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Foreign Affairs

The Fires Within

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Dharisha B

Dharisha Bastians

Four years after the war ended, development and reconstruction showcases are eclipsed by raw human suffering during Navi Pillay’s visit to Sri Lanka

Rajeswari Ganesan, mother of a 28 year old Vavuniya prison inmate who died under suspicious circumstances in June last year, sobbed out her grief to visiting UN Human Rights Commissioner Navanethem Pillay in the North last Tuesday. This past year, Rajeswari’s grief over the death of her only son, who authorities claim died of a heart attack but she believes was killed in custody, has been a terrible thing to see. Navi Pillay may not have been able to understand Rajeswari’s representation made in Tamil, but overcome with empathy, the UN Envoy put her arms around the weeping mother and held her.

Navi Pillay was the most senior UN official to have visited Sri Lanka’s embattled north and east since the UN Secretary General, Ban Ki Moon toured the region soon after the war ended in May 2009.  For hundreds of families living in the former war zone, whose personal tragedies have been ignored for years, the fact that a high ranking person of international influence was finally close enough to hear their cries for help, was undoubtedly an electrifying experience. “I have never experienced so many people weeping and crying. I have never seen this level of uncontrollable grief,” Pillay was to tell The Sunday Leader three days later in an interview.

Steps in the right direction

In anticipation of her visit, the Government made several strides in the right direction. Whether superficial attempts to pacify the visiting UN Envoy and temper her report ahead of the Commonwealth Heads of Government Meeting (CHOGM) scheduled for November or not, the Rajapaksa Administration set up a Commission on Disappearances, appointed credible commissioners, returned military acquired land to the people, promised action on the Weliweriya killings and agreed to give Pillay “unfettered access” wherever she chose to go. It was the first time that the regime had opened up the final theatre of war beside the now legendary Nandikadal lagoon to any foreign visitor.

Yet in the end, none of the Government’s efforts to paint a positive picture of Sri Lanka’s leap forward after the end of the war could mitigate the stark reality of weeping women and children on the streets of Jaffna and Trincomalee. Shiny new roads and railway tracks could not hide fundamental issues in the former battle zones that were obstructing genuine post-conflict healing and reparation. Pillay was confronted with tales of livelihood and land loss, the search for missing family members and justice for senseless death everywhere she went in the north and east. And in the capital, journalists and marginalised groups like the country’s Muslim population made representations to her about the ongoing suppression of fundamental freedoms in post-war Sri Lanka.

When the High Commissioner issued a stinging report of her seven day fact finding mission hours before she left the island, it was clear the representations of ordinary Sri Lankans and civil society groups had made a deep impression. There was no mincing of words or attempt to pacify the host government. Pillay hit back hard at her critics – many of them Government ministers and warned she would report any reprisals against those who had spoken to her during the UN Human Rights Council mandated mission, back to the Council.

Extended boldness

If Pillay’s presence had given ordinary people extraordinary courage to publicly air their grievances even in the heavily garrisoned north and east, her parting words that the UN considered reprisals a very serious matter has only extended this boldness. One day after the UN High Commissioner left Colombo, Fr. Veerasan Yogeswaran who runs a human rights group in Trincomalee that works with families of the missing or detained, told the French Press Agency (AFP) that he had been visited at midnight and again at dawn by half a dozen plainclothes policemen last Wednesday, just hours after his discussions with Pillay. The Jesuit priest told reporters that his concern was that security forces personnel were entering homes at midnight or in the pre-dawn hours and questioning ordinary civilians. Met with complaints by Pillay about the reprisals against the priests, journalists and civil groups, the Government vehemently denied the claim and then demanded the High Commissioner provide proof to allow the administration to commence investigations. It has lapsed into familiar arguments, about vested interests intimidating people in order to cast the Government in a bad light and even claimed the UN Envoy had been misled by mischievous political elements. But in other ways, the Government has already commenced its own public criticism of those who made representations before the UN High Commissioner, calling them out as tale carriers to the international community. Minister Wimal Weerawansa has already accused the Sri Lanka Muslim Congress of “snitching’ to Pillay because the Party handed over a report about violence against the Muslim Community to the visiting Envoy. President Mahinda Rajapaksa has also reportedly had strong words for SLMC Chief and Justice Minister Rauff Hakeem, about the move.

For Government officials heavily involved with organising Pillay’s visit, her final remarks at the end of the week long tour proved a deep disappointment. The sections of the regime that are advocating greater engagement with the UN system, including Ambassador Ravinatha Aryasinha who heads the country’s Geneva mission to the UN,  genuinely believed that given the opportunity to witness the progress in Sri Lanka first hand, the UN High Commissioner’s perception of the human rights situation on the ground would change. Unfortunately these Government elements are at odds with other more powerful sections of the ruling regime, that are willing only to make superficial changes but have no real intention of meeting international obligations to devolve power to the island’s Tamil population or investigate alleged violations in the conflict’s final phase. Unfortunately for the Rajapaksa administration, Navi Pillay was not willing to merely scratch the surface during her visit.

Stinging goodbyes

As for Pillay’s last words in the island, no one is smarting more than President Mahinda Rajapaksa. The explosive statement at the end of her mission, included remarks about the authoritarian direction in which Sri Lanka was headed. Her words continue to rankle power centres in Colombo long after Pillay is gone.

“A dictator is a ruler who does not hold elections,” President Rajapaksa charged at the 62nd SLFP Convention in Kurunegala on Monday, one day after Pillay had left these shores. There had been 11 elections held under his watc, since 2005, he claimed. “What’s more democratic than that?” he asked the SLFP crowd. “What can I do if the Opposition Leader can’t win an election,” he quipped. Under the lighthearted tone however, the rancour is real, Government insiders say.

There is also the question of whether President Rajapaksa was deliberately perpetuating the grotesquely erroneous notion that elections are the sole test of a state’s democratic credentials. Deposed Iraqi Dictator Saddam Hussein, Egypt’s former President Hosni Mubarak, Zimbabwe’s President for life, Robert Mugabe and President Rajapaksa’s brand new best friend in Belarus, the self-proclaimed last dictator of Europe, Alexander Lukashenko all belong on a list of autocratic leaders who regularly take their nations to the polls. Elections held under such regimes are tragically flawed affairs. But even so, democracies are measured not merely by whether a country’s leaders are elected (however fairly or unfairly), but also by how a state and its leaders safeguard and uphold the liberties of individuals. In a state where civil liberties are suppressed, elections only impose majority tyranny on the rest of the populace.

The Government has issued rebuttal after rebuttal to Pillay’s statement. External Affairs Minister G.L. Peiris even addressed the press in London on Monday evening, in order to reply the UN Envoy as soon as possible. Each rebuttal has dealt extensively with Pillay’s remark on increasing authoritarianism, claiming that the comment was a transgression of her mandate and a political statement. Peiris said her concluding remarks showed a “distressing lack of balance” and claimed her observations suggested that Pillay had “formed her views before reaching the shores of the country.”

The floral tribute

The rebuttal of Pillay’s closing remarks from the Department of Government Information went so far as to accuse the High Commissioner of having attempted to pay a floral tribute at Mullivaikal where the LTTE Leader met his death. The UN Delegation it is learnt was notified by the highest levels of Government in Colombo last Tuesday while Pillay was in the North, that the tribute would not be tolerated.

During her press briefing in Colombo, High Commissioner Pillay said she often lays flowers in commemoration of victims of conflict, in most countries she visits. The question of the floral commemoration has become a hot button issue, with Government insiders insisting Pillay had “shown her hand” in no uncertain terms with the attempted ‘commemoration’.

Given the southern political sensitivities regarding the final theatre of battle where the LTTE leadership perished, the UN`s choice of Mullivaikal for a tribute was perhaps a poor one. But as analysts point out, despite the ubiquitous war memorials bearing unmistakably militaristic symbols all over the country, the Sri Lankan Government is yet to construct a memorial for all victims of the war, despite such a conciliatory memorial being strongly advocated even in the Lessons Learnt and Reconciliation Commission.

Nevertheless, for the first time since the High Commissioner’s delegation left Sri Lanka, her Office clarified the issue yesterday.  Spokesman for the High Commissioner, Rupert Colville told Daily FT that the UN considered that the the general area where the war ended after nearly 30 years might be a suitable spot to commemorate all those who died during that conflict. Colville said that the Government had learned Pillay’s team was considering this and made it plain they viewed it in a different light. “We considered their point of view carefully and felt in the end that it might be misinterpreted — as indeed it has been — so decided not to proceed,” Colville said.

Gross misrepresentation

He said it was a gross misrepresentation to pretend that Pillay was planning to honour the LTTE. “She made her views on the LTTE  very clear indeed in her statement,” the High Commissioner’s Spokesman told Daily FT. Colville said that the words High Commissioner Pillay was due to speak in Mullaitivu had been included in her final statement, when she paid her respects to all Sri Lankans around the country who were killed during the three decades of conflict.

He said that the misrepresentation was “just the latest in the pattern of mendacious abuse” Pillay had referred to in her closing remarks.

Needless to say the slurs cast at the visiting High Commissioner became a large part of the narrative, especially after Pillay tackled the issue head on in her closing remarks. According to informed sources, two remarks particularly irked the visiting UN Envoy. Firstly the reference to her by JHU strongman Udaya Gammanpila as a terrorist sympathiser who saw “her husband in every terrorist”. Pillay’s husband was a lawyer and anti-Apartheid activist in South Africa, imprisoned with Nelson Mandela and others on Robben Island, where political prisoners were detained. The second was Minister Mervyn Silva’s offer to marry Pillay to show her what Sri Lanka ‘has to offer.’ The lewd remarks, made worse by allusions to Ravana-Sita folklore drew an apology to the visiting High Commissioner from President Rajapaksa no less, during his meeting with her last Friday. For the 72 year old judge, who has fought relentlessly for women’s rights throughout her career and especially in her present position, Silva’s remarks were not to be borne.

During a meeting with Leader of the House Nimal Siripala De Silva who was briefing Pillay on the recently constituted Parliamentary Select Committee on Devolution proposals, tried to lightheartedly brush off Mervyn Silva’s slurs. “Don’t worry about his remarks,” the congenial De Silva said during the meeting. Pillay was quick on the draw: “It is you that should be worried, Minister” she said.

Making it personal

There is great weight in that brief but powerful sentence. Rajapaksa administration officials repeatedly make a fundamental mistake in its dealings with international diplomats. They attempt, at their own peril, to individualise UN office bearers or diplomatic officials at local missions. Navi Pillay, as far as the Sri Lankan Government is concerned, can be whittled down to a South African Tamil, a sympathiser of the Tamil cause by virtue of her ethnicity and a convenient tool of the West. Similar mistakes were made with her predecessor, Louise Arbour, who was repeatedly vilified by Government officials. Navanethem Pillay, the Government must understand, even at this late stage, is not just one woman to be discredited and ascribed terrorist labels. Pillay is not just a South African or a Tamil, but the holder of the Office of the High Commissioner of Human Rights at the UN, a fixed institution that will continue to advocate and criticise long after Pillay no longer holds the title. When she presents her reports on Sri Lanka following this fact finding mission, that report will not only remain relevant while Pillay remains in office, but even when her successor takes over the reins.

The UN Envoy said as much during her concluding press briefing last Saturday, when she explained that she and even the UN Secretary General were merely civil servants, bound to uphold the regulations and standards set by 193 member states of the UN. The rules, she said, were set by governments of the world, including Sri Lanka. “If the rules and regulations are violated, that is what the UN points out to Governments. You may call it criticism, but that is what the UN does. When there are gaps, we raise a critical voice, but always with the intention to help,” the High Commissioner told the Sri Lankan press corps. In essence, Navanethem Pillay does not make the rules, any more than Ban Ki Moon, Marzuki Darusman or Arbour does. This fundamental truth that the Sri Lankan Government fails to understand, despite the best efforts of saner counsel within the regime, gravely endangers the country’s international standing at forums such as the UN.

There is little doubt that High Commissioner Pillay’s report on Sri Lanka, to be presented orally in September and in full during the Human Rights Council’s March sessions, will be a bare-naked reading of the human rights situation on the ground. The Government has choices to make as it looks towards Council sessions in Geneva in March 2014, which foreign policy analysts repeatedly warn could herald the beginnings of a fully fledged international inquiry against Sri Lanka unless genuine steps are taken to address accountability issues between now and then.

Costing hearts and minds

Acknowledgement that the need to grant people freedom with dignity, protect human rights and the genuinely necessity to hold people to account for crimes committed against sections of the population not because the international community is demanding it, but for the sake of Sri Lanka’s own soul, could be a starting point, if the political leadership was so inclined. The lack of genuine commitment may have been where everything went wrong for the Government during the Pillay mission, despite all its best efforts to showcase progress. As human rights Chief, Pillay is less concerned with physical reconstruction and more focused on the human condition. The inability to understand that fundamental difference, is costing the Government hearts and minds in the former conflict zones and support in the international arena.

For Navi Pillay, the message came through loud and clear. Everywhere she went in the north and east and sometimes even in Colombo, ordinary people mobbed her with tales of their personal suffering. In the north, observers say, all focus has shifted from the Provincial Council election since Pillay’s visit, with ordinary people convinced again that the UN will successfully advocate on their behalf. Her presence inspired hope for civilians, families of the missing, journalists and human rights activists whose post-war reality has been far from peaceful.

“The fighting may be over, the suffering is not,” Pillay said, as she left Sri Lanka.

If it was paying attention to the more human factors of post-conflict rebuilding, the Government may not have had to endure the embarrassment of having Navi Pillay draw attention to the fact that the peace dividend will elude Sri Lanka as long as a section of its populace remains chained to the suffering wrought by brutal conflict. Sandhya Ekneligoda or Rajeswari Ganesan could have articulated the point with equal eloquence. It would have been apparent in the fear of thousands of ordinary Muslims, worrying that a violent day of reckoning may be in their future. Or in the prostate, uncontrollable grief of Sinnakutty Kanapathipillai from Mullaitivu, who lay on the streets outside the Jaffna Library, asking the UN High Commissioner to find her son who surrendered on 18 May 2009, never to be heard of again.

The compulsion to tell the world of their suffering is a direct consequence of the fact that at home, no one is listening.

Courtesy Daily FT

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General

Tamil ethnic bias and potential conflict of interest disqualifies Navi Pillay from conducting investigations against Sri Lanka

Ms. Navanethem “Navi” Pillay has impressive credentials.  A South African of Indian Tamil origin, she is the United Nations High Commissioner for Human Rights. She was also the first non-white woman on the High Court of South Africa, and she has also served as a judge of the International Criminal Court and President of the International Criminal Tribunal for Rwanda.
She attended Harvard Law School, obtaining an LL.M. in 1982 and a Doctor of Juridical Science (SJD) degree in 1988. Pillay is the first South African to obtain a doctorate in law from Harvard Law School.
Given her notable achievements in the law as a scholar, lawyer and later as a Judge in several jurisdictions she is undoubtedly aware of such important natural justice principles as the –
1)    Conflict of Interests
A conflict of interest exists even if no unethical improper act results. A conflict of interest can create an appearance of impropriety that can undermine confidence in the process of an investigation or inquiry. A conflict of interest could impair an individual’s ability to perform his or her duties and responsibilities objectively. Aconflict of interest (COI) also occurs when an individual is involved in multiple interests, one of which could possibly corrupt the motivation for an act in another.
2)    Nemo iudex in causa sua (or nemo iudex in sua causa) is a Latin phrase that means, literally, no-one should be a judge in their own cause. It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none.
3)    “Not only must Justice be done; it must also be seen to be done.”
R v Sussex Justices, Ex parte McCarthy is a leading English case on the impartiality and recusal of judges. It is famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision.
In a landmark and far-reaching judgment, Lord Hewart CJ said:
“ a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. The ruling is derived from the principle of natural justice.  It has been followed throughout the world in countries that use the English common law system.  It has been applied in many diverse situations, including immigration cases, professional disciplinary inquiries, and in the Pinochet case, where the House of Lords overturned its own decision on the grounds of Lord Hoffman’s ( one of the Judges) conflict of interest.
Pinochet case in the House of Lords
Lord Hoffman was the Chairman and a Director of Amnesty International Charity Limited, a company with close links to the human rights organisation Amnesty International.
Amnesty International had been given permission to take part in the hearing before Lord Hoffmann and four other law lords. Unusually, Amnesty’s barristers were allowed to address them at the hearing.

Though Amnesty’s position was that people responsible for human rights violations in Chile should be brought to justice, there was no suggestion that Lord Hoffmann was actually biased against Gen Pinochet. But he had “an interest in the outcome of the proceedings” (according to Lord Goff) and he was “in effect, acting as a judge in his own cause” (according to Lord Hope).

Lord Hutton said “public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand.” The law lords agreed that Lord Hoffmann had sat while disqualified and ordered a fresh hearing.

The Hoffmann affair caused great damage to the international reputation of the English judiciary. Lord Hoffmann never explained and never apologised. Yet irreparable damage was done to England’s standing as a country where a fair trial was possible.
4)    Judicial disqualification
Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding or conducting an investigation or inquiry due to a conflict of interest of the presiding court official or administrative officer. The judge or presiding officer must be free from disabling conflicts of interest thus making the fairness of the proceedings or investigation less likely to be questioned.
Racial Prejudice of Juries and convicting Judges
During the 19th and 20th centuries, especially in the civil rights movement era, all-white juries in USA acquitted white defendants accused of murdering blacks, and convicted blacks in a manner totally out of proportion to their numbers in the general community. Such cases were rarely prosecuted at all, and when they were due to outside political pressure, only the minimum effort to go through the motions of a trial was made. 
Navi Pillay’s bias
The UN Human Rights Head on arrival in Sri Lanka claims she comes with an open mind. In this context we cannot overlook the fact that the whole issue facing Sri Lanka whether at a terrorist level or political leads to the aspiration of 72 million Tamils to have a separate Tamil Homeland to call their own (irrespective of whether it is in Sri Lanka’s North or Tamil Nadu).
This then raises the question of how Ms Pillay having emotional, genetic and ethnic ties being a Tamil with roots in Tamil Nadu how she can function with neutrality, impartiality, unbias and be emotionally detached?
When facts speak for themselves and evidence reveals that Ms. Pillay has an axe to grind it stands to reason that before we object to Ms. Pillay’s role in Sri Lanka it is only ethical for her to remove herself from any role relating in Sri Lanka. As the neutrality of judges is a sine quo non in the judicial process so whenever a judge realizes he or she cannot look at a case dispassionately the correct thing to do is to withdraw and arrange for a totally neutral person to take over. This is what Ms. Pillay is morally and ethically obliged to do in respect to her dealings with and in relation to Sri Lanka.
Ethics Guidelines in the UN
The UN itself has its own ethics guidelines and advice and figures a list of conflicts of interest found at the organizational level and personal level.  
An ‘organizational conflict of interest arises where, because of other activities or relationships, an organization is unable to render impartial services’. In other words the objective of the organization gets affected.
A personal conflict of interest is a ‘situation where a person’s private interests – such as outside professional relationships or personal financial assets – interfere or may be perceived to interfere with his/her performance of official duties’.
The UN ethics office advocates that staff should always ‘strive to avoid situations’ – we like to raise this same question to Ms. Pillay. The UN ethics office also says that ‘we need to be aware of how our actions, in the absence of an explanation, may appear to be interpreted by others’ – Ms. Pillay will realize what are concerns are because ‘situations do not necessarily imply wrongdoing’ and we are certainly not questioning Ms. Pillay’s credentials but our concern rests on the primary argument that being personally, emotionally, genetically and ethnically Tamil, that potential conflict of interest stake is very high for an entire country and population to accept given that previous statements and behaviour by Ms. Pillay raises questions about her ability to be neutral.
The UN’s financial disclosure program also stresses on conflict of interest in financial affairs. As such the UN outlines conflicts that may arise from accepting an honor, decoration, favour, gift or remuneration in connection with official duties (either from Governments or Non-Governmental sources without prior approval). There are criterions for official hospitality, favouritism – using office or knowledge gained from work to favour family members or friends. If the UN is to maintain and promote the spirit of openness and transparency, and if the objective is to be efficient and credible to safeguard the interests of the Organization it certainly does raise some credibility issues about Ms. Pillay.
Lack of appearance of Objectivity and Neutrality in Ms. Navy Pillay
So while we question Ms. Pillay on her neutrality based on her genetic, ethnic, emotional and personal connections to the Tamil cause, she may also like to answer why she kept using data supplied by the LTTE news agencies to question a legitimate government and continued to quote from LTTE front organization sources.
This makes her appear as a subversive and seditious international civil servant standing in between a sovereign Government and the UN Human Rights bodyand also raises concerns about how far she can expose all the information sharing to these LTTE fronts that are out to create an Eelam (in either Sri Lanka or Tamil Nadu). While she listens with empathy to spouses of dead LTTE leaders she needs to also travel South and meet the dead of the civilians killed by the LTTE outside combat areas. If she has not made arrangements to meet the families mourning children killed in villages, student monks killed in Arantalawa and over 10,000 other such civilians then she will be seen as blatantly one – sided and biased.
It was on the grounds of biased reporting that Iran has recently refused entry to Ahmed Shaheed the UN Human Rights Official to enter Iran
“ the measures taken by Ahmed Shaheed and the show of interviews launched by him, (displays) he is more of an actor than a rapporteur” and further
‘he has not acted fairly and has played the role of the opposition, and his measures have been outside the purview of a UN Rapporteur…the ground is not prepared for his presence in Iran until this approach is modified’.
Sri Lanka needs to stand up and talk in a spirited manner in the international arena. Display qualities of moral courage and outspokenness. A policy of appeasement, retreat, defeatism, kowtowing and cringing in foreign relations in the last two years has led to loss of national pride, self – respect and dignity, and in turn demoralized a once proud Sri Lankan public.   

Recusal (act of abstaining from participation)

Officials with a conflict of interest are expected to recuse themselves from (i.e., abstain from) decisions where such a conflict exists. The necessity for recusal varies depending upon the circumstance and profession, either as common sense ethics, codified ethics, or by statute. For example, if the governing board of a government agency is considering hiring a consulting firm for some task, and one firm being considered has, as a partner, a close relative of one of the board’s members, then that board member should not vote on which firm is to be selected. In fact, to minimize any conflict, the board member should not participate in any way in the decision, including discussions.
Judges, investigators or anyone else acting in a quasi – judicial capacity are also expected to recuse themselves from cases when personal conflicts of interest may arise. For example, if a judge has participated in a case previously in some other legal role he/she is not allowed to try that case.
Voluntary withdrawal from an investigation is also expected when one of the investigators in a case might be a close personal friend, or when the outcome of the case might affect the investigator directly, such as whether a car maker is obliged to recall a model that an investigator drives or if the investigator has a sectarian or emotional link to the substance of the matter under inquiry. Recuse is required by law under Continental civil law systems and by the Rome Statute, organic law of the International Criminal Court.
However, if a judge or an investigating official knows when to withdraw considering that the scales are not balanced equally, it is surely for Ms. Pillay to make the call instead of making us raise these questions.
It is up to Ms. Pillay to now decide how best she can remain unbiased. As an ethnic Tamil sharing genetics and emotional attachments to the Tamil cause through family and roots as well as various other bindings that must prevail, surely Ms. Pillay must know she is unsuited to function in any role where Sri Lanka is concerned or for that matter with India given the strident nature of Tamil Nadu calls for separatism and establishment of a greater sovereign Tamil nation with major parts of Sri Lanka annexed to it.  

Shenali D Waduge

Categories
Foreign Affairs

Facing Death Threats Ahead Of Check out To Commonwealth Meeting

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Callum Macrae

Callum Macrae

When you announce that you are going to apply for media accreditation for a routine international political event like the bi-annual Commonwealth Heads of Government Meeting (CHOGM) you don’t normally expect a rash of death threats – or to find a senior diplomat from the host country threatening on twitter that he will “make sure you don’t get a visa”.

But this year’s CHOGM is no ordinary event.  It is being held in Sri Lanka – whose government is accused of some of the worst war crimes of this century.  A country marked today by increasing repression of its Tamil minority and a brutal clamp-down on any government critics, particularly among the press and the judiciary.

When David Cameron controversially announced that he would be attending CHOGM despite calls for a boycott, Alistair Burt, the foreign minister with responsibility for Sri Lanka, went on record to say:  “We will make it clear to the Sri Lanka Government that we expect them to guarantee full and unrestricted access for international press covering CHOGM”

The omens for that “guarantee” do not look good.

I have now directed three films looking at the events of the last few months of the civil war.  The first two were commissioned and broadcast by Channel 4, building on the work of Channel 4 News.  The latest, effectively the culmination of three years of investigation, is No Fire Zone: the Killing Fields of Sri Lanka, a 93 minute feature documentary, supported by C4, BRITDOC and others. The films have had a huge impact, winning a number of awards, being cited by the UN and even seeing the team nominated for the Nobel Peace Prize.

In No Fire Zone we use some of the most disturbing video evidence ever recorded, to chronicle how, just four years ago, the Sri Lankan government announced a series of grotesquely misnamed No Fire Zones, encouraged hundreds of thousands of Tamil civilians to gather there for safety – and then systematically shelled them, also denying them adequate food and medicines.  Perhaps 40,000, perhaps – as one UN report suggested – 70,000 or even more civilians died, most killed by government shelling.  The predicament of the civilians was made worse by the Tamil Tigers who also stand accused of  committing war crimes and of preventing civilians from escaping the No Fire Zones.

It is fair to say the government of Sri Lanka does not like me – or others who have reported the truth from Sri Lanka, including C4 News foreign correspondent Jonathan Miller or former BBC Sri Lanka correspondent Frances Harrison, author of a book of Tamil survivors stories.

But when I revealed that I intended to apply for accreditation to CHOGM (as I did when it was last held in Australia in 2011), it provoked an astonishing series of attacks.  Comments published online included a series of clear death threats. One of the mildest, in response to my remark: “I trust the Sri Lankan Government will welcome me” read: “Absolutely white van is waiting at the airport.”  White vans are notoriously used in the abduction of government critics and are seen as a weapon of terror associated with extra-judicial killings and disappearances.

Another comment said I was welcome in Sri Lanka “only to go back in a coffin”.  And another said: “Callum Macrae – do not come to Sri Lanka. You will be abducted in a white van, and sent to meet Lasantha Wikremasinghe (sic).”  Lasantha Wickrematunge was the editor and founder of the Sunday Leader – a respected newspaper critical of the Rajapaksa regime.  He was shot and killed by unknown assassins in January 2009.

Then – a week ago, as I was touring with the film in Australia – Ambassador Bandula Jayasekara, a senior Sri Lankan diplomat in Sydney and former Chief media advisor to Sri Lankan President Mahinda Rajapaksa, issued a series of threatening tweets in which he said he would “make sure you don’t get a visa” and accused me of being “hired by (Tiger) terrorists as a full time propagandist for the blood thirsty terror group overseas”.

Indeed, far from condemning the death threats against me, he seems almost to be encouraging the climate of hostility and suspicion which lies behind them.   Then last week the Sri Lankan government’s own media minister echoed his words saying: “press freedom… cannot be something that can be framed inside aiding terrorism or being a propagandist for terrorism. So, we will be 100 per cent cautious about who comes to Sri Lanka for CHOGM.”

As I write this the Sri Lankan government has issued a rather more conciliatory statement, suggesting that they will issue visas to those given accreditation by the Commonwealth Secretariat.

We shall see – and the world’s press will now, I hope, be watching very carefully.

*Callum Macrae – Director – No Fire Zone: the Killing Fields of Sri Lanka, www.nofirezone.org Twitter: @nofirezonemovie

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Foreign Affairs

Sri Lanka Govt Shuns Reconciliation With Move To Annul Constitutional Provisions

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Tissa

J.S. Tissainayagam

The government of Sri Lanka is leaving no stone unturned in an attempt to annul provisions of  the country’s constitution that are key to implementing post-war reconciliation. By seeking to rescind the 13th amendment, long held by the international community as the starting point for a political solution for the conflict between Sinhalese and Tamils, the Government has clearly demonstrated its cavalier disregard to UN resolutions and international treaties and therefore is an unreliable international actor.

A spokesperson to India’s Ministry of Foreign Affairs was candid when he said, “[t]he proposed changes raised doubts about the commitments made by the Sri Lankan government to India and the international community, including the United Nations, on a political settlement in Sri Lanka that would go beyond the 13th Amendment.”

The 13th amendment to Sri Lanka’s constitution was introduced as an instrument to share power between the Sinhalese and Tamils through devolution to the country’s provinces. The amendment flowed from the Indo-Lanka Accord, negotiated and signed as a treaty between the governments of India and Sri Lanka in 1987, in a bid to end the armed struggle between rebels supported by India and the Sri Lanka government.

Devolution to share power between Sinhalese and Tamils was to soon encounter snags. The fundamental reason was that Tamils realised that devolution proposed under the 13th amendment would be hobbled by the very thing it was supposed dismantle – power wielded in Sri Lanka’s legislature by Sinhalese members of parliament.

This constraint was due to the unitary character of the Sri Lankan state. This means that the central government, in which the executive presidency and parliament are key institutions, remains constitutionally supreme. Under a unitary system even when power to legislate over subjects of local importance is devolved to subunits such as provinces, parliament can override those powers either by a simple majority or a two-third majority. This contrasts with federal constitutions where powers that the constituting units enjoy are so entrenched that they cannot be tampered with by central governments so simply. Needless to say in the real world constitutions mostly fall in between the unitary-federal continuum.

Despite devolution under the 13th amendment being hobbled by control from the central parliament, most of the Tamil political parties and armed rebel groups accepted the Accord and the brand of power sharing it proposed. Despite backing by Colombo and New Delhi, devolution to the PCs under the 13th amendment, which became law in 1988, was only implemented selectively. For instance, elections to the Northern Provincial Council (NPC) where a majority of Tamils live, was never held. Second, a clause to merge the Eastern PC which has over 60% Tamils and Tamil-speaking Muslims with the NPC to strengthen common demands was temporarily implemented but later struck down by the Supreme Count as unconstitutional.

Following the military defeat of the LTTE in May 2009, devolution of power came back into currency as a practical mechanism of devolving power and thereby promoting reconciliation between the Tamils and Sinhalese. At the same time the international community – especially India and the US – expanded their role in promoting conflict resolution in Sri Lanka.

Citing the provisions of the Accord, the treaty between Sri Lanka and India, New Delhi called for the full implementation of the 13th amendment, which was echoed by the US and other sections of the international community. But buoyed by its military victory and elements of Sinhala nationalist elites, the Sri Lankan government prevaricated. Following three years of intensifying misery for the Tamils due to militarisation, widespread allegations of disappearances, torture and rape, loss of livelihood and parlous conditions of resettled IDPs, the United States moved two resolutions in the UN Human Rights Council. The second resolution, adopted in March this year, “welcomed” provincial elections for the NPC.

Faced with mounting international pressure the government has indicated its intention to hold polls for the NPC this year, although it is yet to be officially announced at the time of writing. However fearing that such elections would strengthen the Tamils in the North the government has on the backs of Sinhala nationalist groups begun to demand dismantling of even the vestiges of devolved governance. It has therefore proposed a 19th amendment to ensure that provincial governance is in name only. The government’s group of Sinhala representatives in Parliament is expected to back this bill and pass it with ease.

The Sri Lankan government’s move to dilute the 13th amendment only reiterates its indifference to reconciliation. It also shows up very clearly the inadequacies in the strategy of the international community. The international community expects Colombo to respect international laws or conventions – such as UN resolutions and treaties – and that meaningful sharing of power will come from within Sri Lanka under the present political structures. But that is not forthcoming. The international community should therefore strengthen the Tamils within and outside Sri Lanka and use other diplomatic tools available to it to resolve the Sri Lankan conflict. A delay will only exacerbate Tamil desperation and see a further erosion of international order.

J. S. Tissainayagam, a former Sri Lankan political prisoner, was a Nieman Fellow in Journalism at Harvard and Reagan-Fascell Fellow at the National Endowment for Democracy in the United States. This article first appeared in Asian Correspondent

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The Truth or Lies of Benjamin Dix

by Shenali Waduge

Benjamin Dix is the chief protagonist in promoting presumed wrongs committed by the armed forces of Sri Lanka and emerges every time there an international event using documentaries and films meant to devalue Sri Lanka’s military achievement – we have become accustomed to these theatrics just as we are well aware that the lady in charge of human rights impatiently awaits an incident to take place to issue a deregulatory statement against Sri Lanka. Dix spoke in 2012 as guest speaker on “photographic journalism” at the Institute of Art and Ideas,http://iai.tv/video/the- killing-fields and based on this presentation some lies and truths are now highlighted.
“I went to Sri Lanka in 2004 as a photojournalist and managed to get up to the North of Sri Lanka which is the liberation of tamil tiger elam area in the North where I started working for the United Nations”
Benjamin Dix started as a Photographer for Berg Publishers (2002 – worked for 10months). He came to Sri Lanka from India in 2004 after the tsunami and went to Sri Lanka’s north. He joined Norwegian People’s Aid and worked as Project Manager from March 2005 to December 2006. NPA is an organization that is accused of links to Sudanese rebels. He joined the UN in January 2007 until December 2008. He is putting 22months of his knowledge to accuse Sri Lanka of war crimes.
“I was based there for 4 years as the liason officer between the Tamil tigers and the Sri Lankan Government”.
Can the Government and the UN please confirm this statement because he does not appear in any of the names associated with the negotiations held between LTTE and GOSL and moreover many questions surfaces with regard to this role.
“It’s a divided country. In the South you have the Buddhist Sinhalese who are also the Government of the country”
Perhaps Benjamin Dix is not aware that there are more Tamils living outside the North and amongst the Sinhalese.
Benjamin Dix should also look at Sri Lanka’s Government MPs and count the number of Tamil and Muslim MPs before making inaccurate statements.
“North and the East predominantly Tamil”
Benjamin Dix is also unaware that the 2 provinces are now demerged and the Tamils no longer are the majority in the East.
“It was the most impoverished district of the country”
The areas held by the LTTE were out of bounds for the GOSL and its military.
Inspite of LTTE making USD300m profits annually not a cent went towards uplifting the areas that they held within their control though that money was utilized to purchase arms and build sophisticated bunkers for the LTTE and homes for the LTTE families – this bit of information Benjamin Dix appears to leave out – which is confirmed by his statement. “Kilinochchi where the UN was based and where LTTE had its political and military headquarters and by far the most built up area”  
“It was quite a vulnerable population” – at least he has said one thing right, because that was what LTTE tapped into and why the people feared to do anything against the LTTE for fear of their lives and that of their children. LTTE imposed taxes on all goods passing LTTE controlled areas, individual households were taxed and penalties were imposed on those who evaded payment. There was an LTTE ‘customs” located at Omanthai from which LTTE collected Rs.4-5m. Benjamin Dix was well aware of this – is his concern then for the Tamil people who were being illegally taxed? Tamil farmers had to pay taxes according to produce, even Tamil Government employees had to pay tax of 8% of their income. Then the fishermen that Benjamin Dix spoke of whose livelihoods were affected because of the conflict, well they had to pay Rs.5 per kill for transporting fish from Mannar to Colombo! Ltte had a more sophisticated network to collect money from Tamil businessmen based in Colombo and from the Diaspora.
 “no electricity in the area”  
How can a Government take care of its people when LTTE was running a defacto state disallowing Government or troops to enter these areas.
Moreover, the LTTE did not want the people to have electricity or television because it would have meant the LTTE’s atrocities would have been exposed. The LTTE chose to keep the people blind to their atrocities. Moreover the LTTE had blown up the power grids. These are now being restored and Kilinochchi and Mullaitivu areas that had 0% electricity in May 2009 now have 29% and 23% respectively.
“people had no links to the country”
Sri Lanka remains the only government that never stopped sending food, medical requirements and essential goods to the areas of the northern and eastern peninsula through the past 3 decades. If people had no links it was because the LTTE attempted to keep the people by force. The Tamil politicians have been fooling the people all through. The very MPs representing the TNA once claimed that LTTE was the sole representative of the Tamil people. The people with time will realize how the politicians have fooled the people just like the LTTE.
Today, the people of the North can freely travel throughout the country – there are no bombs. The former LTTE cadres are now employed and doing all that they were denied because the LTTE turned them into killers.
Ideally, the plight of these children whose formative years were held to ransom and women who could have done far more out of their lives than be turned into killers is what people like Benjamin Dix and Channel 4 should have made a documentary on – not the lies that are being relayed just to suit the sponsors.
“from the beginning of 2007 a new President came into power, Mahinda Rajapakse a Sinhalese nationalist in the South in Colombo and he came on this wave of crushing tamil tigers and crushing terrorism”
Firstly Mahinda Rajapakse did not come into power in 2007, it was on 17 Nov 2005.
Mahinda Rajapakse was elected President of Sri Lanka and not the South only.
Benjamin Dix may have been a good friend of a terrorist organization but a terrorist organization is one that kills innocent people and after 30 years suffering and over 5 peace offerings and negotiations all of which the LTTE turned down, the decision to military take on the LTTE was when it closed the sluice gates in Mavil Aru.
The LTTE closed the sluice gates in July 2006 and only after numerous appeals did the army receive orders to open the sluice gates in August 2006.
Closure of the sluice gates meant that 9510 Muslims, 8013 Sinhalese and 4439 Tamils living in 20 villages did not have water for livelihood and domestic use.
Before the military operation the LTTE dominated an area of 15,000sq.km in the north and eastern provinces of Sri Lanka.
LTTE was controlling 6792sq km & manning 11km long FDL from Kilaly to Nagarkovil via Muhamallai in the North & a 140km long FDL from Mannar to Kokkuthuduwai via Omanthai in the South.
It was in March 2007 that the land operations commenced in the Northern province
“on the border they started an almost badminton match….artillery going backwards and forwards”
Benjamin gives himself away in this statement because he confirms that the LTTE was firing artillery. 
“army would put wayside bombs called claymore”
Another fictitious statement, the majority of claymore mines used was by the LTTE
The army cleared all landmines with the assistance of foreign land mine teams.
“they got international fame when they killed the Indian President in 1990”.
Benjamin Dix needs to update his general knowledge. Rajiv Gandhi at the time of his death was the FORMER Indian Prime Minister (not the President) and he was killed in 1991 May 21 to be precisse not 1990.
“the distinction between the Tamil tigers and the Tamil civilians were blurred and it was difficult for us as the UN and for the army to distinguish between who was a rebel and who was a civilian”
The LTTE when it suited them wore military attire and posed as civilians too 
Many would recall how some LTTE mingled with civilians coming to Government controlled areas and blew themselves up killing not only military personnel attending Tamil civilians providing them food and medical aid but Tamil civilians too. (Vishwamadu – 9 Feb 2009)
“the mother became a sympathizer for the rebels by having a daughter for a rebel”
This statement is poignant and leaving aside the laws of international laws related to non-international armed conflicts and role of civilians, the people must think how a military should act when the rebels not only pose as civilians when it suits them and use their knowledge of military codes against the soldiers. Whose conduct is morally wrong?
“tiger girls in the bunkers doing their hair in the morning” – together with his description of Prabakaran showing his cadres Bollywood movies depicts that Benjamin Dix was privy to where LTTE had their bunkers, had close links with the LTTE female cadres which really goes to show where his allegiance was. LTTE was a terrorist organization. It is not the duty of humanitarian organizations to be taking sides but to take the side of the humanitarian disaster – in this light is it now the duty of these humanitarian workers to at least inform their head offices what the LTTE were doing in terms of how they recruited children and turned women to killers?
“training behind the battlefields in the jungles….training with the artillery…this is tigers putting landmines into the ground on the front lines….and the claymores where someone will hide in the bush and pull ” – didn’t Dix say earlier that the army was responsible for putting landmines!!!
His description of how the LTTE suicide boats operate is also noteworthy and shows how well he knew of the details.
“Kilinochchi the capital of the tigers. This is our UN office on the other side of the hedge… this was a civilian compound…but the tigers had moved the civilians out (unknown to us”UN”) and put one of their intelligence units in their office and that was bombed by the SL Govt”….”the tigers were using us (UN) as shields and under international law gives the Sri Lanka legitimate rights to bomb the area”
This is an absolute lie as crater investigation has revealed that it was the LTTE who was in Kilinochchi at the time that the UN was evacuating who had bombed not the UN compound but an area close to it.
Hypothetically if 10 to 15 air attacks per day as Dix mentions did not hit the UN office or injure any of its officers including Dix that shows that Sri Lanka’s air force was never involved in indiscriminate bombing
Dix also says that they knew that the LTTE would loot their generators and scaffolding, we know that 40 vehicles belonging to the Norwegian Peoples Aid “fell” into LTTE hands as well similarly LTTE would have been privy to much more.
“Casualties started to arise in early 2008….mass graves started to appear in the jungles”
Can Dix please tell us where these jungle mass graves are since he is so conversant in the jungle areas
Kilinochchi – came under GOSL control only 2nd January 2009 (by that time Dix was no longer in Sri Lanka). Kilinochchi was under LTTE control when the UN was told to move to safer locations (not evacuate). Thus when the film of supposed children begging UN officers to remain was taken, LTTE was very much present. It is left for the reader to imagine how such a film would have taken place under LTTE presence!
 “On 17th August 2008 the tigers put out a letter to the population saying we now officially going out to war”
It was after the LTTE bombed close to the UN compound in Kilinochchi that the Government asked the UN and other international agencies to RELOCATE to safer areas and not EVACUATE
“Govt stopped us from importing materials we needed to make the bunkers …like concrete..like railway tracks” – how on earth can bunkers be built with materials like railway tracks!!
Benjamin Dix’s implication that the Tamil civilians were not provided food and that supplies to hospitals were affected is negated by these facts.
* January 2008-May 2009 58,393 metric tons of essential items were sent to Killinochchi and Mullaithivu districts in addition to 33,383 metric tons supplied to co-operative outlets during 2008 up to January 2009
* Every month, five to 600,000 litres of fuel was sent to each district despite fear that it may fall into LTTE hands.
* 900 government health staff in Mullaithivu and Killinochchi alone
* More than 20 litres of water per person per day was delivered and used.
* 175,000 personnel of the SLA have undergone local & international training to effectively be mentally & physically prepared to handle hostage rescue operations alongside a military operation against terrorism.
Yet LTTE attacked even the UN convoy carrying food and thereafter the military continued the supplies by sea. The numbers were purposely inflated so that the LTTE could stock the foods and essential items sent. Therefore, Sri Lanka becomes the only nation that continued to supply food, medicine and essential items despite knowing it may fall into LTTE hands but upholding its duty towards the citizens.
“one of the saddest pictures I took…became like many of the schools because of the children been taken by the tigers to fight”
If this is one of the saddest pictures why has Benjamin Dix not got Channel 4 to do a documentary of the LTTE’s forcible recruitment of children if as he says “education is everything to these people” and knowing that the LTTE was turning them into killers and denying them education or the joy of being with their parents and siblings?
Children grabbed from their homes, while studying and forcibly turned into killers all of which Dix and his colleagues would have seen as Dix himself is aware of the training camps in the jungles and that schools are empty as was told by his friend Pillai. Young females turned into suicide bombers or ordered to carryout suicide missions did Dix and others not care about the futures of these women? So please, enough of these double standards and emotional pep talks.
UNICEF has recorded 5956 abductions carried out by the LTTE for forced recruitment between January 2002 and December 2006, with 1012 of these being children under the age of 15 years
“education became impossible” – now that has changed not only are there over 900 schools now functioning there is a student population of 260,582 with 13.967 teachers. No one is kidnapping children to make into killers and suicide cadres now!
 “my job was to work with the tigers and understand where they were going to do their fighting and where we could move 3-400,000 civilians”
– If the safety of the civilians was priority (not that of the LTTE) why did Benjamin Dix not secure their release from LTTE. The world cannot forget these civilians were being dragged from one end to the other not by the armed forces but the LTTE. Why did the LTTE not listen to these humanitarian agencies or did these agencies not insist on their release?
Yes the UN failed Sri Lanka’s 20m by siding with a terrorist movement and allowing Sri Lanka’s conflict to continue for 3 decades.
“this lady’s husband had been taken by the tigers to fight… if your fighting age is anything between 17 and 40 you are going to the front line to fight” – so do we classify these civilian fighters as “civilians” or “civilian combatants”.
“You’re our witness” – another poignant statement because Benjamin Dix alongside a host of other UN, INGO, NGO officers were working and living in Sri Lanka’s northern and eastern areas were witness to a host of crimes that the LTTE were committing all of which were not “humanitarian” and we demand to know what they did about these crimes because they should be standing trial for diminishing their role as humanitarian workers taking the side of a militant group over the Tamil civilians who were used and abused by the LTTE.
“people were barricading us in and begging us not to leave and through that 4 day period and tigers were moving their hard ware and artillery around….”
This clearly shows that the LTTE orchestrated these demonstrations because they were very much around the UN compound and amongst the UN officers
That there was no aerial bombing during the clipping of supposed demonstration outside the gates of the UN compound goes to show that on the 16th September 2008 the UN and LTTE were very much in Kilinochchi
“40,000” civililans were killed” – can Dix kindly prove this number…. It seems he is always talking in figures that somehow does not fit in with the actual total population of Tamils in Sri Lanka and that population is 2.4million of which 1million are overseas and if one spends a bit of time doing some calculations it is really impossible to believe the 400,000 or 500,000 figures that these former officers enjoy throwing into the air as if they personally counted them!
“when you remove the witness, when you don’t allow journalism the depths of war … but Sri Lanka was so much worse than Libya… its really bad”.
We are happy to do without “witnesses” who are one-sided and as for journalists we can say that numerous private tv stations including foreign were allowed to move with the troops to witness every stage of the conflict and none of them have said anything that remotely shows us that our soldiers were committing any crimes, Dix can summarize all his fictions in a book and sell like Weiss. The people of Sri Lanka will remain indebted to our forces no matter what
Dix is implying in the closing lines of his presentation that since the army did not know who was a civilian and who was LTTE, loosing thousands of civilians did not matter and that the army would not have to deal with them post-conflict – yet he forgets that 294,000 civilians were actually saved at the cost of 5000 military lives during the last stages of the war. If orders were clearly to fire at anything that moved as the US soldiers had been ordered to do in Vietnam then none in Sri Lanka’s military would have lost their lives nor would there be 11770 LTTE combatants. The GOSL has spent Rs.500million to rehabilitate and reintegrate to society – now save a handful they have either continued studied, engaged in a livelihood, taking to vocations like modeling and dressmaking, joined the security services, functioning as teachers and some are even playing for the national team in sports..…we are far more intelligent than to buy these lies.
A democratic Government has every right to protect the sovereignty of its country especially from terrorists and let’s not forget that having listened to the formulas provided by the West and its humanitarian agencies which could not stop the LTTE’s mission to kill civilians and only after 30 years of enduring terror that Sri Lanka’s military defeated the LTTE – that should be nothing Sri Lanka deserves to be punished for – especially when the very countries pushing for punishment have failed to deal with terrorism and their crimes against humanity goes unpunished or even investigated and the lady in charge of human rights cares not to waste a letterhead on them! We will not allow our soldiers to be humiliated with lies and fabrications because they remain the only military to have eliminated a terrorist movement while saving hundreds of thousands of civilians and thereafter designing an indigenous rehabilitation and reintegration program that no country can match. It may not be perfect but it still far superior to what other countries are unable to match because they are still battling terrorism.