Postscript to a fiasco


The Ban Ki-moon report was made public last Monday, and by that time, we had basically said most of what we had to say about the report.  For almost two weeks The Island had a complete monopoly over the report, with media organizations both local and overseas, knowing only what was published by us.  The present columnist read in a certain daily English newspaper that after we started publishing excerpts of the report, starting with the executive summary, Farhan Haq, a spokesman for the UN secretary general had described The Island as a ‘pro-government newspaper’. We published only the sections in that report that were most damaging to the Sri Lankan government and yet, that was somehow interpreted as being ``pro-government.’’   

The government itself tried until the last moment to prevent the report from being published. Despite this, some people appeared to feel that the publication of the sections of the report that were most damaging to Sri Lanka were somehow of advantage to the Sri Lankan government.  This doesn’t tally with plain logic.  What we would have expected is for The Island to be labeled an anti-government newspaper for publishing sections that were so damaging to the government.

To the present columnist, this defensiveness on the part of the promoters of the Ban Ki- moon report is an indication of the fact that they too are only too well aware of the glaring shortcomings in the report. We are a litigious nation and we do notice when something is said without evidence to back it up. This is probably why some people deemed the mere publication of sections of the report as an advantage to the government.  Moreover, when a top secret report pops out into the public domain all at once, what will gain the most attention will be the allegations made, not the evidence presented in substantiation of those allegations.  This was what the UNSG panelists lost when The Island made the main sections of the document public.

At the international level, the Moon report drama has ended in a fiasco with the UN secretary general himself admitting in his statement which accompanied the publicizing of the report on Sri Lanka, that he does not have the power to proceed any further without the sanction of an appropriate inter governmental body of the UN. This basically confirms what this columnist has been saying from the time this panel was first appointed – that it was appointed outside the established procedure of the UN and that the secretary general could appoint such a panel legally only at the express order of the security council or the general assembly without whose sanction any resultant report will come to a dead end.

Irretrievably tainted?

Even though the report itself is dead in the water, the mere fact that it was made public by the UNSG may have far reaching and permanent effects on the functioning of the UN. Everything relating to this unauthorized investigation against Sri Lanka was done in the format which would have been followed if this had been a formal Expert Panel sanctioned by the UN Security Council. It was even referred to as an ‘expert panel’ instead of an ‘advisory panel’ as it claimed to be.  The term ‘expert panel’ is used to describe an established procedure of the UN.  The UNSG appoints an ‘expert panel’ to advice him about a country when he is ordered by the security council to do so.  The appointment of such an expert panel is an awe inspiring matter which has the backing of the entire world community. Usually when such an expert panel is appointed, things happen and world history changes

There has never been an instance when such a panel has been appointed with regard to a country and nothing has happened. Such expert panels were appointed with regard to the former Yugoslavia and Eritrea, and things changed with regard to those countries very significantly after that.  As such, the appointment of expert panels is not something that should be taken lightly.  Yet in this instance, the UNSG proceeded to appoint the panel in contravention of the usual procedure and even kept referring to it as an ‘expert panel’ after admitting that it was only a body to advise him and nothing more. Had he referred to this as the UNSG’s advisory panel on Sri Lanka, there would have been much less damage done to the UN.

But now, for the first time, an ‘expert panel’ appointed by the UNSG, is unable to act on its findings. What effect this will have on UNSG’s expert panels in the future will be interesting to watch.  By appointing this panel on Sri Lanka and even referring to it formally as an ‘experts panel’ Ban clearly arrogated himself powers that repose only with the security council or the general assembly.  Then he added insult to injury by trying to get the resultant report discussed by the security council to steam roll them into a decision that some members of that body were clearly not prepared to make. This is not a precedent that anybody in the security council would want – for a bureaucrat to be able to steamroll the world’s most powerful body into making decisions.

After Ban publicized his unauthorized ‘expert panel’ report on Sri Lanka and admitted he can do nothing to implement it, the sanctity of the ‘expert panel’ procedure has been lost. There is at this very moment, a UNSG expert panel appointed on Libya – a real one, with UN security council sanction.  The report of this panel will be due only about ten months from now, but already China and Russia have expressed dissatisfaction with the way NATO has been bombing Libya and talking about regime change when the UN security council gave sanction only for the imposition of a no fly zone for the protection of civilians.  What then would happen to the UNSG’s experts panel on Libya when it comes out will be interesting to see.  

Will China and Russia use the precedent set in the Sri Lankan case to veto the expert panel on Libya as well? Ban Ki-moon has mongrelized the UN’s procedures to such an extent that nothing seems certain any more. What this goes to show is that the bureaucrats who run an institution have a lot to do with preserving its standing in the world. In 2009, as the war in Sri Lanka reached its climax, the west tried to politicize the IMF as well by utilizing their voting power in the board of directors to deny a stand by facility that Sri Lanka was entitled to as a member of IMF. What saved Sri Lanka in that instance (and the IMF as well) was the fact that India bluntly told the IMF that if they don’t give the money to Sri Lanka, India will. Another factor was that the IMF bureaucrats themselves were appalled at this attempt to politicize a hitherto apolitical international institution. 

The IMF bureaucracy was able to remain independent and act with the wider interests of the community of nations in mind. One thing that Ban has displayed abundantly is that he is incapable of maintaining that independence and representing the wider interests of the community of nations.  Even if the UNSG thought in all honesty that Sri Lanka should answer for war crimes and he appointed that expert panel he should not have subverted the procedure of the UN in the process. And if he was going to appoint an inquiry to go into Sri Lanka anyway despite everything, then at the very least, he could have  called it an ‘advisory panel’ so that it does not ususrp the position reserved for the UNSG’s expert panels which have a very specific purpose.

The UNSG’s expert panel procedure has been sullied in other ways as well. Usually, when a UNSG expert panel is appointed it’s meant for implementation and will change world history for ever. As such these reports have to be done very professionally in a manner which will not make a rational reader gag. But the Moon report on Sri Lanka is not a document that will find ready acceptance among those who read it. We highlighted some of its main shortcomings over the past two weeks.

The panel report mentions a death rate of 40,000 civilians without giving any indication as to how they arrived at this figure.  To be able to say that 40,000 civilians were killed, they should have at least a rough approximation of the overall number of deaths including combatants. And they should be able to give an indication as to how they separated the combatants from the civilians etc. We don’t see any of this in this report. 

The other main shortcoming is that the panelists have relied on LTTE controlled sources of information.  They have held information coming from government servants under LTTE control as reliable whereas the story told by the same government servants once they came back under government control were considered unreliable and lies. An accusation has been made that the Sri Lankan government deliberately understated the number of civilians under LTTE control so as to restrict the amount of food going into the LTTE held areas in a situation where the UN Resident Representative and Humanitarian Coordinator in Sri Lanka Peter Buhne himself had given a figure only slightly more than the Sri Lankan figures at the lower estimate and slightly more than the Indian estimate at the higher estimate. Even in stating those figures, Buhne wanted a margin of error of no less than 60,000.

The panel report mentions the first hand experiences of two UN personnel who had set up an unauthorized ‘UN hub’ between the army and the LTTE in a situation where the LTTE was firing on the army from near this unauthorized hub. Whatever casualties resulted from this have to be blamed on the UN because UN personnel are not authorized to set up hubs as and when they feel like it.  The UN is made up of sovereign nations and they cannot possibly ignore the fact that in this instance two junior UN officials took it upon themselves to set up a UN hub in the middle of a war zone, with no authorization from the government.  If this is allowed to go unpunished and becomes a precedent, junior UN officials will be able to decide whether a country can wage war or not.  He will be able to stop a war simply by setting a UN hub in the path of an advancing army and raising the UN flag!  This is not how the role of the UN has been conceived in its charter and the general assembly resolutions pertaining to the provision of humanitarian assistance in member states in a situation of war. The high handed actions of those two UN officials struck at the very root of the relationship between the UN and the sovereign member states.

Hangman’s jurisprudence

But the most laughable part of the Moon panel report is the international law they have applied to Sri Lanka.  One would think that the legal principles applied would be those enshrined in Additional Protocol II of the Geneva Conventions and the ancillary documents of the Rome Statute such as "The Elements of a Crime" and the proceedings of the International Criminal Court (ICC) and the opinions expressed by the International Court of Justice (ICJ). Instead what we see is an almost complete reliance on a study of international humanitarian law, done by the International Committee of the Red Cross! The ICRC is a body of well paid do-gooders, nothing more. They are not responsible for eradicating terrorism anywhere in the world and they do not have a population that depends on them to eradicate terrorism.  Nor do they think in such terms.

Quite apart from eradicating terrorism, organizations like the ICRC thrive only with the perpetuation of strife and mayhem. It is death and destruction that brings money into the ICRC and invests them with power. Can anyone in his right mind think of fighting wars under ‘rules’ interpreted by the ICRC?

Anyone who reads the Ban panel report will see that the panelists have really stretched the law to its absolute limits in an effort to fix Sri Lanka. There is very little talk of the principles of the international law of armed conflict and everything is about humanitarian law and human rights law.  The argument is as follows  – Sri Lanka is a signatory to the four Geneva Conventions but not to Additional Protocol II of the Geneva conventions which deals with conflicts of a non-international character. Therefore, Sri Lanka does not enjoy the cover provided by Additional Protocol II.

Sri Lanka is not a signatory to the Rome Statute which set up the International Criminal Court and established the "Elements of a Crime" rules which need to be fulfilled if a war crime is to be proved. Since Sri Lanka is not a signatory to the Rome Statute, they are not covered by the ICC rules either. Sri Lanka is therefore, alone and exposed to the vultures.  According to the Ban panel, the only laws applicable to Sri Lanka is Common Article 3 of the Geneva conventions which deals with internal conflicts and customary humanitarian law, which does not take into account the military needs of the combatants and other considerations such as sovereignty. For example, Article 3 of the Geneva conventions goes as follows:

Article 3: In the case of armed conflict not of an international character occurring in the territory of one of the high contracting parties, each party to the conflict shall be bound to apply as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities including members of the armed forces, who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons:

(a)    Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,

(b)   Taking of hostages

(c)    Outrages upon personal dignity in particular humiliating and degrading treatment

(d)   The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples

(2) The wounded and sick shall be collected and cared for

An impartial body such as the International Committee of the Red Cross, may offer its services to the parties to the conflict. The parties to the conflict should further endeavour to bring into force by means of special agreements all or part of the other provisions of the present convention. The application of the preceding provisions shall not affect the legal status to the parties to the conflict.

Readers will note that Article 3 gives civilian targets absolute immunity from attack. Article 3 is silent about a situation where for example a terrorist group for example uses a hospital as a cover to fire on the armed forces of a country.   Other articles in the Geneva Conventions proper which Sri Lanka has signed however, does limit the immunity of civilian targets by making that immunity conditional upon their non participation or non use in offensive military actions. But the hitch is that other than Article 3, all other articles in the Geneva conventions proper, apply only to international conflicts - therefore those limits on immunity do not apply to the war against the Tigers! In contrast to this, Additional Protocol II of the Geneva conventions which we have not signed, offers comprehensive cover in Articles 11, 13 (2) and 13 (3) to armies combating terrorists who have no compunctions about using civilian facilities for terrorist attacks. These provisions clearly state that a civilian facility used for an offensive purpose – even a hospital – immediately loses its immunity from attack. But SL does not have the cover of this provision because we have not signed this document!

Thus, the Ban panel talks only about humanitarian law and virtually nothing about the law of armed conflict. It has sought to well and truly fix Sri Lanka on this matter in arguments presented on pages 56 and 57 of the report. We quote verbatim, three passages from the panel report in this regard.

(1) "International humanitarian law prohibits attacks on civilians and civilian objects. Attacks may be directed only against military objects and combatants (Rule 7, ICRC Study) There is an "unconditional and absolute prohibition on the targeting of civilians in customary international law". This norm is the most fundamental of those flowing from the principle of distinction. In addition, parties may not direct an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities. (Rule 35 ICRC Study) In regard to the presence of the LTTE in proximity to civilians in the NFZs, international tribunals including the ICTY (International Criminal Tribunal on Yugoslavia), have clarified that the ban on attacks against civilians protects a population that is "predominantly civilian" and the presence within the civilian population of individuals who do not come within the definition of civilians (ie, combatants) does not deprive the population of its civilian character."

(2) "…Indiscriminate attacks, that is to say, attacks that strike civilians or civilian objects and military objectives without distinction may qualify as direct attacks against civilians. In the same way, certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of attack."

 (3) "As for any argument that the SLA, did not intend to make the civilian population the object of attack, but that attacks were aimed at the LTTE, an attack remains unlawful if it is conducted simultaneously at a lawful military object and an unlawfully targeted civilian population.

The arguments in the above passage can be summarized as follows:

* There is an absolute and unqualified ban on attacks on civilian targets. Nothing is said about what can be done if civilian concentrations are used by terrorists to attack the legitimate forces of the state. The assumption appears to be that the absolute prohibition still holds even in such circumstances.

*  The unit of reckoning is the entire population of a given target and a ‘predominantly’ civilian population continues to be considered civilian despite the presence of terrorist among them ie; if five terrorists are with ten civilians, that becomes a civilian target.

* If terrorists install two 120mm mortars, one near the front entrance of a hospital and the other on the concrete roof of the same building, the army can lawfully target the mortar batteries. But since the mortars are located in a hospital and targeting them means that the hospital too will be hit, that makes retaliation unlawful!

‘Lunatic fringe’

This basically borders on the ‘lunatic fringe’ of humanitarian law. The Ban panel actually refers to this nonsense as ‘jurisprudence’.  They do not say how such a situation would have been handled under the law of armed conflict, under which, if LTTE cadres were squatting and chewing betel while exchanging pleasantries with civilians in the NFZ, they cannot be fired upon. However, if they fire artillery from among civilians, that immunity is lost.  The assertion in the first paragraph conveys the impression that there is an absolute prohibition on targeting civilian objects. There is no such absolute prohibition. The prohibition is always conditional – ie, the civilian object should not be used for an offensive purpose.

While it is true that Sri Lanka is not a signatory to either the Additional protocol II of the Geneva conventions or the Rome Statute, for considerations of natural justice, the principles applied should be those enshrined in those documents. Clearly, no country in the world can afford to take the positions adopted by the Ban panel seriously – not even the west, because they too are involved in actions in Afghanistan, Iraq and Libya. For example, if you adopt this rule that the panelists have tried to impose on Sri Lanka - that the ‘presence of armed personnel in a population that is predominantly civilian’, is an absolute prohibition on military action, the Americans and Europeans are committing gross human rights violations by bombing Libya even as you read this column, because despite the presence of Gaddafi’s forces, the population of that part of Libya is in fact, ‘predominantly civilian’.  But perhaps in the eyes of the Ban panelists, they have the cover of the Geneva conventions limiting the immunity of civilian concentrations because Libya is an international conflict! Are we discussing matters of principle here or are we, like nit picking bureaucrats saying "Oh they signed on the dotted line so they are covered, but you didn’t sign Additional Protocol II, therefore you have no protection!"?

The bottom line is that you cannot discuss matters of war and human rights with the attitude of an insurance clerk.

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