Faultlines in Navi Pillay’s Report to UNHRC

The anti-Sri Lankan resolution moved by three prime movers – the USA, UK and India – is based primarily on the report presented by Navy Pillay, the High Commissioner of UNHRC. It is likely that most nations will be influenced by it. In the following analysis addressed to Pillay, the former Editor of ‘The Observer,’ H. L. D. Mahindapala, exposes the failure of Pillay to deal with the central issues fairly and comprehensively. It also exposes the partisan approach of Pillay which accuses only Sri Lanka and not the violations of human rights by India, one of the prime movers of the anti-Sri Lankan resolution.

Mahindapala told Ceylon Today that there isn’t a sari or a turban big enough to hide India’s hypocrisy. He added: “Navi Pillay too is playing an unacceptable role in focusing disproportionately on Sri Lanka. She is very quick to pick on Mahinda Rajapaksa from little Lanka but not Narendra Modi who is tipped to be the next Prime Minister of Himalayan India. If Modi becomes the next Prime Minister of India, will she take on Modi for massacreing the Muslims of Gujarat, Modi’s State?”

Here’s the full text of Mahindapala’s letter addressed to Navi Pillay:

Ms. Navi Pillay
High Commissioner for Human Rights
UNHRC
Geneva

Dear Madam,

Comments on the report of the UN High Commissioner, Navi Pillay, titled Promoting reconciliation and accountability in Sri Lanka

I read with interest, your report titled Promoting reconciliation and accountability in Sri Lanka, presented to the 25th session of Human Rights Council in Geneva (24 February 2014).
I welcome the detailed report and I wish to add that I agree with some of the critical parts which are accurate.
In particular, I wish to state that I agree with a central allegation enunciated in your report. You state: “The Government of Sri Lanka (GOSL) has, however, failed to ensure independent and credible investigation into the past violations of the international humanitarian and human rights law.” This judgmental statement targeting Sri Lanka comes from the summary of your report. If there is one criterion by which the validity, morality and the legality of your report can be judged, it is in this critical standard which you have stated with clarity. I wish to underscore the phrase “the past violations of the international humanitarian and human rights law.” I shall deal with this aspect of ‘the past’ as I go along.

I wish also to state that the title which broadly covers the promotion of reconciliation and accountability without setting a time limit is also quite appropriate. I take it to mean that ‘reconciliation and accountability’ go hand in hand and a comprehensive accountability of the past violations of the international humanitarian and human rights law” is a sine qua non for reconciliation.

The prime movers

I consider your statement – namely, “The Government of Sri Lanka (GOSL) has, however, failed to ensure independent and credible investigation into the past violations of the international humanitarian and human rights law” – as a critical standard laid down by you to map the future course of action in Sri Lanka. The prime movers of this anti-Sri Lankan resolution – that is, the USA, UK and India – too have based their resolution for the third time on this standard laid down in your report. This makes it clear that the three prime movers and you work in tandem to enforce the common political objectives pursued by the prime movers in the name of achieving justice and reconciliation in Sri Lanka. In other words, your report has laid down the ground work for the three prime movers to pursue their objective of imposing an “independent international inquiry” into “the past violations of the international humanitarian and human rights law.”

As the chief guardian of human rights, I believe that this standard is to be applied universally without exception. I also believe that ‘the past’ referred to in your report is not confined to an arbitrary cut-off date which would automatically exonerate some violators of international humanitarian and human rights law who intervened militarily, to combat the Tamil Tiger terrorists. So it is imperative that ‘the past’ referred to you in the report should be defined unequivocally. This is also necessary because there seems to be a conflict of opinion on this issue between the GOSL and the prime movers of the resolution and, of course, UNHRC – that is, while the GOSL rejects the arbitrary cut-off date referred in the UNHRC resolution, the prime movers are determined to confine their ‘independent international inquiry’ only to the last few months. In the interests of peace, reconciliation and accountability, it is best to clarify whether there should be a cut-off date to determine ‘the past’ or not.

A realistic view of the relevant, historical past should begin from 14 May 1976 when the Tamil leadership, assembled in Vadukoddai, declared war against the nation, leading to crimes against peace and violations of human rights. It is classified as the longest running war in Asia because the declaration of war in Vadukoddai by the Tamil leadership on 14 May 1976, unleashed Tamil violence which ended after 33years on 18 May 2009. So, the past consists of the 33 years (give or take a few days), and any independent and credible investigation into the past violations must cover the entire 33 years without exception to achieve the goals of (1) justice for all victims of the war; (2) accountability that can hold all those responsible for the violations of international humanitarian and human rights law in the 33-year-old war,

and (3) achieving comprehensive reconciliation and peace. Anything shorter than the 33 years would amount to a distortion of the meaning of the word ‘past’ as it chops off the body and head of the past, leaving only the tail end – and that too the hairy bits of the tail end. Your report, quite rightly, is focused on “the past violations of the international humanitarian and human rights law” which can mean by any rational deduction, the entire 33 years.
However, despite your statement in the summary quoted above, it is somewhat disconcerting to note that your report takes a very limited and unrealistic view of the past. It does not go beyond the last stages of the war, which at the most, does not stretch beyond the last eight months – that is, from September 2008 to May 2009 as seen in various other reports.

You would agree that the time-frame in your report has “failed to ensure independent and credible investigation into the past” beyond this limited period. I wish to argue that it would be impossible to “ensure independent and credible investigation into the past” if ‘the past’ is arbitrarily limited to just a few months in the last stages. As the past of this longest running war in Asia goes back to 33 years, any credible or independent report must necessarily cover the entire period, and not confine itself to an arbitrary cut-off date that cannot be justified by any rational yardstick.
To begin with, this limited time-frame is unfair by all the victims of this futile war. If, as implied in your report, the aim is to get justice for the victims of the war, then you automatically cut-off the claims and concerns of the other victims who suffered during the previous 32 years and four months,

by limiting the investigations to the last few months. The imbalance in this selective methodology will not contribute to either restore justice to all victims or help to advance reconciliation, as the direct and immediate impact of this move leads to exonerating key military actors who had violated international humanitarian and human rights law of any responsibility or accountability. Besides, there is no precedent to judge a long-drawn war only by the last stage. If the main purpose of the resolution initiated by the three prime movers was to bring to book those responsible for violations of international humanitarian and human rights law, then natural justice demands that all those who violated the rules of engagement in the war in ‘the past,’ which goes as far back as 33 years, should also be held accountable. But if the period of investigation is confined to the last stage, then it would automatically exonerate some of the guilty actors whose political and military interventions – not to mention excesses – had led to serious violations of the international humanitarian and human rights law in the preceding 32 years and four months.

Consider, for instance, how this applies to the 33-year-old war in Sri Lanka. The facts of the case are simple: Two militaries fought the Tamil Tiger terrorists: 1. the Sri Lankan Forces, and 2. The Indian Forces. There is evidence to conclude that , both forces violated human rights law in combatting ‘the deadliest terrorist outfit of the world’ (FBI). However, ‘the past,’ as defined in your report, includes only the last phase in which the GOSL crushed the Tamil Tiger terrorists, and not the Indian Government Forces which fought the Tamil Tigers fiercely between 1987 – 1990, three years in all. This is the fundamental flaw in your report. The selected time-frame targets only the GOSL and not the Indian Forces. The massive campaign of INGOs, international media, Tamil Diaspora and Western Foreign Offices too have taken this narrow view of focusing only on the last phase as if the previous years were fought by India, for instance, with roses without thorns.

What is needed right now is to restore a balance to this one-sided view.
This requires a critical questioning primarily of the validity of the arbitrary time-frame:
1. Can the Commissioner of Human Rights “ensure independent and credible investigation into the past violations of the international humanitarian and human rights law” if the focus is only on the last sector of the past?

2. Can the Commissioner of Human Rights provide a rational explanation as to why the Indian atrocities committed during its military intervention in Sri Lanka (1987 – 1990) are excluded, and why only the actions of the Sri Lankan Military are included in the proposed independent investigations?

3. Can the Commissioner of Human Rights serving the global citizenry, without fear or favour, act selectively, to target only one set of violations of human rights, and not the other? Is this a deliberate strategy adopted by the High Commissioner, acting jointly with the prime movers of the anti-Sri Lankan resolution, the USA, UK and India, to divert attention from the documented role of India in violating international humanitarian and human rights law in order to target only Sri Lanka?

4. What moral or legal rights has the High Commissioner to exclude the Indian Forces in any independent and credible inquiry when they were the first foreign military interventionists who marched into Sri Lanka to defang and tame the Tamil Tiger terrorists – the very terrorist forces who were initially trained, financed and directed by India’s RAW (the equivalent of the CIA) and exported to destabilize Sri Lanka? The Indian Peace Keeping Force (IPKF), operated from 1987 to 1990 on Sri Lankan soil. Their record of massacres, plunder, rape and other violations of international humanitarian and human rights law is well documented by I/NGOs and by Indian and Tamil eye-witnesses.

5. Shocked by the horrors of the Indian atrocities in Sri Lanka, the former Defence Minister, George Fernandez, condemned it as ‘India’s Vietnam’ and also as ‘India’s My Lai.’

6. The irony is that India, a violator of international humanitarian and human rights law on Sri Lankan territory, is now posing as a defender of humanitarian and human rights law by pointing an accusing finger at Sri Lanka. How genuine is India’s concern for human rights when she has had no compunction in violating human rights in Sri Lanka, Kashmir, Bangladesh, not to mention its own territory? For instance, Narendra Modi, the prime ministerial candidate in the coming election, was denied a visa by the USA, one of the movers of the UNHRC Resolution, for his role in the massacre of Muslims in his State of Gujarat. Therefore, why should India be exonerated when her war crimes on Sri Lankan soil are rated on the same level as that of My Lai in Vietnam, by its own Defence Minister?

7. Besides, neither the Indian Army nor the Indian Government has held any inquiry into the criminal activities of its Forces on Sri Lankan territory. Here’s what the Head of the Intelligence Unit of the Indian Forces in Sri Lanka, Col. R. Hariharan, said recently on this issue: “There are a few issues involved in analyzing the allegations of atrocities by Indian troops after 25 years. In COIN (Counter Insurgent Operations) operations, there are always innocent civilians killed, usually described as collateral damage in the fire-fight between two sides. This happened in Sri Lanka also. But there were specific instances where serious allegations were levelled. I remember two of them: The massacre of patients and doctors by troops in the Jaffna Teaching Hospital and retributive killings in an ambush in Velvettithurai. I think both the Army leadership and Government (of India) failed to institute transparent investigations to get at the truth and disprove them or punish the culprits.

But in 1987-88, human rights were not a big issue worldwide as it is now. India was no exception to this. Bigger killings were taking place in Afghanistan where the US was fighting a proxy war against Soviets. India itself did not pay much attention to human rights accusations against it. But all this is hindsight wisdom.” (International Law Journal of London, Interviewer, Parasaran Rangarajan, Editor – 6 February 2014). Needless to say, that this is a damning statement of India’s role in Sri Lanka by its own Chief of Intelligence Officer. Doesn’t natural justice demand that India should first hold its own impartial inquiries before pointing an accusing finger at Sri Lanka? Why doesn’t India, the super power of the SAARC region, set the example for others like Sri Lanka to follow? (Please see attached document revealing Indian atrocities in Sri Lanka.)

8. Col. Hariharan’s statement cited (above) is by far the most authoritative eye-witness account of the atrocities committed by the Indian Forces. It is more than an eye-witness account. It is an official condemnation delivered by the highest ranking Intelligence Officer of the IPKF who was in Sri Lanka between the years 1987 – 1990. In the light of the available evidence, can the High Commissioner for the UNHRC selectively brush aside the authoritative accounts of the Indian war crimes and focus only on the Sri Lankan Forces? If so, on what grounds?

9. If “the Army leadership and the Government (of India) failed to institute transparent investigations to get at the truth and disprove them or punish the culprits” should not the international community and the Human Rights Commissioner move without any further delay, a resolution to hold an independent and credible investigations into the atrocities committed by the Indian Forces?

10. In the light of the evidence staring in the face of the UNHRC, can the delegates vote only for an independent investigation into the actions of the Sri Lankan Forces in the last phase, or should the Council members deal with the violations of international humanitarian and human rights law comprehensively, going into ‘the past’ that run into 33 years?

11. The war ended on 18 May 2009. On 26 May 2009, the UN High Commissioner addressed the UNHRC demanding action against the Sri Lanka. As shown in the evidence cited (above), India committed violations of international humanitarian and human rights law 25 years ago. Why has the High Commissioner who moved swiftly within eight days against Sri Lanka, failed to take up the issue of Indian atrocities committed on Sri Lankan soil even after 25 years? Or is justice at the UNHRC something like kissing that goes by favour?

12. Will the UNHRC, acting on the available evidence, withdraw the resolution against Sri Lanka and present a more comprehensive one which would include the atrocities committed by the Indian Forces too?

13. The High Commissioner accuses the GOSL of not having the ‘political will’ to achieve truth and justice. The current Presidential Commission in Sri Lanka inquiring into abduction and disappearances from 10 June 1990 to May 2009, have reported that witnesses are coming forward, ready to give evidence on the atrocities committed by the Indian Forces. But the mandated time period (10 June 1990 to May 2009) doesn’t go far enough to include the Indian atrocities highlighted by the Tamil victims in their petitions to the Presidential Commission. This poses a serious moral question to the UNHRC and the three prime movers of the anti-Sri Lankan resolution, which is: Is the UNHRC willing to either withdraw or amend the resolution to include the Indian atrocities committed during the three-year period of 1987 – 1990? Will it also advise the GOSL to extend the cut-off date to go beyond 1990 into the entire period of the war, going back to 1976, when the war was declared by the Tamil leadership?

14. A commitment by the UNHRC to comprehensively investigate all the violations committed during the entire period of 33 years will confirm the genuine commitment of the prime movers and the UNHRC High Commissioner to deliver ‘the truth and justice.’ Truth and justice cannot come out of a short period of a long war. Anything short of a comprehensive investigation, covering the entirety of the war, from beginning to end, will be a partisan move to accuse only Sri Lanka and exonerate India. In the absence of such a credible international process, should Sri Lanka alone be sacrificed on the altar of the high priests of morality consisting mainly of the prime movers – one of whom is India, also a perpetrator of crimes against the people of Sri Lanka?

15. Last but not the least is the demand by the UNHRC High Commissioner in her report to take action against the LTTE agents who were released by the GOSL and rehabilitated. Is this an act that is influenced by compassionate human rights or is it an act dictated by the barbaric doctrine of an eye for an eye and a tooth for a tooth? If this kind of vindictive politics is driving the CEO of human rights, should we be surprised by the Nobel Peace Prize winning President of America, sitting down every Tuesday with his deadly apparatchiks, to pick who should live and who should die without due process?

In the interest of promoting reconciliation and justice, I shall thank you to kindly respond to the e-mail dealing with what I consider to be the central issue confronting the UNHRC in the post-conflict era in Sri Lanka. I wish to assure you that your objective and dispassionate response will enhance not only your stature as a fair and independent judge and guardian of human rights issues but also that of UNHRC which is coming under critical fire from diverse sources.

Awaiting an early reply.
Yours sincerely,
H.L.D. Mahindapala

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