The controversial Darusman Panel report on Sri Lanka

Faizer Mustafa

As a Sri Lankan I am dismayed, disappointed and hurt by the actions of Ban-ki-Moon, the Secretary General of the UN in relation to my country. In the first instance, he was gravely mistaken in appointing the Darusman Panel without any legal authority under International Law. He has now compounded this error by releasing the report of the Panel. Its release at the present juncture is most unfortunate in view of the ongoing efforts of the government to consolidate national unity and is therefore disruptive of our national interest. Moreover, the contents of the report are of dubious value and the objectivity of the members of the Panel is open to grave doubt.

Sri Lanka is a functioning democracy. We have from time to time changed regimes by the exercise of the franchise. We have had elections at the local and national levels even in the most difficult times and amidst 'the clash of arms'. Access to the courts has always been available. President Rajapaksa has eradicated the scourge of terrorism in this country which has since returned to peace and normalcy. Indeed, it is universally acknowledged that the President defeated the most ruthless terrorist organization in the world which perhaps was the only terrorist organization which had air power.

Nation building

In the aftermath of the war the President has endeavoured to create a Sri Lankan identity and set out on a path of national reconciliation, national development and nation building. As a functioning democracy we deserve to be helped and not castigated particularly since the government has always been ready and willing to engage with the United Nations, its constituent bodies and the international community on issues relating to human rights.

The release of the Report is therefore unfair apart from being disruptive of the efforts of the government to consolidate peace and harmony in the country. Hence, its release has been met with dismayed and condemned in all quarters including religious leaders of all faiths. These feelings were articulated by the Anglican Bishop of Kurunegala, His Eminence Shanta Francis, in the following terms 'At a time like this, what we expect from the international community is only a positive approach. On behalf of our country and our Mission, I condemn the action of Bank ki-Moon. We commit all our undivided support to our President'. These comments correctly reflect the thinking of all Sri Lankans who have rallied behind the President and have the perception that the Secretary General has been unwittingly led astray by the propaganda of the LTTE rump abroad.

An eminent Sri Lankan academic of international repute has opined that 'the Secretary General has no authority or mandate to appoint such an Advisory Panel without the approval of Security Council or the General Assembly'. This is clearly borne out by an examination of the UN Charter.

Illegal

The purported appointment is a blatant violation of the provisions of Article 2 (7) of the UN Charter which states that 'Nothing contained in the present UN Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII'.

Chapter VII of the UN Charter has reference to 'Action with respect to threats to the peace, breaches of the peace, and acts of aggression'. This Chapter deals with matters pertaining to actions of the Security Council which alone 'shall determine the existence of any threat to the peace...'

Therefore, it is quite clear that the UNSG does not derive any power or authority to intervene in the domestic affairs of a member nation without the approval of the Security Council. Indeed, there is no precedent for the appointment of such an Advisory Panel by the Secretary General acting entirely on his own initiative.

Arrogation of power

It must also be noted that the other relevant UN arm-the United Nations Human Rights Council- UNHRC, which was established specifically to oversee any violations of human rights and International Humanitarian Laws had discussed the issues purportedly referred to the Panel by the Secretary General. The UNHRC dismissed a Resolution pertaining to the accountability of Sri Lanka for alleged violations of human rights by an overwhelming majority.

Hence, the action of the Secretary General in respect of the same issue is manifestly unwarranted and amounts to an arrogation of the functions of the UNHRC and constitutes an unwarranted interference in the domestic affairs of a member nation.

In the absence of legitimate authority in terms of the UN structure and the UN system, the Secretary General has made a feeble attempt to take cover under the joint statement issued by the UNSG and the President of Sri Lanka on May 23, 2009. The Panel in its report makes reference to the joint statement in the following terms:

'In the joint statement of the Secretary General and the President of Sri Lanka issued at the conclusion of the Secretary General's visit in the country on May 23, 2009, the Secrerary General underlined the importance of an accountability process to address violations of international humanitarian and human rights law committed during military operations between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam(LTTE). The President of Sri Lanka undertook to take measures to address these grievances.'

The panel goes on to legitimize the appointment made by the Secretary General by stating that: The Secretary General has decided to establish a panel of experts to advise him in the implementation of the said commitment with respect to the final stages of the war.

In this context it is curious that the Secretary General had decided to appoint such a body to advise him in regard to a commitment made, not by him, but by the President of Sri Lanka. This not only undermines the powers of the President of Sri Lanka but also constitutes a gross infringement of the sovereignty of the country.

It tantamount to the arrogation of Presidential powers by the Secretary General.

Indeed President Mahinda Rajapaksa fulfilled his commitment in terms of the joint statement by appointing the Lessons Learnt and Reconciliation Commission (LLRC). It is unfortunate that the Secretary General did not await the report of this Commission.

The so-called 'Recommendations' made by the Panel are couched in directory terms and at first blush appear to be violative of Article 100 (1) of the UN Charter, which bars the Secretary General from subjecting himself to any external influence.

The Panel

My good friend Udaya Gammanpila, Minister of Agriculture of the Western Provincial Council has rightly questioned the objectivity of the members of the panel. In its report the Panel has been unfairly dismissive of the LLRC upon the surmise that it 'fails to satisfy key international standards of independence and impartiality, as it is compromised by its composition and deep-seated conflict of interests of some of its members.'

In fairness, one may well ask whether the composition of the Panel is not flawed on the application of this standard which the panel has postulated.

The Chairperson Marzuki Darusman was a member of the International Independent Group of Eminent Persons (IIGEP) who were invited to serve as observers at the sittings of the Presidential Commission of Inquiry appointed to inquire into alleged violations of human rights. Having being present at some sittings, Darusman subsequently withdrew alleging that the Government of Sri Lanka did not have the will to improve the human rights situation in the country.

Hence, he appears to have pre-judged the very same issues which the Secretary General purportedly referred to the Panel of which Darusman was selected as the Chairman. Similarly, the appointment of Steven Ratner as a member of the Panel is disturbing. He has been an advisor to an NGO called the Human Rights Watch (HRW). This organization has constantly voiced concerns against Sri Lanka's military operations which were directed against the LTTE whilst down-playing the atrocities committed by the terrorists.

Therefore, Ratnesar's impartiality is in doubt.

Moreover, HRW is one of the organizations which had complained to the UN alleging violations of human rights by Sri Lanka. HRW had issued a separate statement demanding that the Sri Lanka 'government should account for the missing Tamil Tiger fighters who were detained during the final days of the war.'

Even more significantly, as pointed out by Gammanpila, Ratnesar is the co-author of a book titled 'Accountability for human rights: Atrocities in international law-beyond the Nuremberg legacy'. In this book a reference is made to Sri Lanka wherein it is stated (vide page 123) that the 'convention on banning apartheid should be invoked in relation to countries such as Sri Lanka.' It beggars belief as to how the notion of apartheid could even be remotely relevant to a discussion of the separatists' war waged by a terrorist group in Sri Lanka and casts serious doubts upon the objectivity of Stephen Ratner.

The other member of the Panel Yasmin Sooka is the Head of the Sooka Foundation, which is said to have received millions of Euros from the European Union to fund projects administered by the Foundation. It is not without significance that allegations of violations of human rights by Sri Lanka initially emanated from the European Union. The propaganda blitz of the Tamil Diaspora throughout the European Union was so effective that the European Union sought to penalize Sri Lanka by withdrawing GSP Plus. In these circumstances, the appointment of Yasmin Sooka of the Panel is violative at least of the principle that 'justice must not only be done, but must also appear to be done'.

Apart from the serious doubts in regard to the validity of the Secretary General's appointment of the Panel and the credibility of the selection of the members of the Panel there are glaring omissions, inaccuracies and distortions in the report itself.

The report itself is based on hearsay material obtained from doubtful sources. The members of the Panel did not visit Sri Lanka and therefore did not have direct access to all stakeholders.

The ICRC had ceased to have a presence in the Vanni. The United Nations had suspended its operations in the Vanni and moved its offices from Kilinochchi to Vavuniya.

Military offensive

The Panel has relied heavily on NGO's. In this context one cannot discount the distortions and misrepresentations engaged in by the LTTE and the overwhelming influence it had on international NGOs. The Panel appears to have given credence even to the Tamil Rehabilitation Organizations which is an arm of the LTTE. The time frame selected for study by the Panel does not lend itself to an objective overview of events. The panel has 'focused on the period from September 2008 through May 2009' for its exercise and asserts that 'September 2008 corresponds to the beginning of the government's final military offensive on the LTTE de facto capital of Kilinochchi.'

Thus it fails to appreciate the significance of the Mavil Aru incident by which the LTTE compelled the government to have recourse to military action to provide water to farmers who had been affected by the LTTE forcibly closing the sluice gates. It is Mavil Aru which marks the turning point as the government was compelled to resort to the military offensive as a humanitarian operation. Indeed, with the wisdom of hindsight one can well say that the eradication of the LTTE was certainly a humanitarian operation as it freed the residents of the affected areas from the oppressive regime of the LTTE. Indeed, recent events portend that resort to military action for the protection of civilians is sanctioned by International Law.

In Chapter II of the Report, the Panel refers to the 'Historical and political background to the conflict'. In doing so the Panel has not adequately recognized the efforts of successive Sri Lanka governments to engage the LTTE by way of negotiations. In this context a glaring example is that no mention is made of the agreement between the UPFA government (led by President Chandrika Bandaranaike Kumaratunga) and the LTTE. This Agreement was referred to as PTOMS - the Post-Tsunami Operational Management Structure. Nor is there any mention of the peace talks held with the LTTE by the government of President Mahinda Rajapaksa. These omissions give rise to the perception that Sri Lanka is a 'war monger' nation.

Civil administration

In outlining the historical and political background of the conflict, the Panel has failed to take note of the fact that a civil administration had been restored democratically through the franchise in the Eastern province after its liberation from the LTTE and that a former LTTE combatant had been elected as the Chief Minister.

Ignoring attempts by the UPFA government to arrive at a peaceful solution to the problem, the Panel refers only to the opposition in the country to the ISGA (LTTE's unilateral proposal to establish an Interim Self Governing Authority) and contends that the UPFA is a coalition of 'deeply nationalist political parties'. In this context the term 'nationalist' is used in a pejorative sense. On the contrary, the reality is the UPFA includes a large number of minority parties representative of both Tamils and Muslims. The political party founded by Vinayagamoorthy Muralitharan alias Karuna who was at one time the LTTE's Commander in the Eastern Province, was also a constituent party of the UPFA until he joined the SLFP, the main constituent party of the UPFA. The largest party representing the Tamils of Indian origin together with a few more smaller parties and the largest single party with Muslim representation are constituent parties of the UPFA. It also includes the Communist Party and several Marxist parties. Hence, branding the UPFA as a coalition of 'deeply nationalist political parties' is a gross distortion of facts and is unfair by President Mahinda Rajapaksa who has been at pains to establish a government which is as inclusive as it can possibly be in keeping with his belief that there is no such thing as 'minorities' and that we all are Sri Lankans.

Humanitarian assistance

The numerous instances of humanitarian assistance extended by the security forces to the civilians, a fact highlighted even in the international media with photographs and video clips have not attracted the attention of the panel.

Thus it is no wonder that the report stands rejected by the government and all right thinking Sri Lankans. Indeed, the futility of the entire exercise has been recognized by the Secretary General himself who has declared that he has no power to take any action except with the consent of the host country or member states.

Let us therefore, put this report behind us and unite behind President Mahinda Rajapaksa who was able to withstand the Liberation Tigers of Tamil Ealam. We are confident that he will equally not be intimidated by 'paper Tigers' in the form of Darusman and his cohorts.