Killing of Aid workers in Muttur : Govt questions ICJ Report

- SCOPP writes to ICJ

[Thursday, June 28, 2007 - 06.05 GMT]

Prof. Rajiva Wijesinha, Secretary General, Secretariat for Coordinating the Peace Process (SCOPP), addressing a media conference yesterday (27), questioned the report submitted by the International Commission of Jurists (ICJ) on the killing of 17 aid workers in Muttur in August 2006.
  
Dr.Wijesinha said that the ICJ team had jumped to conclusions about the Government's role in the investigation, accusing the Government of tampering with the evidence. The ICJ team, Dr.Wijesinha charged, has introduced firstly suspicion of substitution of a single bullet, and then heightened this to ‘bullets’ and an allegation of evidence of tampering, in analyzing a purely technical report. This sleight of hand is unprofessional and dangerous given the complex and sensitive nature of the issue, he said.
  
Yasantha Kodagoda, Deputy Solicitor General said that the AG's Department was forced to comment on this because the ICJ report amounts to a questioning of the integrity of Sri Lanka's criminal justice system, the capabilities of Sri Lankan scientists and in general serves to bring disrepute to the country.

Mahinda Samarasinghe, Minister of Disaster Management and Human Rights, said that the government wishes the court to decide on the issue and that in this regard has requested the Australian Government to support its efforts by arranging a teleconference between respective teams of experts to settle the matter at a scientific level. He regretted that the ICJ had expanded liberally and irresponsibly on what amounts to non-binding wording in the Australian pathologist Dr.Dodd's report and thereby coloured the incident in terms that do not do justice to the facts available.
  
The concerns of the Government were expressed also in a letter sent to the ICJ President by Prof. Rajiva Wijesinha, Secretary General of SCOPP.
  
The letter:
  
SCOPP/40.                                        26th June 2007
  
  
Justice Arthur Chaskalson
President
International Commission of Jurists
PO Box 91
Rue des Bains 33
1211 Geneva 8
SWITZERLAND.
  
Dear Justice Chaskalson
  
Investigation and Inquest into the killing of 17 Aid Workers in Muttur in August 2006
  
  I am writing to you as President of the International Commission of Jurists because of very serious worries raised by the recent ICJ interventions in the above case. Whilst the assistance of the ICJ is always welcome in ensuring adherence to human rights requirements and professional norms in relevant areas, some pronouncements that seem arbitrary may take away from much of the good that you are able to accomplish.
  
  I am particularly worried because, in the current context, it is important to ensure confidence in the peace process. I see this as my principal task since I took on this post, and for this purpose it is essential to ensure that all stakeholders feel confidence in the objectivity of participants in the process. The ICJ is an important participant, since your continuing concern will help us to maintain the standards with regard to Human Rights and the Rule of Law which we should all aspire to.
  
  In this context I was worried by Mr Birnbaum’s second report. I should note that his main report, which raised several procedural issues which need to be considered in the light of our common need to ensure confidence, seemed to me very different in its approach from the new one. That first report did not there engage in the sort of criticism of the government that seems to have become endemic in other fora without attention to evidence.
  
  This time round there is much room for worry, both in the report and in the later intervention of the ICJ through its Secretary General. A careful reading of the report by the Australian Forensic Pathologist, on which the critiques are based, suggests that there is only one major issue at stake, namely a discrepancy between two descriptions of one bullet found in relation to the killing. Concerns about procedural matters should of course be raised, but obviously the concern raised in Para 28 of Mr Birnbaum’s report pales in comparison with those in subsequent paras.
  
  Those concerns suggest a determination to criticize without regard to evidence. The discrepancy with regard to the description of the bullet could have arisen either because two experts reached different conclusions, or because they were looking at two different bullets. In para 30 Mr Birnbaum assumes the latter without any sufficient reasons.
  
  As he is well aware, Dr Dodd has photographs taken at the examination on October 24/25, at which he observed Dr Waidaratne. It would seem that his description is based on those photographs. It would surely have been proper of any lawyer, let alone a QC, to have checked whether the bullet on which the subsequent description was made was a different bullet, or the same one.
  
  I have checked with the relevant authorities in Sri Lanka, and find that in fact the government analyst stands by his description, and has sent reasons to Dr Dodd, and suggested a discussion. There has as yet been no response. While it is conceivable that one or the other was mistaken, neither has at any stage suggested that there was tampering with a bullet or a photograph. You as a lawyer would be well aware that Mr Birnbaum’s ‘powerful grounds’ would be laughed out of court in any serious judicial system. More worryingly, it strikes at the heart of the confidence that we would normally feel in the ICJ, and I would therefore urge that higher standards of evidence be adduced in future dealings.
  
  The matter itself can be swiftly resolved by recourse to photographs, those Dr Dodd has and those of the object – still available – on which the Government analyst made his report. I should add that Dr Dodd is a forensic pathologist, and not a ballistics expert. If there is a discrepancy between his views and those of the Sri Lankan ballistics expert, perhaps the services of a ballistics expert, Australian or Mr Birnbaum’s British acquaintance, could be obtained.
  
  I should add that, while I appreciate Mr Birnbaum’s efforts to justify his reliance on Dr Dodds’ view, his choice of the countries he cites in describing Dr Dodds’ book is unfortunate. As you are aware, the problems in the countries to which Mr Birnbaum refers, omitting others that were included, are those in which substantial international intervention was required. In Sri Lanka, we have here a case of a government voluntarily requesting assistance which has been graciously supplied by the Australian government.
  
  You will appreciate that we are sensitive on this issue because of efforts to liken the Sri Lankan situation to that in countries such as the above. Unfortunately this has become a political issue now, with the Leader of the Opposition, who was an influential member of the government responsible for the 1983 attacks on Tamils, likening the current President to Hitler. Such misuse of emotive language is an insult to those who suffered from the excesses of the Nazi regime. Unfortunately political capital will also doubtless be made of the references in Mr Birnbaum’s report, whereas a clear perception of events would make clear that such comparisons are misplaced. In case there is any doubt, I would refer you to, for instance, Niall Ferguson’s book ‘The War of the Worlds’, which would make clear what the situation was in Kosovo, so that your agents at least would not make such errors in your future analyses.
  
  I am even more concerned in that, following Mr Birnbaum’s initial unwarranted assumption, the letter sent by your Secretary General incorporated even more staggering leaps of faith. Dr Dodds’ one suspected bullet has turned into ‘bullets’ and you now refer to ‘evidence of tampering’ which is a great advance even on Mr Birnbaum’s ‘strong evidence’. I would suggest that such exaggeration be avoided since it is desirable for Sri Lanka to continue to deal with the ICJ professionally with the level of respect we have always tried to accord its assistance in maintaining high professional standards.
  
  Sadly, the use made by the media of pronouncements such as yours do much harm to the confidence essential if the peace process is to be pursued. I have been urging international agencies to correct misreporting that is designed to denigrate the Sri Lankan government, and I am happy that the World Food Programme has taken the lead in this, while the Sri Lanka Press Complaints Commission has also begun to look into our complaints despite an early attempt to insist that we had no status.
  
  However when, as today, a paper quotes heavily from Mr Birnbaum’s report – albeit with a question mark on the headline that the ICJ does not bother with – I must request that the ICJ should be more judicious. I believe your Secretary General’s intemperate assumptions are not part of the Press Release the ICJ has issued, which has however cited Mr Birnbaum’s remarkable concept of ‘evidence’. But since such assumptions are bound to figure in future critiques, I would be grateful if your Working Committee could meet and withdraw those elements in the report and the letter which are not substantiated by the Dodd report on which ostensibly they are based.
  
  I would also suggest that you inquire into the sources of Mr Birnbaum’s apparently comprehensive knowledge of the weapons issued to Sri Lankan armed forces and their movements. That particular paragraph suggests briefing by shadowy elements which I believe should be transparent. In this context I attach a report on the activities and pronouncements of the then Head of the SLMM which are at the very least questionable. I believe you should be aware that, whereas the current Head of the SLMM assured us that there were strict conditions on monitors, including a ten year moratorium on going public with their experiences, Gen Henricsson is reported to have issued a statement on the incident to the LTTE last November.
  
  Whilst obviously there are rogue elements in any establishment, I believe it is important that the international community does not take seriously the allegations of such elements, and I would therefore request that your organization is extremely cautious about accepting the pronouncements of Gen Henriccson. I have already written to the Co-Chairs of the Peace Process suggesting that they must establish to whom the SLMM reports, because I believe it vital that disciplinary action is taken against Gen Henricsson by the appropriate authorities in view of his violation of the regulations intimated to us.
  
  I hope very much that, while Mr Birnbaum may be unwilling to reveal his sources, and we must respect this, you can give us an assurance that Gen Henricsson was not one of them.
  

Yours sincerely
  
  
Prof Rajiva Wijesinha
Secretary-General.



  

  

 

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Last Updated Date: June 28, 2007 - 06.05 GMT