Mahindas temple sermon on Geneva conceals the

cause, distorts the effect

Sunday, November 01, 2015

Shunning Parliament where he

was listed to speak on the Geneva report last Friday, where his no show had wrapped him in a
silence that far outweighed all the gold in King Solomons fabled mines, Mahinda Rajapaksa
found comfort in seeking refuge at his political office in Narahenpitas Abayaramaya Temple
on Sunday, to give voice to his considered opinion on the Human Rights Councils report on
Lankas alleged war crimes.
There, closeted amongst an audience of yes men given to uttering sadhu, sadhu at
every turn, he delivered his sermon at his temple conclave adding the Mahinda
Chinthana spin to distort the effect of the Geneva report whilst concealing the cause
without any fear of embarrassing interruptions like the occasional hoot or the awkward
question that he may have encountered had he spoken thus in Parliament.
He charged that the countries that sponsored resolutions against Sri Lanka in the
Human Rights Council will be the same countries that provide funding for the judicial
mechanisms consisting of the judges, prosecutors, investigators and lawyers set up
under that resolution. By what stretch of the imagination are we to believe that the
cause of justice will be served by such an arrangement? he asked.

Does Rajapaksa hold the view that the international judges so appointed will be the
paid minstrels of these foreign powers and will sing for their supper in the manner a

now exorcised local phantom of court once did?

If it is Rajapaksas view that the paymaster calls the shots and his money can buy the
judges allegiance and the outcome can be moulded in any fashion the paymaster
wishes, then by what stretch of imagination will the international community and the
victimised Tamil civilians believe that the cause of justice will be served by having a
Sinhala-dominated government financing a Sinhala majority panel of judges to deliver
a verdict on the excessive actions of a Sinhala-dominated army of heroes against a
group of minority Tamil civilians? Especially when the incidents complained of are
alleged to have happened at a time when all such civilians caught up in the war zone
were labelled as terrorists; and thus made the then Defence Secretary Gotabaya
Rajapaksas controversial statement that there were zero civilian casualties
technically correct?

The folly of adopting Rajapaksas blinkered

view that international judges will prostitute
their objectivity and impartiality for money is
that the same view can be taken against the
Lankan Governments proposal for a purely
domestic court to hear the alleged war
crimes charges. Thus in such an impasse
Mahinda Rajapaksa: Temple sermon

the compromise proposal to set up a hybrid

court may not only be reasonable but may be the only solution.

It is not that Sinhala judges lack the expertise to conduct such trials. That is not the
issue. What is at the root of the objection is the cardinal principal of natural justice that
one cannot be the judge of ones own case.

Even whilst dealing with run-of-the-mill cases, a judge will refrain from hearing a case
where there is a possible personal interest involved. In such an instance he will step
down and let another judge adjudicate. Even if the personal interest is so far remote

as not to prejudice him in any manner, he will still judiciously decline to hear it for he
does not wish his judgment to be tainted even by the suspicion of partiality. That is the
high standard demanded of the bench which the judges scrupulously follow.

For like the other legal maxim that justice must not only be done but must be seen to
be done, so the rule regarding impartiality demands not only that adjudications must
be made without any personal prejudice but also that the possibility of prejudice being
present, howsoever slight, must not exist to cast a slur on the judgment and bring the
sacrosanct nature of judicial judgments to disrepute.

However much we deplore the calumny levelled by many that Sinhala judges are
prejudiced when it comes to judging alleged war crimes committed by Lankas armed
forces, can it be objectively and honestly be held that any Sinhalese could have lived
through the terror years, shrunk with horror at terrorist massacres and bomb
explosions, revelled in the fall of Prabhakaran, gloated over the destruction of the
Tigers and enjoyed the nectarines of peace as the spoils of victory howsoever
achieved, and still have remained unbrushed by bias, untouched by human emotion?

Wouldnt any Sinhalese have heaved a great sigh of relief, felt elation tingling up their
spines when news arrived of the final victory signalling the dawn of peace? Would any
Sinhalese, having lived through the trauma wishing for its speedy end, not sipped of
the milk of victory though tainted with a drop of dung? With the harrowing terror ordeal
still fresh in mind, can anyones psyche be sterile?

No ermine wig or white frilled red robe can act as armour to prevent the spears of
prejudice penetrating the heart and soul. One is first a human, only then a judge.

Thus when Mahinda Rajapaksa slams international judges on the basis that their
judgment will be shaped and swayed by money paid, he forgets that the international

community in return can slam Sinhala judges and claim their opinion is spawned and
spurred by tears wept for their own dead.

For instance, in the Paranagama Commission report there is one observation which
calls for scrutiny. It is as follows:
The commission accepted that shelling by the SLA undoubtedly led to a significant
number of civilian deaths, but the commission stresses that this was an inevitable
consequence of the LTTEs refusal to permit civilians to leave their control in order to
use them both as a shield and a pool for recruitment, even when the GOSL permitted
a ceasefire on April 12. No government could be expected to permit young children to
be forced into the front lines without taking all available measures to put an end to
such ruthless exploitation of a civilian population.
What does this paragraph mean? Has the Commission, which comprises four
Sinhalese and one Tamil, gone out of its way to find that the Government acquitted
itself creditably by putting an end to the ruthless exploitation of civilians by the Tigers,
even though the measures used meant that the exploited civilians, children included,
also became the expended, also became the casualties?

Mahinda Rajapaksa also referred to the mandate given by him in 2014 to the
Paranagama Commission to hire a team of international legal experts. He then made
the extraordinary claim that the if the contents of those well-argued legal opinions had
been taken into account, the war crimes project against Sri Lanka orchestrated by
some western countries would have come to an end before it even got off the ground.

A legal opinion, no matter how pricey it is or according to Rajapaksa how well

argued it maybe is still only an opinion forwarded for legal adjudication. To arbitrarily
suggest that such an opinion would have bowed over western nations and made them
render a walkover to Lanka borders on the preposterous. Incidentally Rajapaksa tells
us that the The Island web edition published all these legal opinions in full some

months ago.

Then what makes him think that these opinions had not been taken into account by
the relevant parties.
But see for yourself how iron clad the foreign expert legal opinion truly is and ponder
whether its conclusions are so watertight that it would have sunk the anti-Lanka war
crimes project as Rajapaksa claims it would have, had but the present Government
circulated the written opinions of these international experts to the members of the UN
Human Rights Council.

With regard to the main issue of terrorists using civilians as human shields and the
action taken by the Lankan army as a result of it, the expert legal opinion as published
in the Island in April 2015 first outlines the law applicable to such situations. It also
takes care to qualify the opinion by stating Its purpose is to rigorously define the law
and to take a first step no more in applying it to known facts, particularly those
facts that are widely accepted as having been accurately reported. Our opinion would,
of course, be subject to adjustment if further investigation reveals other significant
occurrences that should be taken into account.

With such a safeguard in place it then goes on to state that a central tenet of
International Humanitarian Law (IHL) is that the parties to a conflict may not directly
target and attack civilians and the civilian population and that Additional Protocol I
prohibit attacks on civilians. Any attack which strikes both military and civilian objects
without distinction constitutes an indiscriminate attack and is prohibited. Thus in the
first place a distinction must be made. A party is obligated to do everything feasible to
verify that the objectives to be attacked are neither civilians nor civilian objects and are
not subject to special protection but are military objectives.

Along with this distinction, there are two other issues. One is the principle of military
necessity which requires a balance to be struck between protecting civilians and the

necessities of military operations. The other is the principle of proportionality. The rule
of proportionality as set out in Additional Protocol I states that the loss of civilian life
may be incidental and unavoidable during attacks on military objects. A party to the
conflict is obligated to refrain from launching an attack which would result in the
incidental loss of civilian life or injury which would be excessive in relation to the
concrete and direct military advantage anticipated. If the attack is excessive in relation
to the military advantage it will amount to a prohibited indiscriminate attack. But as the
expert legal opinion holds most significantly for present purposes, there is no clear
rule on what constitutes excessive collateral damage or what is considered
appropriate military advantage. In other words, there is no set formula or ratio (of
civilian losses to the intended military advantage) to determine the proportionality of
any given attack.

In other words what the experts report implies is that it will be up to the discretion of
judges to hold whether the military advantage of an attack outweighs the importance
of civilian casualties. If it does, it will be a justified attack. If does not, it will amount to a
war crime.

But principles of proportionality are only found in Additional Protocol I which applies to
international conflicts. Additional Protocol II applies to internal conflicts. But it does not
contain the principles of proportionality which permit intended military advantages to
be taken into account as justification for civilian losses. Given the fact that the terrorist
war in Lanka was an internal armed conflict, it is Additional Protocol II which applies.
Accordingly the rule of proportionality which may have served as a justifying device
in international conflicts does not operate or have any bearing.

Faced with such an insurmountable bar and denied the assistance of the
proportionality principle to justify the armys military attacks on the basis that the
military benefit far outweighed the resultant civilian casualties, the foreign legal experts
resort to take the position that the principles of proportionality as found in Additional

Protocol I and which are applicable only to international conflicts, should nevertheless
be taken into account when considering the Lankan conflict even though it is an
internal conflict not governed by the Additional Protocol I.

They then continue to justify military attacks by reference to the rule of proportionality
on the premise that proportionality rule applies to Lankas internal conflicts as well.
Mahinda Rajapaksas opinion that the foreign experts have delivered a smashing legal
opinion that would have demolished the case against Lanka from the start would have
been correct had Lankas internal conflict taken place in an international setting and
been an international conflict. For the foreign experts have argued Lankas case on the
supposition that proportionality which expressly applies to international conflicts under
Additional Protocol also impliedly applies to internal conflicts under Additional Protocol
II which does not expressly contain it.

In order to justify the hypothesis from which their conclusions cascade, Rajapaksas
foreign legal experts state it has been held that these rules apply in all conflicts
irrespective of the nature of the conflict. By appealing to precedents (unnamed) the
experts by implication also accept that the force of their arguments will depend on the
discretion of the judges as to how they will interpret and distinguish past decisions
when it comes to delivering their own. Hardly the cannon balls of legal fire that will sink
the enemy ship even before it is put out to sea, now is it?

In fact, the experts concede that Indeed, there is no known case law that assists on
the specific subject of proportionality in the context of human shields. And even to
justify military attacks on the principle of proportionality it is vital to possess the
necessary information of the ground situation. Sir Geoffrey Nice QC and Rodney
Dixon QC admit that the conclusions expressed in this Opinion are unavoidably
confined by the available evidence about the factual circumstances and are without
the benefit of a full investigation into the particular circumstances of each attack.

If so, what is the value of an expert report in which the conclusions are based on half
baked information? Let alone persuading a court of law, it is not the stuff that would
raise the white flags of surrender at the Human Rights Council. To think it would do the
trick is nought but the wishful thinking of Mahinda Rajapaksa as he struggles to
exculpate himself from the charge of bungling the affair from the start.

As for foreign expert Desmond de Silvas legal opinion, he has argued his case as well
as any local lawyer would have done for his client, presenting Lankas viewpoint and
scoffing all else. An example of this is when he refers to the allegation based on video
footage allegedly showing Sri Lankan soldiers killing captive LTTE members in
January 2009 as well as other sources that reported that government forces killed
several LTTE leaders while they attempted to surrender in May 2009. Lankan born
Barrister Desmond De Silvas well argued short answer to this is: Based on my
instructions, however, it is unlikely that this crime was committed.

Though this foreign expert legal team were paid over Rs. 100 million as fees by the
then Government, the Paranagama Commission did not take a shine to all the baubles
their report contained. In the case of the white flag case, the Commission stated that it
should be investigated by an independent judicial inquiry. With regard to Britains
Chanel 4 documentary purportedly showing soldiers executing Tamil prisoners,
Paranagama held that there was evidence to suggest the footage was genuine. It held
that the material shown in Channel 4 does show, however, that there was material
enough to justify a judge-led investigation.

It must be noted that a commission of inquiry is only bound to give an opinion as to

whether grounds exist to form a legal charge. A court of law, however, has to decide
upon guilt and this must be done without the slightest trace of partiality.

Finally, why did locals-only Rajapaksa hire foreigners to assist the Paranagama
Commission? Were there no Lankan lawyers competent enough to be given the brief?

Or was it that in international eyes it would not have carried weight; not have been
accepted as a credible opinion, would not have lowered the heat the Rajapaksa
regime then faced? For the same reasons perhaps, President Sirisena agreed to a
hybrid court since, in international eyes, a purely domestic court may not be accepted
as credible for all its suspected prejudices.
Posted by Thavam