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Two contentious human rights issues
Published Date: 13/04/2018 (Friday)

By Prof. Rajiva Wijesinha

There were two particularly contentious issues which the Commission of Inquiry was looking into. The first was the killing of five youngsters in Trincomalee, where it was clear that Security Forces had breached all norms. Though when I had first heard about the matter I had thought they had reasons to suspect the youngsters of working for the LTTE. about the matter.

After I took over at the Secretariat and investigated further, it seemed to me that they had no excuse at all for the killings. I believe the Udalagama Commission, as it was called after its very honourable Chairman, has made this clear, though sadly the Rajapaksa Government failed to publish its findings. Even more culpably, the current Government has done nothing further

I strongly recommended to Mahinda Rajapaksa that he take swift action on this matter, even before the report of the Commission came out. After a meeting, at which I noted that it would make clear we were trying to fight as clean a war as possible, he called up the Attorney General and instructed him to indict the suspects.

But nothing happened. When I subsequently met CR, I asked him why he had not followed the President’s very clear instructions. CR was not naive, and asked me if I had been in the room when the President spoke to him, which I had to confess to. CR then explained to me that, in addition to the possibility that the President might change his mind, he did not act because he would not get a conviction.

That seemed irrelevant to me. The point was to make it clear that such conduct was unacceptable, and the government would take stern action in such situations. That would get the message across to others who might act hastily in contravention of the law.

Mohan Peiris

Incidentally, the failure of CR’s successor, Mohan Peiris, also to act on the matter is what made me realize what a consummate hypocrite he was. Not on those first visits to Geneva, but from 2008 on, he was a regular on our delegation as the Legal Adviser to the Ministry of Defence. I found him urbane and civilized, and was deeply impressed, though Dayan, who appreciated his work but was more perceptive, told me that he was a typical mafia lawyer. Dayan would imitate him standing obsequiously before his godfathers, and advising them how the laws could be circumvented.

Mohan expressed agreement with my position on the Trincomalee 5 and criticized CR for not acting. When the question of the succession to CR, who retired in 2009, came up he assured me that he would immediately indict if he were appointed.
That was the main reason I argued strongly on his behalf.

 The President seemed convinced, and indeed Mohan rang me up after my first intervention and thanked me in saying the President had said he would appoint him. But then nothing happened, and when I asked Mohan what was going on he said that the President had said there were objections because he was a Catholic.

But no one else was appointed, and a few days later, when I happened to be in the President’s Office about another matter, the question came up of how best to deal with some other criticism that had come up. I took the opportunity to reiterate that Mohan was the person best equipped to handle such problems, and that intervention seemed to have worked for Mohan was shortly afterwards made Attorney General. But having achieved what he wanted, he did nothing to improve the situation. It soon became clear that, unlike CR who was cautious but utterly decent, he proffered advice not on the basis of what was correct, but so as to keep his masters happy, just as Dayan had diagnosed. To this date, the case of the Trincomalee 5 remains a burning sore.

Whereas the forces, not the Army, I should note, but the Special Task Force which was a Police outfit, had clearly done wrong there, far otherwise was the other prominent case the Udalagama Commission was investigating. This was the murder of workers from the French aid organization, Action contre la Faim (ACF), which had happened at the time the LTTE attacked Muttur in 2006.

Holding the East

Muttur was the key to our holding the East and protecting the Trincomalee Harbour, and the assault had been part of a concerted effort to break through our defence lines on two fronts. It had been accompanied by an attack on the defence line at Muhumalai in the Jaffna Peninsula, and in both cases the situation had been touch and go until the forceful reaction of the forces ensured the LTTE retreated. It was after that, that we went on the offensive, and indeed did not look back though it took a long three years before we finally eradicated terrorism within Sri Lanka.  

Though the Government should have investigated the murder more swiftly, it was also clear that ACF had deliberately sent its workers to Muttur at a time when all other aid organizations were withdrawing from the place. This is noted in an article by Peter Apps which I cited at the time. While referring to shortcomings in the investigation, it highlights issues that ACF and the international community should have taken more seriously from the start. It records that ‘The angry allegations aimed at ACF do echo some of those I heard from the families of the victims outside the morgue in Trincomalee a year ago. Some were already accusing security forces of carrying out the killings. But they were also angry at ACF for sending their loved ones into the town in the first place. The 17 staff had been sent across by ferry from Trincomalee to Muttur only to be trapped there when a naval battle erupted in the harbour. They stayed in their compound for days as the Government and Liberation Tigers of Tamil Eelam (LTTE) both fought through and shelled the town. When the civilian population fled south on foot and by vehicle through the battle, they stayed put. Then they were killed.

Most relief agencies had cut back or stopped sending staff to the front-line town after a couple of grenade attacks weeks earlier. There were soon mutterings among aid workers in Trincomalee that the ACF team had been left dangerously exposed.

 Almost all of the dead were ethnic Tamils, stranded in a predominantly Muslim town between the rebels, also Tamils, and security forces mainly from the majority Sinhalese population. There had long been accusations in the local area that aid groups were favouring Tamils and that their operations in rebel-held areas were effectively helping the LTTE.’

Muslim home guards

The Jaffna University Teachers for Human Rights were more direct in blaming ACF, in claiming that the Muslim home guards they thought had committed the murders felt these workers had been sent in to provide communications support to the LTTE. Certainly, ACF had been at fault in sending them in without an International Officer, and it seemed that they had been dragooned into the decision by some individuals on their Trincomalee staff who took advantage of a change of international personnel to have people sent in when all other aid organizations were withdrawing their workers.

That ACF realized they had done something wrong became apparent when they withdrew from the proceedings of the Commission instead of allowing themselves to be questioned as to their reasons for the unusual steps they had taken. The French Ambassador, who was moderate in his approach while insisting that the Commission look into the matter, had facilitated the attendance of a French jurist to monitor the investigation. In that situation, ACF could not refuse to come to Colombo to help in the investigation, but after some sharp questioning that made it clear they had been negligent, they took a plane back to Paris.

This part of the work of the Commission happened later. In 2007, when the West was pushing to censure us, we had to face a barrage of criticism on the issue from the International Commission of Jurists, or rather from its Secretary-General, Nicholas Howen. A couple of months before the September UNHCR sessions in Geneva, around the time when both HRW and Gareth Evans were on the rampage, Howen issued a report in which he accused the Government of tampering with the evidence.  This was based on a flimsy argument which I dealt with at a press conference just a few weeks after I had taken over at Secretariat for Coordinating of Peace Process.

Suspicion of substitution

I noted there that the International Commission of Jurists (ICJ) had introduced firstly suspicion of substitution of a single bullet, and then heightened this to “bullets” and an allegation of evidence of tampering. They had used a report by Dr. M.J. Dodd, an Australian Forensic Pathologist, who had offered a description of a single bullet associated with the killings that was different to the findings of Dr. W.D.G.S. Gunatillake, Government Analyst. There was no difference in the analysis of all the other bullets and I noted that the Australian expert was a Pathologist, whereas Dr. Gunatillake was a Ballistics Expert, more qualified to issue a determination on bullets. In fact, the Dodd Report in itself conveyed no suggestion whatsoever of misconduct, and Dr. Dodd subsequently confirmed that Dr. Gunatillake had probably been correct.

We were tough with Howen in Geneva, and meanwhile I had also written to the Head of ICJ. Whether that was the reason I cannot say, but after that we had no further interventions from the ICJ.

Source: Ceylon Today

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