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“A reply to US Ambassador of Sri Lanka on the Appointment of Lieutenant General Shavendra Silva as Army Commander.”

Rear Admiral (Retd) Sarath Weerasekera says that the United States cannot act in the manner of an individual or NGO when accusing another country of various abuses, but must base those accusations on reports accepted and approved by the international community.

He stated this in a letter addressed to the US Ambassador in Sri Lanka to register his protest over the US Embassy’s statement regarding the appointment of the new Army Commander of Sri Lanka.

The United States had voiced deep concern over the appointment of Lieutenant General Shavendra Silva as Army Commander.  “The allegations of gross human rights violations against him, documented by the United Nations and other organizations, are serious and credible,” the US Embassy in Colombo had said.

Weerasekara says that since 2017, he has filed a series of documents at the United Nations Human Rights Council (UNHRC) to show that the allegations of war crimes and other crimes leveled against Sri Lanka in the Report of the Office of the UN High Commissioner for Human Rights Investigation on Sri Lanka (OISL Report) are baseless.

He said that as a result of an action that he has pursued under the ‘Complaint Procedures” facility of the UNHRC, these documents are now part of the official record of the Council.  The findings of the OISL Report are the sole basis for UNHRC resolution 30/1 of October 2015, which was sponsored by the United States and co-sponsored by Sri Lanka, he said.

“To the best of my knowledge, two reports—the OISL Report, and the Report of UN Secretary-General’s Panel of Experts on Accountability on Sri Lanka (POE) of March 2011—are the only reports connected to the UN to present findings on violations of humanitarian law and human rights law purportedly committed by the Government of Sri Lanka during the last stages of the war.”

However, he claims that the POE was commissioned by the Secretary-General for his personal use and not a collective decision by a UN body while the OISL report, on the other hand, was directly authorized by a resolution of the Council.

Therefore, the OISL Report is, or should be, the final authority as far as the international community is concerned as to whether or not the Government of Sri Lanka committed war crimes and other serious crimes in the period in question, he said.
The full text of the letter issued by Mr.  Weerasekara is as follows;

20th August 2019

Ambassador Alaina Teplitz,                                                    
Ambassador of the United States to Sri Lanka,
Embassy of the United States,
Colombo,
Sri Lanka.

Madam Ambassador,

A COMPLAINT REGARDING THE EMBASSY’S REMARKS ABOUT THE NEW ARMY COMMANDER

I write to register my protest over the statement about the appointment of the new Army Commander of Sri Lanka posted on the twitter account of the U.S. Embassy and subsequently quoted in numerous local as well as international newspapers. It states:

“The United States is deeply concerned by the appointment of Lieutenant General Shavendra Silva as Army Commander.  The allegations of gross human rights violations against him, documented by the United Nations and other organizations, are serious and credible.  This appointment undermines Sri Lanka’s international reputation and its commitments to promote justice and accountability, especially at a time when the need for reconciliation and social unity is paramount.”(*1)

I am a retired officer of the Sri Lanka Navy with over 35 years of service including during the war against the LTTE.  Since 2017, I have filed a series of documents at the United Nations Human Rights Council (UNHRC) to show that the allegations of war crimes and other crimes leveled against Sri Lanka by the “Report of the Office of the U.N. High Commissioner for Human Rights Investigation on Sri Lanka” or OISL Report (September 2015) are baseless.

As a result of an action that I have pursued under the ‘Complaint Procedures” facility of the UNHRC, these documents are now part of the official record of the Council.  The findings of the OISL Report are the sole basis for UNHRC resolution 30/1 of October 2015, which was sponsored by the United States and co-sponsored by Sri Lanka. The Resolution sets out a series of recommendations on accountability and reconciliation that Sri Lanka is to follow.

To the best of my knowledge, two reports—the OISL Report, and the Report of U.N. Secretary-General’s Panel of Experts on Accountability on Sri Lanka (POE) of March 2011—are the only reports connected to the U.N. to present findings on violations of humanitarian law and human rights law purportedly committed by the Government of Sri Lanka during the last stages of the war.

However, the POE was commissioned by the Secretary-General for his personal use and not a collective decision by a U.N. body.  The OISL report, on the other hand, was directly authorized by a resolution of the Council.  Therefore, the OISL Report is, or should be, the final authority as far as the international community is concerned as to whether or not the Government of Sri Lanka committed war crimes and other serious crimes in the period in question.

Regrettably, the OISL Report was never subjected to an independent assessment either by the Government or the Council prior to the adoption of Resolution 30/1 to see whether its conclusions followed from the evidence.  Furthermore, since Resolution 30/1 was adopted a mere two weeks after the OISL Report was released to the public on 16th September 2015, many citizens of Sri Lanka did not have time to either study the report properly or raise objections to it with the Government.

It is my fervent hope that, an independent assessment of the OISL Report would be carried out under a new Government.  I would like to summarize my rebuttal to the various charges leveled by the OISL Report which I trust would assist you in deciding whether any further criticism or condemnation of the members of Sri Lanka’s armed forces by the United States or any other country, is justified at this moment.

The OISL Report levels 8 charges against the Government, 4 relating to humanitarian law and 4 to human rights law.  They are: i) indiscriminate killing, ii) shelling of hospitals, iii) denial of humanitarian assistance to civilians in the war zone, iv) deliberate killings, v) deprival of liberty, arbitrary arrests, etc., vi) enforced disappearance, vii) torture and viii) sexual violence.  The standard of proof was “reasonable grounds to believe.”

i) Indiscriminate Killing

The charge is that, the Army indiscriminately shelled the No Fire Zones where civilians had gathered to seek shelter from the fighting and thereby killed tens of thousands of those civilians.  Though the OISL Report does not cite a specific figure, the POE famously cited the figure of 40,000 dead.  If tens of thousands of civilians were in fact killed, a reasonable inference can be drawn that there was indiscriminate shelling.

The best rebuttal to the charge is that the most ‘objective’ evidence available—the 2011 census (roughly 8,000 dead),(*2) the U.N. country-report of 2009 (7,721 dead),(*3) and extrapolations from satellite imagery of grave sites(*4) —suggest that, not tens of thousands but roughly 8,500 persons were killed during the last stages of the war.  Those estimates are corroborated by information retrieved by Lord Naseby of the British House of Lords under a Right to Information request from the British Foreign Office.(*5)

The Foreign Office released diplomatic dispatches from the British Military Attache in Sri Lanka that says that roughly 6,500 civilians had been killed in the last stages of the war.(*5) So, even if the maximum number suggested by the census data is taken, there could not been more than about 8,500 persons killed.  It is known that the LTTE had roughly 5,000 cadres.  So, the maximum number of civilians killed cannot exceed 3,500.  That number is incompatible with indiscriminate shelling, but rather one where, if indeed civilians were killed, it was the result of collateral damage.

ii) Shelling of Hospitals

The best rebuttal to the above charge is contained in the OISL Report itself, namely, the admission by the panel that the LTTE fired from hospitals or abandoned buildings that used to be hospitals, and also stored military equipment including artillery pieces near such buildings.(*7)Meanwhile, there is a Wikileaks revelation of a cable sent by the U.S. Ambassador in Geneva where he says that according to the ICRC’s head of operations in Sri Lanka, “they [LTTE] would often respond positively when ICRC complained to the LTTE about stationing weapons at a hospital, for example.  The LTTE would move the asset away.”(*8) Humanitarian law permits an attacking force to return fire if attacked under such circumstances.

iii) Denial of Humanitarian Assistance

The charge is that, following the Government’s halt of U.N. food-convoys to the North in January 2009, the civilians in the war-zone were deprived of the necessary humanitarian assistance.  The best rebuttal to the charge is that, there is documentary evidence, confirmed by the then Government Agent in Mulativu Mrs. Emelda Sugumaran, that the Government maintained a 3-month stock of food in the affected region at all times, and had also put in place measures to provide relief on an ongoing basis.

These measures were coordinated through a mechanism called the Consultative Committee on Humanitarian Assistance which provided a forum for the relevant U.N. agencies, major players in the diplomatic community including the U.S. Ambassador, and other parties to provide their input.  The minutes of the meetings are available.

In one of the comments made by U.N. Resident Coordinator Neil Buhne are mentioned as follows: “Mr. Buhne applauded the good work done through the Government Agent structures in delivery of relief and assistance to IDP’s in such circumstances and noted that they should be given a gold medal for the work done.”(*9) Mr. Amin Award, Representative of UNHRC had expressed the view that “ Sri Lanka was a role model to the rest of the world, in the manner in which the Government of SL had handled the humanitarian crisis caused by LTTE using civilians as a human shield in the theatre of war, by ensuring that uninterrupted provision of food and medical supplies reached the people. The GOSL was always mindful of the fact that the civilian population in the Vanni were citizen of SL, with equal right to protection and security”.  None of these documentary evidence has been considered by the OISL panel.

iv) Deliberate Killings

The charge is that, the Government authorized or endorsed numerous killings of civilians and/or LTTE cadres who had surrendered, and in this regard discusses a number of what it calls “emblematic cases” such as the purported killing of LTTE leaders Pulidevan, Nadesan Nadeshan’s wife Vineetha when they surrendered carrying white flags, the purported killing of Prabakaran’s son Balachandran, and so on.

The best rebuttal to the charge is that, the OISL Panel admits that on each of these incidents there is insufficient evidence to determine exactly what may have happened.  For instance, on the “white flag” incident, the Panel explicitly states, “further investigation is required to determine the full facts as to what happened and who was responsible.(*10) ”So, the most that the panel’s evidence allows is a conclusion that one simply does not know what happened, and this is what the panel should have said.

v) Deprivation of Liberty (arbitrary arrests, “white van abductions’)

The OISL Report’s sole argument that the Government oversaw a systematic campaign of arbitrary arrests is that, in a series of interviews in the journal ‘Business Week’ a number of security forces officials had said that after the war the Defence Ministry had required senior officers of the security forces to attend regular meetings at the Ministry.

From the context, its is clear that the officials in question are discussing steps taken to enhance cooperation and coordination among the different branches of the forces in carrying out counter-terrorism operations, that is, perfectly lawful activities for the security forces.  So, from the fact that senior officials of the security forces met frequently at the Defence Ministry, the OISL report concludes that they met in order to plan ‘white van abductions,’ and such activities, an absurd leap in logic.

vi) Enforced Disappearance

The charge is that, Sri Lanka leads the world in the number of complaints of enforced disappearance lodged against it.  However, it is elementary that there can be and indeed often is a vast difference between the number of complaints of disappearance and actual incidents of disappearance.  For instance, the alleged “disappeared” is often found to be alive and well and living under a different name.

At the time of the OISL Report, there was a domestic mechanism of the Government—the Paranagama Commission (1st Mandate)—authorized to investigate all disappearances from January 1983 – May 2009.(*11) It had compiled a database of roughly 20,500 complaints and was systematically investigating them.  It finished investigating only about a hundred, but in nearly three-fourths of those the persons who had allegedly disappeared were found to be alive and living under different names either in Sri Lanka or abroad, especially France, Switzerland, Dubai and other such places.(*12)

vii) Torture

The charge is that, the Sri Lankan security forces regularly torture suspects.  The OISL report dedicates 6 pages (pages 109 – 115) to discuss this charge.  The proof of the alleged torture consists of the testimony of anonymous victims whose testimony is sealed for 20 years.  The infirmities of anonymous testimony are well known, for instance, one cannot corroborate or verify the details that the victim is giving, and also there may be occasions where a purported victim has something to gain or been offered an incentive or bribe to give the testimony in question.

In this regard, a recent case in the British Court of Appeal is highly relevant.  The court found that, in England, there was a systematic racket where persons seeking asylum had their bodies surgically scarred in order to make it seem as if they had been tortured.(*13) In the light of such revelations, claims of torture by anonymous “victims” must always be taken with a grain of salt.

viii) Sexual Violence

The charge is that, the Sri Lankan security forces have been engaging in systematic sexual violence against civilians.  However, just as with the allegations of torture, these are also based on anonymous complainants, and therefore the same infirmities discussed earlier apply here as well.

Conclusion

Such, then, is the totality of the allegations against the Government of Sri Lanka.  The accusations leveled by the U.S. Embassy against the new Army Commander are based in one way or other on the aforesaid charges because he is a serving officer in the Sri Lanka’s armed forces.

The U.S. as a member of the community of nations cannot act in the manner of a private individual or an NGO when accusing another country of various abuses, but must base those accusations as much as possible on reports accepted and approved by the international community.  I have endeavored to show that, the OISL report, the only relevant international report in regard to allegations of humanitarian law and human rights law violations by the Government of Sri Lanka, has failed to establish the charges to any reasonable degree. Therefore it is unfair to condemn the new Army Commander based on such unsubstantiated allegations.

Under the circumstances, in the interests of justice and fairness, I appeal to you to ensure that the Embassy refrain from making statements prejudicial to the members of the armed forces of Sri Lanka and by extension to the country.

Respectfully,
Rear Admiral (Dr.) Sarath Weerasekera VSV, RWP, USP Ndc. Psc

Copy to :
UN Secretary General
UN High Commissioner for Human Rights
H E the President of Sri Lanka
The Minister of Foreign Affairs, SL
The Chief of  Defence Staff
The Tri Forces Commanders

—– Footnotes —–

(*1) See “Sri Lanka names war veteran as army chief, U.S., U.N. critical of decision,” Reuters, 19th August 2019, www.reuters.com

(*2) Department of Census and Statistics, Enumeration of Vital Statistics 2011, www.statistics.gov, p.19

(*3) See, U.N. Secretary-General’s Panel of Experts report on accountability in Sri Lanka, page 134

(*4) Resolution Satellite Imagery and the Conflist in Sri Lanka, American Association for the Advancement of Science, August 2009, www.shr.aaas.org/geotech/

(*5) See, Lord Naseby’s speech in the House of Lords, 12th October 2017, Hansard Volmume 785, www.parliament.uk

(*6) Ibid, Lord Naseby’s speech

(*7) See for instance, OISL Report, page 155,

(*8) “Sri Lanka:  Amb. Williamson’s Geneva Meetings,” www.aftenposten.no

(*9) CCHRC Minutes for 30th January 2009

(*10) OISL Report, para 305

(*11) Report of the completed work up to 15th July 2016 on the First Mandate by the Presidential Commission of Inquiry into Complaints of Abductions and Disappearances, July 16, page 10.

(*12) Ibid, Paranagama Commission (1st Mandate), pages 14-16

(*13) See, “Asylum seeker from Sri Lanka let himself be tortured with hot irons to support his bid to stay in Britain,” The Daily Mail, 22nd April 2017.

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