| by S. V. Kirubaharan

“…………We have a right to tell this to the world. Tears of innocent grieving mothers compel us to tell their story of pain and sorrow to the world. We will do it today, tomorrow and always. Remember that.“– (Mahinda Rajapaksa said in the Parliament in January 1991. Hansard report 25.01.1991)

( August 4, 2014, Paris, Sri Lanka Guardian) Mahinda Rajapaksa, who went to Geneva to attend the 31st Session of the Working Group on Enforced or Involuntary Disappearances – WGEID, in September 1990, was forced to appoint a Presidential Commission Investigating Cases of Missing Persons on 14 August 2013. This was initially mandated to inquire into and report on alleged abductions or disappearances during the period June 10, 1990, to May 19, 2009.

According Mahinda Rajapaksa, during the Janatha Vimukki Peramuna – JVP ("People's Liberation Front") uprising in late 80s, “the soldier carried only guns and grenades in both hands but they forgot to carry human rights charter” and “there were a lot of civilian casualties”. Mind you, there were no firing of multi-barrel nor artillery shells not even aerial bombing took place during the JVP uprising.

Anyhow, in September 1990 Mahinda Rajapaksa attended the 31 session of the WGEID and three members of the WGEID visited Sri Lanka, from 7 – 18 October 1991. In their report on visit to Sri Lanka dated 8 January 1992, they said the following in paragraph 149:

149. In July 1988 and again early in 1991, the home of Mr. Mahinda Rajapakse, an opposition Member of Parliament and human rights worker was damaged in anonymous attacks. The first attack occurred a few days after he had convened a meeting to condemn the proposed Indemnity Act, which provides indemnity from prosecution for government and security forces whose actions were performed in "good faith" (Excerpt - Report Ref. E/CN.4/1992/18/Add.l; page 30; paragraph 149)

The same Mahinda Rajapaksa today rejects every request, proposal by the same office which he sought as the right solution to then violations in the South. Also he complained to WGIED about incidents that took place to him personally. After nearly 24 years, Mahinda Rajapaksa become the Executive President of Sri Lanka, has taken complete different attitude and policy on human rights in Sri Lanka. Now days, Rajapaksa, his ministers and supporters consider that anyone giving information about human rights situation in Sri Lanka to the UN, as “Traitors”.

Assassinations under Rajapaksa’s Presidency

According to the above given paragraph 145, the opposition Member of Parliament Mahinda Rajapaksa’s home was just attacked and damaged in July 1988 and early 1991. But after two decades, under Mahinda Rajapaksa’s Presidency, how many Members of Parliament, Media workers, Religious leaders and members of the civil society were assassinated? The assassinations have taken place even during the day light, including in the capital Colombo. But no-one was arrested and no justice for victims. Is this the modern Mahinda’s Cinthanaya (Mahinda’s thought)?

Let us analyse Mahinda Rajapaksa’s human rights activities in 1990, to the present.

During JVP’s uprising in late 80s, it was an armed struggle carried out by the youth from the South to over throw the government, whereas what happened in the North and East was an armed struggle began in 1983 for political aspirations of the Tamils.

Mahinda Rajapaksa as the Executive President and the Commander in Chief of the Armed Forces, his approach and attitude towards the South and the North and East were completely differs.

Firstly, it proves that he was involved in human rights because the youth in the JVP in the South were all Singhalese and Buddhists, where as the armed struggle in the North and East were carried out by Tamil and non-Buddhists.

Secondly being the Executive President, he could have given better choice on human rights and political approach, rather than eliminating Tamil struggle, with the help of the international community. In fact, the Tamil are without political aspiration for more than six decades in this island. The international community which helped Rajapaksa to wipe out the Tamil struggle is today’s witness to confirm that, Rajapaksa doesn’t have any political solution for the island ethnic bloody conflict.

Thirdly, when we look at the JVP uprising in late 80s, we can see that both Mahinda Rajapaksa and his brother Gothabhya Rajapaksa were in two different fronts – one was advocating human rights and the other one was in-charge of Army operation.

Fourthly, on the Tamil situation both brothers have chosen a similar path, because Tamil struggle was based on Nation-hood, with different ethnic identity, religion, language, culture and a homeland. If we go very deep into this approach, once again it takes us to the same old logic that the island belongs to only Sinhala Buddhist and Rajapaksa brothers endorse it.

In fact, Mahinda Rajapaksa’s human rights work in the past was based on race and nationalism rather than dedication to the human rights nom.

Matale and Mullivighzhal

There is a huge difference between the number of victims in Matale, (the capital city of Matale District in the Central Province) and Mullivaighzhal (in Vanni district in the North). However, it was the same man who was behind all those disappearances and summary executions in Matale in 1989 and in Mullivaighzhal in May 2009. Gotabhaya Rajapaksa was the Army District coordination officer for Matale in those days and now he is Defence Secretary.

As a reward for Gotabhaya Rajapaksa’s earlier dirty work against the JVP, he was promoted and posted to Matale in May 1989, where he was entrusted by the military to put an end to JVP activities there. According to a Presidential inquiry, more than 450 people were recorded missing in Matale. Only one senior member of the JVP survived the military operation. Knowing very well that one day the JVP would come back into action; Gotabhaya left the island soon after his Matale posting and settled in America. He did not return to Sri Lanka until the presidential election in 2005, in which his brother Mahinda Rajapaksa was contesting.

In the aftermath of the devastation at Mullivighzhal the UN took action. After two consecutive resolutions in the UN Human Rights Council – UN HRC, the Presidential Commission was appointed through Gazette Notification 1823/42 dated 15th August 2013. Its mandate was amended to cover the period 1983 – 2009 rather than 1990 - 2009.

But before appointing this commission on missing persons, Rajapaksa played another game, by appointing a Military Court of inquiry and censuses in February 2012. This inquiry concluded that the Liberation Tigers of Tamil Eelam - LTTE was responsible for civilian killings and cleared soldiers from any accusation. In fact, this military inquiry was not taken seriously by anyone except the government. He then appointed the presidential commission of August 2013, which the UN HRC never believed would bring any justice to the victims. Therefore ignoring the presidential commission, the UN HRC passed the third resolution calling for an international investigation in March 2014 and it started to function.

Advisory Council

To summarize, the President said to the world in May 2009 that “The soldiers carried the human rights charter in one hand and the gun in the other hand” and “Zero civilian casualties”.

In an interview, the Minister of External Affairs Prof G. L. Peiris said, “The government has no case to answer, over the reported deaths of the civilians at the end of the country’s civil war”.

However, they understood the impending danger of the UN HRC international investigation; under Gazette Notification 1871/18 dated July 15, 2014, Rajapaksa appointed an advisory council to the Presidential Commission to Investigate Complaints into Missing Persons, “extending the scope of the mandate of the commission”. The three-member Advisory Council comprises - Sir Desmond de Silva chairperson of this Advisory council, Sir Geoffrey Nice of UK and Professor David Crane of USA.

The WGIED which accepted Rajapaksa’s information as one of their sources and visited Sri Lanka in 1991 has been asking for permission to visit Sri Lanka since Rajapaksa became the President. He has not yet granted them permission. It is not only the WGIED waiting to visit Sri Lanka. Many other mandate holders have also been waiting for many years. But Rajapaksa’s government has always found excuses for preventing them visiting Sri Lanka.

Sir Desmond De Silva, QC

If what was recently published in one of the Colombo media is true: “Sir Desmond De Silva, QC attended a Defence Ministry conference in 2011 entitled ‘Defeating Terrorism, the Sri Lanka Experience’. De Silva expressed the view that blame for the civilian casualties during the final phase of the war ‘lies squarely at the door of the LTTE'.

“The eminent lawyer noted that even Marzuki Darusman who had headed the UN Panel of Experts investigating the last phase of the war in Sri Lanka had acknowledged that towards the end of the conflict some 300,000 Tamil civilians were being held hostage by the LTTE, who shot those trying to escape in cold blood. “Therefore, this must be one of the biggest hostage dramas in the history of mankind. Accordingly, this would amount to one of the biggest war crimes to have been committed ever. The blame lies squarely at the door of the LTTE,” he remarked during the conference.

“De Silva observed that no country when confronted with a hostage situation can guarantee that an attempt to free the captives will not result in some civilian casualties. “In fact, the death of some hostages has occurred in many operations that are directed against hostage takers. The crime therefore is not committed by the forces of law and order, but by the hostage takers, in this case the LTTE,” he noted.” (Excerpt)

If Sir Desmond De Silva did participate in this conference and if he has already expressed those views, then it is extremely doubtful whether victims can find justice through this Commission. Especially given that as chairman and advisor, he appears to have already concluded his findings in 2011.

If what was said in the Colombo-based newspaper is true, then it also raises the question of whether in the past, Sir Desmond De Silva was giving behind-the-scene advice to the Rajapaksa government. It is bizarre for a man who knows the strength of the UN institutions to drag things for so long and to ignore the realities!

Sir Desmond De Silva has sent his objection to what was said about him in this newspaper - DailyFT, July 25, 2014 – “Right of Reply” by Sir Desmond de Silva QC. He said that “the suggestion that he attended such a conference and spoke the words alleged on that occasion is incorrect. He said that he was never invited for the conference, hence reference to attending and addressing is false.” Well and good, everyone will honour his right to reply and the denial.

Who is clean?

But the actual news item concerning Sir Desmond De Silva attending this conference, appeared on 2 June 2011 in another newspaper, written by an Attorney at Law! In other words it is now almost 3 years since then and Sir Desmond De Silva has never denied it, never objected to the article, or used his right to reply.

So everyone is confused and asking, ‘who is clean?' Apart from Sir Desmond De Silva, how will the other two reputed international legal experts - Sir Geoffrey Nice of UK and Professor David Crane of USA consider the situation?

If what was said about Sir Desmond De Silva in the Colombo newspapers is true, and considering his birth place and family back ground, the fact that Sir Desmond De Silva is serving as the Chairman or a member of this advisory council, will not prompt anyone to consider it an International Advisory Council.

We are not underestimating Sir Desmond De Silva's high profile tasks in the international arena nor his global activities and contribution to international legal frameworks. However, can we presume that Sri Lanka is not an exception?

Also we greatly appreciate the email sent by Prof David Crane to one of the Colombo newspapers saying that, “As a practicing attorney, like all attorneys in practice, I am being compensated by the Sri Lankan Government for being a legal advisor.”

It is obvious that the appointed legal experts have worked together in many forums and cases. Will that be the case concerning Sri Lanka? According to a Colombo media, Sir Desmond De Silva, has already given his conclusion to the project that all three were assigned in Sri Lanka. Will the other two - Sir Geoffrey Nice QC and Dr. David Michael Crane agree with Sir Desmond De Silva on what was believed to have been said by him in 2011 at the conference in Sri Lanka?

It is to be noted that the International Independent Group of Eminent Persons – IIGEP, in November 2006 and the UN Secretary-General's Panel of Experts on Accountability in Sri Lanka, in June 2010, both consist of international legal experts who are equally well-qualified and well-known as the three advisors appointed by Rajapaksa to the Presidential Commission to Investigate Complaints Regarding Missing Persons.

If that is the case, under the guidance of these advisors to this Presidential Commission, can we expect that culprits of war crimes and genocide will be brought to justice?