UNHRC Resolution: Govt.

in trap of its
own making

March 25, 2017, 8:02 pm

The UNHRC resolution which was co-sponsored by Sri Lanka and

passed without a vote last Thursday has given the government
two years to deliver on the commitments made in UNHRC
Resolution No: 30/1 of October 2015. Unlike in previous years, this
years UNHRC resolution did not generate much heat in Sri Lanka
because the expectation was that the government would be given
a further period of time. However, this extention of time to deliver
may be more to the detriment of the government than if the
things had come to a head right now. A two year postponement
means that this matter will come up for discussion at the March
2019 Sessions of the UNHRC. However, 2019 will be election year
for this government.

The Island carried a front page news item recently by our

colleague Shamindra Ferdinando pointing out that even though
Minister Faizer Mustapha had put forward an argument to the
effect that President Maithripala Sirisena had been elected for a
six year term and therefore, the next Presidential election will be
held only in 2020, legal experts like Manohara de Silva,
Jayampathy Wickremeratne and Krishmal Warnasuriya had
pointed out that the term of the President was shortened to five
years by the 19th Amendment and according to the transitional
provision in Article 49(1)(b) of the Nineteenth Amendment, the
persons holding office as the President and Prime Minister at the
time the 19 A is passed will thereafter continue to hold such office
subject to the provisions of the Constitution as amended by the
19A. What this means is that Maithripala Sirisenas term
as President comes to and end in five years and a presidential
election will have to be called in the last quarter of 2019.

It would be very disadvantageous for the government to be

grappling with the local fallout of implementing the UNHRC
resolution or the international fallout from not implementing it
after the first quarter of 2019. In fact by 2019, its best that this
UNHRC resolution 30/1 be taken off the radar altogether. If the
government implements even a part of the contents of Resolution
30/1 which they so ill-advisedly co-sponsored in October 2015,
that will provide grist for the opposition mill at the presidential
election campaign at the end of 2019. The Resolution that was
passed last Thursday once again with the co-sponsorship of Sri
Lanka, took note with appreciation the comprehensive report
presented by the UN High Commissioner on Human Rights to this
session of the UNHRC as requested by the UNHRC in Resolution
30/1 of October 2015 and requests the Government of Sri Lanka
to fully implement the measures in resolution 30/1 that are
outstanding.

What exactly did the UN Human Rights Commissioner say in his

report on Sri Lanka to the 34th Session of the UNHRC last
Wednesday which was taken note of with appreciation by the Sri
Lankan government in co-sponsoring the subsequent resolution
which could place them at a serious disadvantage if smelly stuff
hits the fan in the run up to an election? Firstly, The UN Human
Rights Commissioners report to the UNHRC begins by saying that
his present report to the UNHRC should be read in conjunction
with (among others) the detailed findings of the OHCHR
investigation which was presented to the UNHRC in September
2015.

In that report, the OHCHR had accused the Sri Lankan

government of every conceivable war crime including unlawful
killings, torture, rape, illegal incarceration, enforced
disappearances, abduction, deprivation of humanitarian
assistance etc. This investigation against Sri Lanka was set up
outside the established procedure of the UNHRC yet by co-
sponsoring two UNHRC resolutions in October 2015 and now again
in March 2017, which took note of this OHCHR report with
appreciation, the Sri Lankan government has accepted and
legitimized a biased and tainted report against Sri Lanka.

Call for universal jurisdiction

to be invoked
Secondly, the UN Human Rights Commissioner has stated that the
report of the Consultative Task Force on Reconciliation
Mechanisms appointed by the Prime Minister be implemented and
this too has now been taken note of with appreciation by the
government. (Implementing this Task Force report would have
even worse implications than implementing Resolution 30/1, as
we shall see below.) Thirdly, the UN Human Rights Commissioner
has stated that the lack of progress into certain cases such as the
killing of Lasantha Wickrematunga and the acquittal by a
Sinhalese jury of the suspects in the Kiliveddy incident where 23
Tamil civilians are said to have been killed strengthens the case
for the establishment of a specialized court which should include
international judges, defence lawyers, prosecutors and
investigators, to investigate allegations of war crimes.

In his report presented to the UNHRC on 22 March and taken note

of with appreciation by the Sri Lankan government in the co-
sponsored resolution on 23 March, the UN Human Rights
Commissioner has once again called on the international
community investigate and prosecute those allegedly responsible
for war crimes under universal jurisdiction. In this context, the
Australian high Commission may have done Chagi Gallage a
favour by denying him a visa to Australia. Last Thursdays UNHRC
resolution was essentially to reaffirm the UNHRC resolution 30/1
of 1 October 2015 on promoting reconciliation, accountability and
human rights in Sri Lanka. What exactly were the commitments
made by the government in UNHRC Resolution 30/1? Of particular
concern in that resolution, were operative paragraphs 1, 4, 6, 8,
12 and 16.

Operative paragraph 1, took note with appreciation of the report

of the Office of the High Commissioner on promoting
reconciliation and accountability in Sri Lanka and its investigation
on Sri Lanka and encouraged the Government of Sri Lanka to
implement the recommendations contained therein. Operative
paragraph 4 welcomed the commitment of the Government to
establish a commission for truth, justice, reconciliation and non-
recurrence, an office of missing persons and an office for
reparations; and to give each mechanism the freedom to obtain
financial, material and technical assistance from international
partners. Operative paragraph 6, noted with appreciation the
proposal of the Government of Sri Lanka to establish a judicial
mechanism with a special counsel to investigate allegations of
war crimes and affirmed the importance of participation in such a
judicial mechanism of Commonwealth and other foreign judges,
defence lawyers, prosecutors and investigators;

Operative paragraph 8 encouraged the Government to remove

through an administrative process members of the security and
intelligence units suspected of carrying out war crimes even if
there wasnt enough evidence to take them before the judicial
mechanism that was to be established. Operative paragraph 12
welcomed the commitment to review and repeal the Prevention of
Terrorism Act, and to replace it with new anti-terrorism legislation
acceptable to the OHCHR and the international community.
Operative paragraph 16 encouraged the Governments efforts to
fulfill its commitments on the devolution of political authority,
which is integral to reconciliation and also encouraged the
Government to ensure that all Provincial Councils are able to
operate effectively, in accordance with the thirteenth amendment
to the Constitution of Sri Lanka thus bringing the structure of the
Sri Lankan state itself under the scrutiny of the OHCHR.

NGO activists in their element

This was not all, speaker after speaker among the originators and
the sponsors of the latest resolution against Sri Lanka the UN
Human Rights Commissioner Zeid Al Hussein, the EU
representative and the representative of Britain were all harping
on the need to implement the recommendations of the
Consultative Task Force on Reconciliation Mechanisms. The
recommendations of this task force which functioned under the
Prime Ministers Office are, if anything, worse than the above
mentioned operative paragraphs of UNHRC Resolution 30/1. The
UN Human Rights Commissioners update on Sri Lanka presented
to the UNHRC on March 22 was effusive in its praise for the report
of the Consultative Task force on Reconcilaition Mechanisms and
has requested the government to implement its
recommendations. Among the recommendations made in this
task force report are the following:

= Apologies should be tendered by the Sri Lankan State to the

victims of the armed conflicts that took place in this country.
However there is no requirement that terrorist organizations or
political groupings that backed the terrorists have to do the
same.

= LTTE cemeteries should be restored, the observance of

Maaveerar Dinam allowed to continue and the families of
deceased LTTE cadres permitted to display a photograph of the
deceased terrorist in LTTE uniform, in their homes.

= As a means of promoting reconciliation, all LTTE detainees who

have not been charged under the PTA or other laws are to be
released forthwith. However, members of the armed forces
suspected of committing crimes have to be arrested.

= Following the lead of UNHRC Resolution 30/1, the Consultative

Task force on Reconciliation Mechanisms has also recommended
that a war crimes tribunal with foreign participation be set up. But
going beyond anything that Resolution 30/1 recommended, they
have also suggested that no LTTE members be prosecuted by this
body if they have been through rehabilitation or have been
prosecuted under the existing judicial system. They have
suggested instead that leaders of the LTTE who left the terrorist
organization and allied themselves with the government of Sri
Lanka should be tried for war crimes!

= No amnesties should be granted to members of the armed

forces suspected of war crimes.

= A phased demobilization of security forces personnel with an

attractive early retirement package including pensions,
admissions to good schools for their children, alternative civilian
employment etc. has also been recommended.

= Despite repeated assurances given by both the President and

Prime Minister to the public that the special place accorded to
Buddhism would be preserved, the Consultative Task force on
Reconciliation Mechanisms which published their report after
those assurances were given, has requested the government to
seriously consider the establishment of a secular state.

The above are only a sample of what this task force report
contains. The proposals made by the Consultative Task Force on
Reconciliation Mechanisms are so over the top that if an ordinary
parliamentarian in the government reads it, he may end up
thinking that it has been written by Joint Opposition agents who
had infiltrated the PMs office with a view to bringing the
government into disrepute among the public! So UNHRC
Resolution 30/1 and the report of the Consultative Task force on
Reconcilaition Mechanisms are cans of worms that will remain
closed till the end of the first quarter of 2019 and opened just
when a decisive Presidential election is months away from being
declared in the fourth quarter of that year. This is why the two
year extension of time will not be an advantage to the
government but rather a ticking political time bomb set to
explode causing the maximum damage.

What did Gen. Fonseka command?

General Sarath Fonseka made waves again last week with the CID
informing the Mt Lavinia Magistrate that he has given a statement
implicating former Defence Secretary Gotabhaya Rajapaksa and
former Chief of National Intelligence Kapila Hendavitarana in the
attacks on journalists including the killing of Lasantha
Wickrematunga and the assault on Keith Noyhr. According to the B
Report No: B92/09 filed before the Mt Lavinia Magistrate,
Gardihewa Sarath Chandralal Fonseka has given the CID a
statement to the effect that at the time Lasantha Wickrematunga
was murdered, he had not overseen security matters in the
Colombo area and that this was handled by former Defence
Secretary Gotabhaya Rajapaksa with Maj Gen Kapila
Hendevitarana and that he had received information that the
assault on journalists were carried out by a certain group that
functioned under Chief of National Intelligence Hendevitarana.
Fonseka had also said that when he was Army Commander, he
was unaware that there was an Army intelligence detachment
functioning from the Tripoli market premises in Maradana.

By the time Lasantha was murdered, Kapila Hendavitarana had

retired from the army and was holding a civilian appointment in
the Ministry of Defence. When Sarath Fonseka became Army
Commander at the end of 2005, Hendavitarana was in the Sri
Lankan Embassy Bankok as Minister Counselor. Even before he
was posted to Bangkok by then President Chandrika
Kumaratunga, he had ceased to be the Director Military
Intelligence and was functioning as the Director General Military
Intelligence which was a position not in the Army but in the Joint
Operations Headquarters. The Director Military Intelligence is a
Brigadier level appointment in the Army and Hendavitarana had
to be shifted out in order to be promoted Major General. After the
Rajapaksa government came into power, Hendavitarana came
back to Sri Lanka around February 2006 and he retired from the
Army in 2006 October.

After coming back from Bangkok, Hendavitarana was appointed

as an advisor on Military Intelligence to the Minister of Defence.
After he retired from the Army in October 2006, a position was
created for him as Chief of National Intelligence. His task was
basically coordinating the work of the intelligence arms of the
Army, Navy, Air Force and police intelligence units like the CID,
TID, Special Branch etc. This was one of the major innovations
introduced by Gotabhaya Rajapaksa getting all the intelligence
bodies of the armed forces and police to share information and
work together to eliminate terrorism. However, neither Gotabhaya
Rajapaksa nor Hendavitarana who were both retired from the
Army could command troops or order troop movements. This had
to be done by someone in uniform.

Every soldier works under a chain of command and no soldier can

do anything unless told to do so by his immediate superior. Thats
how the system works. Even though Sarath Fonseka now says
that Gota met the intelligence chiefs separately and that he was
against the service commanders even attending that weekly
meeting, as the commander of the army, Fonseka always had the
authority to summon the Director of Military Intelligence who was
a Brigadier under him and ask him what was going on. Yet by
saying that Gota had a separate operation going with the
intelligence heads that he as Army commander was not privy to,
Fonseka is implying that he dared not summon the Brigadier who
was head of the DMI to ask him what was going on!

Furthermore, to tell the CID that he did not know that there was
an Army intelligence detachment functioning in the Tripoli (market
in Maradana) is to in effect say that he was not aware of what the
army he was commanding was doing. This was not the first time
that Fonseka had made statements of this nature. Even with
regard to the famous white flag case, he had told Frederica Jansz
that he had heard from certain journalists that Gota had ordered
Shavendra Silva to kill any LTTE leaders trying to surrender and
that LTTE front rankers B. Nadesan, S.Pulidevan and Ramesh were
killed while they were trying to surrender. If Gota had indeed
given such instructions to Shavendra Silva, Fonseka should not be
hearing about it from journalists but from someone within the
Army. When he made this statement, Fonseka was the common
candidate contesting against Mahinda Rajapaksa at the 2010
Presidential elections. After Frederica wrote an article in the
Sunday Leader titled "Gota ordered them to be shot General
Sarath Fonseka", all hell broke lose with the UNP and JVP trying to
force Fonseka to retract or disown the statement.

A mighty fiasco ensued with Fonseka repeating the same

allegation he made to the Sunday Leader at a propaganda rally in
Ratnapura which was caught on camera and broadcast over the
TV channels but after the story appeared in the Sunday Leader,
he held a press conference the next day trying to explain away
what he had said. When the Rajapaksa government filed action in
the High Courts against him over this statement, he tried to make
out that he had never made any such statement to Frederica and
that she does not have a recording to prove that he had said it
and that she had not even taken down notes during the
discussion and that what she was presenting to courts as her
notes may have been written later.
Asked why he had not denied the story after it appeared in the
Sunday Leader, he had said that Frederica had pleaded with him
not to do so because she would be jailed. The High Court refused
to accept that he would make such a sacrifice on behalf of a
journalist whom he accused to lying. He was asked whether any
incident where LTTE leaders trying to surrender with white flags
were killed by the troops had actually taken place, to which he
answered in the negative. However, video footage of the
Ratnapura meeting proved that he had in fact said everything he
is supposed to have told Frederica. Fonseka was sentenced to
three years in jail under the emergency regulations for making
false statements that could cause public disquiet!

General Fonseka has a history of putting his foot in his mouth

big time - and he has done it again with the statement about Gota
and Hendavitarana operating a hit squad against journalists
without his knowledge. One party that will be happy with this bit
of news will be denizens of the UN Office of the High
Commissioner on Human Rights which has been calling for the Sri
Lankan military to be brought under civilian control. Going by the
stories that Fonseka has been telling the press and the CID since
he left the army in 2009, unbeknownst to all, the Sri Lanka Army
appears to have always under civilian control with retired army
officers in plain clothes commanding the troops both on the
battlefields of the Vanni and the urban jungle in Colombo!
Posted by Thavam