http://www.defence.lk/new.asp?fname=20110503_01

The panel report reveals an underlying pattern
(By Prof G. L. Peiris - Minister of External Affairs)
News Background :
One of the things that we have to get clear is that this expert panel report cannot be called a UN report at all. It's a report compiled on a private initiative by the Secretary General, and has no nexus with the UN. This report is also flawed in many respects. It is important that there should be a proper understanding of the gravity of the errors in this report. There are several reasons why we think the process adopted was incurably flawed.
The panel starts by insisting that they have no investigative power and that they are not embarking on any investigation at all. With regard to this, on the first page of the executive summary, they say, "The panel's mandate however does not extend to fact finding or investigation." In confirmation of this, on page 3 of the main report, it is said "The panel has not conducted fact finding as that term is understood in United Nations practice."
The again on page 6 of the main report, it's said "The panel and United Nations officials repeatedly made clear to the government the scope of its mandate as an advisory panel to the secretary general including that it was not engaged in any investigation." Once again, on page 14 it is stressed "the panel's mandate precludes fact finding or investigation."
These are repeated and emphatic statements to the effect that the panel is not a fact fining body and that it has no investigative authority whatsoever. On page 5 of the main report, they explain in detail how they set about their work. "The panel's programme of work was organized in two phases. In the first phase the panel gathered a variety of information regarding the armed conflict in Sri Lanka from individuals and institutions with expertise or experience related to its mandate. Some of this information came in written form consisting of both public documents for example, inter-governmental or United Nations or reports of NGOs and material conveyed confidentially to the panel. Other information was gathered through numerous meetings of the panel and its secretariat. In terms of outreach to the broader public, the panel made a general invitation for written submissions from interested organizations and individuals. As of the 31st of December 2010, the panel had received over 4000 submissions from over 2300 senders."
So the first category of evidence is what they have collected in house within the UN system. The second category is public representations. With regard to this they say, "Submissions could not be individually verified by the panel and therefore were not used as a direct source to meet the panel's threshold of credibility for the allegations." What this means is that they have not used the second category of information they have received from the public because they could not be individually verified by the panel. On page 14 they say, "Allegations are only included as credible when based on primary sources that the panel deemed relevant and trustworthy."
Significantly, on page 6 of the report, it is said "In some instances the panel received written and oral material on the condition of an assurance of absolute confidentiality in the subsequent use of the information. The Office of Legal Affairs, confirmed through formal legal advice that the provisions set out in the secretary general's bulletin on information sensitivity classification and handling, could be applied to its records. This bulletin provides for the classification of a document as strictly confidential with correspondingly strict limits on any access for a period of 20 years following which a declassification review may be undertaken that weighed the equities involved in retention or release. Moreover the office of legal affairs confirmed that where necessary and appropriate for the panel's work, the panel could give an undertaking of absolute confidentiality in subsequent use. As a result nearly all of the panel's substantive records will be classified as strictly confidential with in some cases additional protection regarding future use."
So this material is regarded as strictly confidential and for 20 years, there is nobody on this planet who would have the right to access this material. The whole thing is a sealed, closed book. What see here is the opposite of openness and transparency. They have collected information from people that they have confidence in, and we don't know who these sources are. And we don't know the content of the material that they have used as the building blocks of this report. It is all shrouded in secrecy and cut off from examination. The whole process is very furtive.
The panelists themselves recognize the difficulty of finding reliable material. In the opening page of the report, they say, "Due to the scarcity of objective reporting from the conflict zone, it was difficult to determine precisely what had happened during the final military assault."
There is first an insistence that there is no fact finding and no investigation. They say they have no power to investigate so they don't embark on that at all. Having said that, they end up claiming on pages 71 to 72 that "With respect to the government, credible allegations point to violations of international humanitarian law." On page 49 it is said, "The panel's account of the allegations associated with the final stages of the war, reveal five core categories of potential serious violations committed by the government of Sri Lanka." The list is as follows:
Killing of civilians through widespread shelling.
Shelling of hospitals and other humanitarian objects.
Denial of humanitarian assistance
Human Rights violations suffered by victims and survivors of the conflict.
Human rights violations outside the conflict zone.
These are offences of the highest level of gravity known to international law and page vii of the executive summary says "The secretary general should immediately proceed to establish an independent international mechanism whose mandate should include the following concurrent functions... to monitor and assess the extent to which the government of Sri Lanka is carrying out an effective domestic accountability process including genuine investigation of the alleged violations and periodically advice the secretary general on its findings." And furthermore, "to collect and safeguard for appropriate future use information provided to it which is relevant to accountability for the final stages of the war including the information gathered by the panel and other bodies in the United Nations system."
I wish to make two points. Having said that they are not investigating and that they have no power to investigate, they come to the conclusion that there are credible allegations in respect of five categories of heinous offences. If that is not investigation, what is? They also want an independent international mechanism set up which will be a continuing mechanism to report from time to time to the secretary general and collect and safeguard for appropriate future use, information provided to the panel. But how has the panel obtained this information? All of this is on the basis of material that is hidden away behind an impenetrable wall.
Some of the findings in the report are also unacceptably vague. For example, on page 44 they say, that some of the women 'may have been' raped. They don't say that they were raped.
Another very significant point to be taken note of is that on page 15 they say "The panel has chosen to present the allegations it finds credible, in a narrative account.", So the report reads like a horror story. Moreover, in this document, there is an extravagance of language and vividness of imagery obviously intended to evoke the strongest feelings of revulsion. But then on the same page, they go on to add that "this account should not be taken as proven facts". So they are not prepared to vouch for the accuracy of the facts that they state. What they are saying could be fact, it could also be fiction - they don't know. Yet, people reading this account will be under the impression that these events occurred.
In the coverage of this report in all the major media networks in the country, the headlines were that the panel finds 'credible evidence' of heavy civilian casualties and other such atrocities. My question is, how can you find credible evidence without an investigation? The panelists clearly say that they did not investigate and that they did not have the power to investigate.
There is now a call for a separate state on the basis that the panel has found that these atrocities were perpetrated. The argument is that if this has happened, there is no alternative to Eelam. This is now being directly used as a ground for carrying forward the demand for secession.
It was always emphasized not only to Sri Lanka but to other governments as well that the sole task of the panel was to advise the secretary general on international best practice, comparative experiences, and process related issues. The secretary general's position was that these are people that he has appointed who will advise him. But the panel explicitly says in the report that they have prepared their report in a manner that is appropriate for publication. One would think that if the purpose of the report is to provide advice to the secretary general, it should be solely a matter between the panel and the secretary general.
They have also made an explicit recommendation with regard to the human rights council. On page 8 they say, "The human rights council should be invited to reconsider its May 2009 special session resolution regarding Sri Lanka in the light of this report." In 2009, the HRC found no reason to proceed against Sri Lanka. Now they are saying "in light of this report" - we have seen how the report was prepared - they want this matter to be reexamined. Then we have a statement by Navineetham Pillai, the UN Commissioner for Human Rights which says among other things that the government of Sri Lanka perpetrated these atrocities "under the guise of fighting terrorism". The use of the term "under the guise" seems to imply that there was no terrorism. That it was a mere pretext and something that we had conjured up in order to commit these atrocities. The whole world knows what the situation was at that time, and what the LTTE was doing.
There is thus an underlying pattern to this whole exercise and this is what the public needs to be aware of.
Courtesy : The Island