THE TRUTH, MORE IMPORTANT THAN FACTS | Sunday Observer

THE TRUTH, MORE IMPORTANT THAN FACTS

Re: Lessons Learnt and Reconciliation Commission (LLRC), Presidential Commission to Investigate Complaints Regarding Missing Persons (Missing Persons Commission) and Permanent Office on Missing Persons

Part 2 (continued from last week)

The Mandate of the OMP

(a)   Search for and trace missing persons and identify appropriate mechanisms for the same and clarify the circumstances in which such persons went missing;

(b)    Make recommendations to the relevant authorities towards addressing the incidence of missing persons;

(c)    Protect the rights and interests of missing persons and their relatives as provided for in this Act;

(d)    Identify avenues of redress to which missing persons and relatives of missing persons are entitled and inform the missing person (if found alive) or relative of such missing person of same;

(e)    Collate data related to missing persons obtained by processes presently being carried out, or which were previously carried out, by other institutions, organizations, Government Departments and Commissions of Inquiry and Special Presidential Commission of Inquiry and centralize all available data within the database established under this Act;

(f)     Do all such other necessary things that may become necessary to achieve the objectives under the Act

The OMP had a budget of Rs. 1.3 Billion (2018).

 The Mandate of the Permanent Office on Missing Persons is similar to the Mandate of the Missing Persons Commission under Justice Maxwell Paranagama.  The Commission in its interim reports on the First Mandate and in the Final Report of the Second Mandate clarified the circumstances in which persons went missing. The clarification was based on the evidence that was given by the families of missing persons in public.

The Commission also identified appropriate legal mechanisms or processes for clarifying the fate of abducted persons.

The Commission collated a large amount of data in its efforts in clarifying the fate of the missing persons. The data included obtaining details of persons who were admitted particularly during the final phase of the war from the hospitals of Kurunegala, Anuradhapura, Vavuniya, Mullativu, Kilinochchi, Padaviya and Trincomalee.  Additionally details were obtained from detention centres.

The Missing Persons Commission has already done what the OMP is being asked to do at a cost Rs.1.3 billion tax payers’ money.

Sri Lanka US Joint  Resolution

Consequent to the Joint Resolution of Sri Lanka and the USA and to appease the international community, it was agreed to set up a permanent office on Missing Persons in Sri Lanka.  Is this office mandated to give an answer to the families of missing persons regarding their missing loved ones? This would be their primary responsibility. Can this office achieve the impossible? The answer is this office will never be able to trace a single person who has gone missing as a result of the conflict. Then is it worth spending tax payers’ money in maintaining an office which cannot achieve any success in tracing a single missing person.

If a person goes missing what is required is to lodge an entry with the nearest Police Station who will investigate the disappearance. It would not make sense for anyone to make a complaint to the Office on Missing Persons if someone disappears that is a matter for the Police.  If a complaint is lodged with the Office on Missing Persons that complaint would be referred to the Police for investigation.

The writer of this article being a person who worked for the LLRC and the Missing Persons Commission from the very beginning to the end had the opportunity of sitting with the Chairman and Commissioners of the Missing Persons Commission at its meetings held with senior military officers of Sri Lanka such as General Jagath Diaz, General Kamal Guneratne (present Defence Secretary), General Shavindra Silva (present Army Commander) General Nandana Udawatta, General Shammi Silva all of who were the Commanders in the theatre of war. Similarly discussions were also held and statements recorded from high ranking Air Force and Naval officers.

The Commanders in the theatre of war provided the Commission with information on the manner in which the security forces conducted the war by sacrificing a great deal.  It is unfortunate that the people who sympathize with the LTTE and the grave destruction they inflicted in terms of human lives and the destruction caused to the infrastructure facilities of this country are not spoken about by the international community.

From the commencement of the Eastern offensive in August 2006 the Government of Sri Lanka under President Mahinda Rajapaksa had referred to the Government’s operation as humanitarian which perhaps reflected the emphasis placed by the Sri Lanka Army on civilian protection rather than any form of punitive aspect directed against civilians.

The Humanitarian operation that commenced in early January and ended on May 19, 2009 saved the lives of hundreds of innocent Tamils, our soldiers and hundreds of civilian lives from all communities.

UNITED NATIONS SECRETARY GENERAL’S  REPORT (UNSG)

The United Nations Secretary General appointed a panel of experts to submit to the UNSG a Report. The panel was expected to assist the UNSG in advancing the process of accountability in regard to the last stages of the war in Sri Lanka. This was the principal task of the panel.

The UNSG appointed the following to the panel,

1.     Maruzuki Darusman – Chairperson

2.     Steven Ratner Advisor to NGO Human Rights Watch  

3.      Yasmin Sooka Head of Sooka Foundation funded by EU.

 

Maruzuki Darusman was invited as an observer of the Independent Group of Eminent Persons (IIGEP).  However, subsequently, he withdrew from the IIGEP alleging that the Government of Sri Lanka (GOSL)did not have the will to improve human rights.

Steven Ratner was an advisor to the NGO Human Rights Watch an organization which expressed disappointment that UNHCR had not passed a resolution calling for an international investigation on war crimes committed by the GOSL.

Yasmin Sooka – Head of Sooka Foundation funded by the European Union which has supported an investigation of war crimes and actions of the GOSL. Yasmin Sooka in her Report “An unfinished war torture and sexual violence in Sri Lanka 2009-2014” states that her report was produced in order to influence the Human Rights Commission in its consideration of its resolution on Sri Lanka in March 2014. She wrote, ‘We released the Report in time before the Geneva Resolution because we wanted to influence the Geneva Resolution’.

On February 27 Yasmin Sooka addressed a Global Tamil Forum meeting at the Palace of Westminster. In the wake of the LTTE’s May defeat, pro LTTE elements of the Tamil Diaspora created several new organizations.

The Secretary General had stated that the panel was an advisory panel appointed to advise him. The report should then have been treated as a document personal to the Secretary General and not made public particularly in view of the fact that the panel had exceeded their Mandate and presented a case against the government of Sri Lanka based on a process of information gathering which was incomplete.

The appointment of the UNSG’s panel has to be seen in the global context in which the UNSG’s initiative was taken. Several western powers who had been involved in the peace process in Sri Lanka were gravely disappointed at the unilateral action taken by the Government to find a military solution to the armed conflict with the LTTE. They warned of ‘devastating consequences’ of such action. Most human rights organizations were also firmly opposed to the Government opting for a military solution.  Therefore from the outset it appeared that these parties were predisposed to see the outcome of the operation in the light of their expectations.  The complete defeat of the LTTE was also an unexpected outcome to these parties.

The panel stated that beginning February 2009 the LTTE commenced a policy of shooting civilians who attempted to escape and to this end cadres were placed where they could spot civilians who tried to escape. The panel also stated that the LTTE used new and badly trained recruits as well as civilians as common fodder. The panel further states that there is no estimate of the numbers of civilians killed by the LTTE but the report states the numbers were ‘significant’.

The Mahinda Rajapaksa Government clearly stated that no war crimes were committed by the Government or the Army and that all action taken were military actions necessitated by the ground situation and satisfied all criteria of intentionality and proportionately and that the government was not going to appear before any advisory panel to the UNSG to give information regarding its action.

The fact that the government decided not to deal with the panel meant that the panel could not gain access to the full version of the government on the events and therefore did not have before it a full case against the government.  This left a large lacuna in the panel’s information gathering exercise. In the report the panel attempts to make good its failure to obtain information from the government by constructing its own version of the government’s account. The dubious manner in which the panel exceeded its Mandate is apparent in its own words where the panel explicitly states that “it did not conduct fact-finding “ as normally understood within the UN system “nor did it carry out a formal investigation” that draws conclusions regarding the legal liability or culpability of states and individuals. The panel recognizes that it had no Mandate to do so.

There is also a lack of transparency on the part of the Panel regarding the sources of information used by the Panel. All sources of information on the allegations were kept confidential most of which came from individuals and powerful lobbies with a stake in the outcome of the Panel’s report and most of who would have been unfavourably disposed to the GOSL. Most of the ground level accounts evidently came from UN officials and NGOs who had cause to be disaffected with the government for the restrictions that were placed on them.

The panel in its report does not perceive any intention or effort on the part of the government to respect humanitarian law or the rescue of hostages. The panel consulted a variety of sources but the evidence from these sources was not made available in the Report.

The Panel makes a series of criticisms against the LLRC while admitting that it did not have the opportunity of meeting with the LLRC and acquainting itself with the work of the LLRC. In response to the Panel’s criticisms of the LLRC the government provided detailed answers which apparently the panel decided were not adequate and proceeded to make critical observations on the same issue.

The comments the Panel makes on the independence of the LLRC have to be considered in the light of the Panel’s admittedly incomplete knowledge of the LLRC. The members of the LLRC had admittedly the knowledge, expertise and firsthand experience to deal with matters under the Mandate of the LLRC.

The members of the LLRC that were appointed by President Mahinda Rajapaksa were officials who had won high regard for their professional integrity.  They were also diverse enough to provide checks and balances that were needed for an impartial outcome.  It is ironic that such a charge was made by the panel of the UNSG against whom serious charges of conflict of interest are brought.

A wise judge knows that in the perfect domain of human knowledge there are many versions of the truth and steers himself conscientiously through all these versions of the Panel’s report.

Accountability

Of course the government has to close the books. But the books have to be opened before they can be closed for the last time.

The LLRC report opened the books for investigation. President Mahinda Rajapaksa reading the LLRC book quite correctly and admirably took further action to keep the book open and advance the cause of justice by appointing the Missing Persons Commission and also appointed an Advisory Council consisting of some of the best legal experts in the world by giving the Commission a Second Mandate and instructing the Commission to write a further book on the matters set out in the Second Mandate which was a recommendation of the LLRC.

The Missing Persons Commission headed by Retired Justice Maxwell Paranagama was nearing writing the last chapters for closing the book on missing persons but was prevented in completing its mission by President Sirisena who was misguided by some of his Ministers influenced by NGOs and LTTE sympathizers caused the closure of the Commission on August 15, 2015 without even having to submit a Final Report. Had the Commission been allowed to complete its mission and write the last chapters the book on missing persons in Sri Lanka could have been closed.

The Darusman Report failure to identify the primary source material and the disputed facts and law particularly, the most explosive finding of the Panel, the allegation of civilian deaths in the range of 40,000/- was adequately addressed in the Final Report of the Commission’s Second Mandate which was compiled with the assistance of the Advisory Council.

Inconsistencies  emerged with organizations such as INGOs, NGOs, UN, Foreign Journalist, Bishop of Mannar, Human Rights Commissioner Navi Pillay and several other organizations that attempted to compete with each other on the number of missing killed or missing which varied from 1,000 to 147,000. However, none of these organizations provided the names of the persons missing. The Missing Persons Commission appealed to the Bishop of Mannar Rayappu Joseph requesting him to provide the names of the 147,000/- people reported missing by him. However, the Bishop did not respond to the Commission’s request.

The Commission endeavoured to implement its Mandate by exploring all avenues to provide an answer to the families of missing persons regarding the whereabouts of their relatives. In this connection, the Commission sought the assistance of the Ministry of External Affairs to liaise with the Western countries such as the United Kingdom, France, Germany, Canada, and Switzerland also from India where a large number of Tamils had fled to. 

The British Embassy in Sri Lanka responded in writing to the Commission that in terms of the privacy laws on refugees of the United Kingdom they are unable to provide the names of Sri Lankan Tamils who took refuge in the United Kingdom.

The Commission had credible evidence that a large number of Sri Lankan Tamils had fled to other countries particularly to Europe Canada, Switzerland and India.  As a result of the stance of these countries, the Commission’s attempt to count the living before counting the dead did not materialize.

The Commission noted that individuals who had been reported missing had suddenly surfaced overseas in countries such as the Maldives and India which the Commission was able to ascertain. A classic example of persons reported missing surfacing in other countries emanates from India where Kathiravelu Thayaparajah his wife and children who were reported abducted and killed by Sri Lankan Security Forces emerged in Danuskodi India. Kathiraveli Thayaparajah was a very intelligent computer engineer from the University of Peradeniya. 

He worked as a Director of Vanni Tech.  He operated the LTTE technology platform. The Vanni Tech was the main organisation that bought technology from the USA, Canada, Europe and Australia to build the militant capacity of the LTTE. KathiraveluThayaparajah went underground and he floated a story that he had been abducted. 

After Thayaparajah floated the story, both he and his wife Udayakala were engaged in human smuggling. Raj Suthan, a Tamil journalist wrote:  Another coward murder staged in Colombo by Sri Lanka CID.  Kathiravelu Thayaparaj a very intelligent computer engineer who worked as a Director at Vanni Tech has been murdered by the Sri Lankan CID. The journalist further states that Thayaparajah was arrested in Colombo last week. After interrogation he was to be produced in Courts by Tamil Lawyers. Unfortunately, he was silenced by gun before he was produced in Courts. The journalist urged human rights activists to bring the truth by their own investigation.

Human Rights Organisations and the Australia Refugee Investigation Board had accused the Sri Lankan military of abducting and executing Thayaparajah. Investigations revealed that round about this time Udayakala wife of Thayaparajah had cheated a large number of Tamils in Jaffna of their money.

Subsequently, Thayaparajah, his wife Udayakala, son, Diyaron, daughters Dilkiya and Dilhiya surfaced in Tamil Nadu.  Fortunately, the Danuskodi Police managed to find out and reveal their identities otherwise the Sri Lankan Army would have been held accountable for them. According to the investigation conducted by the CID Thayaparajah and his family had arrived by boat with several others with the intention of leaving to a western country claiming political asylum.

Rama Manivanam in his book “Sri Lanka Hiding the Elephant” (pages 321-323) under the title “Murder of Kathiravelu Thayaparajah Director of Vanni Tech (ID No. 81002043v) (Passport No. N 2880199)” documented genocide, war crimes and crimes against humanity. Manivanam had stated in the book that the CID and Special Forces had picked up Thayaparajah and he died on September 15, due to gunshot injuries while in custody. He states that Thayaparajah’s wife Udayakala and close relatives had identified the body. He also states that since no one was prepared to claim the body was cremated and ashes were handed over to Udayakala.

The UNSG Panel’s report and the allegations regarding the numbers reported killed or missing citing unsubstantiated sources and the lack of cooperation by western countries to provide details of Sri Lankan Tamils who took refuge in their countries is detrimental to the process of reconciliation.

President Mahinda Rajapaksa did everything possible to make known the truth by appointing two Commissions and allowed complete freedom and time particularly to the Missing Persons Commission to complete its mission. Unfortunately, with the advent of the Yahapalana Government in 2015 and the bad decisions that were made by the Yahapalana Government the truth could not be made public but was there to be seen particularly in the Second Mandate Final Report which was presented to President Sirisena which clearly provided the answers to the critics of the government and the security forces of Sri Lanka and more importantly to the flawed UNSGs panel’s report.

Finally, the Tamils in the North should extend their gratitude to President Mahinda Rajapaksa for the freedom they are enjoying today. If not for President Rajapaksa’s prudent decision to conduct a humanitarian operation to free the innocent Tamils held by the LTTE as human shields it is difficult to imagine how many Tamils now enjoying the fruits of democracy and freedom would have been alive today.

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