Solving mystery of missing legal opinion of Sir Desmond

Alleged war crimes in Sri Lanka and International Law



By Sriyan de Silva


We appear to be living at a time of great mysteries. One such is the intimation of the Prime Minister to the Speaker not to permit a ‘Report’ purported to be by Sir Desmond de Silva on human rights or reconciliation to be tabled by any Member; that according to what Sir Desmond had told him, he had only submitted some "remarks and comments" to [according to the newspaper report] the Udalagama Commission which is undoubtedly a genuine error – presumably the reference is to the Paranagama Commission. The Prime Minister is also reported to have said that anyone circulating such a ‘Report’ would be liable to be questioned and such persons would not be allowed to circulate this information. He said that according to Sir Desmond, some pages of his ‘Report’ had gone missing. The Prime Minister further said that somebody appears to have stolen these pages and was trying to produce them as the ‘Report’ of Sir Desmond.


Faced with this dilemma, one cannot but wish to have the assistance of ideally some of the well-known mystery writers of the past such as Agatha Christie, or even characters such as Sherlock Holmes, if he existed, to solve this mystery. Since that is wishful thinking, we should make a concerted effort to solve this mystery.


However, the need to solve this mystery is not an academic one. Any inquiry into war crimes involves the determination of questions of fact on the one hand and the need to ascertain the meaning of legal concepts under International Law, in terms of which guilt or otherwise on the part of both combatants has to be determined relative to the most serious allegations of war crimes. Therefore, all legal Opinions under International Law must necessarily be presented and examined.


The above statements could result in people drawing a conclusion that someone is/some people are trying to spread disinformation regarding a non-existent document. Alternatively, if it is found that there is an authentic document by Sir Desmond, then people may draw the conclusion that an interested party with an interest in suppressing the document is spreading disinformation. Still another alternative could be that there is no conflict between the government’s claim of a non-existent document and those who claim there is an authentic one, on the ground that the references are to two entirely different documents i.e. a Report according to the Government but a detailed legal Opinion on the International Law perspectives by others.


The reality is that there is a detailed joint legal Opinion by Sir Desmond de Silva and Professor David Crane explaining the principles of International Law relative to some of the war crimes allegations against Sri Lanka. There have also been other legal Opinions by Sir Geoffrey Nice Q.C. and Rodney Dixon Q.C. as well as by Professor Michael Newton. Sir Geoffrey Nice and Rodney Dixon have in fact jointly submitted two legal Opinions. All these Opinions have been available on the Internet since mid March 2015. [They were published by The Island - Ed] Hundreds of individuals in Sri Lana and abroad are well aware of at least the very detailed legal opinion by Sir Desmond and Professor Crane.


It would be useful to take note of who these individuals are as well as their credentials. Sir Geoffrey Nice worked at the International Criminal Tribunal for the former Yugoslavia; led the prosecution of Slobodan Milosevic, and also worked for the International Criminal Court in the Hague. Rodney Dixon prosecuted and defended cases before the International Criminal Tribunal for the former Yugoslavia, the Rwanda Tribunal, the Special Court for Cambodia, the War Crimes Chamber for Bosnia and Herzegovina and the Special Court for Sierra Leone. Professor Michael Newton is Professor of Law at the Vanderbilt University School of Law, USA. He has served as the Senior Adviser to the US Ambassador-at-Large for War Crimes Issues, as the US representative on the US Planning Mission for the Sierra Leone Special Criminal Court, and coordinated the US Government’s support for the prosecution of Slobodan Milosevic.


The next step in a genuine attempt to resolve this mystery would be to consider some of the following salient points:


* There appears to be no evidence that there was a ‘Report’ on human rights and reconciliation by Sir Desmond. Instead there was a detailed Legal Opinion on the International Law perspectives relating to the allegations of war crimes given by Sir Desmond de Silva and Professor Crane.


* This Opinion had been submitted not to the Udalagama Commission but to the Paranagama Commission.


* If the Report of the Paranagama Commission as distributed by the Government, does not have this vital opinion annexed to it, then perhaps it is a part of this Opinion that has been "stolen" because there was no other ‘Report’ by Sir Desmond. In that event, the question would arise as to who stole a part of the Opinion, and in considering this, undoubtedly the first question Sherlock Holmes would have asked himself would be: "Who stands to benefit from such theft?"


* Since fortunately the full Opinion has been available for quite some time to anyone interested in the subject both here and abroad, if any interest party wishes to suppress this Opinion, then it is a case of closing the stable door after the horse has bolted.


* The following statement appears In the Acknowledgements in the Report of the Paranagama Commission:


"My colleagues and I owe a particular debt of gratitude to the Right Honourable Sir Desmond de Silva, QC [UK] who was Chairman of the legal Advisory Council together with Professor Sir Geoffrey Nice QC [UK], Professor David M. Crane [USA], all of whom contributed specific legal opinions that collectively became a legal bedrock of this Report. The final distillation of the law was that of the Chairman of the Advisory Council working together with the members of the Commission. The Advisory Council was ably supported by Mr. Rodney Dixon QC [UK/South Africa], Professor Michael Newton [USA] Vanderbilt University who formerly served as the Senior Advisor to the United States Ambassador-at-Large for War Crimes, Commander William Fenrick [Canada], Professor Nina Jorgensen of Harvard and The Chinese University of Hong Kong, and Major-General John Holmes, DSO, OBE, MC [UK] former Commanding Officer of the Special Air Service [SAS], for whose independent Military Report we are greatly indebted."


These acknowledgements contradict [at the very least implicitly] any assertion that Sir Desmond did not give a legal Opinion on the issue of War Crimes in the light of International Law, if any such denial is being made.


It is outside the scope of this analysis to refer to the contents of the various legal Opinions of the several experts referred to herein since analyzing the contents is not the objective of this article. However, they are indispensable reading for anyone genuinely interested in the subject.


Importantly, all of the Opinions referred to earlier by this writer, are relevant to seeking answers to the question as to who is most likely to benefit from these Opinions, and who is most likely to benefit from their suppression.


Possible Conclusions


Since the writer is neither Agatha Christie nor Sherlock Holmes, he wishes to submit for the benefit of the readers several possible conclusions:


1. There was never a "Report" by Sir Desmond on human rights or reconciliation.


2. There was a detailed legal Opinion by him and Professor David Crane on many aspects of the alleged war crimes in the context of International Law, as well as Opinions by the other Experts referred to.


3. Therefore on the face of it the first possible conclusion is that there is no inconsistency between [1] and [2] above. The reference in [1] to a "Report" may well be to something else referred to by whomsoever, but which does not exist and has no relevance to the second conclusion below.


4. A second possible conclusion is that the above does not undermine the overwhelming evidence of not one, but several, legal Opinions submitted by the Experts referred to which would be highly relevant to the proposed Inquiry consequent upon the Geneva Resolution.


5. If these Opinions formed a part of the Report of the Paranagama Commission as Annexes, but are not a part of what has now been presented/circulated as the Paranagama Report, that opens a disturbing line of inquiry. Members of the public can make up their own minds – especially those who are aware of the contents of these Opinions. Such conclusion would be the third possible one. However, whether or not there is justification for this third line of inquiry may be easier to answer, depending on whether the several legal Opinions are presented at a future inquiry. If they are suppressed, then the conclusion will be inescapable that there is a whole conspiracy to suppress material/interpretations of the Law favourable to Sri Lanka. If this happens, then the country would become aware of who is a party to the conspiracy to bury material favourable to Sri Lanka. So the jury is out on this aspect of the matter. This writer only adverts to it, and does not arrive at a conclusion.


Postcript


It hardly needs to be emphasized that any domestic, international, regional or whatever inquiry held into allegations of war crimes, would have to be conducted strictly according to the principles of Natural Justice [the origins of which date back to the ancient Greeks whose civilization forms much of the bedrock of Western civilization in several respects]. Similarly, any relevant principles of the Rule of Law should also be strictly adhered to, and these Rules also come from Western legal systems. It is hoped that the attempts by foreign interests to focus largely on the alleged war crimes of one of the two combatants while relegating allegations against the other combatant to a relatively insignificant category [sometimes even referred to incidentally], would not permeate the work of any inquiry, the exact format of which is yet to be known. If the legal Opinions are submitted at such inquiry there would no longer be a mystery. If they are not so presented, the mystery would deepen and perhaps even lead to conspiracy theories. It is hoped that the ancient Greeks do not turn in their graves.


 
 
 
 
 
 
 
 
 
 
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