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Sunday, July 20, 2014 - 11.00 GMT

Culpability of the forces of terror

A wider mandate in search for Truth and Reconciliation

By Lucien Rajakarunanayake

 

The appointment this week of an Advisory Council to the Presidential Commission to Investigate Complaints Regarding Missing Persons, extends the scope of the mandate of the Commission, and brings into focus important areas of activity in the conflict in Sri Lanka, which have largely been ignored by international commentators on Sri Lanka's successful battle to defeat terrorism.

President Mahinda Rajapaksa has taken note of the considerable evidence that has been placed before the Commission regarding the large number of missing persons, far exceeding original estimates, and also raising issues about the role of the LTTE causing these persons to be disappeared or missing, which has caused considerable pain of mind to their near and dear; an aspect that has largely been ignored by those who claim to have apparently been focusing only on the final months of the conflict.

There is a new importance attached to this Commission, chaired by Mr. Maxwell Parakrama Paranagama, with the appointment of the new Advisory Council that comprises three eminent personalities in international law, with considerable experience in the study and handling of matters relating to human rights, war crimes, armed revolt and terrorism, and related issues in different parts of the globe such as Africa and Europe. They also have considerable experience in dealing with issues that have been treated with the highest importance by the United Nations.

The three members appointed are Sir Desmond de Silva QC from the United Kingdom, Sir Geoffrey Nice QC also from the UK, and Prof. David Crane from the USA. It is interesting to know more about these three personalities and their experience, which would be relevant to the issues that are being uncovered by the evidence being placed before the Commission on Missing Persons.

Persons of esteem

Sir Desmond de Silva an internationally acclaimed and prominent British lawyer with Sri Lankan origins, was the former United Nations Chief War Crimes Prosecutor in Sierra Leone. Called to the Bar in the Middle Temple in London in 1964, and appointed Queen's Counsel in 1984, he is one of the most high-profile criminal Queen's Counsel in England, a member of the Criminal Bar Association and the International Association of Prosecutors. In 2002, the UN Under UN Secretary General Kofi Annan appointed him Deputy Prosecutor for the Special Court for Sierra Leone, at the level of an Assistant Secretary-General. Annan later promoted Sir Desmond to the post of Chief Prosecutor at the higher level of Under Secretary General in 2005. He brought about the arrest of Charles Taylor, former President of Liberia, who was convicted of war crimes at The Hague in 2011.

In 2003, de Silva was sent as envoy by the United Nations Development Programme to Belgrade to persuade Prime Minister Vojislav Kostunica and his government to surrender indicted war criminals. His legal expertise includes war crimes, crimes against humanity, espionage, treason, drugs, terrorism, human rights, white-collar fraud and sports law. In October 2011, with the approval of Prime Minister David Cameron, Sir Desmond was appointed to head a Review into collusion by the security services and other agencies of the state in the 1989 murder of the high profile Belfast lawyer Pat Finucane. The report was published on December 12, 2012, and acknowledged "a willful and abject failure by successive governments". On July 23, 2010 he was appointed by the United Nations Human Rights Council to investigate Israel's interception of a Gaza bound flotilla in international waters that led to nine deaths. In 2014 he was Chairman of an Inquiry into torture and executions of detainees in Syria. The Report produced went before the Geneva 11 Peace Talks into the civil war in Syria.

Sir Geoffrey Nice worked at the International Criminal Tribunal for the Former Yugoslavia - the ICTY - between 1998 and 2006; He has practiced as a barrister since 1971. At the ICTY he led the prosecution of Slobodan Milosevic, former President of Serbia. Much of his work since has been connected to cases before the permanent International Criminal Court - Sudan, Kenya, Libya - or pro bono for victims groups - Iran, Burma, North Korea - whose cases cannot get to any international court. He works for several related NGOs and lectures and commentates in the media in various countries on international war crimes issues. He has been a part-time judge since 1984 sitting at the Old Bailey in the UK, and has sat as judge in other jurisdictions, tribunals and inquiries. Between 2009 and 2012 he was Vice-Chair of the Bar Standards Board, the body that regulates barristers.

Prof. David M. Crane is an American who was the Chief Prosecutor of the Special Court for Sierra Leone (SCSL) from April 2002 until July 15, 2005. During his tenure, he indicted, among others, the then- President of Liberia, Charles Taylor, he was later replaced as chief prosecutor by his deputy Desmond de Silva. Crane spent 30 years working for the United States federal government. His former posts include Director of the Office of Intelligence Review, assistant general counsel of the Defense Intelligence Agency and the Waldemar A. Solf Professor of International Law at the United States Army Judge Advocate General's School.

He has a law degree from Syracuse University College of Law and a M.A. in African Studies from Ohio University and was appointed a Professor of Practice at Syracuse University College of Law in 2006. He teaches international criminal law, international law, national security law, and the law of armed conflict. In conjunction with Syracuse University College of Law students, he started "Impunity Watch", an online publication which seeks to inform the world of human rights violations in real-time.

The new scope

The extension of the scope of the mandate of the Disappearances Commission by President Rajapaksa, where the expertise of these three persons will be of much value, will look into many aspects that relate to the loss of human life during the conflict in Sri Lanka caused by the forces of terror, led by the LTTE, and will raise important questions about individuals, groups or institutions that must bear responsibility for the loss of life by reason of a violation or violations of international humanitarian law or international human rights law.

The extended mandate of the Commission of Inquiry relates to the following specific issues:

i. The principal facts and circumstances that led to the loss of civilian life during the internal armed conflict that ended on the 19th May 2009, and whether any person, group or institution directly or indirectly bears responsibility in this regard by reason of a violation or violations of international humanitarian law or international human rights law.

ii. Whether such loss of civilian life is capable of constituting collateral damage of a kind that occurs in the prosecution of proportionate attacks against targeted military objectives in armed conflicts and is expressly recognized under the laws of armed conflict and international humanitarian law, and whether such civilian casualties were either the deliberate or unintended consequence of the rules of engagement during the said armed conflict in Sri Lanka.

iii. The adherence to or neglect of the principles of distinction, military necessity and proportionality under the laws of armed conflict and international humanitarian law, by the Sri Lankan armed forces.

iv. Whether the LTTE as a non-state actor was subject to international humanitarian law in the conduct of its military operations.

v. The use by the LTTE of civilians as human shields and the extent to which such action constitutes a violation of international humanitarian law or international human rights law, and did or may have significantly contributed to the loss of civilian life. The mandate also covers: "The recruitment of child soldiers by the LTTE or illegal armed groups affiliated with the LTTE or any political party in violation of international humanitarian law or international human rights law.

"International criminal activities of the LTTE and the application of financial and other resources obtained through such illegal activities in the prosecution of the conventional and guerilla war in Sri Lanka by the LTTE, and,

"The suicide attacks by LTTE using child soldiers and other combatants under the direct orders of the leader of the LTTE, Velupillai Prabhakaran or any persons acting on his behalf, and the culpability for such actions under international humanitarian law or international human rights law.

Preamble

It is useful to read one paragraph of the preamble to this extension of the mandate of the Commission, in the proclamation made by President Rajapaksa. It states: "...In a spirit of compassion and the larger interest of national reconciliation, peace and harmony among all the people of Sri Lanka, I have secured the rehabilitation and resettlement of thousands of former combatants of the LTTE and brought them into the mainstream of national life; returned over 3,500 child soldiers of the LTTE to their parents and provided them with opportunities to pursue their education and fulfill their potential as peaceful citizens of Sri Lanka; and encouraged several leaders of the LTTE to publicly denounce and abandon violence and persuaded them to join the mainstream of political life in the country to work together within a democratic framework, to develop the country and collectively find peaceful solutions to the country's political, social and economic challenges..."

In this paragraph alone is expressed in touching detail what has been done by Sri Lanka in the pursuit of reconciliation and building genuine peace, harmony and unity in the country. This goes against all the charges being repeatedly made by spokespersons, representatives and other supporters of the pro-LTTE "Diaspora", and the many critics of Sri Lanka's policies in building peace after the brutality of terrorism that lasted 30 years. The facts about this brutality will hopefully be better exposed than has been done so far, with the participation of these exceptional persons with expertise in law, especially international laws relating to human rights and their violation, and the crimes of war, about which many unsubstantiated charges continue to be are leveled against Sri Lanka.

Link to Lanka

It is interesting to know that Sir Desmond de Silva, with such a high standing in the field of law internationally, is from Sri Lanka, with a background that is deep in the politics of Sri Lanka, as well as the law and humanitarian affairs. He is the son of the late Frederick "Fred" de Silva, who took to a career in law in Sri Lanka in 1935, became an Advocate in 1950 was called to Bar from the Gray's Inn in 1959. He was elected to the Kandy Municipal Council in 1939, and elected Mayor of Kandy in 1947. He was honoured as a Member of the Order of the British Empire (MBE) for his humanitarian work during the 1947 floods in Sri Lanka, and was elected the Member of Parliament for Kandy in 1954 and held the post till 1957.

From 1968 to 1971 he served as Ceylon's Ambassador to France and was the head of the Sri Lanka's Delegation to UNESCO from 1968 to 1971. He was elected to the governing body of the UNESCO, and was the Chancellor of the University of Peradeniya from 1990 to 1993.

Few today would know that Fred de Silva was the son of the late George E de Silva, who entered politics after he was elected to the Kandy Municipal Council in 1930.

Later in 1931 he was elected to the State Council from the Central Province. Having been re-elected, he was appointed Minister of Health. After Ceylon gained independence, George E de Silva was appointed to the DS Senanayake Cabinet as the first Minister for Industries and Fisheries. He was the President of the Ceylon National Congress. This is a paternal record in the study and practice of law, and in service to the country, that can hardly be matched by many others, who have also brought credit to Sri Lanka by their work abroad. 

 

 

 
 
   
   
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