Major General Sir John Holmes DSO OBE MC- UN Under-Secretary for Humanitarian Affairs 2007-2010

These eminent persons had served on various international investigation panels. After studying the issues in detail, they submitted their reports to the government of Sri Lanka. They were all in agreement that the Sri Lankan case should be viewed under International Humanitarian Law and not under International Human Rights law.

The applicability of IHRL and its relevance can be explained as follows. It is an accepted fact that the LTTE was the most organized terrorist unit in the world. This fact signifies that the conflict in Sri Lanka was an armed conflict between two sets of forces, namely the SL security forces and the LTTE.

In such a context, international law, as spelt out by the ICRC statute, is very clear in stating that the law that applies to an armed conflict is international humanitarian law, and not International Human Rights law.

Further, as the above experts on international law have pointed out, “International law provides civilian protection while simultaneously allowing for military objectives to be fulfilled, which is the central goal of International Humanitarian Law (IHL). The death of civilians during a conflict, no matter how grave or regrettable, does not in itself constitute a war crime. In particular, the three principals

1. Distinction

2. Military necessity and

3. Proportionality

should guide the legality of action under IHL.

Distinction means that no civilians should be targeted intentionally, Military necessity means that targeting of the particular object should be necessary for the advancement of the troops, and Proportionality is that, the collateral damage (civilian and property) should be justifiable to the military advantage anticipated to be achieved’ – Sir Desmond de Silva QC Page 23.

Therefore, if Sri Lankan forces are to be made guilty of war crimes, charges may have to be brought either on the grounds of intentionally targeting civilians, attacking with no military necessity or for disproportionate killings, over and above the military advantage.

Tendentious allegation

In addition to the above, the Darusman report, makes another tendentious allegation against the Sri Lankan forces. It says in paragraph 137:

137. In the limited surveys that have been carried out in the aftermath of the conflict, the percentage of people reporting dead relatives is high. The number of credible sources has estimated that there could have been as many as 40,000 civilian deaths. Two years after the end of the war, there is still no reliable figure for civilian deaths, but multiple sources of information indicate that a range of up to 40,000 civilian deaths cannot be ruled out at this stage. Only a proper investigation can lead to the identification of all of the victims and the formulation of an accurate figure for the total number of civilian deaths.

Now, this is the figure that is widely quoted to discredit Sri Lanka’s armed forces. Further a figure of 40,000 appears somewhat ‘disproportionate’ in a conflict of this nature and therefore it can be used to make the Sri Lankan forces out to be guilty under international law although the claims made by the UNPOE have not been substantiated.

The Darusman report contradicts the number of ‘dead persons during the conflict’ furnished by the UN country team stationed in the conflict zone for that specific purpose. The US State Department report says the number of deaths is 6,710 from January 2009 to April 2009. The UN’s Country team report prepared by Gordon Weise, the country team leader, states that the figure of casualties is 7,714 from January 2nd to 13th May 2009. The two reports have a basis on daily counts, and they were prepared on the current basis while the conflict was raging, whereas this Darusman report, having come after two years since the end of the battle, presents a figure of 40,000 casualties without a basis or naming a source for the same.

Here is how the Panel justifies its reasons for questioning the first COG (UN Country team) figure:

135.

The number calculated by the United Nations Country Team provides a starting point but is likely to be too low for several reasons. First, it only accounts for the casualties that were observed by the networks of observers who were operational in LTTE-controlled areas. Many victims may not have been observed at all. Second, after the United Nations stopped counting on May 13th, the number of civilian casualties likely proliferated. Due to the intensity of the shelling, many civilians were left where they died and were never registered, brought to a hospital, or even buried. This means that, in reality, the total number could easily be several times that of the United Nations figures.

The country team was stationed in the war zone to prevent and record violations of the international laws of conflict, and the most crucial part of that operation was recording the number of dead in the fighting. The members of this panel, before casting aspersions on the quality of the information found on the Country-Team report, should do well to re-examine the authenticity of their own information sources because their sources, such as the Tamil Diaspora and the ‘Peace’ NGOs, could be highly partisan since they have lost their relevance (and also contributions) since this conflict came to an end.

Lord Naseby

On 01 November 2017, Lord Naseby, a member of the British House of Lords, moved a resolution in the British Parliament to the effect that the number of civilians killed in the final stage of the Sri Lankan conflict was around 7,000 and not 40,000. Accordingly, he suggested to the Parliament that Britain should change its perspective towards the Sri Lankan issue at the UN Human Rights Commission.

Even though Lord Naseby’s assertion is based on the reports of the Defense Attaché of the British Embassy in Colombo at the time of the war, it needs loads of optimism to expect that the British Government will accept these statistics and change its official position towards Sri Lanka at international forums, especially at the UN Human Rights Council where they have co-sponsored the US resolution against Sri Lanka.

Lord Naseby, subsequently airing his views to Mandy Clerk of the British media, stated, “I went into the civilian factor of this war because the figures I had did not add up to the official figures. So, I applied under the freedom of information, requesting the reports of the Defense Attaché of our embassy in Colombo at the time of the war. I received 26 reports, but that did not include the final few days of the war situation. So, I made another appeal, and there I received a further 12 reports. These reports had enough evidence to prove that nobody in the Sri Lankan government ordered to kill people and that was not the intention. The reports said that the casualty figure is around 7,200 civilians and the report further mentioned that a quarter of those casualties could be the LTTE cadres because they did not wear a uniform towards the last stages of the conflict. Then I went to the University Teachers of Jaffna, which is a professional organization of Tamil University teachers, and they said, ‘ it is about 7000’.

Verified Official Statistics

The Department of Census and Statistics performs its customary population survey for the whole of Sri Lanka every 10 years, but due to the LTTE activity, it has not been able to collect data in the North and East since the 1981 survey. Thus, during these years, the officers of respective kachcheries have been issuing population estimates when required for official purposes. However, since the conflict ended in 2009, and given the conflicting claims made by interested parties, including the Catholic Church, the Department commenced an exclusive survey for the northern province in June 2011. This survey was specially designed to ascertain, with verification, the number of people living as well as those who have died, especially during 2009 so that death certificates could be issued on account of them to their next of kin.

This survey was spearheaded by the following officers for each of the regions as follows,

Jaffna – S Udayakumaran (Head of the District Statistics office)

Mannar – M. Vithiyananthaneshan (Head of the District Statistics offic)

Kilinochchi – K.Velupillai (Head of the District Statistics office)

Vavuniya – M. Thyagalingam (Head of the District Statistics office)

Mullaitivu – N. Gangatharan (Head of the District Statistics office)

Following are the results of this survey

Thus, the above schedule gives the death toll as 8,998 during the period, including 1,067 who died due to old age/sickness, and the numbers are enumerated on the house-to-house survey regarding the cause of death. Death certificates were issued to all persons in this schedule and even those that did not explain their cause of death and stated as ‘not stated.’ People do not disclose the cause of death for various reasons, and most of such undisclosed deaths fall into the category ‘other’, meaning deaths due to terrorism. Therefore, it is possible that the number of deaths due to conflict situation was 7,442 (6,858+ 584).

Now, these death counts are reported of persons who were born and lived in the five districts where the conflict raged and also in the districts from where the LTTE used human shields. Therefore, when the Darusman report claims 40,000 deaths, such additional deaths have to be of people who were not born or did not live in these districts.

In modern times, dominant nations do not have to use weapons to subjugate others. They could just as well ‘Weaponize human rights’ to achieve the same end. That way, they could wear the cloak as the “Champions of Human rights,” hiding their authentic characters as killers, decimators and dominators.

Cass has always maintained that if you want a job done well give it to a woman. Of course, there will be exceptions but generally that maxim holds. Eleanor Roosevelt, a power in her own right, said; “A woman is like a tea bag – you can’t tell how strong she is until you put her in hot water.”

Women are generally incorruptible and can resist the temptation of flesh and spirit. How many men down the corridors of history have fallen from their pedestals – King Solomon and the Hebrew man of great strength Samson of Biblical times and thereafter – to the charms (or wiles) of female temptresses. How many famous women holding positions of kingship or governance have sacrificed their positions for the attraction of a man? None at all, Cass believes. All down the ages, men have taken bribes; in contrast to so few women. Corruption of the spirit? Comes to mind a meteoric Christian preacher and self-appointed Prophet, now claiming to be consecrated a Bishop. Plenty of such publicity seeking Buddhist monks are also around. They claim having attained higher states on the Path to Nibbana, or worse, pronounce persons following their teaching and meditation as now Sovan, their samsaric cycle reduced to a mere seven rebirths. Corruption of the spirit in lay persons can be causing aberration of the mind.

Second female Chief Justice

Sri Lankan women are proud that the 48th Chief Justice of the country is a woman, the second after Dr Shirani Bandaranayake whose very elevation to the position during the time of G L Peiris being Minister of Justice was critiqued. She suffered a short stormy career which was most rudely terminated by Prez Mahinda Rajapaksa. We recall the insults she was subjected to by some MPs who were delegated to question her and the manner of her ejection from the official residence.

Here is a Head of the Judiciary who possesses qualifications, has risen correctly, meaning through meritocracy to the position, and is accepted. This last fact was proven in the ceremonial welcome she received, which the media detailed.

In acknowledging her reception, Chief Justice Murdu Fernando said; “I am indeed honoured and privileged to serve … and I pledge my unwavering commitment to uphold the integrity, independence and dignity of our judiciary as an independent and impartial arbiter of justice.” We believe her and Cass more so, because she is a woman who promises thus.

CJ Fernando continued thus: “I also recognise the significance of this achievement to all women of the legal profession and those aspiring …. any other chosen field… This milestone is not just for me, but for all those who have fought for equality,…to break down barriers, the glass ceiling and who have believed in the power of perseverance… Justice is not a mere ideal; it is a living, breathing force that impacts families, communities and nations. It is our duty to ensure that the rule of law is applied fairly and impartially, without fear or favour and that every individual who enters this hallowed institution, regardless of their background, finds a system that listens, understands, and seeks to protect their rights.”

BRAVO! A whole lot said simply but sincerely and giving us Ordinaries hope for the future, which promises to be so different from how it has been these past decades.

Champion of animals

We ordinaries usually cheer those who fight for or even protest the rights of animals. But Cass feels that those who shout out now for the rights of marauding animals are way out. In this category is another woman who has been making a mark – this time a black mark – by organising roadside protests and speaking out for the right of animals to live and roam around freely: monkeys of all kinds, wild pigs and other animals who destroy crops from paddy to fruit, particularly banana and papaw; sugar cane to vegetables. She is Dr. Ajantha Perera. Who is of greater importance to the world at large – human beings or animals? Who calls for precedence when safety and life itself are at stake? Humans of course. In this instance the animals destroy the plantation of farmers, small holders et al and thus are a positive menace. They impoverish those engaged in agriculture and cause immense frustration and misery. You nurture a clump of fruit trees or a vegetable plot with your life’s toil and then one morning you rise to see it all destroyed. These animals are wantonly destructive. So who needs help and saving?  The farmers of course!

Cass asked an experienced ex Sri Lankan civil servant who worked with rural people what he thought of the Minister of Agriculture’s pronouncement in Parliament that farmers could use any method to get rid of marauding animals. He said the minister was correct. Cassandra’s gut feeling is the same: the problem of crop destruction by animals being so severe. A good sign: sterilisation of monkeys has begun. Better late than never.

Please note that Cass has not included elephants as marauding animals. There the blame is shared by intruding human beings. That conflict is very different from the monkey, porcupine, pig incursion of agricultural lands.

Another quirk of ours?

Earlier in this Cry, oops sorry, Song of Celebration, Cass expressed hope in the turn we think the country has been taken on after the new government came to power. But due to the Speaker, now resigned, a slur has been cast, a stain impressed. He seems to have used and exhibited the highest academic qualification fraudulently, or a PhD he acquired from an institution that cannot award doctorates that are recognised and accepted by global academia. Some claimed that it was a minor matter. Not at all. In a dispensation claiming to be honest and against all forms of corruption, one of the highest being deceptive about his academic qualifications is dishonest and equal to corruption.

We have had many Drs of Phil sprouting up recently, Cass thinks after Viyathmaga professors gathered around Prez hopeful, Gotabaya R. They could all be thus: having been conferred doctorates but the conferring universities may not be recognised nor even be universities proper. One knows degrees can be bought in the US. We recall how Mervyn Silva from Kelaniya used the prefix Dr claiming it was a doctorate. Was it in alternate medicine and from a sort of university set up an acupuncture specialist?

Cass’s point here is that claiming or exhibiting academic qualifications is a new quirk in our collective psyche. There are great men who have refused honours they did not mentally work for. Many professionals of high calibre are conferred doctorates by well recognised universities but do not use the prefix.  We hope this near manic yen for high academic qualifications of Prof and Dr will die down.

Stupendous waste of funds

Wednesday December 18 headline in The Island: “Govt. intends to save Rs 1,200 mn by reducing ex-Presidents’ security.” Why only intend? Should have been done long ago. What threat is there for any of them, the widow included? Cass says, and it makes sense, will anyone expend even that much energy to throw a stone at any of them? They must travel unescorted or not travel at all. They live in fortressed mansions, also provided by us the heavily burdened taxpayers. Didn’t any of them realise that the money spent so uselessly on their security could have fed so many families who are now suffering near starvation.

Then the other scandal that came to light in Parliament on Tuesday December 17. The millions taken for personal use by those in power from the President’s Fund. Even minding her own business Cass roiled with anger to know Rambukwella’s balcony walk for whatever purpose cost us poor Sri Lankans millions for his long Australian hospital stay. Thank goodness all this will end.

Let’s conclude this song of today on another celebratory note. We were proud to see Prez Disanayake in India given a warm welcome. He carried himself perfectly: proud but with no hauteur; indicated or gave the impression we are a small poor country but with national pride. Gratitude to India was expressed.  Thank you, Mr President.

Looking at foreign policy questions from a feminist viewpoint may strike many in even the world of democracy as quite a new approach to studying external policy issues but this perspective has been around for quite some time and it would be in the interest of states and publics to take profound cognizance of it. This is in view of the implications of the perspective for international peace and stability.

Given this backdrop, it was in the fitness of things for the Bandaranaike Centre for International Studies (BCIS) Colombo, a major pioneer in the teaching and researching of International Relations in Sri Lanka, to set off special time to introduce and discuss Feminist Foreign Policy (FFP) recently. The relevant symposium was the final one in a series of forums of importance to foreign and domestic policy issues the BCIS conducted in the course of November this year to celebrate the 50th anniversary of its founding.

Titled ‘Leadership for Peace and Feminist Foreign Policy’, the forum was held on December 9th at the BMICH’s ‘Mihilaka Madura’ under the aegis of the BCIS, headed by the latter’s Executive Director Priyanthi Fernando. Prominent among the members of the audience at the symposium was the Chairperson of the BCIS, former President Chandrika Bandaranaike Kumaratunga.

The panelists at the forum were Prof. Rangita de Silva de Alwis, Associate Dean of International Affairs, University of Pennsylvania Law School, USA and an Expert Member on the CEDAW and Eva Abdullah, Chairperson, Maldives Policy Think Tank and a former Deputy Speaker of the People’s Majlis of the Maldives. The symposium was moderated by Dr. Radhika Coomaraswamy, former UN Under-Secretary General and Special Representative of the Secretary General on Children and Armed Conflict (2006-2012).

Prof. Rangita de Silva, among other things, pointed to the importance of re-imagining FFP and making it increasingly relevant in the formulation of a country’s foreign policy. She said that going forward, foreign policy will need to be increasingly based on a feminist perspective and there are some major countries of the South and North that have already given their external policies this orientation. It was pointed out that by 2025, France, for example, would be taking this policy direction; that is, the best interests of France’s women would be taken into consideration in the formulation and implementation of foreign policy.

Chile, the same speaker pointed out, a major country of the South, is in the forefront of integrating or merging its domestic and foreign policies with a view to prioritizing the legitimate interests of women in the crafting of its external policy.

Eva Abdullah pointed to the crucial contribution women make to a country’s economy. Women in the Maldives, she said, work 19 hours a day. She cogently elaborated that economic instability is a chief causative factor in the disruption of peace and stability in a country, in view of its subtle capability to undermine a country’s material wellbeing. The latter, in turn, causes social disaffection and unrest. But, generally, the factors seen as undermining a country’s peace are physical conflict and war; that is, overt violence.

However, it is important to come to grips with the less visible or more subtle destroyer of peace, which is economic instability. This form of instability, it was pointed out, has grave long term consequences. For instance, a country’s economic ruin is virtually inherited by every new born infant, since a country in debt is obliged to repay such loans and it falls to future generations to do so.

Abdullah went on to elaborate that economic austerity measures undertaken by a country in debt, for example, while disruptive of peace, exert a deleterious impact on particularly women and other vulnerable groups. After all, the contribution of women to the GDP of a country is inestimable. This is all the reason why women’s issues need to be brought to the forefront of foreign policymaking.

In other words, foreign policy, Abdullah pointed out, is essentially all about the promotion of human rights. Since such rights are insidiously undermined during times of economic austerity; debt issues, which come to the fore during economic crises in particularly the South, cannot be viewed in isolation from women’s issues and external policy.

Thus, the forum raised issues of crucial importance to foreign policy formulation which countries of the South in particular need to take into account very seriously, going forward. At the end of the symposium a Q&A followed where many an issue of relevance was taken up for discussion.

It ought to be clear to the unbiased observer and commentator that a feminist perspective in foreign policy is of crucial significance to the process referred to as democratic development. The latter signifies growth in tandem with redistributive justice. It goes without saying that foreign and domestic policies that do not help in furthering these aims serve no useful purpose. Thus, a feminist foreign policy and its underlying principles cannot be glossed over or ignored in the process of external policy formulation and implementation.

Generally, a woman’s contribution to a country’s GNP and overall wellbeing goes largely undocumented and unappreciated. For example, women work selflessly and silently in their homestead, but no official price tag is attached to such labour which is instrumental in ‘keeping the home fires burning’. Accordingly, the panelists’ observation that foreign policy in the real and feminist sense is essentially all about the promotion of human rights amounts to an insight of great worth.