West gets cooked goose for Christmas!
December 17, 2011, 6:24 pm
It was an eventful week with the Lessons Learnt and Reconciliation Commission’s report being presented to Parliament on Friday and the Court of Appeal pronouncing its verdict with regard to the jailed Sarath Fonseka’s appeal against the sentence of the court martial in the Hycorp case on the same day. in addition to that, Karu Jayasuriya’s bid for the UNP leadership also comes to a head today (Sunday) as the UNP working committee meets.
But first let us look at this unedifying and highly tragic spectacle of a war hero tying himself up in knots with every utterance he makes! last Friday, a three member panel of the Court of Appeal rejected his petition to have the sentence of the court martial in the Hycorp case quashed (This relates to the first jail sentence that he is still serving. The other sentence in the white flag case will begin only when the current sentence ends.) When reading the judgement delivered last Friday, one can get a pretty good idea why the Inter-Parliamentary Union has said nothing about the Fonseka case 18 months after it was first brought to their notice.
The court martial that sentenced Fonseka comprised of Maj Gen M.P.Peiris, (Chairman) Maj Gen S.W.L.Daulagala, and Maj Gen M.Hathurusinghe. with Rear Admiral W.W.J.S.Fernando as the Judge-Advocate. Fonseka had filed a petition in the Court of Appeal citing all members of the court martial and the Judge Advocate as well as the commander of the army Jagath Jayasuriya as respondents.
The court martial was about four tenders called by the army in 2007 and 2008 where Fonseka was accused of sitting on tender boards that awarded tenders to his son in law Dhanuna Tillekeratne’s firm Hycorp International. The defence counsel had argued that not revealing the relationship between Fonseka and Tillekeratne did not constitute an offense and that there was no obligation on Fonseka’s part to disassociate himself from the tender board or even disclose the relationship because the tender procedures were guidelines only and not law.
They had also argued that there was no evidence to prove that Fonseka had influenced the tender board, and that there was no allegation that the tender had been made wrongly and no allegation that anybody gained unlawfully and that therefore the whole matter was ‘technical’. The defence had also argued that the Army Act did not allow the prosecution and punishment of those who cease to be subject to military law, six months after the offence was committed and that the said offences were committed in 2007 and 2008 while the charges were brought in 2010 and therefore action against Fonseka was subject to a time bar.
The defence had also argued that even if Fonseka had chaired the tender board knowing that his son in law was involved, that would at most be ‘unethical’ and that an offense of that nature did not warrant such a harsh sentence. a representative from the Inter-Parliamentary Union came to Sri Lanka some months ago to observe Fonseka’s court cases and if this is what he heard in courts, no wonder he fled and we have heard nothing from the IPU observer thereafter!
The centerpiece of Fonseka’s petition however was the allegation of bias on the part of the members of the court martial against Fonseka. The general allegation was that all the members of the court martial were biased against him because Fonseka had shifted them from the ‘command stream’ of the army to the ‘common stream’ when he was the commander.
There were allegations against the members of the court martial which had a quintessential Fonseka touch to it. He alleged that Maj Gen Mahinda Hathurusinghe who was a member of the court martial of being biased because he had been bribed and was in the pay of the LTTE and that Fonseka had taken action against him when he was army commander and was to take further action when he was removed from the position of army commander.
What was said in Hathurusinghe’s defence by his counsel was that contrary to being in the pay of the LTTE, Hathurusinghe had been under direct threat from the LTTE and that an army Major named Anuruddha Perera had been tried, convicted and sentenced to death for providing intelligence to the LTTE to kill Hathurusinghe when he was the Overall Operations Commander Colombo. The allegations of bias against the other two members of the court martial were also countered though not as spectacularly as in the case of Hathurusinghe. what the other two members of the court martial had said was that they had not been demoted from the command stream to the common stream as Fonseka had alleged but were very much a part of the command stream because of the positions they held.
Besides, the court found that the allegations made by Fonseka against Hathurusinghe were founded on nothing but hearsay. Fonseka had claimed that the director of the CID had told him that an LTTE suspect in custody had told him that Hathurusinghe was in the pay of the LTTE!
This is the second time in as many months where Fonseka’s predilection to repeat gossip got him landed in trouble. Readers will remember that even the white flag case went against him because the High Court decided that Fonseka had gone around repeating allegations that he claimed to have heard from others, but which he knew were to be false and had said so himself! As we pointed out in this column, he was convicted in the white flag case on nothing more than a gossip mongering charge.
In this latest case, the Appeal Court found that even though Fonseka says that Hathurusinghe was in league with the LTTE, the latter was in the Philippines following a course and if he himself had attached any credence to the allegations he would have recalled the latter to take further action. After the members of the court martial who were respondents in the petition made their representations and alleged that Fonseka was suppressing material facts from the court and making misrepresentations, Fonseka refrained from responding to what the members of the court martial said in their defence on the allegation of bias.
When a judge had asked Fonseka’s counsel what he has to say about the allegation of suppression of material facts and misrepresentation, the lawyer’s answer had been that one is required to disclose everything only in an ex-parte application and that it does not apply in the case of inter-parte applications!
It appeared that Fonseka’s lawyers were running round in circles trying to rescue their client. You can’t really blame the lawyers for what happened. in desperation, the lawyers had tried to salvage the case by withdrawing the allegation of bias, which were really based only on Fonseka’s fulminations which he has the unfortunate habit of passing off as facts. it was however too late by that time. The court dismissed the application on the basis of the suppression of facts and misrepresentation when alleging bias on the part of the members of the court martial.
Fonseka is obviously the lawyer’s ultimate nightmare. You can’t really base court cases on his fulminations. Members of the UNP and the JVP who go to see Fonseka instead of trying to humour him, should tell him point blank that he doesn’t have a leg to stand on and that it is best if he stops making his highly abrasive comments to TV cameras every time he comes out of jail and to try and come to some accommodation with the government. at present Fonseka seems to be living on the satisfaction that he gets by taking pot shots at the Rajapaksas once a week or so and he obviously rehearses the pithy anti-government snippets he utters to the TV cameras. But these are not conducive to his ever being given a pardon.
Fonseka may have derived some satisfaction by saying that Mahinda Hathurusinghe was in the pay of the LTTE but that is what finally messed up his application for relief with the courts even observing that no deception should be practiced on courts and further that a petitioner who seeks relief by way of a writ which is an extraordinary remedy must in fairness to the court bare every material fact so that the discretion of the court is not wrongfully invoked.. When reading the judgement it becomes clear that this was not a legal challenge. it was more like a court room fiasco.
The report of the Lessons Learnt and Reconciliation Commission was presented to parliament on Friday, and in the view of the present columnist, the most important part of that report is on pages 40 to 48. So far, all we have been hearing are the allegations made against Sri Lanka in reports compiled overseas. There is an international lynch mob baying for Sri Lankan blood and it is such prejudiced sources that have been telling us what international laws relating to armed conflict apply to the Sri Lankan case.
In the two and a half years after the end of the war, no counter had been made by Sri Lanka to these allegations of having broken international laws. The LLRC report cannot be considered a counter to those allegations, but at least there is a statement of how an independent body of Sri Lankan legal experts would see the applicability of the international law of armed conflict and international humanitarian law to the Sri Lankan context. The international report that dealt most comprehensively with the legal aspects of the Sri Lankan case was the UN Secretary General’s advisory panel report of April 2011. according to the position stated in that report, Sri Lanka basically stands condemned already. The position taken by Ban Ki-moon’s panelists can be summarized as follows.
* Sri Lanka has signed only the Geneva Conventions of 1949 and not its Additional Protocol II which deals with internal conflicts. therefore Sri Lanka is not covered by Additional Protocol II.
* what is applicable to the Sri Lankan case is only Common Article 3 (Common in the sense of being common to all four of the Geneva Conventions) which deals with internal conflicts and broadly stipulates that those taking no active part in the hostilities should be treated humanely.
* Attacks may be directed only at combatants and not at civilians, the latter being defined as those who are not members of an armed group taking part in the conflict. There is an ‘unconditional and absolute prohibition’ on the targeting of civilians. this absolute immunity is available to a population that is ‘predominantly civilian’ which means that even if there are individuals who are combatants among the population, that does not deprive the said population of its civilian character.
* While attacks on civilians have to be ‘willful’ to become a crime, and the accused has to deliberately target and kill civilians, this element of a willful attack will also apply to an attack that is reckless with regard to its possible impact on civilians.
* if it is argued that the army did not target civilians deliberately, and targeted only the LTTE, an attack still remains unlawful if it hits a lawful military object and a civilian object at the same time.
This means that you cannot fire back at terrorists who shoot at the army from among civilians.
What was stated in the Ban panel report was undoubtedly the lunatic fringe of the law of armed conflict. with laws such as the above, no country on earth would be able to combat terrorism. The LLRC started off by echoing the views expressed in the ICRC compendium of Customary International Humanitarian Law. a key observation that the ICRC makes is that Additional Protocol II of the Geneva Conventions which deals with internal conflicts has not defined the terms ‘civilian’ and ‘combatant’ in a satisfactory manner and that all subsequent international treaties have also not defined these two terms.
The Ban Ki-moon panel report stressed as we saw above that if there is a doubt whether a person is a civilian, he will be considered a civilian. But this is not accepted by key western countries which have expressed their reservations on this rule. The USA, France and the UK do not accept this view. The USA holds that the question of civilians and ‘direct participation in hostilities’ must be decided on a case by case basis. France and the UK insisted that the presumption of being civilian does not override the commander’s duty to protect the troops under his command. thus we see that the Ban panel was trying to ram down our throats principles that the western nations have rejected.
Even the ICRC compendium itself agrees that to insist that in cases of doubt the assumption should be that the people on question are civilians would create an imbalance between the government forces and terrorists because it would be lawful to attack a terrorist only when he is ‘taking direct part in hostilities’ whereas it would be lawful to attack government forces at any time. The ICRC also observed that there is no definition of ‘direct participation in hostilities’.
The international law of armed conflict that the LLRC has based itself however is the law of international conflict which has been approved of by the United States of America, the United Kingdom, France, Germany, Netherlands, Australia, Canada, Italy, new Zealand. these principles adopted by western nations can be summarized as follows.
* The principle of distinguishing between civilian and military objectives only prohibits direct attacks against civilian objects and does not deal with the question of incidental damage resulting from attacks directed against military objectives. therefore an attack which affects civilian objects is not unlawful as long as it is aimed at a military target and the damage to civilians is not excessive.
* While ‘all feasible precautions’ have to be taken to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, in the practical application of these rules, the obligation to take all feasible precautions is limited to those precautions that are practicable or practically possible taking into account all circumstances including humanitarian and military considerations.
* The military manuals of the USA, Australia, Canada, Switzerland, Australia, Netherlands among other nations, specifically states that the presence of civilians within or around military targets do not render such places immune from attack. Readers will note that the Ban panel said exactly the opposite in relation to Sri Lanka.
* While the principle has been broadly stated that when there is a doubt whether a certain civilian facility is being used for military purposes, it should be given the benefit of the doubt and declared a civilian facility. The USA however objected to this on the grounds that this is contrary to the traditional law of war because it shifts the burden of determining the precise use of a facility from the party controlling that facility to the party that lacks such control!
* with regard to the obligation to choose a target that causes least damage to civilians and civilians objects, The United States has emphasized that this is not an absolute obligation as it applies only when a choice is possible. An attacker may comply with it only if it is possible to do so subject to mission accomplishment and allowable risk or he may determine that it is impossible to make such a determination.
* in reference to the principle of proportionality, which stipulates that the loss of incidental civilian life should not be disproportionate to the direct military advantage anticipated, the rules that the western countries adheres to is that the term ‘military advantage’ refers to the advantage anticipated from the military attack considered as a whole and not from isolated or particular parts of that attack. Further, the western states have affirmed that the term ‘concrete and direct military advantage anticipated’ refers to an expectation that the attack would make a relevant and proportionate contribution to the final goal. some western states, namely Australia, Canada and new Zealand stipulated that the term ‘military advantage’ included the security of the attacking forces.
This is not all, the LLRC report goes on to examine the western endorsed international laws applicable to other allegations against Sri Lanka as well. for example, with regard to the question of those trying to surrender, the UK in particular has argued that that it may not be possible to accept surrender from one unit while under fire from another position. this is exactly what the west says happened in the case of Nadesan and Pulidevan who are supposed to have been trying to surrender while their people were firing on the army from the same line. moreover, the UK stipulated that the party which accepts surrender is not required to go out to receive the surrender – instead the party offering surrender has to come forward and submit to the control of the enemy forces. The United States has stipulated very significantly, that an offer of surrender has to be made at a time when it can be received and acted upon and a last minute surrender to an onrushing force may be difficult to accept!
All these points are derived from observations made by the afore-mentioned group of Western nations, individually and collectively, in their responses to the relevant clauses of the Geneva Conventions and Additional Protocol II of the same. with these observations the west has basically cooked their own goose as far as making allegations against Sri Lanka is concerned. Their own laws will be Sri Lanka’s defence. all that Sri Lanka now has to do is to compile a dossier on all the observations and reservations expressed by western countries b collectively or individually to various conventions governing the international law of armed conflict and to use that to prepare Sri Lanka’s response. this is also the sales pitch that has to be taken to the UN Human Rights Council to convince the other nations on that body that the west is on a politically motivated witch hunt against Sri Lanka.
Karu Jayasuriya will be contesting for the UNP leadership today. whether he should be elected leader is for the working committee to decide. what was unacceptable was the statement put out by the venerable Mahanayake theros asking Ranil to hand over the party leadership to Karu while retaining the position of opposition leader. The last thing we want in this country is a theocracy with Buddhist monks calling the final shots even in political party appointments. The present writer cannot but agree fully with The Island editorial yesterday and there is little that we can add to that editorial, except to say that monks like Ven Meetiyagoda Gunaratnana who are senior UNP monks identified with that party and who appear publicly on behalf of the UNP have every right to ask RW to go. however the Ven Mahanayakes are Mahanayake’s to everybody, RW as well as Karu Jayasuriya and to those who hate the UNP as well. given their public role they should not have intervened in an issue that pertains to partisan politics. The Ven Mahanayakes are probably unaware that Karu Jayasuriya is the only politician in this country who actually sent a statement to the newspapers calling for a war crimes inquiry in this country, and he has not yet retracted it. We should know all about it because that statement was published in this very newspaper! We will refrain from making any further comment on this leadership contest until next week when everything will be over.