Govt's humanitarian op was to free own citizens - AG
*Move away from practice of engaging same
experts
*Govt ready to constructively engage with
special rapporteur
"One would accept without demur that the humanitarian operation
conducted by the Sri Lankan government was to free its own citizens from
forced captivity and to that end the government was legally justified in
resorting to the use of necessary force," said Attorney-General Mohan
Pieris.
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Attorney-General Mohan Pieris |
He was speaking during the Interactive Dialogue on the Report of the
Special Rapporteur on extrajudicial, summary or arbitrary executions at
the 17th Session of the Human Rights Council on Tuesday.
"We were conscious of the principle of proportionality in the
execution of the humanitarian operation," he said.
The Attorney-General's statement: "Sri Lanka welcomes the Special
Rapporteur's efforts to provide the government an opportunity to respond
to his technical note, we would however like to observe that the whole
exercise did not achieve its full potential.
"Firstly the report contained blurred and illegible images which were
not of a quality that could be examined and therefore precluded the
government from making a proper assessment.
It would therefore be useful for legible copies to be made available
in a timely manner.
"A request was also made to provide documents in their original
forms. These too were transmitted by way of a scanned document of a
faxed document. The illustrations in the Spivac report were also
illegible which meant that the images on which many assertions were made
could not be revealed in time. We assure the SR that the outcome will be
shared with him once such analysis is complete.
"We need to build mutual confidence between the office of the Special
Rapporteur and the government of Sri Lanka which share a common
objective of ensuring of the upholding of the rule of law. To this
extent it is important that disclosure is made fully and unconditionally
at the earliest opportunity in a spirit of constructive engagement and
transparency.
"No less could be expected from an engagement with a sovereign
nation. Sri Lanka notes that the expert document submitted by Spivac
concludes that the reports are authentic. By a public assertion on
October 15, 2009, he seeks to change this position with regard to the
extended video which also includes the 2009 video.
What reliance can we then place on evidence of this nature? Should he
then be ultra cautious in the reception of unverified material of a
political flavor?
We would also urge the Special Rapporteur to endeavour to move away
from the practice of engaging the same experts in evaluating the 2010
video lest it lends itself to a general reaffirmation of the conclusions
of 2009. It is suggested that it would be more prudent for the Special
Rapporteur with all the resources available to him to identify other
experts of equal or better repute to examine and evaluate the videos.
The commissioning of the self same experts who had arrived at
definitive conclusions will lead to allegations of bias on the part of
the Special Rapporteur.
May I say a word of Spivac's report. The government has discovered
that Spivac is a technical representative for a brand of special
software which was used to enhance the 2009 video and which was shared
by the two other experts. This procedure does not augur well for the
concept of independence as after all justice, the say, should not only
be done but should appear to be done.
"It must be borne in mind that an expert should provide an objective
and unbiased report within his competence and not play the role of an
advocate, The Special Rapporteur will be pleased to learn that the LLRC
has taken cognizance of this matter and heard the testimony of the most
competent expert who has conducted research with a view to ascertaining
the veracity of the video.
It is to be noted that the LLRC had taken cognizance of this matter
well before the Special Rapporteur had prepared his report.
Would not it then be prudent for the Special Rapporteur to have held
his hand to await the findings of the LLRC?
"It is our view that the Special Rapporteur should facilitate the
testimony of the experts before the LLRC with a view to assisting the
LLRC to strike the right balance in executing its mandate. You will also
note that as far back as 2009 the Attorney General has given his serious
consideration to the video immediately after its broadcast. The Attorney
General complained to the OFFCAM in the UK and demanded an inquiry into
the conduct of Channel 4 which declined to provide the original version
of the video. It has to be highlighted that the legal efficacy of any
report or publication is hinged upon the fundamental requirement of
impartiality and a complete lack of bias, having regard to the rules of
natural justice.
"It is our respectful position that having regard to the reception of
complaint in the first instance, rules consonant with natural justice
were not complied with by a culpable failure to afford an opportunity to
Sri Lanka to respond.
Reports by NGOs, human rights defenders and media personnel are quick
to report the tragic incidents which result in the deaths or injuries of
civilians occurring during armed conflicts to communicate the most
generalized conclusions in a very short time of casualties which per se
appear to be violations of international law or even war crimes.
"In most times than not there is a complete failure to examine and
find out the legal basis upon which the operation was carried out. It is
easy to comprehend the sensitivity with which the civilian losses are
perceived.
But it is equally important that one does not rush to conclusions.
We must therefore bear in mind that it is fundamentally indispensable
that any legal inquiry such as the one undertaken by a Special
Rapporteur more particularly with regard to an internal armed conflict
cannot assume conclusions without taking into consideration the facts
and circumstances surrounding the military operations as a whole.
One would accept without demur that the humanitarian operation
conducted by the GOSL was to free its own citizens from forced captivity
and to that end the GOSL was legally justified in resorting to the use
of necessary force. We were conscious of the principle of
proportionality in the execution of the humanitarian operation.
It is respectfully submitted that the process adopted in regard to
the publication of the videos and subsequent steps taken fall far short
of this requirement and is tainted with the fundamental vice of bias and
partiality. The fact that the contents of the video were not made
available to the Sri Lankan government by Channel 4 lends support to the
suspicion that the broadcast of the videos was for a collateral purpose.
The Government of Sri Lanka is ready to constructively engage with
the Special Rapporteur in the future on the basis of transparency and
fair processes being adopted. Progress achieved through domestic
procedures and mechanisms will be communicated to the Special Rapporteur
upon completion of internal processes.
We thank the Special Rapporteur for facilitating a very constructive
meeting last afternoon and we look forward to continuing this engagement
and closer co-operation in the times ahead."
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