By

C.A.Chandraprema

The Presidential Commission to Inquire into Complaints of Missing Persons was set up by President Mahinda Rajapaksa on 15 August 2013 under the chairmanship of retired High Court Judge Maxwell Paranagama. In the one and a half years that it functioned under the Rajapaksas, this was just another commission of inquiry like the many that had preceded it. Indeed one could even say that this was even more low profile and less controversial than most of the commissions that preceded it. But after the change of regime in January 2015, this placid and relatively obscure existence was rudely shattered. Controversy first erupted not with regard to the Commission itself but in relation to the group of eminent foreign advisors, advising it on the law of armed conflict. Pro-yahapalana activists demanded the sacking of Sir Desmond de Silva the head of that advisory panel.

It ended with the Report on Sri Lanka published by the UN Office of the High Commissioner on Human Rights (OHCHR) recommending that this commission be dissolved and the cases before it transferred to a more ‘credible’ body. In his speech to the UN Human Rights Council on 30 September 2015, the UN Human Rights Commissioner himself demanded that this Commission on Disappearances be dissolved. This was one of the few points that Zeid Al Hussein placed special emphasis on in his speech. It was not perhaps the work of the Commission itself that got the goat of the local Western funded NGO sector and the OHCHR but the work of its advisory council headed by Sir Desmond de Silva QC.

This advisory council at various times had eminent experts in the law of armed conflict such as De Silva who has prosecuted Charles Taylor of Liberia for war crimes, Sir Geoffrey Nice QC who has participated in the prosecution of Slobodan Milosevic of Yugoslavia, Professor David Crane, who also played a role in the Charles Taylor Trial, Rodney Dixon who has represented deposed Egyptian President Mohamed Morsi, Paul Newton who was involved in preparing the ‘Elements of Crimes’ document of the International Criminal Court and Major General John Holmes the former head of the British SAS who has been involved in planning military operations in Kosovo. The advisory panel to the Maxwell Paranagama Commission was a veritable who’s who of the international war crimes scene.

What was even more significant was that all the written legal opinions submitted by these international experts were all in Sri Lanka’s favour and took the bottom out of the case that the Western powers, the Tamil separatist lobby and the Western funded NGOs in Sri Lanka and the largely Western funded OHCHR was trying to build against Sri Lanka. Obtaining the expert opinion of these legal luminaries and the military opinion of Maj Gen Holmes was a master stroke on the part of the Rajapaksa government. It was also a providential thing that The Island got hold of these opinions and published them in full on the internet edition so that they have by now gone around the world and cannot be suppressed.

The campaign against the advisory panel of the Maxwell Paranagama Commission began within weeks of the change of government back in February this year. It first started off with newspaper and website articles questioning Sir Desmond de Silva’s professional integrity by alleging that he had supplied a legal opinion favourable to the Sri Lankan state before he was appointed to advise the Maxwell Paranagama Commission. Then in March TNA parliamentarian M. Sumanthiran launched a blistering attack in parliament against both Sir Desmond for having given this so called ‘prior opinion’ to the Sri Lankan government and on the Paranagama Commission itself for being selective in the witnesses it has been summoning in the course of its inquiries. Sumanthiran demanded that the government of President Maithripala Sirisena should immediately rescind the appointment of De Silva in the name of good governance.

NGOs baying for blood

This was then followed by several newspaper and website articles about how much Sir Desmond and the other experts advising the Paranagama Commission were getting paid. At one point Sir Desmond gave a statement to Ceylon Today saying that there was a carefully orchestrated NGO campaign against him and indeed that was what it was. A highpoint in this campaign against Sir Desmond was reached in August this year when no less than 38 NGOs wrote to President Maithripala Sirisena demanding that he be sacked from his advisory position. The legal opinions given by these international experts were so damaging to the war crimes project against Sri Lanka, that the OHCHR ended up recommending that the Paranagama Commission be abolished altogether (so that any report it puts out will have no validity).

The pressure tactics worked. The legal opinions of Sir Desmond De Silva, Sir Geoffrey Nice, David Crane, Michael Newton and Rodney Dixion have not been included as annexures to the Paranagama report. Only the Military assessment by Major General John Holmes has been included. Dayan Jayatilleke said that if this 30 page assessment by Maj Gen Holmes had been tabled before the UNHRC, that alone could have turned things in our favour. Had all the legal opinions of these experts been published as annexures to the Paranagama report that would have been the equivalent of a legal nuclear weapon against the enemies of Sri Lanka. In reading the Paranagama report proper, it becomes clear that this Commission which has been under tremendous pressure locally as well as from overseas has caved into that pressure and ‘tweaked’ the findings so as to please the powers that be. Given the situation faced by former Chief Justice Mohan Peiris and the Bribery Commission Chairman Jagath Balapatabendi, that the Paranagama commission appears to have caved in comes as no surprise. There are in fact things in this report that both the pro-Rajapaksa camp and the yahapalana camp can use.

The Rajapaksa camp can be happy about certain things said in the report. For example pages 11 to 12 deals with the Darusman report which was one of the most important tools used by the Western powers against Sri Lanka. The Paranagama commission report demolishes the contentions in the Darusman report. It dismissed the most explosive allegation in the Darusman report which was that over 40,000 civilians may have perished in the final offensive. This was dismissed in the following words.

“…the Darusman Report appears to have used the standard that is recognized under international law to be at the lowest end of the calibration of proof of allegations. Even at this end, however, clear and demonstrable evidence (which is open to examination) to support the allegations relied upon is required. In this connection the Commission notes that much of the evidence and information on which the Darusman Report’s findings are based is un-sourced, whether in the main body of the Report or in the footnotes and the annexes.”

That kind of criticism of the Darusman report will of course work to the favour of the Rajapaksa camp. But because of the need to balance competing interests, the Paranagama report tends to go in one direction and then double back so that both ends are covered! On page 27 the report states:

“In the final analysis the Commission is satisfied that the large percentage of the LTTE cadres were killed and the vast majority of the civilians, who had been held hostage, were saved. This Commission is satisfied that these numbers speak volumes. With some 290,000 civilians saved, far from showing any intention on the part of the SLA to target civilians, it shows the precise reverse.”

Then on page 160 the Paranagama report states:

“The main allegation against the SLA is that the principal cause of civilian deaths was the result of indiscriminate shelling. While there are such allegations each must be examined on a case-by-case basis on account of the LTTE tactic of placing artillery close to civilians and hospitals. Indeed, the need for such detailed examinations is underlined by the Darusman Report which held that the LTTE ‘also fired artillery in proximity to large groups of internally displaced persons (IDPs) and fired from, or stored military equipment near, IDPs or civilian installations such as hospitals.’ Thus individual investigations are required before any tribunal can ascribe culpability to one side or the other. The Commission recommends a judge-led inquiry of all these incidents, such as those involving hospitals…. The Commission notes that the former Commander of the SLA, Sarath Fonseka, now promoted to Field Marshall, has himself welcomed the need for investigations and has stated recently that he believed individual incidents of war crimes did occur in the final phase.”

Paranagama’s flip flops

While there is a tendency to try and please both sides, it is hardly surprising that the report finally panders to the powers that be. If any commission of inquiry in this country had to perform their work under a veritable ‘reign of terror’ it is the Paranagama Commission. So at times we see the Commission report taking two steps forward and two steps back and at other times they take four steps back without taking any steps forward! The question of the Chanel 4 video footage is one such instance when the Paranagama commission is in headlong retreat. On page 102, the Paranagama commission states,

“There have been several suggestions that the film footage shown in the Channel 4 video is fake in whole or part. The GoSL highlighted using their own experts some discrepancies in the video that could give rise to a suspicion that the executions depicted were staged. However, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, commissioned experts who authenticated the footage while accepting that a small number of characteristics in the footage could not be explained.”

“As the UN has used a number of pathologists and firearms experts of world renown, who have now corroborated this footage, the Commission has acted on the assumption, which of course can be displaced by evidence, that the images depicted are genuine. Taking the Channel 4 allegations at their highest, the Commission proceeds on the basis that the material is, or may be, genuine and, therefore, presents strong circumstantial evidence of war crimes.”

What is surprising in this case is the Paranagama Commission’s willingness to give the benefit of the doubt to the UN. Consider the following facts.

1. According to the findings of the Paranagama Commission itself, no less a body than the UN Secretary General’s office has produced an abysmally faulty report on the war in Sri Lanka – the Darusman report which propagates fictitious numbers of the number of civilians that died in the final stages of the war.

2. The GoSL has obtained expert opinion that there were discrepancies in the footage which may point to it being ‘manufactured’.

3. The international experts commissioned by UN Special Rapportuer Phllip Alston had authenticated the footage but they too had admitted that there were some characteristics in the footage that could not be explained.

Given this background, why would the Paranagama Commission want to give the benefit of the doubt to the UN? Just look at the manner in which the UN Human Rights Commissioner and the OHCHR report called for the dissolution of the Paranagama Commission itself without taking the trouble to give a detailed and rational explanation of why they want it dissolved. Does any of this justify giving the benefit to the doubt to the UN on the Chanel 4 footage? Are we wrong in assuming that the Paranagama report has given the benefit of the doubt to the UN on the Channel 4 footage to please the new powers that be?

A commission to provide questions not answers!

This is the same question that has to be asked in relation to the position that the Paranagama Commission has taken in relation to the so called White flag incident. On pages 108-110 the Paranagama Commission reports:

“The Commission takes the view that the extra-judicial executions of 18 May 2009 that were dubbed ‘White Flag Killings’ in the Channel 4 programmes must be the subject of an independent judicial inquiry…. If proven, such conduct undoubtedly qualifies as a war crime under the Hague Regulations, 573 and Common Article 3 of the Geneva Conventions….”

“The LLRC makes reference to evidence (although not to the surrendering leadership of the LTTE) of combatants and civilians who employed the use of white flags in surrendering and came to no harm at the hands of the army. However, in the view of this Commission, this evidence makes the allegation relating to the surrendering LTTE leadership even more sinister, as it would seem to suggest that the leadership was being singled out for execution.”

Paragraphs like the above make it only too plain that the Paranagama commission was trying to please somebody. What the above paragraph says is that the commission came across instances where ordinary LTTE cadres had used white flags to surrender and in such instances they had come to no harm. Instead of holding this up as an instance of the army acting with decorum and magnanimity, the Commission sees this as a sinister conspiracy where ordinary LTTE members were allowed to surrender under white flags but LTTE leaders were not allowed to do so! The Commission seems to have already decided that the White flag incident involving Nadesan and Pulidevan did actually happen!

The reason why the Paranagama Commission has given credence to the white flag story is because Nadesan and Pulidevan had communicated their desire to surrender to Marie Colvin, the London Times journalist who was a well known sympathizer of the LTTE who in turn had contacted Vijay Nambiar the chief of staff to the UN Secretary General. So this in the eyes of the Commission was evidence of the desire of these individuals to surrender. And it is because of such corroboration that the Commission has called for a judicial inquiry into this incident. As a commission that had access to some of the best international experts in the law of armed conflict, the Paranagama commission could at least have given an exposition of the applicable law when it comes to surrenders on the battlefield but they have done no such thing. The Paranagama commission has for the most part acted as a Commission that calls for ‘further investigations’. But when looking at the terms of reference of this Commission it becomes obvious that what was expected from it was answers, not more questions.

This writer will attempt to do what the Paranagama commission has omitted to do in terms of the law applicable to surrender on the battlefield. Since Sri Lanka is not a signatory to Optional Protocol II of the Geneva Conventions that deals with non-international conflicts and is also not a signatory to the Rome statute under which the International Criminal Court functions, what applies to Sri Lanka for the most part is the customary law of armed conflict. The voluminous compendium of the customary law of armed conflict compiled by the ICRC states the following points in relation to a surrender taking place on the battle field.

1. The United Kingdom pointed out that it may not be possible to accept surrender from a unit while under fire from another position.

2. The United States took the position that an offer of surrender has to be made at a time when it can be received and properly acted upon and that a last-minute surrender to an onrushing force may be difficult to accept.

3. The US Naval Handbook provides that: the law of armed conflict does not precisely define when surrender takes effect or how it may be accomplished in practical terms. Surrender involves an offer by the surrendering party (a unit or individual combatant) and an ability to accept on the part of the opponent. The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon – an attempt to surrender in the midst of a hard-fought battle is neither easily communicated nor received.

Given what the ICRC compendium says about a surrender on the battlefield, what relevance does any phone calls made by Pulidevan to London have? The LTTE most certainly did not halt hostilities for Nadesan and Pulidevan to surrender. If at all they made any attempt to surrender, it was in the middle of a raging battle and everything said by the UK and the USA in the ICRC compendium as quoted above, applies to this case. Even if this group of LTTE leaders had tried to surrender, was the Sri Lanka army in any position to accept the surrender? The cursory manner in which the white flag incident has been dealt with, makes it painfully clear that the Paranagama Commission was obviously trying to please somebody by calling for a judicial inquiry into this alleged incident.

Rooting for a special court to try the Rajapaksas

What reinforces this impression that the Paranagama Commission was trying to please the new masters is the section titled “Establishing a War Crimes Division within The Sri Lankan Court System” on page 151. In this section, the Paranagama Commission points out that it is possible under Article 13(6) of the constitution to promulgate new criminal laws based on international law which will be retrospectively effective. The report urges the incorporation of the core crimes applicable to non-international armed conflicts in particular the doctrine of command responsibility. And it states that once “the relevant provisions of international law have been incorporated into domestic law there is no difficulty in establishing a new jurisdiction to try war crimes within the existing Sri Lankan court structure.” This is as complete a sell out as one can imagine!

Not stopping at that the Paranagama report goes on to mention several instances from countries like Uganda, Kenya and Bosnia where special courts were established within the domestic court structures to try international crimes and it is specifically mentioned that not only were such special courts set up in those countries but foreign judges were also recruited to serve in them. Furthermore the Paranagama report suggests that if no foreign judges are going to be recruited in Sri Lanka, perhaps international technical assistance may be supplied by the UN or ‘friendly nations’ as was done and in the trial of Saddam Hussein!

The Paranagama report goes out of the way to recommend that if all these are not feasible there was an experiment in The Gambia where following an upheaval in 1981, a court which was part of the national legal system, known as the Special Division of the Supreme Court of Gambia, was set up with judges from the Commonwealth. The Commission report goes on to recommend that in the event that Sri Lanka were to set up a purely domestic tribunal without the participation of any foreign judges, ‘it is the view of this Commission’ that there should be international technical assistance and observers! The yahapalana NGO types were against the Maxwell Paranagama Commission in the belief that it was a pro- Rajapaksa outfit. But now the Paranagama report appears to be a theoretical justification of the yahapalana camp.

Courtesy:Sunday Island