An Overview of the Presidential Commmision to Investigate & Inquire into alleged Serious Violations of Human Rights - 2006/2009

 

AN OVERVIEW OF THE PRESIDENTIAL COMMISSION TO INVESTIGATE & INQUIRE INTO ALLEGED SERIOUS VIOLATIONS OF HUMAN RIGHTS - 2006/2009


Date of Appointment 

November 2006

 Venue

Bandaranaike Memorial International Conference Hall  Office Complex

Duration


Nov. 2006 to June 2009

Members

Hon. N. K. Udalagama Esq. (Judge, Supreme Court of Sri Lanka), U. Yapa Esq., Dr. D. Nesiah Esq, .K. C. Logeswaran Esq., Ms.  M. K. Muttetuwegama, Ms. J. Ismail, S. S. Wijeratne Esq. and A. J. Yusuf Esq. 

Mr. P. L. D. Premaratne replaced Mr. Yapa at the beginning.

Mr.  Logeswaran resigned early, Dr. Nesiah , Ms. Muttetuwegama & Mr. Yusuf resigned during the closing stages. Attorneys at Law M. Faizal Razeen and Denzil J. Gunaratne were appointed as replacements.



Justice N. K. Udalagama 
 

Dr. D. Nesiah, Mr. S. S. Wijeratne,   
Ms. J. Ismail, Mr. A. J. Yusuf

Ms. M. K. Muttetuwegama 

Not in pictures : Mr. P. L. D. Premaratne P. C.

Secretary to the Commission

Mr. S. D. Piyadasa, Attorney at Law

Mandate

To investigate & inquire into & report on the following cases:

Case No. 1: The Assassination of the Foreign Minister of Sri Lanka Hon. Lakshman Kadirgamar, PC;

Case No. 2: The killing of seventeen (17) aid workers of the international non-governmental organization Action Contra La Faim. in early August 2006.

Case No. 3: The alleged execution of Muslim villagers in Muttur in early August 2006 and the execution at Welikanda of 14 persons from Muttur who were being transported in ambulances.

Case No. 4: The assassination of Mr. Joseph Pararajasingham, Member of Parliament on 25th December 2005.

Case No. 5: The killing of (five) 5 youths in Trincomalee on or about 2nd January 2006.

Case No. 6: The Assassination of the Deputy Director General of the Sri Lanka Peace Secretariat Mr. Ketheesh Loganathan on 12th August 2006.

Case No. 7: Death of fifty-one (51) persons in Naddalamottankulam (Sencholai) in August 2006.

Case No. 8: Disappearance of Rev Nihal Jim Brown of Philip Neri's Church at Allaipidi on 28th August 2006.

Case No. 9: Killing of five (5) fishermen and another at Pesalai beach and at the Pesalai Church on 17th June 2006.

Case No. 10: Killing of thirteen (13) persons in Kayts Police area on 13th May 2006.

Case No. 11: Killing of ten (10) Muslim villagers at Radella in Pottuvil police area on 17th September 2006.

Case No. 12: Killing of sixty-eight (68) persons at Kebithigollewa on 15th June 2006.

Case No. 13: Incident relating to the finding of five (5) headless bodies in Avissawella on 29th April 2006.

Case No. 14: Killing of thirteen (13) persons at Welikanda on 29th May 2005.

Case No. 15: Killing of ninety-eight (98) security forces personnel in Digampathana, Sigiriya, on 16th October 2006.

Case No. 16: Assassination of Mr. Nandarajah Raviraj, Member of Parliament on 10th November 2006. (Added later)

Comprehensive details of the above cases are available in the public domain.

Gazette Notification

The Gazette of the Democratic Socialist Republic of Sri Lanka EXTRAORDINARY

No. 1471/6 – MONDAY, NOVEMBER   13,   2006(Published by Authority)

PART I : SECTION (I) — GENERAL

Proclamations &c., by the President

P.O. No. : CSA/10/3/8.

BY HIS EXCELLENCY MAHINDA RAJAPAKSA, PRESIDENT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

 Greetings :

1.         Hon. Nissanka Kumara Udalagama Esquire (Judge of the Supreme Court)

2.         Upawansa Yapa Esquire

3.         Dr. Devanesan Nesiah

4.         Kanapathipillai Cathiravelpillai Logeswaran Esquire

5.         Madam Manouri Kokila Muttetuwegama

6.         Madam Jezima Ismail

7.         Somapala Samarasinghe Srimega Wijeratne Esquire

8.         Ahamed Javid Yusuf Esquire

 WHEREAS, allegations have been made by certain parties, regarding the commission of serious violations of human rights by various persons in furtherance of, in the context of, and associated with (a) the ongoing terrorist activities against the Government of Sri Lanka, its security forces and its people, and (b) the counter measures adopted by the security forces and the police, to arrest, suppress, or terminate such terrorist activities ;

And whereas I am of the view that, (a) causing independent and comprehensive investigations into incidents involving alleged serious violations of human rights arising since 1st August 2005 specifically including serious violations of human rights specified in the Schedule hereto, and (b) examining the adequacy and propriety of the investigations already conducted pertaining to such incidents amounting to serious violations of human rights, are necessary, and are in the public interest, public safety and welfare of the people of the Democratic Socialist Republic of Sri Lanka; And whereas, without prejudice to on-going investigations, inquiries, other legal processes and legal proceedings including judical proceedings conducted by the relevant competent authorities, I am of the opinion that afore-stated investigations and inquiries conducted by the Commission of Inquiry to be appointed in terms of this Warrant, would facilitate and enable me to present the relevant material to the appropriate competent authorities of the Government of Sri Lanka including the Attorney General enabling the institution of appropriate legal action including the consideration of the institution of criminal proceedings and efficacious prosecution of those persons who have allegedly committed serious violations of human rights arising since 1st August 2005 specifically including serious violations of human rights specified in the Schedule hereto, 

And whereas, for maintaining the transparency of such investigations and inquiries, and for the purpose of satisfying interested parties that such investigations and inquiries have been conducted comprehensively and in conformity with relevant basic international norms and standards, I am of the opinion that the Commission of Inquiry to be appointed in terms of this Warrant (hereinafter referred to as the ‘Commission of Inquiry’), should conduct its investigations and inquiries in a  manner that would enable a panel of non-Sri Lankan eminent persons of international repute appointed by me and referred to  as the ‘International Independent Group of Eminent Persons’ to efficaciously observe such investigations and inquiries of the  said Commission of Inquiry, 

Now therefore I, Mahinda Rajapaksa, the President of the Democratic Socialist Republic of Sri Lanka, reposing great trust and confidence in your prudence, ability and fidelity, do in pursuance of the provisions of Section 2 of the Commissions of Inquiry Act, by these presents, appoint you the said:

1.         Hon. Nissanka Kumara Udalagama Esquire (Judge of the Supreme Court)

2.         Upawansa Yapa Esquire

3.         Dr. Devanesan Nesiah

4.         Kanapathipillai Cathiravelpillai Logeswaran Esquire

5.         Madam Manouri Kokila Muttetuwegama

6.         Madam Jezima Ismail

7.         Somapala Samarasinghe Srimega Wijeratne Esquire

8.         Ahamed Javid Yusuf Esquire

 to be Commissioners appointed by me to the Commission of Inquiry to be constituted in terms of this Warrant. I do hereby authorize you to obtain information, investigate and inquire into alleged serious violations of human rights arising since 1st August 2005 specifically including the several incidents set out in the Schedule hereto, and inquire into investigations that have been and are being conducted by the relevant competent authorities into such incidents. I require you to within one year of the date hereof or within such extended period of time which I may by warrant prescribe, present to me a Report or such Interim Reports as may be appropriate thereon, containing the findings of your investigations and inquiries and your recommendations regarding the following matters.

 1.         The facts and circumstances pertaining to each of the incidents investigated and inquired into by the Commission of Inquiry.

 2.         The descriptions, nature and backgrounds of persons who have directly suffered death, injury or any other physical harm as a result of the incidents investigated and inquired into by the Commission of Inquiry.

 3.         The circumstances that may have led to or resulted in those persons referred to in paragraph 2 above, suffering such death, injury or physical harm.

4.         The identities, descriptions and backgrounds of persons and groups of persons, who are responsible under the applicable laws and legal principles of Sri Lanka, for the commission of deaths, injury or physical harm to any person during, in the course of, or as a result of, any of the incidents investigated and inquired into by the Commission of Inquiry.

 5.         Having regard to relevant circumstances and possible reasons that may have influenced or been relevant to the conduct of investigations, examine and comment on the nature, propriety and efficacy of the investigations conducted into the incidents investigated and inquired into by the Commission of Inquiry.

 6.         Recommend measures that should be taken in accordance with the laws of Sri Lanka, against those persons identified under paragraph 4 above.

 7.         Recommend appropriate measures of reparation to be provided to the victims of serious violations of human rights investigated and inquired into by the Commission of Inquiry and to their next-of kin.

 8.         Recommend measures that should be taken by the Government of Sri Lanka in order to prevent the occurrence of incidents in the nature of those investigated and inquired into by the Commission of Inquiry.

 9.         Any other recommendations considered by the Commission of Inquiry as being relevant on its findings in terms of this Warrant.

 I do hereby require and direct all state officials and other persons to whom the Commission of Inquiry to be appointed in terms of the Warrant may apply for advice, assistance, facilities, resources including necessary human, financial, and technical resources, information or material, for the purpose of necessary investigations and inquiries, to render all such advice, assistance, facilities, resources, information and material as may be properly rendered and furnished in that behalf.

 I further hereby require and direct the Inspector General of Police, Commanders of the Sri Lanka Army, Navy and Air Force, and other relevant state officials to, acting in terms of directives of the Commission of Inquiry to be appointed in terms of this Warrant, provide necessary protection and assistance to the Commissioners and officials of the Commission of Inquiry, members of the International Independent Group of Eminent Persons, and witnesses of the Commission of Inquiry, who may in the opinion of the said Commission of Inquiry require such protection or assistance.

 The Sessions of inquiries of the Commission of Inquiry, shall be open to the public. However, having due regard to the sensitive nature of the information and material that may be received and or adduced at the inquiries, the disclosure of which may be prejudicial to national security, public safety or wellbeing, I do hereby direct that either that the entirety of parts of the inquiries into the aforesaid matters set out in this Warrant shall in the discretion of the Commissioners be not held in public or that any section of the public be excluded from the relevant inquiries. Provided however, notwithstanding the exclusion of the public, members of the International Independent Group of Eminent Persons shall be entitled to be present and observe throughout all investigations and sessions of inquiries of the Commission of Inquiry.

 And I do hereby declare that the provisions of section 14 of the aforesaid Commissions of Inquiry Act shall apply to this Commission.

 I do hereby declare and state my intention to, within two months of the receipt by me, forward the Reports of the Commission of Inquiry to be appointed in terms of this Warrant and any other material referred to and presented to me along with the said Reports, to the relevant competent authorities of the Government of Sri Lanka including the Attorney General, for their consideration of the initiation of necessary action to implement the recommendations of the Commission of Inquiry including the consideration of the institution of criminal proceedings. Upon receipt of such material, the Attorney General shall as soon as possible, consider, if required take necessary further action, and where appropriate institute necessary criminal proceedings against persons found to have been responsible for committing serious violations of human rights. The other competent authorities shall also consider and where appropriate take necessary action to implement the other recommendations of the Commission of Inquiry.

      

I do hereby declare and state my intention to, after excluding any material which in my opinion may be prejudicial to or absolutely necessary for the protection of, national security, public safety or wellbeing, and immediately following the relevant competent authorities of the Government of Sri Lanka including the Attorney General finally decides on the implementation of the recommendations of the Commission of Inquiry and institutes necessary legal action, publish in the Government Gazette the Reports of the Commission of Inquiry and table them in the Parliament.

 

Given at Colombo, under the seal of the Democratic Socialist Republic of Sri Lanka, on this Third day of November,

2006.

 By His Excellency’s command, 

LALITH WEERATUNGA,

Secretary to the president.

 

SCHEDULE



1. The Assassination of the Foreign Minister of Sri Lanka Hon. Lakshman Kadirgamar, PC.  

2.   The killing of seventeen (17) aid workers of the international non-governmental organization Action Contre Law Faim, in early August 2006. 

3.  The alleged execution of Muslim villagers in Muttur in early August 2006 and the execution at Welikanda of 14 persons from Muttur who were being transported in ambulances.   

4.   The assassination of Mr. Joseph Pararajasingham, Member of Parliament on 25th December 2005.     

5.   The killing of (five) 5 youths in Trincomalee on or about 2nd January 2006.       

6.  The Assassination of the Deputy Director General of the Sri Lanka Peace Secretariat Mr. Ketheesh Loganathan on 12th August 2006.   

7.  Death of fifty one (51) persons in Naddalamottankulam (Sencholai) in August 2006. 

8.     Disappearance of Rev. Nihal Jim Brown of Philip Neri’s Church at Allaipidi on 28th August 2006.       

9.   Killing of five (5) fishermen and another at Pesalai beach and at the Pesalai Church on 17th June 2006.    

10.   Killing of thirteen (13) persons in Kayts Police area on 13th May 2006.      

11,   Killing of ten (10) Muslim villagers at Radella in Pottuvil police area on 17th September 2006.   

12.   Killing of sixty eight (68) persons at Kebithigollewa on 15th June 2006.    

13.   Incident relating to the finding of five (5) headless bodies in Avissawella on 29th April 2006.     

14.    Killing of thirteen (13) persons at Welikanda on 29th May 2005.    

15.    Killing of ninety eight (98) security forces personnel in Digampathana, Sigiriya, on 16th October 2006.

 


Preliminary Steps

Members of the Commission met several times after their appointment to discuss arrangements that were required to undertake the task of investigating & inquiring into the several cases entrusted to them.

In all these cases police investigations were ongoing, magistrates in the respective areas were being kept informed of progress, but as many of the incidents took place in conflict affected areas, & the conflict was ongoing, progress was necessarily slow.

Relying on previous practice, the Commissioners, majority of whom were senior Attorneys at Law, agreed to request the Attorney General's Department to make available two or three senior counsel to assist the Commission on a full-time basis under the direction of the Commission. Accordingly, Counsel were accommodated at the Commission Secretariat. They were Y. Kodagoda, G. Jayakoddy & 3 others.

Under the guidance of counsel, a police investigation unit was set up with a Deputy Inspector General as its head, & one of the first tasks assigned to the Unit was to obtain all police investigative material & court proceedings in relation to the cases listed in the mandate.

The Commission appointed a Panel of Translators to translate into English all statements recorded during police investigations, court proceedings etc. pertaining to the cases under consideration to be made available to the International Observers & their Assistants.

The International Observers, the International Independent Group of Eminent Persons (IIGEP) & their Assistants arrived in late January 2007, & their first Plenary Meeting was held on 1 February 2007. The Commission met & briefed the IIGEP on the steps taken thus far in preparation for its work & shared with them the Organizational Structure and Rules of Procedure of the Commission. The IIGEP outlined some of the concepts that will be applicable during the investigations & inquiries.

Subsequent to the first Joint Meeting several issues appear to have been raised by both parties & these are referred to in the leaked cable reproduced below:


Leaked Cable from Ambassador Robert Blake 7 March 2007 on Preliminary Issues


Meeting of Donor Country Heads of Missions with Minister of Human Rights 6 March 2007


SUBJECT: SRI LANKA: EARLY ROADBLOCKS FOR IIGEP


Human Rights Mahinda Samarasinghe called a meeting on March 6 to brief donor country Heads of Mission on the status of the International Independent Group of Eminent Persons (IIGEP). Samarasinghe acknowledged a lack of clarity on the responsibilities of IIGEP assistants and said he wants to "regularize and formalize" their role. The Minister was also concerned that there were many gaps in the schedule when no Eminent Person (EP) would be present in country.

Samarasinghe promised careful GSL scrutiny of a letter from IIGEP Chairman Justice Bhagwati regarding possible interference by the Attorney General's Office in the work of the Col and IIGEP. The GSL ' s attempt to sharply limit the role of the IIGEP assistants calls into question its commitment to a meaningful role for the IIGEP process. End summary .

12. (C) DCM participated in a meeting on March 6 called by Minister of Disaster Management and Human Rights Mahinda Samarasinghe to give the IIGEP donor country Heads of Mission an update on the functioning of the IIGEP. He noted that the IIGEP is a new structure, with no antecedent in Sri Lanka.

He added that, although there will be growing pains, he is personally committed to making it work. He said the first formal session of the Col had been scheduled for March 8, but was postponed to allow more time to translate police reports.

Ambiguous Role of IIGEP Assistants

13. (C) Samarasinghe acknowledged a lack of clarity on the

role of the IIGEP assistants. Representatives from the Attorney General's office insisted that the IIGEP assistants
should be limited to serving in a support role to the EPs.

The donor countries, however, maintained that the assistants are empowered to represent the EPs when they are out of the country. DCM pointed out that the assistants were recruited as subject specialists in key areas such as witness protection, and their role is not confined to providing administrative support. Samarasinghe said he wants to "regularize and formalize" the role of the assistants and suggested that the EPs write a letter to the COI stating formally that their assistants are authorized to represent them. He admitted that he "didn't expect the IIGEP assistants to be so busy or so eminent." Deputy Solicitor General Yasantha Kodagoda said that procedural rules for interaction between the assistants and the Col are necessary.

The IIGEP assistants have begun drafting rules of engagement, which will be reviewed by the EPs later this week.

EP Schedule of Visits

14 . (C) The Minister also questioned the frequency and 
duration of the EPs' presence in country. He was concerned that there were too many gaps in the schedule when no EP would be present to observe the Col, and that there was no plenary meeting of the EPs scheduled in the near future. DCM countered that it was understood by all from the outset that the EPs would be in country approximately once per quarter for approximately two weeks per visit and that there would be few opportunities to bring all the EPs together after the February 2007 launch of the IIGEP.


 Inappropriate Involvement of the AG's Office

COLOMBO 00000402 002 OF 004

15. (C) Samarasinghe acknowledged the COI ' s receipt of a 
letter from IIGEP Chairman Justice Bhagwati on the issue of the role of the Attorney General's office in the Commission of Inquiry. He said the GSL takes the issue seriously and will study the letter "sooner rather than later." The letter (full text para 8 below) argues that it is inappropriate for the Attorney General's office to serve as lead counsel for the Col given that the commission will be investigating actions of the Attorney General's office.

Capacity and Funding Assistance Needed

16 . (C) Samarasinghe noted the disparity in financial

resources between the IIGEP and Col and said that the GSL is finding it difficult to fund the Col to the extent it would like. The EU Head of Mission responded that the IIGEP could provide the Col with financial assistance if necessary. The Minister also said that the Col has decided on a witness protection scheme, but wants donor countries to help implement it .

17 . (C) Comment: The IIGEP mechanism of an international 
body observing the work of a national commission charged with investigating human rights violations is largely uncharted territory in Sri Lanka, and some growing pains are bound to occur. However, the GSL ' s desire to sharply limit the role of the IIGEP assistants does not bode well for its stated commitment to transparency. Samarasinghe ' s comment that he didn't expect the IIGEP assistants to be "so busy or so eminent" indicates GSL resistance to any party other than the EPs, who were never intended to be in Colombo for sustained periods of time, playing a substantial role. Samarasinghe ' s complaint about the duration and frequency of the EPs' presence is unfounded, both because there is no expectation of a continuous EP presence and because the Col has yet to even begin its formal proceedings. We will continue to press the GSL on the importance the U.S. and other donor countries attach to transparent investigation of the cases that fall under the Col's purview and of a meaningful role for the IIGEP, including their assistants who are on the ground for the duration. End comment.

18 . (C) Text of February 27 letter from IIGEP Chairman Bhagwati to Col Chairman Udalagama:

On behalf of the International Independent Group of Eminent Persons, I wish to acknowledge the high level of cooperation that we have established to date as we embark on the important task entrusted to us by the President and international community. These responsibilities are onerous and expectations are high. It is, therefore, incumbent upon us to ensure observance of the principles of independence, impartiality and competence are enshrined in all aspects of our work.

The Presidential Invitation to Serve as an Member of an International Independent Group of Eminent Persons requires me to bring to your attention relevant matters and issues with a view to ensuring that investigations and inquiries are conducted in a transparent manner and in accordance with basic international norms and standards. In this regard, I wish to raise the issue of the composition of the Panel of Counsel outlined in the Organizational Structure and Rules of Procedures adopted by your Commission. I note that you have invited a Panel of Counsel to be established, comprising officers of the Attorney General's Department. The Panel of Counsel and the Lead Counsel are to be appointed by the Commission based on the nominations of the Attorney General.

The Commission of Inquiry has to examine and comment on the nature, propriety and efficacy of the investigations.

COLOMBO 00000402 003 OF 004

conducted into the incidents covered by the Presidential Warrant and make recommendations on measures that should be taken against responsible persons. By necessity, your Commission is required to examine the role of the Attorney General's Department in these investigations and inquiries, using the Panel of Counsel constituted of the very same officers or officers of the same department. This situation involving apparent conflict of interest jeopardizes the actual and perceived independence and impartiality of your Commission .

Additionally, the role of the Attorney General's Department as legal adviser to the government is well known to all. Potential witnesses may be understandably reluctant to provide evidence before your Commission in cases involving allegations against state officials in the presence of the Panel of Counsel comprising staff of the Attorney General's Department. The leading role of staff of the Attorney General ' s Department in the constitution of the Panel of Counsel will not instill public confidence in the decisions of your Commission but rather undermines the credibility of the Commission as a body independent of all state agencies.

It is my understanding that previous Commissions in Sri Lanka dealing with investigations into serious human rights violations have expressed similar reservations on the role of the Attorney General ' s Department in independent investigations. I draw your attention to the 2001 Final Report of the Commission of Inquiry into Involuntary Removal and Disappearances of Certain Persons (All Island) Sessional Paper No.l ) 2001, page 16., where the Commission expressed concern over the establishment of a Missing Persons Unit within the Attorney General's Department, where it stated that :

"The establishment of this Unit while underlining the special problem of prosecuting cases of disappearance, suffers from drawbacks in that the prosecutor is the Attorney General who invariably is the representative of the State, either as prosecutor or respondent, in judicial proceedings. In this instance, the present arrangement makes the Attorney General the representative of the victim, and prosecutions are conducted on the basis that the crimes were the acts of errant officials. This again highlights a problem of the public perception of a conflict of interest in that the victims are very much affected by the awareness that State Officers are investigating into complaints against Officers of the State ..."


To avoid further conflicts of interest and to protect public confidence in the independence of prosecutions, the All-Island Commission recommended that an Independent Human Rights Prosecutor be appointed for serious human rights violations involving state officials. This recommendation was echoed by the 2003 Report of the National Human Rights Commission's Committee on Disappearances in the Jaffna Region Report of the National Human Rights Commission's Committee on Disappearance in the Jaffna Region.

In this regard, I note the United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions,

"In cases in which the established investigative procedures are inadequate because of lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognized impartiality, competence and independence as individuals. In particular they shall be independent of any institution, agency or person that may be the subject of the inquiry..."


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I am deeply concerned that the role of the Attorney General ' s Department in the Commission's Panel of Counsel compromises national and international principles of independence and impartiality that are central to the credibility and public confidence of the Commission of Inquiry.

Therefore, I urge you to reconsider your decision to invite the Attorney General ' s Department to serve on the Panel of Counsel, and instead invite independent Counsel to serve on the Commission's Panel of Counsel.

BLAKE


International Observers

International Independent Group of Eminent Persons (IIGEP)

Justice Bhagwathi, Prof. Shearer, Mr. Darusman, Sir Nigel, Judge Cot



Mr. Dewey, Mr. Fasseur, Prof. Yokota, Mr. Hossain, Mr. Mauromatis

Not in pictures: Prof. Bruce Matthews 


Hon. Justice P.N. Bhagwati, India – Chairman, invited by the President & a former Chief Justice of India.

Prof. Ivan Shearer, nominated by Australia; Details here: https://www2.ohchr.org/english/bodies/hrc/membersCVs/shearer.htm

Prof. Bruce Matthews, nominated by Canada & who had studied Buddhism at Peradeniya University for several years, details here:

https://networks.h-net.org/node/6060/pages/3571743/matthews-bruce

Judge Jean-Pierre Cot, France, nominated by the European Commission and who replaced Mr. Bernard Kouchner; details here: https://en.m.wikipedia.org/wiki/Jean-Pierre_Cot

Prof. Sir Nigel Rodley, nominated by the UK ; details here: https://en.m.wikipedia.org/wiki/Nigel_Rodley

Prof. Yozo Yokota, nominated by Japan ; details here: https://en.m.wikipedia.org/wiki/Yozo_Yokota

Cees Fasseur, nominated by the Netherlands ; details here: https://nl.m.wikipedia.org/wiki/Cees_Fasseur

Mr. Arthur “Gene” Dewey, nominated by USA ; details here: https://en.m.wikipedia.org/wiki/Arthur_E._Dewey

Mr. Marzuki Darusman, (nominated by the Inter-Parliamentary Union) ; details here: https://en.m.wikipedia.org/wiki/Marzuki_Darusman

Mr. Kamal Hossain, Bangladesh (nominated by OHCHR) ; details here : https://en.m.wikipedia.org/wiki/Kamal_Hossain

Mr. Andres Mauromatis, Cyprus (nominated by GoSL) ; details here : https://digitallibrary.un.org/record/3802924?ln=en

The IIGEP was appointed as Observers presumably as an alternative response to the demand of the international community for an international investigation into the atrocities alleged to have been committed by the Liberation Tigers of Tamil Eelam (LTTE) & the Sri Lanka Army during the civil war that was taking place at the time. It consisted of eminent persons in the field of Human Rights.

Duration

February 2007 to February 2008, extended up to April 2008 

IIGEP Assistants


The IIGEP also brought in a number of Assistants, who were themselves reported to be experts in the field of Human Rights with experience in international Human Rights Tribunals They were to observe the Commission's daily proceedings on their behalf (as members of the IIGEP could not be physically present in Sri Lanka throughout the proceedings of the Commission) & report to them.


In the Public Statement issued by IIGEP on 15 April 2008 the Assistants are described as follows:

Section 4 Annexes
a) The creation & mandate of the IIGEP

"Assistants to the Eminent Persons, who constituted the professional staff of the IIGEP, were chosen for their qualifications and experience in investigations, war crimes, forensics, criminal law, and international observation missions. They were funded from the same sources as the Eminent Persons.

Since the designation “Assistant” led later to difficulty in relations between the IIGEP, the Commission and other organs of government regarding the right of Assistants to represent the IIGEP, it should be stressed that all Assistants are experts in their own fields, and are of proven ability, experience, and integrity.

Moreover, the role and powers of the Assistants were clearly established under the governing instruments. According to the working arrangement between the Commission of Inquiry and the IIGEP, “the Members of the IIGEP shall be entitled to exercise their powers and functions under this working arrangement directly or through their duly authorized representatives, who shall be the Assistants appointed by the IIGEP Members”.


Dana Urban QC
Among the Assistants were the following key personnel:
 IIGEP Legal Adviser, Dana Urban QC from Canada
 IIGEP Victim & Witness Protection Adviser, David Savage, formerly of the Australian Federal Police
 IIGEP Investigation Advisor Dennis Milner from the UK. 

The names of the others are not available at this point of time.


The IIGEP also recruited local staff to assist the Assistants. One of them was M. C. M. Iqbal, a former Secretary to 2 Commissions of Inquiry. 


IIGEP Plenary Meetings 
Held on 1 February 2007, 2nd June 2007, 3rd August 2007, 4th December 2007, 5th March 2008

IIGEP Joint Meetings with the Commission

Generally held a day or two after IIGEP Plenary meetings.  Meetings between the Commissioners & the Eminent Persons were held in a cordial atmosphere. A healthy relationship existed between the Commission Staff & Assistants to the Eminent Persons in their day-to-day work. The Joint meetings were held at the BMICH, but the final meeting was held at the JAIC Hilton Hotel, where after the meeting, the Commissioners & the Commission Staff were entertained to lunch.
There were occasions when 1 or 2 members of IIGEP were present at Commission meetings.

IIGEP Public Statements (6) :

IIGEP issued Statements periodically on the observations made in the course of the   Investigations & Inquiries.   

1 st  11 June 2007, 2nd 14 June 2007, 3rd 17 September 2007, 4th 17 December 2007, 5th 06 March 2008, Final 15 April 2008,  

These statements & the responses to them by the Commission & the Attorney General are reproduced below.

Investigations 

A Panel of Senior Counsel from the Unofficial Bar were co-opted to assist the Commission during the Investigation Phase. They were R. Abeysuriya P. C. & R. K. W. Goonesekera.

Investigations commenced on 14 May 2007 after the Organizational Structure and Rules of Procedure of the Commission & the Organizational Structure and Rules of Procedure of the Investigation Unit were formulated. 



Victim & Witness Protection Unit

The Organization Structure & the Rules of Procedure of the Victim & Witness Assistance & Protection Unit were formulated with assistance from IIGEP Assistant, David Savage & the unit became operational before the Inquiry Phase commenced. It was headed by Retd. Deputy Inspector General of Police, A. Thangavelu, who was also an Attorney at Law.    

Inquiries

The Inquiry Phase commenced on 5 January 2008, & the two cases already investigated were taken up for inquiry. Unlike the investigation phase, which was held in camera, the Inquiry Phase was open to the Public, Relatives of victims etc. & Counsel appeared for the Army & Special Task Force.

However, there was friction & confrontation on matters of procedure & adherence to international norms & standards as applicable to human rights investigations, spelt out by the Eminent Persons, in the course of inquiries when lawyers for the Army & Special Task Force were also involved. The nature of these confrontations are revealed  in some of the documents reproduced below.

 

Lawyers appearing on behalf of Army, Airforce

Mr. S. L. Gunasekera,

Mr. Gomin Dayasiri

& Others

Lawyers watching interests of victimised parties

Mr. M. A. Sumanthiran & Others

IIGEP Public Statements

IIGEP First Statement 11 June 2007
Response from the Chairman, Commission of Inquiry
Response from the Attorney General
Read them here: http://www.humanrights.asia/news/forwarded-news/FS-025-2007/

The first statement of International Independent Group of Eminent Persons (IIGEP)

On 1 June 2007, we, the International Independent Group of Eminent Persons (IIGEP), submitted our first Interim Report to the President of Sri Lanka. The report contains our observations and concerns about the President's Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights (the Commission).

We reported to the President that the Commission has so far made hardly any noticeable progress in investigations and inquiries since its inception in November 2006. Moreover, since our formation in February 2007, we have identified and raised a number of concerns with the Commission and the Government of Sri Lanka. We remain concerned that current measures taken by the Government of Sri Lanka and the Commission to address issues such as the independence of the Commission, timeliness and witness protection are not adequate and do not satisfy international norms and standards.

Independence: We are concerned about the role of the Attorney General's Department as legal counsel to the Commission. The Attorney General's Department is the Chief Legal Adviser to the Government of Sri Lanka. Members of the Attorney General's Department have been involved in the original investigations into those cases subject to further investigation by the Commission itself. As such, members of the Attorney General's Department may find that they are investigating themselves. Furthermore, it is possible that they be called as material witnesses before the Commission. We consider these to be serious conflicts of interest, which lack transparency and compromise national and international standards of independence and impartiality that are central to the credibility and public confidence of the Commission.

We are concerned that the Commission's finances are managed by the Presidential Secretariat. The Commission does not have financial independence enabling it to exercise control of its human resources and operations. In particular, the Commission should be allocated sufficient funds to secure the permanent confidentiality, safety and integrity of its victim and witness protection scheme.

Timeliness: We are concerned that the Commission did not commence even preliminary investigations and inquiries until May 2007, despite being constituted six months earlier in November 2006. To date, internal processes have not been transparent; no detailed work plan has been announced; essential staff have not yet been fully recruited; investigative and witness protection units are not functioning; and significantly, evidence already known to be in the possession of Governmental bodies relating to the cases has not been gathered and transmitted to us. Such unnecessary delays undermine public confidence in the ability of the Commission to carry out its mandate in a timely manner.

Witness protection: We are concerned that there are no adequate victim and witness protection provisions under Sri Lankan law. We are of the view that witness protection is absolutely essential in order to investigate serious violations of human rights that are within the Commission's mandate. Appropriate legislation that accords with international norms and standards should be enacted and implemented as soon as possible to protect victims and witnesses.

We regret that the Commission still has no functioning victim and witness protection mechanism. In the absence of appropriate legislation, an effective scheme or functioning protection unit, we fail to understand how the Commission could have invited the public, as it did as recently as 14 May 2007, to come forward and give evidence. As the Commission is operating without witness protection legislation, it is unable to guarantee the safety and security of witnesses. Summoning and examining potential victims and witnesses may create fear in their minds about safety and security, deterring them from coming forward to give evidence.

Mandates: The Presidential Warrant limits the scope of the Commission to a retrospective and fact finding role. The core work of the Commission is to obtain information, investigate and inquire into alleged serious violations of human rights arising since 1 August 2005, including 16 specific cases; and to examine prior investigations into these cases. The Commission is required to make findings and report to the President on the facts and circumstances pertaining to each case; the descriptions, nature and backgrounds of the victims; the circumstances that may have led to, or resulted in, those persons suffering such deaths, injury or physical harm; the identities, descriptions and backgrounds of the persons and groups responsible for the commission of deaths and other acts; measures of reparation to be provided to the victims; and recommendations in order to prevent the occurrence of incidents in the nature of those investigated and any other recommendations considered as relevant.

The IIGEP, comprising of 11 Members, has been invited by the President to observe the investigations and inquiries of the Commission, in order to ensure transparency and observance of international norms and standards. The IIGEP does not have a mandate to conduct independent investigations and inquiries; nevertheless, we are open to all persons who wish to provide information and evidence on the cases under review by the Commission. Although we are obliged by the Presidential Invitation to transmit third party information to the Commission, it would not be right for us to disclose any information without the consent of the third party, or which may impair the safety or security of such third parties until we are satisfied that effective, functioning and credible witness protection measures are in place.

We regret that public statements from State officials are creating the misleading impression that the Commission and IIGEP have wide mandates and powers and the resources to address ongoing alleged human rights violations in Sri Lanka. This is not the case. In the current context, in particular, the apparent renewed systematic practice of enforced disappearance and the killings of Red Cross workers, it is critical that the Commission and IIGEP not be portrayed as a substitute for robust, effective measures including national and international human rights monitoring.

P N Bhagwati
Chairman, IIGEP 


RESPONSE FROM THE CHAIRMAN OF THE COMMISSION OF INQUIRY TO THE IIGEP'S FIRST  PUBLIC STATEMENT

It was in November 2006 that the President of Sri Lanka established this Commission of Inquiry. From the date of the establishment of the COI, it commenced taking effective measures to develop, establish and set in place its internal working structures. This was done by the development of the Organizational Structure and Rules of Procedure of the Commission, Mandate, Organizational Structure and the Rules of Procedure of the Victim and Witness Assistance and Protection Unit, and the Mandate, Organizational Structure and Rules of Procedure of the Investigation Unit. I believe it was necessary for the Commission to in keeping with best practices and international norms develop these structures prior to commencing any investigations or inquiries. Had the COI rushed into commence investigations and inquiries without having its own internal systems in place, a justifiable criticism could have been made that the COI had rushed into work, without developing an appropriate and systematic internal and transparent system. These internal constitutional documents have been made available to the IIGEP, and any form of comment has been received only with regards to the role of counsel from the Attorney General's Department in the COI. Thus, the Commission can infer that, the rest of the system and the rules are in the view of the IIGEP in accordance with international norms and standards.

Soon following the development of internal mechanisms and structure, the Commission commenced its first investigation, based on a Plan of Investigation developed and adopted by the COI. The first case being investigated is the incident pertaining to the killing of 17 aid workers of ACF in Muttur, in August 2007.

An issue has been raised that, the participation of counsel from the Attorney General's Department affects public perceptions pertaining to the independence of the COI. It was the COI that invited the Attorney General to nominate a few officers to assist the Commission. Following the nominations being sent, the COI considered the nominations and appointed five officers who possess necessary academic qualifications, experience and expertise to serve as members of the Panel of Counsel of the Commission. The Commission was satisfied with their professional abilities and integrity. These officers do not possess any prerogative power when functioning in the Commission in any particular manner, nor would they have any reason not to act in the best interests of justice and fair play. None of them or any other officer of the Attorney General's Department have taken part in any criminal investigation or directed the conduct of criminal investigations. That is the statutory function of police officers. Under the Sri Lankan law and practice, during the course of an investigation, the Attorney General and his officers only provide legal advice to criminal investigators. The professional function of the Attorney General commences only upon the completion of criminal investigations, for the purpose of considering the institution of criminal proceedings. Thereafter, he launches and conducts the criminal prosecution, which functions are done in a quasi-judicial manner. In the COI, officers of the AG’s Department have a very limited function, and that too to be exercised in accordance with directions and under the supervision of the COI. The Commission does not see any basis to doubt that officers of the Attorney General's Department would find themselves investigating their own officers. In view of the terms of reference of the COI, we do not see any basis to even doubt that a need would arise to summon officers of the Attorney General's Department to testify as witnesses. We are also satisfied that they do not face any situation involving a conflict of interest. We are satisfied regarding their professional integrity and the professional services being rendered to the COI by officers of the Attorney General's Department.

When the Chairman of the IIGEP originally made his observations known to the COI regarding the participation of Counsel from the AG's Department in the COI, with the view to creating an institutional mechanism in which the independence of counsel assisting the COI would be manifest, the COI established a parallel Panel of Counsel comprising members of the unofficial bar. Two very senior and eminent private practitioners were appointed by the COI to work alongside officers of the AG's Department.

Indeed, due to the absence of legislation at a national level regulating the provision of assistance and protection to victims of crime and witnesses, the COI has been constrained in its activities in regard to the development of a victim and witness Assistance and Protection scheme. The COI understands that a national law on the matter is presently being developed by the Law Commission. Notwithstanding the absence of such specific legislation, the Commission has developed its own Scheme of Assistance and Protection, and upon being submitted to the IIGEP, it has not yet adversely commented on the scheme. Thus, the Commission reasonably believes that, even according to the IIGEP, the Mandate, Organizational Structure and Rules of Procedure of the Victim and Witness Assistance and Protection Unit and the Scheme of Assistance and Protection are in accordance with international norms and standards. The COI has had to start from the very beginning by setting in place the scheme, recruiting necessary personnel, and obtaining necessary resources. Therefore, it has taken   some time to effectively set in motion the system of assistance and protection.

On the 14th of May 2007, the COI commenced investigating the first case, i.e. the killing of 17 workers of ACF. This was based on a previously developed Plan of Investigation, a copy of which has been transmitted to the IIGEP, and in respect of which the IIGEP to-date has not made any adverse comments. This leads to the inference that the IIGEP is satisfied that the said plan of investigation meets with international norms and standards. The investigation takes two forms. On the one hand, members of the Commission directly interview possible witnesses. Parallel to that, officers of the Investigation Unit acting under the supervision of the Commission conducts fresh criminal investigations. So far, the Commission has been conducting Sessions of Investigations on two days of the week, and from the 1st of June 2007, sessions will be held on three days of the week. These days have been made known to the IIGEP in advance. The Investigation Unit works daily.  In the circumstances, since the COI has commenced its work proper and is committed to work continuously, the Commission hopes that the IIGEP would give effect to its mandate and members of the IIGEP would be present in Sri Lanka to observe the work of the COI.

The Commission is presently engaged in a discussion with the Presidential Secretariat to ensure that, funds required for the efficient functioning of the COI are available readily. The Government has assured the COI that it will make available all required resources for the Commission.

Members of the Commission are confident that, the COI could continue to discharge its functions independently, and that, the mandate of the Commission can be implemented in the best interests of justice. The Commissioners are committed to ensure that, perpetrators of serious violations of Human Rights (who have been involved in incidents falling within the mandate of the Commission) are properly identified and sufficient material is collected enabling their prosecution in courts of law.

RESPONSE FROM THE ATTORNEY GENERAL TO THE IIGEP'S  FIRST PUBLIC STATEMENT

In November 2006, based on a previously agreed set of terms of reference His Excellency the President took steps to invite eleven (11) eminent persons to form the International Independent Group of Eminent Persons’ (IIGEP) to observe investigations and inquiries due to be conducted by the Commission of Inquiry (COI) established to investigate and inquire into alleged serious violations of Human Rights occurring in Sri Lanka since 1st August 2005. The mandate of the IIGEP is to observe and comment on the investigations and inquiries conducted by the COI, with regard conformity with international norms and standards. The Government of Sri Lanka is pleased to note that, the international community commenced nominating eminent persons to serve in the IIGEP, only after they were satisfied regarding the terms of reference of the COI and the IIGEP.

Following invitations having been extended to the international community, nominations were received, and the International Independent Group of Eminent Persons was established on the 10th of February 2007, with the last nomination being received on the 9th February 2007. Thus, the Commission could effectively commence their work only from the 12th of February 2007, on which date the Commission held its first plenary meeting with members of the IIGEP. Had the COI commenced investigations and inquiries prior to the establishment of the IIGEP, the international observers could not have observed the functioning of the COI.

The Government is aware that, the COI spent its initial months for the development of internal systems, rules of procedure and recruitment of necessary staff. Now that such internal requirements have been met, the government is pleased to learn that the Commission is in a position to proceed to investigate and inquire into cases on the schedule of the warrant of the COI. Since early May 2007, the COI has commenced investigating into the incident involving the murder of 17 workers of ACF.

The Government of Sri Lanka remains committed to provide necessary financial and other resources to ensure that the COI functions smoothly and efficaciously giving effect to its mandate. Already a considerable sum of money has been allocated by the Presidential Secretariat to the COI. Up to now the Presidential Secretariat has allocated to the Commission the entire sum of money requested by the Commission based on an approved budget. Once the COI develops and submits to the government its budget for the remaining period, the Presidential Secretariat will provide necessary funds to the Commission for its future activities. The Government of Sri Lanka remains totally committed to fund the victims and witnesses assistance and protection programme of the Commission. Furthermore, the government has accelerated an initiative to enact national legislation pertaining to providing assistance and protection to victims and witnesses.

With the view to providing the Commission greater operational flexibility, the government has initiated a process aimed at amending the Commissions of Inquiry Act. The proposed amendments are to go before Parliament very shortly.

The Government of Sri Lanka is of the view that, in view of the terms of reference of the IIGEP, it is inappropriate for the IIGEP to propose the setting up of an ‘international monitoring mechanism to address ongoing alleged Human Rights violations. The mandate of the IIGEP is to observe the functions of the COI and comment on compliance with international norms and standards, and to also propose correctional action to be taken by the COI. The Government expects that the IIGEP would make observations and recommendations in terms of its mandate as contained in the letters of invitation and accepted by Members of the IIGEP.

The Government of Sri Lanka wishes to avail itself of this occasion to reiterate its expectation that at least one out of the eleven eminent persons be present in Sri Lanka to observe the investigations and inquiries of the COI.

IIGEP Second Public Statement 14  June 2007
Response from the Chairman, Commission of Inquiry
Response from the Attorney General - None
Read them here:
http://www.humanrights.asia/news/forwarded-news/FS-027-2007/

IIGEP SECOND PUBLIC STATEMENTmal

Further to our previous public statement of 11 June 2007, we, the International Independent Group of Eminent Persons (IIGEP) are concerned that the conduct of the President’s Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights (the Commission) is inconsistent with international norms and standards. Failure to take corrective action will result in the Commission not fulfilling its fact-finding mandate in conformity with those norms and standards.

Central to our concerns is the role of the Attorney General’s Department in the Commission.
On 27 February 2007, we raised these concerns with the Chairman of the Commission, stating that the conflict of interest arising from the involvement of the Attorney General’s Department in the Commission compromises national and international principles of independence and impartiality that are central to the credibility and public confidence of the Commission. We urged the Commission to reconsider the role of the Attorney General’s Department and to appoint independent counsel in its place. On 12 May 2007, the Commission conceded that the IIGEP’s concerns of a conflict of interest were valid. This understanding was confirmed in writing by the IIGEP on 13 May 2007.

Contrary to this understanding, on 14 May 2007 the Chairman of the Commission publicly announced that the Attorney General’s Department was to make a statement outlining the nature of the case currently under investigation and would lead evidence of witnesses. Despite further representations by the IIGEP on this issue, to date the role of the Attorney General’s Department remains unchanged.

During the initial sessions of investigation and inquiry, conducted between 14 and 29 May 2007, the IIGEP observed examples of a lack of impartiality. Prior to the presentation of any evidence, when publicly outlining the case, counsel from the Attorney General’s Department stated as fact matters which are controversial in the case. Furthermore, the witness was improperly led, material questions were not asked by the counsel from the Attorney General’s Department and information relied on by the witness and the Attorney General’s Department was not made available to the IIGEP. The Commission does not seem to have taken sufficient corrective measures to ensure that its proceedings are transparent and conform with international norms and standards of independence, impartiality and competence.

Throughout these initial sessions, the Commission heard one witness’ full testimony and part of a second witness’ testimony. Taking evidence in this manner will not, in our opinion, reveal the information and evidence necessary to identify perpetrators of human rights violations and enable the Commission to achieve its mandate in a timely manner.

P N Bhagwati
Chairman, IIGEP

RESPONSE FROM THE CHAIRMAN OF THE COMMISSION OF INQUIRY TO THE SECOND IIGEP STATEMENT

This Statement also contains the views of the IIGEP pertaining to the issue relating to the participation of Counsel from the Attorney General’s Department in the work of the Commission. The Commission has dealt with this issue in its observations regarding the first Public Statement of the IIGEP. We wish to state that, the Commission is satisfied regarding the professional services being given to the COI by members of the Panel of Counsel from the Official Bar (Attorney General’s Department). They remain under the supervision of the Commission and the Counsel perform functions entrusted to them in accordance with the wishes of the Commission.

The Commission is presently taking necessary steps to activate the ‘Panel of Counsel from the Unofficial Bar’.

We are confident that, in accordance with the rules of procedure of the Commission and the practices of the Commission applied so far, the Commission would be able to identify those responsible for having committed Human Rights violations pertaining to incidents being investigated and inquired into by the COI.

The Commission wishes to take this opportunity to request the IIGEP to ensure that, at least one Member of the IIGEP is present in Colombo to observe the investigations and inquiries of the COI. We feel that, such direct observation of the Commission by Members themselves would provide to the IIGEP a clear picture and would erase possibly doubts regarding the efficacy of the Commission.

The Commission is also of the opinion that Counsel who outlined the nature of the first case being investigated into the killing of 17 workers of ACF, presented a fair account of events pertaining to the incident based on material before the Commission and facts already in the public domain. We are also of the view that Counsel examined witnesses in an impartial manner and with the view to eliciting relevant facts and circumstances. Furthermore, throughout the sessions conducted by the Commission, Commissioners have been actively involved in examining witnesses. Already the Commission has been able to achieve considerable progress in the case. The Commission is firmly of the view that, by adopting the presently applied procedures, the Commission would be in a position to properly give effect to its mandate.

RESPONSE FROM THE ATTORNEY GENERAL TO THE SECOND STATEMENT

None  

Aftermath of the letter from the Attorney General  as revealed in a leaked cable from James R. Moore. 

Classified By: Charge D'Affaires James R. Moore, for reasons 1.4(b,d).

¶1. (C) SUMMARY: On June 20, the International Independent Group of Eminent Persons (IIGEP) received a harshly worded letter from the Attorney General (AG) accusing IIGEP of over-extending its mandate, relying too much on its assistants, and insulting the members of the Commission of Inquiry (COI). IIGEP Chairman Justice P.N. Bhagwati subsequently received a visit from Human Rights Minister Mahinda Samarasinghe who asked him to stay on despite the deteriorating relations between IIGEP, the COI and the AG. A few days later however, the Government of Sri Lanka (GSL) publicly denied its appeal to Bhagwati. In the meantime, the COI appears to have taken some of IIGEP's recommendations on board. In turn, IIGEP is now working to maintain at least one member in Sri Lanka at all times, a request made repeatedly by the COI. Despite the recent tensions, IIGEP has seen an increase in the number of witnesses coming forward. End Summary.

AG Letter Angers Bhagwati

-------------------------

¶2. (C) On June 20, IIGEP received a strongly-worded letter from the AG to IIGEP Chairman Justice P.N. Bhagwati accusing IIGEP of over-extending its mandate, relying too much on its assistants, and insulting the members of the COI. This letter followed the AG's official responses to IIGEP's first and second public statements in early June. The seven-page letter defended the appointment of five officers from the AG's office to the COI's Panel of Counsel and denied that the involvement of these officers prejudiced the investigation. The AG concluded his letter with a challenge to Bhagwati to personally observe the COI's activities rather than relying on assistants, "who appear to be totally innocent of what is actually taking place." The COI sent a letter to IIGEP the same week defending the inclusion of officers from the AG's office and asserting their impartiality in the investigation.

¶3. (C) David Savage, IIGEP Assistant to US Eminent Person (EP) Gene Dewey, told us on July 9 that Bhagwati was so insulted by the AG's letter that he wrote to President Rajapaksa to convey his disapproval. Savage said Bhagwati even considered the possibility of resigning. Subsequently, Disaster Management and Human Rights Minister Mahinda Samarasinghe paid Bhagwati a visit in New Delhi to convey the President's message that he did not agree with the AG's position and hoped Bhagwati would continue as the Chairman of IIGEP. This visit satisfied Bhagwati, at least temporarily, and the IIGEP assistants considered the issue resolved. However, on July 5 the GSL released a public statement denying its appeal to Bhagwati. We do not yet know Bhagwati's reaction to the Government's retraction.

¶4. (C) Other EPs were also concerned about the AG's letter. According to Savage, British EP Sir Nigel Rodley was angered by the letter, but has since agreed to abide by the group's consensus on how to proceed. Dewey suggested a meeting between the Commissioners and at least three EPs to work out a way forward, and he noted that a continued exchange of letters was unlikely to achieve any meaningful progress or results. The first opportunity to meet may be in August when the EPs arrive in Colombo for the next plenary.

COI and IIGEP Make Procedural Improvements

-------------------------------------------

COLOMBO 00000966 002 OF 002

¶5. (C) Savage told us that although IIGEP has received no formal GSL response to the first IIGEP Quarterly Report to the President, the COI appears to have taken some of IIGEP's recommendations on board. He said the COI has changed its procedures for evidence handling and for conducting hearings. He also said the lead questioner from the AG's office has altered his method of questioning to address IIGEP concerns.

¶6. (C) In response to criticism contained in the letters from the AG and the COI, IIGEP has set a goal of maintaining at least one EP in Sri Lanka at all times. Savage said the EPs have all submitted their schedules and there should be continuous coverage from late July through the end of the year.

Substantive Progress Continues

------------------------------

¶7. (C) Despite the recent tensions, IIGEP has seen an increase in the number of witnesses coming forward. For example, on July 6 IIGEP staff traveled outside Colombo to speak to family members of one of the youths killed in Trincomalee. Several key witnesses also have come forward on the case involving the killing of 17 Action Against Hunger workers in Muttur. IIGEP is collecting statements from these witnesses but will not release the information to the COI until sufficient witness protection measures are in place. Some witnesses have reported receiving anonymous letters warning them not to speak to investigators.

Next Steps

----------

¶8. (C) Savage told us that IIGEP has developed a list of recommendations as to how the COI could operate more efficiently and make faster progress. IIGEP has requested a meeting with the COI, asking that the AG's office not be present, to discuss these ideas. Savage also noted that a few Commissioners have expressed interest in meeting with IIGEP to work on improving relations between the two groups.

9. (C) Savage reported that members of the Witness Protection Working Committee have discussed a possible meeting of donor countries, Commissioners, and IIGEP representatives at which Savage will outline GSL witness protection needs and make assistance recommendations. He stressed that formal witness testimonies cannot begin until adequate witness protection measures are implemented.

¶10. (C) Dewey told us he plans to arrive in Colombo on or about July 21 and stay through the August 12-14 plenary. In the meantime, France has nominated Judge Jean-Pierre Cot of the International Tribunal for the Law of the Sea to replace Bernard Kouchner, who left IIGEP to serve as France's new Foreign Minister. Cot's nomination has not yet been approved by the GSL.

¶11. COMMENT: (C) While Samarasinghe's visit to New Delhi smoothed ruffled feathers, the issue of the AG's role in the COI has yet to be resolved. IIGEP is unlikely to compromise on this issue, and may soon have to decide whether it can continue if its concerns are not addressed. Meanwhile, the COI still seems interested in engaging with IIGEP, improving its performance, and fulfilling its mandate.

MOORE

Leaked Cable from Ambassador Robert Blake 27 August 2007 on Progress

1. (C) SUMMARY: The International Independent Group of Eminent Persons (IIGEP) held its third plenary meeting with the Commission of Inquiry (COI) August 17 - 20. The positive tone of the meeting reassured even skeptics within the IIGEP. U.S. Eminent Person Gene Dewey noted that the possibility of IIGEP prematurely ending its mission in Sri Lanka now seemed off the table. IIGEP Assistant David Savage told us difficult issues were discussed openly during the plenary and some progress was made.

The IIGEP met President Mahinda Rajapaksa for the first time on August 19, who mounted a "spirited defense" of the Attorney General's participation in the COI. Dewey noted that following this meeting, several EPs were further encouraged about the COI's future.

Dewey and IIGEP Assistants Dana Urban and Savage have been working with the Justice Ministry on a proposed victim and witness protection bill. IIGEP is drafting its second Quarterly Report to the President, which it plans to present on September 17. The plenary and the meeting with the President did not produce significant progress but served to reassure the Eminent Persons that IIGEP should continue its observation of the COI at least through the end of the original mandate in November 2007. End Summary. Third Plenary Cordial and Productive ------------------------------------ 2. (C) The International Independent Group of Eminent Persons (IIGEP) met in Colombo for its third plenary with the Commission of Inquiry (COI) from August 17 through 20. U.S. Eminent Person Gene Dewey reported to Ambassador on August 21 that the meeting went "better than expected," given the recent tensions between the two groups. The positive tone of the meeting reassured even the skeptics within the IIGEP. Dewey noted that the possibility of several resignations from the IIGEP has receded at least for now. 3. (C) IIGEP Assistant David Savage told us that the CoI and IIGEP discussed difficult issues more openly than during the previous plenaries and made some progress. The Commissioners agreed to hold a meeting to discuss the issue of the Attorney General's (AG) involvement in the COI, acknowledging that as part of an independent commission, the decision was theirs to make. The EPs pressed hard on the issue of disclosure of information to the IIGEP. The COI agreed to hand over documents in their original language immediately to IIGEP and to pass along translated versions when they are available. The COI also agreed to honor its previous commitment to cooperate with the IIGEP assistants when the EPs are out of the country. The EPs, for their part, undertook to have at least one of their members in-country as consistently as possible. Savage noted that at least one EP is scheduled to be in Sri Lanka for all but a few COI sessions between now and the end of the year. President Defends the Attorney General --------------------------------------- 4. (C) The IIGEP met President Mahinda Rajapaksa on August 19. Dewey told Ambassador that the meeting, described in IIGEP's press release as "useful and constructive," covered three now-familiar themes: the role of the AG's office in the COI, the need for adequate victim and witness protection law, and the lack of immunities for the IIGEP Assistants. The President presented a "spirited defense" of the AG's participation, Dewey said, and commented that the AG has been present in every COI Sri Lanka has conducted. (Note: This argument is unconvincing. Sri Lanka's previous Commissions of Inquiry have produced very little. A recent study commissioned by IIGEP reports that the AG's involvement in these commissions was a key reason for their failure.) The Commissioners joined in defense of the AG, however, arguing that they cannot afford enough independent counsel to replace the depth and expertise provided by the AG's office. The President ended the discussion of this issue by saying that the COI could dismiss the AG at any point if it chose to do so.

Attorney General C.R. De Silva said that the GSL is working to finalize a witness protection bill, with input from IIGEP, and noted that it should be complete within two months. Dewey noted that following this meeting, several EPs were further encouraged about the future of the COI. IIGEP Weighs in on Witness Protection -------------------------------------- 5. (C) Dewey and IIGEP Assistants Dana Urban and David Savage have been working with the GSL on the proposed victim and witness protection legislation. The GSL's Law Commission initially invited IIGEP to comment on the draft legislation, but then claimed that the proposed bill was "beyond recall," having already gone to acting Justice Minister Dilan Perera. Dewey and the IIGEP expert assistants were able to secure an appointment with Perera, however, to discuss the bill. Perera agreed to delay presenting the bill to Cabinet in order to incorporate IIGEP's recommendations into the draft. We understand that Perera arranged a further meeting on technical witness protection issues with the Secretary of the Justice Ministry that took place on August 23. Next Steps ----------- 6. (C) The IIGEP is currently drafting its second Quarterly Report to the President, which will be presented to him on September 17. IIGEP plans to submit its next public statement to the GSL for an agreed two-week review period within the next few days and plans to release it also on or about September 17. Dewey noted that the report and statement are timed to coincide approximately with the next Human Rights Council meeting in Geneva. 7. (C) Dewey and Savage report that some progress is being made on the case of the five youths killed in Trincomalee and on the killing of the 17 Action Against Hunger workers in Muttur. They note that the COI has picked up the pace of its investigative hearings. Separately, Savage has been taking testimony from the parents of one of the five youths and will submit this information to the COI once the parents are safely out of the country. 8. (C) COMMENT: The plenary with the COI and the meeting with the President did not produce significant breakthroughs. Nevertheless, both served to persuade the EPs that IIGEP should continue its observation of the COI, at least through the end of the original mandate in November. There also seems to be new hope that perhaps one of the fifteen cases, most likely the Trincomalee or Muttur case, will be resolved by then.

In the final analysis, IIGEP input into the Victim and Witness Protection law should help to ensure a comprehensive piece of legislation with the potential to provide some lasting benefit to Sri Lanka and might even help to deter future human rights violations. BLAKE

Third Public Statement 17 September 2007

THIRD PUBLIC STATEMENT – THE IIGEP REITERATES CONCERNS OVER THE WORK OF THE COMMISSION OF INQUIRY

On 18 September 2007, the International Independent Group of Eminent Persons (the IIGEP) submitted its second Interim Report to HE the President of Sri Lanka. The report contains details of the IIGEP's continuing efforts to ensure transparency and monitor the conduct of the work carried out by the Presidential Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights (the Commission), in accordance with basic international norms and standards, as directed in the Presidential Warrant.

The IGEP had meetings with the Commission on 18 August 2007 and with HE the President on 20 August 2007 and highlighted a number of issues which continue to cause concern to members of the IIGEP.

The meeting with the Commission of Inquiry examined several issues of concern. These included the continuing slow progress of the Commission's investigations and inquiries, including the procedures being followed; the independence of the Commission in the light of its inclusion of the ‘Official Bar’ as its Panel of Counsel; the continuing need for effective victim and witness protection and assistance; and inadequate disclosure of information.

The exchange with the Commission was thorough and amicable. The IIGEP took note of the important efforts of the Commissioners to speed up its procedures and become more personally involved in the examination of the witnesses. The parties agreed on identification of the main issues at stake. Nevertheless, the IIGEP still has serious concerns as to the outcome of the process.

The meeting with HE the President, which was useful and constructive, tracked a number of the same issues, with a particular accent on the budgetary aspects of possible solutions that would enhance the effectiveness and independence of the Commission.

Investigation Proceedings: The IIGEP remains concerned about the speed of the Commission's investigation process. The first investigation into the ACF case (the killing of 17 aid workers) commenced on 14 May 2007. Since that time, only a few witnesses have been examined. On 23 August 2007, the Commission commenced a second investigation into the killing of five youths in Trincomalee. Since the inception of the Commission, no public inquiry has been held and no substantial progress has been made into any of the mandated cases. While recognizing the practical steps taken by the Commission to accelerate the investigation phase, the IGEP considers that the Commission is unlikely to have completed any case before the expiry of the Commission's mandate in early November 2007.

The Commission has made a decision that all of the investigations are conducted in closed sessions, and not open to the public or the families of the victims or their lawyers. The IIGEP fears that this may undermine the transparency of the Commission's work. The IIGEP is also concerned that recent amendments to the organizational rules and procedures of the Commission imply that Commissioners can make a decision not to hold a public inquiry at the end of an investigation. While the Commission has said it will not decide against proceeding to an inquiry without involving the IIGEP, the IIGEP remains uncertain as to the purpose of an amendment that seems to allow the Commission to decide not to inquire into a case it has been mandated to inquire into.

Independence: The IIGEP reiterates its opposition to the leading role of the officers of the Attorney General's Department in the Panel of Counsel to the Commission, which involves serious conflicts of interest. This situation lacks transparency and compromises both national and international standards of independence and impartiality that are central to the credibility of and public confidence in the Commission.

Following the public statements by the IIGEP in June, the Attorney General made objections to their contents in a public letter addressed to the Chairman of the IIGEP. While the Attorney General is, entitled to make objections to the contents of the IIGEP’s public statements, the members of the IIGEP expect that their mandate and integrity be respected and any exchange of views be conducted in a manner befitting the high office of the Attorney General. Members of the IIGEP are of the opinion that the language employed was inappropriate, detracting from the substantive issues therein addressed by the IIGEP. It also failed to show a proper understanding of the very notion of conflict of interest, that is, where a person or body is confronted with having to address competing interests so that defending one may mean neglecting the other(s). Here, the Attorney General's Department has to represent the Government of Sri Lanka, inquire into events that may have been committed in the name of the Government and even to defend its own actions regarding advice it may have given the police involved in the original investigations.

The role of the Attorney General's Department in the work of the Commission therefore continues to render the process flawed. The IIGEP made an urgent request to the Commission to reconsider the involvement of counsel from the Attorney General's Department in its work and amend its rules of procedure. The Commission rejected this request on 29 August 2007 and stated that it wanted to continue with the hybrid system of having counsel from both the Attorney General's Department and Independent Counsel to assist it, pointing to the leading role that the independent counsel took in the Commission's recently commenced second investigation. In the light of this evolution which the IIGEP representatives had already observed, the IIGEP has decided that for the time being it would continue to monitor the Commission's work. This is without prejudice to its continuing view that the conflict of interest is structural.

The IIGEP is also concerned that the Commission does not have sufficient financial independence enabling it to exercise direct control of its resources and avoid delays to its operations. This situation could adversely influence the recruitment of the services of independent counsel and the security of witnesses.

Victim and Witness Assistance and Protection: The IIGEP is concerned that the Commission still has no functioning Victim and Witness Assistance and Protection Unit. Staffing issues have been addressed. However, it is essential that an adequate training programme be implemented without delay in order to ensure that potential witnesses have the confidence and protection to testify in an inquiry session of the Commission, knowing that they have the guarantee of a confidential and secure environment.

In the absence of a permanent witness protection program and complementary legislation, protection for those witnesses under the Commission's victim and witness assistance scheme will cease at the expiration of the Commission's mandate. The IIGEP urges the timely adoption of a permanent national witness protection program, and enactment of comprehensive, workable and effective witness protection legislation.

Disclosure: The Commission is currently conducting investigations without relevant and sufficient information and evidence from state bodies and other persons. Such information is vital for comprehensive and effective investigations. The IIGEP urges the Commission to exercise the powers that are available to it in the Presidential Warrant and secure adequate disclosure from Government departments.

In order for the IIGEP to observe and monitor the Commission, the IGEP requires all information and material that the Commission has in its possession. The IIGEP has been concerned that the Commission had not fulfilled its obligation of full disclosure. The IIGEP is pleased to learn, however, that the Commission has appointed a Deputy Secretary with the function of liaising with the IIGEP to address the above disclosure issues.

Conclusion: Taking into account the areas of concern identified in this public statement, the IIGEP concludes that the investigation and inquiry process to date fails to comply effectively with international norms and standards. The IIGEP calls upon the Commission of Inquiry and the Government of Sri Lanka, in order to achieve the objectives of the Commission's mandate, to take urgent steps to remedy these concerns.

END 

RESPONSE FROM THE COMMISSION TO THE THIRD PUBLIC STATEMENT  

This response as revealed in a newspaper  article is as follows:

https://www.sundaytimes.lk/070930/News/news00015.html

Udalagama J. slams IIGEP

The Presidential Commission probing human rights violations has joined in a continuing argument with the Group of so-called Eminent Persons from abroad over how investigations are being conducted in Sri Lanka. In the latest round, the Presidential Commission of Investigation (COI) headed by retired Supreme Court Justice N.K. Udalagama has slammed the Eminent Persons Group (IIGEP) for making a public statement recently critical of the work relating to the ongoing inquiries into a series of recent killings in Sri Lanka.

Justice P.N. Bhagwati

The IIGEP, which is headed by Justice P.N. Bhagwati (India) had said that it remained concerned about the speed of the Presidential Commission's investigation process." While recognizing the practical steps taken by the Commission to accelerate the investigation phase, the IIGEP considers that the Commission is unlikely to have completed any case before the expiry of the Commission's mandate in early November 2007”, it said in a statement.

Justice Udalagama writing to Justice Bhagwati on Monday has stated that they were ‘shocked’ to hear that the IIGEP had made a unilateral public statement of this nature violating the Presidential invitation to them where they were required to give a minimum of two weeks written notification to the COI Chairman and the Attorney General before making any such statement.

He has reminded Justice Bhagwati that the Presidential invitation gives him and the Attorney General the right to object to any public statement of the IIGEP after which the two sides shall make ‘every endeavour’ to reach agreement. In the event an agreement cannot be reached, the IIGEP can issue its own statement, but it must contain the objections raised by himself or the Attorney General.

Justice Udalagama has set out the backdrop to what he calls a “clear violation of the procedure laid down in the Presidential invitation” to the IIGEP. He says that on September 5 they received the draft statement of the IIGEP, and that at a meeting with Prof. Yozo Yokota (Japan), one of the IIGEP members, objections had been raised to the contents of the statement.

The same day, he had himself addressed a letter to Justice Bhagwati and other members of the IIGEP setting out the same objections, laid down the procedure and specifically requested a statement be not released until consensus was reached. Justice Udalagama states that he had also asked for clarification whether the statement was the statement of one IIGEP member or a collective one.

24 hours later, this statement had been made public, Justice Udalagama points out, adding that following procedure is an important as following international norms and standards. "Needless to say, the course of action followed by IIGEP is disrespectful of the COI and contrary to your mandate contained in the Presidential invitation,” he wrote to Justice Bhagwati. Justice Udalagama has then complained of the ‘adversarial role’ adopted by the IIGEP vis-a-vis the COI and its work.

“This probably reflects the IIGEP's mindset that it has a monitoring role when it fact it is limited to ‘observing whether the COI's investigations and inquiries are conducted in a transparent manner and in accordance with international norms and standards’. This mindset is reflected in many of the IIGEP's documents and press releases where it refers to its role as monitors,” he said.

 

RESPONSE FROM THE ATTORNEY GENERAL TO THE IIGEP THIRD PUBLIC STATEMENT 

21st September 2007

Justice P.N. Bhagwati,
Chairman,
International Independent Group of Eminent Persons,
IIGEP Secretariat,
Hilton Residences,
Colombo.

 3rd Public Statement of the IIGEP

As stipulated in the Terms of Reference pertaining to the functioning of the International Independent Group of Eminent Persons (IIGEP), I in my capacity as the Attorney General of Sri Lanka is empowered to provide my observations and comments in the form of a response, regarding Public Statements issued by the IIGEP. Stated below are my observations pertaining to the 3rd Public Statement of the IIGEP, which on the face of it appears evidently to have been issued by the IIGEP to coincide with the ongoing 6th Session of the United Nations Human Rights Council, in Geneva, Switzerland, and therefore to possibly have a bearing on deliberations at the Council. You would recall that the IIGEP chose to release the 1st and 2nd Public Statements to coincide with the 5th Session of the UN Human Rights Council.

As the 3rd Public Statement issued by the IIGEP has received publicity, acting in national interest, I wish to respond to you through this public communication.

I am compelled to urge the IIGEP to respond objectively to the contents of my public communication to you (issued in June 2007) in response to your public statements (including interviews given to the media), rather than complaining of the words and terminology used by me. Without restricting your response to the words used by me, I would have thought that it would have been more productive, had you responded objectively to the contents of my communication.

I wish to now deal with the several issues raised by you in the 3rd Public Statement.

Participation of Counsel from the Attorney General's Department in the Panel of Counsel from the Official Bar of the Commission of Inquiry
The appointment of the Attorney General of Sri Lanka is not based on political considerations. He holds an independent office. It was the Commission of Inquiry that invited the Attorney General to nominate a few counsel from the Attorney General's Department to assist the Commission. The wishes of the independent Commission should be adhered to. The practice in Sri Lanka has been for counsel from the Attorney General's Department to assist Commissions of Inquiry when a request is made by such a Commission. In the normal criminal justice system, the Attorney General does not direct the conduct of investigations. He merely advices investigators, when such advice is sought and generally when investigational endeavours by investigators have been concluded. Therefore, counsel from the Attorney General's Department who assist the Commission do not face a conflict of interest. Nor is there any competing interests faced by such counsel. In any event, after the present Commission concludes its investigations and inquiries, it would become the responsibility of the Attorney General and his officers to launch criminal proceedings in the High Court and conduct such prosecutions. Therefore, there is valid justification in officers of the Attorney General's Department continuing to function in the Commission. The Commission is an independent body, and therefore a final decision on whether or not such officers should continue to assist the Commission should be taken by the Commission and not by His Excellency the President (as urged by Justice Bhagwati, when he met with the President on the 20th of August 2007) or by me in my capacity as the Attorney General. The Commission has already appointed two senior private practitioners [namely Mr. R.K.W. Goonasekera (who is an eminent and senior human rights lawyer and a one time member of the United National Sub Commission on Human Rights) and Mr. Ranjit Abeysuriya (President's Counsel, one time Director of Public Prosecutions and one time President of the Bar Association of Sri Lanka)] and two other private Counsel to function as Members of the Panel of Counsel from the Unofficial Bar. This Panel is presently assisting the Commission and examining witnesses during Clause 8 investigations. In fact, in the investigation into the killing of 5 youths in Trincomalee, it is members of the Panel of Counsel form the Unofficial Bar, who are examining witnesses on behalf of the Commission. Furthermore, this scheme is much better than the scheme that you have previously advocated, where as you have suggested counsel from the AG's Department 'instruct' members of the Panel of Counsel from the Unofficial Bar. Under the scheme developed by the Commission, the two panel of counsel are totally independent of each other. Therefore, even at this late stage, I hope you appreciate that the Commission's independence has not been affected by its' decision to retain counsel of the Attorney General's Department to assist the Commission at investigations and inquiries.

2. Providing financial autonomy to the Commission of Inquiry
As the Commission is not a permanent body and has temporary existence, the prevailing laws and financial regulations and associated practices would not permit the Commission to be empowered to maintain its own bank account or to obtain funds from sources outside the government. All necessary funds have been and would in the future too, provided by the Presidential Secretariat. Already a sum of Rs. 24 Mn has been spent by the Presidential Secretariat on behalf of the Commission. A further sum of Rs. 24 Mn has been allocated for this year out of a total allocation of Rs. 90 Mn. A further sum of money will be obtained from next year's budget. Steps will be taken to ensure that, all requests for funds would be expeditiously processed and necessary funds provided to the Commission without any delay.

3. Expeditiously establishing an efficacious witness protection programme based on new national legislation.
New draft legislation on providing assistance and protection to victims of crime and witnesses has been finalized by relevant officials of the government. Relevant policy guidelines have been formulated by the Law Commission and by the Attorney General's Department. The policy is now before the Presidential Secretariat for final clearance by the President. The Ministries of Justice and Disaster Management & Human Rights will jointly sponsor the Bill and present it to the Cabinet. It is envisaged that the draft will be presented to the Cabinet of Ministers within the next two to three weeks. Thereafter, steps will be taken to present the Bill in Parliament under the 'urgent bills' procedure. It is likely that the new legislation would be in place within the next two months. However, without waiting till the new legislation is passed, the Commission of Inquiry can proceed to implement its own scheme of assistance and protection to victims of crime and witnesses. Necessary financial resources in that regard will be made available to the Commission by the Presidential Secretariat based on an approved budget. The Commission has taken meaningful steps to provide foreign training to officers of the Victim and Witness Protection Unit of the Commission. The Unit is already functioning, and its efficacy would increase after the training of its officers is concluded. It is the duty of the Commission, the IIGEP and others interested in the success of the Commission, to ensure that the public has confidence in the victim and witness protection programme of the Commission.

In view of the foregoing, I urge the IIGEP not to make public statements that directly and unnecessarily affect public confidence in the Commission of Inquiry and on other public institutions of Sri Lanka such as the Attorney General's Department, and to alternatively engage with the Commission and with such other institutions in a constructive manner, so as to ensure that the objectives of efficacious law enforcement and dispensation of justice pertaining to alleged serious human rights violations could be jointly and harmoniously met.

Sgt.
………………….
C.R. De Silva, PC
Attorney General

Leaked Cable from Ambassador Robert Blake 2 October 2007  on Latest Developments 

https://m.scoop.co.nz/stories/WL0710/S00476/cablegate-sri-lanka-government-criticizes-eminent-persons.htm

SUBJECT: SRI LANKA: GOVERNMENT CRITICIZES EMINENT PERSONS;
INTERNATIONAL PANEL NEARS END GAME
REF: A. COLOMBO 1171
B. COLOMBO 966
C. COLOMBO 835 (AND PREVIOUS)
1. (SBU) SUMMARY: The International Independent Group of Eminent Persons (IIGEP) submitted its second Interim Report to the President on September 18 and released its third
public statement on September 19. The Commission of Inquiry (COI) and Attorney General's (AG) office sent strongly worded letters to IIGEP Chairman Justice P.N. Bhagwati this week,
objecting to the substance of the statement and the process by which it was released. On September 25, Ambassador and other Heads of Mission of the IIGEP donor countries discussed
the GSL's reaction to IIGEP's third public statement, UN High Commissioner for Human Rights Louise Arbour's upcoming October visit, and the future of IIGEP. The Ambassadors agreed that Arbour's advice about the future of IIGEP and the views of the Eminent Persons (EPs) themselves would be significant factors in determining how long to extend funding. IIGEP's efforts have yet to produce significant results in clearing up the cases under investigation.
However, IIGEP's suggestions for improving the draft witness protection law, if incorporated into the final legislation, may yet provide a return on the donor countries' considerable
investment. End Summary.
2. (SBU) On September 18, IIGEP submitted its second Interim Report to the President. There has been no response to date from the President's office to this report, or to the
first Interim Report submitted in June 2007. IIGEP released its third public statement on September 19. As required, the statement was submitted to the COI and the AG's office two
weeks in advance. Neither office responded to the statement in writing within the 2 week deadline.
GSL Letters Criticize IIGEP
---------------------------
3. (SBU) The COI and AG's office subsequently sent strongly-worded letters to IIGEP Chairman Justice P.N. Bhagwati, which were made public, objecting to the substance of IIGEP's most recent public statement as well as the process by which it was released. The AG's letter, dated September 22, noted that the release of the statement appeared timed to coincide with the 6th Session of the UN Human Rights Council and implied that the EPs had intended to influence the deliberations of the HRC. The AG reiterated his previous defense of his office's role within the COI,saying the AG does not direct investigations, but merely advises COI investigators. As a result, he said, there is no conflict of interest. He noted that the COI is not entitled to financial independence because it is not a permanent body. Instead, it must continue to rely on the Presidential Secretariat to approve all funding requests. He added that new legislation on providing assistance and protection to victims of crime and witnesses will likely be presented to the cabinet soon and will likely be in place within the next two months. Therefore, he said, IIGEP should not make public statements that undermine public confidence in the GSL's ability to protect witnesses. He urged the IIGEP to engage with the Commission in a more constructive manner.
4. (SBU) The COI's letter, dated September 24, expressed "shock" at the IIGEP's decision to release the third public statement "in grave violation" of the procedures outlined in the Presidential Invitation to IIGEP. The COI said it explained its objections to the public statement in a meeting with Japanese Eminent Person Yozo Yokota on September 18 and on the same day sent a letter to the Eminent Persons outlining COI's concerns. (Note: The IIGEP Secretariat was not copied on this e-mail "letter," which was sent just before midnight on September 18. IIGEP released its statement before it became aware of the letter's existence.) The release of the public statement, despite the COI's objections, is "disrespectful of the COI and contrary to your mandate contained in the Presidential Invitation," according to the COI's letter. The COI claimed the IIGEP has taken "an adversarial role vis-a-vis the COI and its work" which "probably reflects the IIGEP's mindset that they have a monitoring role." The COI noted that the international community has committed substantial resources to support the IIGEP's work, which is "lost when the IIGEP are not physically present to observe" COI's proceedings. COI also complained that the IIGEP had failed to promptly pass on third party information to the COI in violation of the Presidential Invitation.
Heads of Mission Discuss IIGEP's Future
---------------------------------------
5. (SBU) On September 25, Ambassador attended an IIGEP donors' meeting hosted by the Dutch Ambassador, including Heads of Mission of Australia, the European Union, and Canada, as well as IIGEP Assistant Dennis Milner. The group discussed the GSL's reaction to IIGEP's third public statement, UN High Commissioner for Human Rights Louise Arbour's upcoming visit (October 9 to 13) and the future of IIGEP. Participants agreed that the recent exchange of letters between IIGEP, the GSL, and the COI was unlikely to help the situation. They noted that the COI and AG letters addressed procedural problems while ignoring the substance of IIGEP concerns. Canadian High Commissioner Angela Bogdan, who had recently met Arbour (a Canadian) in Geneva, reported that Arbour's goal for her visit is GSL permission for the UN OHCHR to expand its presence in Sri Lanka. IIGEP Chairman Bhagwati, Canadian Eminent Person (EP) Bruce Matthews, and European Union EP Jean-Pierre Cot plan to be in Colombo during the Arbour visit. Heads of Mission agreed that Arbour's advice about the future of IIGEP and the views of the EPs themselves would be significant factors in determining how long to extend funding. Milner observed that the EPs have differing opinions on this subject. European Commission Head of Delegation Julian Wilson said that the EU would fund IIGEP until the end of June 2008 and would consider extending funding as late as 2010, albeit on a much reduced basis. Bogdan said Canada's funding would expire in March. Dutch funding will stop at the end of 2007.
Formal Extension Not Yet Granted
--------------------------------
6. (SBU) The COI has yet to ask the President formally for an extension of its mandate, which is set to expire on November 3. However, the COI has informed IIGEP that the President likely will extend the mandate for six months or a year. The date of the next IIGEP Plenary has not been set,but is planned for mid-November.
7. (SBU) COMMENT: Donor countries' considerable investment in IIGEP has not yet produced results in terms of clearing up the serious abuses under investigation or holding those responsible accountable. It is likely that during the November Plenary, the COI will announce the extension of its mandate and request that IIGEP extend as well. Embassy believes that unless considerable progress is forthcoming in the next few weeks, the Eminent Persons may well decide to decline this invitation. (Note: It is not clear that there is sufficient donor support to carry on the work of IIGEP even if the EPs were prepared to continue.) If the visits of Louise Arbour and UN Special Rapporteur on Torture Manfred Nowak (October 1-8) do not go well, the GSL may be tempted to blame IIGEP for the failings of the COI. If the IIGEP decides to end its work on schedule, EPs and Assistants will have to make tough decisions about what to do with the information they have gathered from witnesses, who have much to fear should their identities be revealed. The IIGEP's most enduring legacy may turn out to be its contribution to the new witness protection law. However, it is uncertain at this point how many of the IIGEP's suggestions the Justice Ministry will incorporate into the final legislation.
BLAKE

FOURTH IIGEP PUBLC STATEMENT  19 December 2007

IIGEP REPORTS NO INDICATION OF IMPLEMENTATION OF ITS RECOMMENDED CORRECTIVE ACTIONS AND LAYS DOWN MINIMUM CONDITIONS FOR THE SUCCESS OF PRESIDENTIAL COMMISSION OF INQUIRY’S IMPENDING PUBLIC INQUIRIES

The International Independent Group of Eminent Persons (the IIGEP)i was mandated by HE the President of Sri Lanka to observe the investigations and inquiries carried out by the Commission of Inquiry (the Commission), in order to ascertain that its work is conducted in a transparent manner and in accordance with international norms and standards. In this context, the IIGEP convened its quarterly plenary session in Colombo in November 2007, during which the IIGEP held meetings with HE the President as well as the members of the Commission of Inquiry to convey its latest observations on ongoing in-camera investigations and discuss matters arising with regard to the Commission’s move to public inquiries. The following observations by the IIGEP cover the period up to and including the 30th November 2007.

Update on investigations

Since the Commission commenced in-camera investigation sessions in May 2007, the IIGEP or their representatives have attended 76 sessions (up to 12 November 2007) of the two cases under investigation, namely the killing of the 17 Action Contre La Faim aid workers in Muttur in early August 2006 and the killing of 5 youths in Trincomalee on 02 January 2006.

In addition to the IIGEP’s observations in previous statements, the IIGEP further notes shortcomings in the following areas pertaining to the conduct of investigations by the Commission: the failure of the Commission to effectively probe the failings of the original police investigations into the cases under consideration as well as the difficulties encountered by the Commission in securing cooperation and disclosure of information from state officials and other persons.

Established by Presidential Warrant, the Commission is required to investigate and inquire into the propriety and efficacy of the investigations already conducted by the Police into the incidents contained in the mandate, including the “possible reasons that may have influenced or been relevant to the conduct of investigations”, and comment on such investigations. As a fact-finding body, a critical aspect of the Commission’s work is to identify why the original police investigations failed to identify and prosecute the perpetrators of these serious crimes. The Commission has so far not succeeded in discharging this most crucial element of its mission.

On 13 November 2007, the Commission received confirmation of the extension of the Warrant by one year to 2 November 2008. The letter from the Presidential Office was copied to the IIGEP and subsequently published on the Government’s official websites.

IIGEP - PUBLIC STATEMENT 004- Page 1 of 3

2Presidential letter included a “clarification” from the Presidential Office that serves to relieve the Commission from the requirement “in any way to consider, scrutinize, monitor, investigate or inquire into the conduct of the Attorney General or any of his officers with regards to or in relation to any investigation already conducted into the relevant incidents”, while allowing the Commission to “continue to obtain the assistance of officers of the Attorney General’s Department “. The members of the IIGEP have been given assurances by HE the President and the Chairman of the Commission that the directive contained in this letter does not have the effect of preventing the Commission from examining the Attorney General or his officers on any relevant question arising in the investigations and inquiries. The IIGEP, however, questions the need for this specific “clarification” and is of the opinion that this statement at the very least constitutes an interference in the independence of the Commission. It may, in fact, explain why the Commission has so far shown no intention to question the officers of the Attorney General’s Department on their involvement in the prior relevant investigations, despite evidence of such involvement. In the circumstances, this communication from the President’s Office erodes the independence and neutrality of the Commission, and could impede the search for the truth.

Additionally, the work of the Commission is hampered by the difficulties it has encountered in summoning state officials to give evidence and disclose relevant information. In fact, state officials have refused to render the required answers to relevant questions by invoking “national security” issues. The Commission has thus far not used the powers invested in it by the Commission of Inquiry Act of 1948 and the Presidential Warrant to bring contempt proceedings against witnesses who refuse to provide vital information to the Commission.

Victim and witness assistance and protection

The Commission is still functioning with an ineffective witness protection scheme which is undermined by the absence of a national victim and witness assistance and protection program and legislation. Although the Commission has created its own scheme and has in place a Victim and Witness Assistance and Protection (VWAP) Unit, the IIGEP notes the lack of adequate training for the VWAP staff. While the IIGEP welcomes the recent visit to Australia by several senior members of the VWAP Unit to observe international practices, the members of the Unit have yet to receive appropriate training. In addition, the Commission is seriously constrained by inadequate financial and operational support from the Government. These factors have prevented the Unit from becoming operational.

A draft national witness assistance and protection Bill is currently proceeding through the official constitutional approval process. The IIGEP is not privy to the contents of the draft Bill, and is therefore not in a position to verify whether the IIGEP’s earlier suggestions relating to international norms and standards have been integrated into the draft Bill.

Public inquiries

The Commission has recently announced that it will soon begin public inquiries into the killing of the 17 Action Contre La Faim aid workers and the killing of 5 youths in Trincomalee.

Given this development, the IIGEP has sought information from the Commission on its preparedness to move to public inquiries. In particular, the IIGEP requested the Commission’s workplan for the public inquiry phase; its procedures for conducting the public inquiries; its policy and procedures for non-compliance with the Commission’s summons; its procedures for the calling and sequencing of witnesses; its capacity to analyze information and material from the investigation stage; its policy to exclude all or part of the public from inquiries; its witness risk assessment criteria; its procedures to safeguard confidential information; its planned measures to publicly announce and report on inquiries; its measures to ensure the rights of families of victims to be informed and have access to hearings; and its procedures for assessing compensation for victims. In particular, the IIGEP has sought assurances that vulnerable, at-risk witnesses will not be called before public inquiries, until effective witness protection measures are in place.

The Commission has, however, postponed public inquiries pending an amendment to the Commissions of Inquiry Act by Parliament that would enable the members of the Commission to

IIGEP - PUBLIC STATEMENT 004- Page 2 of 3

conduct public inquiry sessions in smaller groups and thus speed up the process. The IIGEP, however, is of the opinion that the Commission should not delay the commencement of inquiries on this basis. The IIGEP notes that the present Act does not have a quorum rule.

Conclusion

The above issues reinforce the IIGEP’s prior assessment that the Commission of Inquiry’s process falls short of international norms and standards. The Commission’s work also lacks transparency. For instance, all sessions conducted by the Commission have been held to the exclusion of the public, the victims and their families and, on occasions, the IIGEP. In addition, there continues to be a lack of full and timely disclosure of information to the IIGEP. The IIGEP reiterates its concerns regarding the Commission’s lack of independence, ineffective witness protection measures and shortcomings in the investigations.

At its November meeting, the IIGEP concluded that the persistent disregard for its observations and recommendations by the Government of Sri Lanka and the Commission of Inquiry tends to render the IIGEP’s continued role irrelevant. With the Commission’s mandate extension and the imminent start of public inquiries, the IIGEP urges the Commission and the Government to take immediate steps for implementing corrective action.

END

i The IIGEP consists of the following 11 Eminent Persons: Justice P.N. Bhagwati (India) (Chairman), Judge Jean-Pierre Cot (France),

Mr. Marzuki Darusman (Indonesia), Mr. Arthur E. “Gene” Dewey (USA), Prof. Cees Fasseur (Netherlands), Dr. Kamal Hossain (Bangladesh), Prof. Bruce Matthews (Canada), Mr. Andreas Mavrommatis (Cyprus), Prof. Sir Nigel Rodley (UK), Prof. Ivan Shearer (Australia) Prof. Yozo Yokota  (Japan)

RESPONSE FROM THE COMMISSION TO THE FOURTH IIGEP PUBLIC STATEMENT 

17 December, 2007

COI expresses concern over IIGEP’s lack of transparency and conduct prejudicial to ongoing investigations.

The COI wishes to object to the release of the Observations contained in the IIGEP’s Public Statement sent along with the letter dated 30th November 2007 as such observations are prejudicial to ongoing investigations and inquiries of the Commission of Inquiry. The reasons for such objections are set out below.

The COI notes that the opening of the Statement that “IIGEP reports no indications of implementation of its recommended corrective actions and lays down minimum conditions for the success of the Presidential Commission of Inquiry’s impending public inquiries” is without any basis and contrary to the facts. The IIGEP has in fact made very few suggestions for corrective actions some of which have been accepted and acted upon by the COI. One example is the response to the criticism leveled against COI by IIGEP for obtaining the services of Members of the Official Bar who work under the guidance, supervision and direction of the Commission. Although the COI does not accept the validity of such criticisms, in deference to the views of the IIGEP the COI has enlisted the services of Counsel of the Unofficial Bar including two of the most outstanding members of the legal profession in Sri Lanka – Mr. R.K.W. Goonesekera and President’s Counsel Mr. Ranjit Abeysooriya, - who have been assisting the COI for the last several months. The use of the phrase “lays down” is suggestive of an attempt by IIGEP to dictate to the COI and is totally unacceptable. In terms of the Mandate, it is the COI which has the sole prerogative of taking the final decisions on all questions regarding the conduct of the work of the Commission.

Update on Investigations

The IIGEPs assert that they have attended 76 sessions of investigations of the two cases investigated, namely, the killing of 17 Aid Workers of Action Contre La Faim in Muttur, and the killing of 5 youths in Trincomalee.

The COI notes that in fact out of the total number of 76 sessions of investigations conducted, only one member of the IIGEP has been present at 37 of these sittings while only 02 members have been present at 02 sittings and 03 members have been present at 01 sitting. (The total number of IIGEP members appointed by the President is eleven). The attempt to portray the Assistants as representatives of the IIGEP at the proceedings is contrary to the Presidential Invitation which only permits their appointment “to provide necessary assistance” to a Member of IIGEP. In any event only one or sometimes two Assistants out of 10 Assistants have been present at 76 sessions. 8 Assistants have been present at 01 session while 02 have been present at 50 sessions. Thus, the IIGEP has not been present to observe over half the proceedings and therefore the credibility of any comments made by the IIGEP must necessarily suffer from the consequences of such absence.

The COI is of the view that the IIGEP’s attempt to observe (without a continued and uninterrupted presence of at least one member of the IIGEP) the working of the COI does not do justice to the functions entrusted to them by the Presidential Invitation and accepted by the IIGEP. The undoubted Eminence and wide experience of the IIGEP cannot be a substitute for on the ground observations by the IIGEP. Otherwise, the IIGEP will be reduced to making their comments with regard to the work of the COI on the basis of hearsay which is undoubtedly contrary to international norms and will militate against the credibility and value of such comments.

The COI further notes that due to the lack of an adequate presence of the IIGEP at the sessions, the collective wisdom of the eleven members of IIGEP is unfortunately, not reflected in the observations of the IIGEP as was intended in the Presidential Invitation to the IIGEP. 

This is reflected in two recent examples. Firstly, in the issue of the

release of the third Public Statement, the IIGEP Secretariat had issued the Statement without reference to the Chairman nor other members of the IIGEP thus depriving the IIGEP of the opportunity of considering the observations made by the COI before releasing the Statement.

The second example relates to what happened subsequent to the discussion COI had with IIGEP Member A Mavrommatis on the 13th of December 2007 to achieve consensus between the two parties as to the content of the current Public Statement. The final Statement was received from the IIGEP within a few hours of the meeting. This is a clear indication of the fact that other members of the IIGEP have not been consulted regarding the contents of the Final Statement, who according to the IIGEP members themselves, are residing in different time zones. Such a lack of transparency in the functioning and operation of the IIGEP continues to remain a matter of grave concern to the COI.

On the question of transparency of the process of investigations, the COI notes that despite several explanations made to the IIGEP with regard to the difference between the stages of investigation and inquiry the IIGEP have not taken on board such differences. The COI thus wishes to restate its position. The purpose of investigations is to unearth evidence and also to prepare the ground for public inquiry. It is axiomatic that investigations conducted in the absence of confidentiality can jeopardize the safety of witnesses as well as create opportunities for potential suspects to take steps to cover their tracks thus frustrating the realization of the objectives of the COI. The COI is unaware of any investigation (as opposed to inquiries) being conducted in public anywhere in the world.

It is incorrect to say that the COI has failed to probe the failings of the original investigations. Records of proceedings show that the members of COI themselves have questioned in depth, Police and other witnesses during the investigations on this point. The COI disagrees with the contention that the Commission encountered difficulties in securing the cooperation and disclosure of information from state officials. The only instance in which such a situation arose was when some officials stated that they could release such information only after obtaining permission from their higher authorities as the release of such information could affect national security. The IIGEP is aware of the steps taken by the COI in this regard, namely any refusal to disclose information by state officials on grounds of national security will have to be justified by such persons before the COI. The COI will and remains the sole judge as to whether such a claim is justified or not and a decision on this matter will be taken after due process which is in accordance with international norms. The decision to take up such issues at the public inquiries stage of proceedings will ensure greater transparency rather than doing so at the investigation sessions as suggested by the IIGEP. The COI records that this reasoning has been communicated to IIGEP on many previous occasions.

The conclusion of the IIGEP that the COI as a fact-finding body has failed to identify why the original police investigations failed to identify and prosecute the perpetrators is premature. Recommendations in this regard will be made only after due process and after the inquiry is concluded.

The COI denies the serious allegation made by the IIGEP with regard to its independence. The COI will continue to function independently and will not be influenced by the State, the IIGEP or any other agency. The COI wishes to place on record the fact that it is unaware as to why the President has issued a ‘clarification’, and that no such ‘clarification’ had been sought by the COI.

In any event, as already informed to IIGEP, the COI does not intend interpreting its mandate in a restrictive manner but rather in an expansive manner. Further the COI is of the view that no agency or individual shall be excluded from investigation or inquiry if such an investigation or inquiry is merited on the basis of material before the COI.

The COI has also invited the IIGEP to submit to the COI any material that supports their claim that the Attorney General or its officers should be subjected to investigation and inquiry. The material submitted thus far to the COI by the IIGEP does not, in the COI’s view, support the IIGEP claim that the  Attorney General or its officers should be investigated.

Victim and Witness Assistance and Protection

Despite the absence of national legislation for Witness Protection in Sri Lanka, the COI has developed a scheme of witness protection which elaborates rigorously researched rules and study of international best practices. Copies of such rules were shared with the IIGEP at the beginning of the COI’s term and did not receive any adverse comment from the IIGEP which suggested that the IIGEP was satisfied by such a scheme. The COI notes that right throughout the investigation process initiated by the COI, this scheme has been and will continue to be in operation.

The COI notes with regret that the IIGEP has resorted to criticizing the mechanism repeatedly which could have the effect of undermining the work of the COI.

In the event of genuine concern of the lack of adequate protection for witnesses, it would have been more befitting for the IIGEP, in the interests of bringing the perpetrators to justice, to bring to the notice of the COI such shortcomings in a direct and discreet manner rather than publicly announcing such dissatisfaction lest it has the effect of discouraging potential witnesses from coming forward to give evidence.

The COI is not responsible for setting up a National Victim and Witness Assistance and Protection Programme. However, the COI to the best of its ability has set up a Victim and Witness Assistance and Protection Unit, consisting of one DIG/Police as Head of the Unit, a senior lawyer as Deputy Head, four senior lawyers as Advisors, one Senior Superintendent of Police as Director and thirteen others. It has also persuaded the Authorities to enact the necessary legislation. The COI has organized a number of training programmes to train its staff where the IIGEP Assistants have also functioned as resource persons. Funds have been obtained from the Presidential Secretariat to send some officers to participate in a Training Programme in Australia. The COI is grateful to Prof. Yokota for facilitating an officer to observe the programme in Japan. The COI regrets the fact that numerous requests to the members of the IIGEP to facilitate training programmes for officers of the witness Protection Unit has not been successful.

Public Inquiries

Matters raised regarding procedure at inquiries have been explained in the letter of the Chairman dated November 20, 2007 to Judge Jean Pierre Cot. The COI is of the view that if public inquiries were to begin as per current statutory requirements, the process is at risk of being interrupted suddenly by unforeseen circumstances such as the non-availability of one or more Commissioners due to unforeseen circumstances. The COI wishes to state that the reason for urging amendments of the COI Act is not for the purpose of holding public inquiry in smaller groups but rather to ensure that proceedings be expedited and continue without interruption.

Conclusion

The COI does not comprehend how the IIGEP came to hold the opinion that the COI’s investigations are not transparent when the IIGEP and their Assistants have been given the opportunity and have in fact questioned witnesses in detail at these sessions. The COI has repeatedly informed IIGEP that at the inquiries the Public including affected parties will be allowed access.

The observation by the IIGEP that there has been no full and timely disclosure by COI is not acceptable. In fact, COI has taken every possible step to ensure that such full and timely disclosure has been made and the COI invites members of the IIGEP to be present at investigations on a continuous basis in order to observe such full and timely disclosure.

Justice N. K.  Udalagama 

Chairman 

FIFTH IIGEP PUBLIC STATEMENT 08 March  2008

THE PRESIDENTIAL COMMISSION’S PUBLIC INQUIRY PROCESS SO FAR FALLS SHORT OF INTERNATIONAL NORMS AND STANDARDS

In November 2006, H.E. the President of Sri Lanka appointed a Commission of Inquiry (the Commission) to investigate and inquire into 16 incidents of alleged serious violations of human rights that arose in Sri Lanka since 1 August 2005. The President subsequently also invited eleven persons of international repute to form the International Independent Group of Eminent Persons (the IIGEP)i. The IIGEP was called to observe the work of the Commission and to comment on the

transparency of its investigations and inquiries, and their conformity with international norms and standards. The President also invited the IIGEP to make recommendations for redress.

The IIGEP was established when the last Member’s nomination was approved by the Government of Sri Lanka in February 2007. It held its fifth quarterly plenary meeting in Colombo on 17-19 February 2008, in order to review its members’ observations and conclusions over the period from mid-December 2007 to mid-February 2008.

Observations on the Public Inquiry Phase

The most important development since the IIGEP’s last public statement, dated 19 December 2007, is the commencement of the Commission’s public inquiry phase on 5 January 2008. The IIGEP welcomes this move by the Commission. During the November 2007 Joint Commission/IIGEP Session, the Commission advised the IIGEP that there would be no public inquiry until Parliament passed the amendments to the Commissions of Inquiry Act (1948). (Subsequently, the “Commissions of Inquiry (Amendment)” Bill was passed on 7 February 2008. The amendments related primarily to the investigative powers of a Commission and the ability of a Commission to sit without its full membership.) In contrast with the in-camera investigations the Commission has been carrying out so far, public inquiries are expected to be held in the full view of any interested parties and particularly those most concerned, the surviving victims and the families of victims.

The IIGEP has observed the poor attendance of interested parties, such as the families of victims and civil society, in the sessions of inquiry and questions the level of publicity the Commission has given to the public inquiries. The notices in the newspapers were relatively small in size and need to be recurrent or continuous to achieve sufficient impact. It should be possible for representatives of the Commission to make personal contact with interested parties, particularly the surviving victims and the families of all victims, to ensure that these people are made aware of the intended hearings. The IIGEP has also suggested that the Commission consider holding public inquiries outside Colombo, closer to the areas where the incidents under review took place, in order to improve the accessibility of potential witnesses to the Commission.

IIGEP - PUBLIC STATEMENT 005- Page 1 of 4

The Commission has, as of 17 February 2008, held six public inquiry sessions into the case of the killing of five youths in Trincomalee on 2 January 2006. During these sessions, three witnesses appeared before the Commission.

The Commission summoned the Trincomalee Magistrate to testify in his capacity as the investigating Magistrate who attended the crime scene on 02 January 2006. Following intervention from the Judicial Services Commission, the Registrar of Trincomalee Magistrates Court attended the Commission of Inquiry session in his place and read out the contents of the Magistrate’s report. The IIGEP is concerned that this intervention prevented the Commission from hearing direct testimony from the Magistrate regarding police action at the crime scene and his initial evaluation and instructions.

In the sessions of 5 and 7 January 2008, the Police Inspector, responsible for carrying out the original investigation, appeared as a witness and during his testimony made statements about the Police and the Armed Forces present at the scene around the time of the incident. During the inquiry of 10 January 2008, the Judicial Medical Officer testified that, in his opinion, if one of the deceased victims had been brought to the hospital immediately after the attack, he could have been saved.

The IIGEP emphasizes the point that all the issues examined by the Commission should have been considered during the original criminal investigation process. It is clear that the original investigation was flawed and incompetent. Specifically, the quality of statements taken from police and service personnel was inadequate in detail and depth and reflected negatively on the competence and thoroughness of those in charge of the original police investigation. It appears that little or no effort was put into tracing and identifying eye witnesses from a number of local citizens known to have been in the vicinity on the evening of the incident causing the death of the five youths in Trincomalee. The Commission needs to ask the question: why were the flaws in the original police investigations undetected, ignored, or possibly abetted by the responsible Government authorities?

In the search for truth and justice in this case, it is imperative that the testimony of the security forces personnel and police witnesses heard by the Commission to date is fully and adequately exposed and tested. The general public, surviving victims, family representatives and others must have the opportunity to judge the credibility of some of the witnesses. It is also essential for them to be able to observe the working of the Commission and be encouraged to do so.

The Commission, in response to the IIGEP’s last public statement, stated that “no agency or individual shall be excluded from investigation or inquiry if such an investigation or inquiry is merited on the basis of material before the Commission”. The Commission has so far failed to implement this assurance in practice with State bodies and agencies.

The public hearing phase was suspended on 14 January 2008 and did not resume until 15 February 2008. The IIGEP is once again concerned about the slow pace of inquiries, considering that the Commission has already heard and gathered testimonies from these same witnesses in its in-camera investigation phase.

The IIGEP has informed the Commission about several material witnesses who have approached the IIGEP and expressed their willingness to give evidence to the Commission, from as far back as in August 2007. The IIGEP has urged the Commission to take concrete steps to include these critical witnesses in the current inquiry and is seeking to agree with the Commission on procedures that would permit this to happen, while protecting the safety of witnesses.

The Commission has indicated that the inquiry stage would yield more positive developments. Yet, to date, and notwithstanding the spirited efforts of the Commission’s independent legal counsel of the Unofficial Bar in leading the questioning, its inquiries have largely been conducted in the same manner as the Commission’s investigation sessions and have, so far, proved largely ineffective in unearthing useful or actionable evidence affecting the current case.

IIGEP - PUBLIC STATEMENT 005- Page 2 of 4

Witness Protection

Protection for witnesses is indispensable for the success of the Commission. The IIGEP observes that sufficient efforts are still not being made to ensure the protection and safety of all those involved with the inquiries and investigations of the Commission. Without a comprehensive system of victim and witness protection, and demonstrated Government competence and willingness to implement such a system, critical witnesses are unlikely to come forward. Perhaps more than any other factor, this impediment inhibits any effective future pursuit of the filing of indictments, convictions, and appropriate accountability for the alleged grave human rights violations under review.

As recently as January 2008, the IIGEP was dismayed to find a newspaper article, citing a source within the Commission, identifying the possible whereabouts of witnesses. The IIGEP has stated in writing to the Commission that, similarly to a previous instance, the publication of such information about witnesses, undermines the purpose of the Commission’s work and constitutes a potentially dangerous breach of confidentiality. The cornerstone of all witness protection programs is confidentiality, without which the integrity of the program can be permanently damaged.

Financial Independence

Issues around the Commission’s insufficient budget and lack of financial independence have recently re-surfaced in the media. The IIGEP already commented on the Commission’s lack of financial independence in its 11 June 2007 public statement. The IIGEP further brought the matter to the attention of the President in a meeting in August 2007. The IIGEP can only reiterate the vital importance that the Commission be sufficiently funded on the one hand, and that it holds its own purse strings on the other. Financial independence is vital for the successful functioning of the Commission and its capacity to provide effective witness protection and assistance.

Conclusion

The IIGEP has decided that it will terminate its operation in Sri Lanka. It has taken this decision after due consideration and for fundamental reasons. The President charged the IIGEP to observe the proceedings of the Commission of Inquiry, to offer suggestions, and to assess the conduct of these proceedings against international norms and standards. The Eminent Persons conclude that they have accomplished all that is possible within the constraints of the prevailing situation. They no longer see how they can contribute further to the protection and enhancement of human rights in Sri Lanka and have regretfully decided to bring to an end their activities in this country.

The Eminent Persons have all come to Sri Lanka a number of times and met a large variety of personalities involved in the process of protection and promotion of human rights. They have visited different locations in the country where alleged violations have taken place and have diligently followed the proceedings of the Commission. The IIGEP representatives, a group of highly qualified Assistants to whom the Eminent Persons have delegated authority, have been following the investigations and inquiries on a full-time basis in Colombo and in the field. The IIGEP is satisfied that the activities and reports of their representatives have met the highest standards of quality and professionalism.

In keeping with both the letter and the spirit of its mandate, the IIGEP has made substantial suggestions and observations - in its Interim Reports to the President and in direct contact with the Commission and with representatives of the Government of Sri Lanka (GoSL). Most of these suggestions have been ignored or rejected. Official correspondence directed to the IIGEP has too often been characterized by a lack of respect and civility. While the IIGEP has repeatedly been accused of going beyond its mandate and of interfering with national decision-making, this has never been its intention or the reality. The Eminent Persons have always respected the authority of their interlocutors, be they commissioners, judiciary, parliamentarians, civil servants or ministers, and the limits of their mandate.

The IIGEP’s next and concluding report to the President and subsequent public statement will detail the Eminent Persons’ observations and conclusions, substantiated by the evidence available. In

IIGEP - PUBLIC STATEMENT 005- Page 3 of 4

summary, the IIGEP concludes that the proceedings of inquiry and investigation have fallen far short of the transparency and compliance with basic international norms and standards pertaining to investigations and inquiries. The IIGEP has time and again pointed out the major flaws of the process: first and foremost, the conflict of interest at all levels, in particular with regard to the role of the Attorney General’s Department. Additional flaws include the restrictions on the operation of the Commission through lack of proper funding and independent support staff; poor organization of the hearings and lines of questioning; refusal of the State authorities at the highest level to fully cooperate with the investigations and inquiries; and the absence of an effective and comprehensive system of witness protection.

The Eminent Persons are fully aware of the overall context in which the Commission is operating, which makes its activities, however diligent, incapable of eliciting the kind of facts that would be necessary to ensure that justice is seen to be done. Underlying it all was the impunity that had led to the prior fruitless investigations that, in turn, led to the setting up of the Commission. There is a climate of threat, direct and indirect, to the lives of anyone who might identify persons responsible for human rights violations, including those who are likely to have been committed by the security forces. Civilian eye witnesses have not come forward to the Commission. Security forces’ witnesses preferred to make themselves look incompetent rather than just telling what they know. Accordingly, it is evident that the Commission is unlikely to be in a position to pursue its mandate effectively.

These inherent and fundamental impediments inevitably lead to the conclusion that there has been and continues to be a lack of political and institutional will to investigate and inquire into the cases before the Commission. The IIGEP is therefore terminating its role in the process not only because of the shortcomings in the Commission’s work but primarily because the IIGEP identifies an institutional lack of support for the work of the Commission.

Beyond these considerations, the IIGEP is of the opinion that there has not been the minimum level of trust necessary for the success of the work of the Commission and the IIGEP. The IIGEP model may be unique. However, experiences associating national and international persons and processes in the past, with the view to harmonizing national practice with international norms and standards, have always relied on confidence and trust for their success. The IIGEP does not see how its continued engagement with the process could change this situation. The Eminent Persons hope, nevertheless, that their concluding observations and recommendations will assist the Commission of Inquiry, the Government of Sri Lanka and all the courageous people of Sri Lanka to achieve the full implementation of the rule of law and respect for fundamental human rights.

END

In summary, the IIGEP concludes that the proceedings of inquiry and investigation have fallen far short of the transparency and compliance with basic international norms and standards pertaining to investigations and inquiries. The IIGEP has time and again pointed out the major flaws of the process: first and foremost, the conflict of interest at all levels, in particular with regard to the role of the Attorney General’s Department. Additional flaws include the restrictions on the operation of the Commission through lack of proper funding and independent support staff; poor organization of the hearings and lines of questioning; refusal of the State authorities at the highest level to fully cooperate with the investigations and inquiries; and the absence of an effective and comprehensive system of witness protection.

The Eminent Persons are fully aware of the overall context in which the Commission is operating, which makes its activities, however diligent, incapable of eliciting the kind of facts that would be necessary to ensure that justice is seen to be done. Underlying it all was the impunity that had led to the prior fruitless investigations that, in turn, led to the setting up of the Commission. There is a climate of threat, direct and indirect, to the lives of anyone who might identify persons responsible for human rights violations, including those who are likely to have been committed by the security forces. Civilian eye witnesses have not come forward to the Commission. Security forces’ witnesses preferred to make themselves look incompetent rather than just telling what they know. Accordingly, it is evident that the Commission is unlikely to be in a position to pursue its mandate effectively.

These inherent and fundamental impediments inevitably lead to the conclusion that there has been and continues to be a lack of political and institutional will to investigate and inquire into the cases before the Commission. The IIGEP is therefore terminating its role in the process not only because of the shortcomings in the Commission’s work but primarily because the IIGEP identifies an institutional lack of support for the work of the Commission.

Beyond these considerations, the IIGEP is of the opinion that there has not been the minimum level of trust necessary for the success of the work of the Commission and the IIGEP. The IIGEP model may be unique. However, experiences associating national and international persons and processes in the past, with the view to harmonizing national practice with international norms and standards, have always relied on confidence and trust for their success. The IIGEP does not see how its continued engagement with the process could change this situation. The Eminent Persons hope, nevertheless, that their concluding observations and recommendations will assist the Commission of Inquiry, the Government of Sri Lanka and all the courageous people of Sri Lanka to achieve the full implementation of the rule of law and respect for fundamental human rights.

END

Criticism of IIGEP by Counsel for the Special Task Force 

Counsel hits out at IIGEP

March 20, 2008 by lrrp

S.L Gunesekera, the lawyer representing the Special Task Force (STF) in the Trincomalee killings case, hit out at the International Independent Group of Eminent Persons (IIGEP) yesterday, asserting that foreign intervention was tainting the commission of inquiry.

“It seems like these proceedings are controlled by outsiders. The witness is taken out and brought back as they please.

The commission is set up here, and foreigners cannot control what happens here. This is gross arrogance and impertinence,” Mr. Gunesekara said.

This was after IIGEP officials expressed concern over his line of questioning, which dealt with the date on which the witness left the country and the witness’s legal status in the country of refuge.

At first, when the witness was questioned about when he left the country, IIGEP Investigation Advisor Dennis Milner intervened, pointing out that, as per the protocol that had been agreed upon by the Presidential Commission of Inquiry (CoI), questions on when, where or how the witnesses had left the country were to be avoided, as they might directly or indirectly lead to revealing the location in which the witnesses resided.

“No. That question is not withdrawn. I will not take orders from you. Have you the impertinence to order me not to ask that question?” Mr. Gunesekara retaliated.

While CoI Chairman Udalagama agreed that the protocol did not directly prohibit the questioning of a witness about when they left the country, the STF counsel was advised to terminate that line of questioning, following a request by IIGEP representative and Legal Advisor D. Urban

“If they are afraid of these questions, these independent people, we can proceed from it,” Mr. Gunesekera said.

This was, however, followed by a question regarding the witness’s legal status in the country of refuge – to which the IIGEP Victim Protection Advisor David Savage objected. The witness was removed from the room until the issue was sorted out.

After the second intervention by the IIGEP, Mr. Gunesekara said sharply that he would wrap up his cross examination, as he was “not allowed to continue with my cross examination due to foreign intervention.”

“In conclusion, I suggest to you, that being in a foreign country you have obtained a license to lie with impunity because you cannot be charged with perjury in a court in this country,” Mr. Gunasekera said, wrapping up his case for the defence.

“I suggest to you, in conclusion, that you told the magistrate what you knew or thought you knew while giving evidence at the inquest. Your statement to the IIGEP, where it differs from the statement to the magistrate, consists of fabrications uttered by you in the knowledge that you cannot be penalized for perjury,” he added.

The witness Ponnuthurai Yogarajah, father of the deceased Yogarajah Hemachandran, emotionally said “I won’t accept this. My children have been killed. I am telling the truth. I am not lying here. I need not tell lies here.” He also said that “if I had told the magistrate what I have told here, my life would have been in real peril.”

IIGEP FINAL PUBLIC STATEMENT 

Public statement dated April 15, 2008, in full, can be accessed here:

https://www.google.com/url?q=http://www.humanrights.asia/resources/rule-of-law-sri-lanka/the-final-report-of-the-iigep/&sa=U&ved=2ahUKEwiX9rTg5JCDAxXKTmwGHTPkBW8QFnoECAsQAg&usg=AOvVaw1aH_Eci0vq29ahQgP0kX_w

Executive Summary of their Final Statement is reproduced below:

PUBLIC STATEMENT EXECUTIVE SUMMARY 

REF: IIGEP-PS-006-2006
THE MEMBERS OF THE IIGEP SUBMIT THEIR CONCLUDING PUBLIC STATEMENT ON THE WORK OF THE COMMISSION OF INQUIRY AND FIND A LACK OF POLITICAL WILL TO SUPPORT A SEARCH FOR THE TRUTH

CONTENTS OF PUBLIC STATEMENT
1. Summary and the IIGEP’s decision to terminate its mission
2. The IIGEP’s observations of the Commission
3. The IIGEP’s principal concerns:
(a) The role of the Attorney General
(b) Victim and witness protect
(c) The slow pace of the Commission’s hearings
(d) The lack of full co-operation by state organs
4. Annexes:
(a) The creation and mandate of the IIGEP
(b) “International norms and standards”
(c) Human rights in a state of emergency and in armed conflict and Command responsibility

1. SUMMARY
The International Independent Group of Eminent Persons (“the IIGEP”) concluded at its meeting in Colombo in November 2007 that it should terminate its observation mission at the end of March 2008, and has informed HE the President of Sri Lanka of its decision. It affirmed this intention at its fifth and final plenary meeting held in Colombo on 17-19 February 2008. It did so with profound regret that more could not have been achieved.

The IIGEP was fully formed in February 2007, when the President of Sri Lanka invited 11 persons from a number of countries to observe the work of the Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights (“the Commission”), which was established in November 2006. The Serious Violations referred to in the Warrant establishing the Commission were 15 cases dating from 1 August 2005 until 16 October 2006. A 16th case was later added. The principal directive of the mandate given to Members of the IIGEP was to observe the work of the Commission “with a view to satisfying that such inquiries are conducted in a transparent manner and in accordance with basic international norms and standards pertaining to investigations and inquiries.”

The IIGEP has not been able to conclude, as required by the terms of the Presidential invitation, that the proceedings of the Commission have been transparent or have satisfied basic international norms and standards. The particular reasons for forming that opinion and motivating the IIGEP to terminate its mission before the conclusion of the proceedings of the Commission of Inquiry, are the following:

(a) A conflict of interest in the proceedings before the Commission

In the opinion of the IIGEP the Attorney General’s Department of Sri Lanka has played an inappropriate and impermissible role in the proceedings of the Commission and in advising the Commission on the conduct of its proceedings. An officer (Deputy Solicitor-General) of the Attorney General’s Department has taken a leading role in two of the four cases before the Commission so far, by way of acting as lead counsel in the questioning of the witnesses. At the same time, the Attorney General is the legal adviser to the Government and must protect the interests of the Government when actions by its organs, including the police and the armed forces, are called into question. The presence of the Attorney General, through his officers acting as counsel assisting the Commission, raises a serious issue of conflict of interest. Many of the cases under review by the Commission involve questions of the adequacy of the original police investigations, or allegations against government forces, including the security forces. The Attorney General has powers, and exercised them in some of these cases, to give advice or directions to investigating officials during the original police investigations. The Deputy Solicitor-General in question has been so involved. In the opinion of the IIGEP these considerations present an unacceptable conflict of interest which does not accord with international norms and standards, and to which attention has been drawn by IIGEP right from the commencement without success.

(b) Lack of effective victim and witness protection

There is an absence of a functioning and effective victim and witness protection programme under the laws of Sri Lanka. Although such a programme exists in name within the Commission, it enjoys no statutory basis, it lacks fully trained staff, and it does not have sufficient funds to offer adequate assistance to those in need of protection from possible retaliation for appearing before the Commission. The Commission has not ensured the protection of victims and their families from intimidation and their representation by legal counsel. Moreover, there is no provision to extend the protection arrangements, such as they are, beyond the life of the Commission. It is hardly surprising that, under these conditions, victims and witnesses have not come forward to give evidence. Many vital witnesses have fled abroad, in fear of their lives. Similarly, there is no protection for government officers who are willing to become “whistle blowers” and to give evidence of official misconduct.

(c) Lack of transparency and timeliness in the proceedings

 

The IIGEP welcomes the Commission’s move to the public inquiry phase. Despite this move, the overwhelming majority of the Commission’s hearings have thus far been held behind closed doors. The proceedings of the Commission have lacked transparency. They have also been unduly slow and protracted. The hearings have been divided, as a result of amendments to the Commission’s rules of procedure, between “investigations” and “inquiries”. The investigation hearings have been held in camera, that is, in the absence of any public observers (except the IIGEP) or representatives of the victims. They have been slow and tedious, with much repetitive or irrelevant questioning of witnesses, with little evident result, so far as obtaining of new information of significance to the cases under review is concerned. It is difficult to understand the reasons for such closed “investigation” sessions. As a result of its slow progress, the Commission’s appointment, which expired in November 2007, was extended for a further year. As of March 2008, only two of the total number of 16 cases listed in the Presidential Warrant have moved to the public inquiry stage: the case of the killing of five youths on the beachfront at Trincomalee (“the Trinco 5 case”), and the case of the massacre of the aid workers belonging to the French NGO Action Contre Ia Faim in Muttur (“the ACF case”). The Commission is, in addition, investigating two other cases: the case of the killing of ten Muslim villagers at Radella in Pottuvil police area on 17th September 2006 (“the Pottuvil case”) and the case of the death of fifty-one persons in Naddalamottankulam (Sencholai) in August 2006 (“the Sencholai case”). Because of the absence of an effective witness protection programme, there seems little likelihood that these public hearings will be any more likely than the closed investigations to discover the true facts of the cases.

(d) Lack of full co-operation by State bodies

There has been a refusal by State bodies to comply with the Commission’s requests for information and documentation. Additionally, certain officers of the armed forces have refused to give information regarding the presence or absence of certain units at a particular time or in a particular place relevant to the cases so far examined by the Commission. National security has been cited as the basis of such refusal. The legal basis for claiming privilege with regard to information of this nature is not clear. No certificate to this effect has been tendered to the Commission, nor were reasons given why national security might be compromised. The Commission itself has not pursued the witnesses in this regard.
(e) Lack of financial independence of the Commission
The Commission lacks financial autonomy. It does not have an independent budget and depends on the Presidential Secretariat for control of its finances. The IIGEP has expressed its concern about the Commission’s lack of financial independence and has supported the Commission’s requests for such independence. The Commission has also complained about the insufficiency of its funding as a constraint to several activities.

Recommendations
Particular recommendations are:
(a) That the President should ensure that all State bodies comply with international norms and standards and his directive to provide full disclosure of information and cooperation to the Commission.
(b) The Government should respect and implement the internationally agreed doctrine of command responsibility as part of the law of Sri Lanka, whereby superiors of those who have committed criminal acts may slso be held responsible.

( c)  The Government of Sri Lanka should establish, as a priority, a workable, effective and permanent system of victim and witness protection. The Commission should endeavour to train the staff of its victim and witness protection unit in order to provide the optimum level of security and assistance to potential witnesses. The IIGEP also calls for the establishment of a facility whereby essential witnesses, who have left Sri Lanka, and who can continue to give firsthand evidence as to some of the events under examination by the Commission, can give their oral evidence to the Commission by video-links under conditions of complete safety. In this respect, international support to the Commission has proven critical.
(d) The Commission of Inquiry should include in the course of its inquiries an examination of the reasons for systemic failures and past impunity in relation to the cases under review and consider the making of recommendations for the eventual appointment of independent special prosecutors in cases in which the security forces have been involved in serious human rights violations.
(e) The Government of Sri Lanka should provide the immediate and necessary financial resources to the Commission of lnquiry, and place adequate funds at its disposal, to enable it to fulfil its mandate.
(f) The Government of Sri Lanka should not entrench the role of the Attorney General as counsel assisting the Commission of Inquiry through legislation.
By way of a general recommendation, the IIGEP can only appeal, even at this late stage, to the Commission and relevant government agencies to implement its previous recommendations. In this respect it refers to its previous public statements.

Conclusion
The IIGEP has repeatedly drawn attention to the defects above-mentioned and others in the proceedings of the Commission in its three-monthly interim reports to the President, its public statements, and directly to the Commissioners. These critiques and suggestions have been largely disregarded. The IIGEP noted, however, that the Commission has attempted to limit the role of the Attorney General by employing counsel from the Unofficial Bar as lead counsel in two cases (the Trinco 5 and Pottuvil cases).
This small success, however, has hardly outweighed the atmosphere of confrontation and disagreement towards the IIGEP engendered by organs of Government and — at least in official correspondence — by the Commission. The uncooperative atmosphere has rendered the task of the IIGEP, which approached its work in a spirit of co-operation and, at first, with optimism, disquieting and unpleasant. There seems to the IIGEP to be an absence of political and institutional will on the part of the Government to pursue with vigour the cases under review with the intention of identifying the perpetrators or at least uncovering the systemic failures and obstructions to justice that rendered the original investigations ineffective.
All Members of the IIGEP are keenly aware of the security situation presently prevailing in Sri Lanka. The Government is faced with an insurgency in which the Liberation Tigers of Tamil Eelam (LTTE) conduct their hostilities through ruthless methods, not sparing the civilian population. Sections of popular opinion suggest that human rights and respect for the rule of law should take second place to measures necessary to repel these hostilities. The IIGEP rejects this opinion. There is no conflict or incompatibility between the successful conduct of military and security operations on the one hand, and respect for the rights of citizens on the other. Indeed it should be emphasised that respect for human rights, and the conduct of military operations in strict accordance with international humanitarian law, are powerful weapons in the struggle against dissident forces and terrorism in that they help to earn the trust and support of the civilian population. Moreover, they are essential to morale and promote a culture of professionalism and self-respect within the police and armed forces.
To the extent that emergency conditions may require special state measures derogating from certain peacetime rights, these must be publicly announced, enacted in law, and justified in terms of necessity and proportionality. Summary executions, massacres, disappearances, wanton destruction of property, and forcible transfers of populations can never be justified. No efforts should be spared to uncover responsibility, including recognition of command responsibility, for such actions. The IIGEP has, however, found an absence of will on the part of the Government of Sri Lanka in the present Inquiry to investigate cases with vigour, where the conduct of its own forces has been called into question.
The IIGEP’s decision to terminate its mission.
For these reasons the IIGEP cannot see that its continued involvement in the work of the Commission could change the situation, and it has decided to withdraw. The IIGEP has decided that it will terminate its observation role at the end of March 2008 and close its operations in Sri Lanka by the end of April 2008. It has taken this decision after due consideration and for fundamental reasons. The President of Sri Lanka invited the IIGEP to observe the proceedings of the Commission of Inquiry, to offer recommendations for corrective action, and to assess the conduct of the Commission’s proceedings in the light of international norms and standards. Despite their best efforts, the Eminent Persons have concluded that they have accomplished all that is possible within the constraints of the prevailing situation. They have thus decided, with deep regret, to end their activities. However, the IIGEP hopes that its reports, and this final Public Statement, may stand as a record of experience that could yet have a beneficial influence on the work of the Commission, and on future commissions.
END OF SUMMARY

The IIGEP did not participate in the proceedings of the Commission of Inquiry after the issue of the above Public Statement. The work of the Commission, however, continued thereafter until June 2009.

Response to the IIGEP Final Public Statement by Counsel for the Army & Special Task Force 

This can be accessed here :

https://lankaweb.com/news/items08/270408-1.html

PUBLIC STATEMENT OF SENIOR COUNSEL (MR S.L.GUNASEKERA AND MR GOMIN DAYASRI ) APPEARING FOR THE ARMY AND THE SPECIAL TASK FORCE ABOUT THE "INTERNATIONAL INDEPENDENT GROUP OF EMINENT PERSONS" [IIGEP] AND THE STATEMENTS MADE BY THEM

MR S.L.GUNASEKERA AND MR GOMIN DAYASRI

 The several public statements made by the IIGEP and their individual members thereof culminating with their "Public Statement" dated the 15th of April 2008 are made with the following objectives: -

(a) to create a climate locally and internationally to discredit national institutions especially the Attorney General and his Department and to present Sri Lanka as a state without law and order

(b) to establish an intimidating environment so as to force and compel the Commissioners to reach a finding against the security forces and their superior officers and absolve the LTTE of any wrongdoing

(c) to set a stage for a prosecutor to emerge who will perform the rituals as desired by the IIGEP, in presenting prejudicial evidence against the armed forces and covering the tracks of the LTTE and their allies both local and foreign.

Furthermore the IIGEPs have displayed their lack of independence and displayed their arrogance in an interview given by the 'Eminent Person' Judge Pierre Cot of France published in the Daily Mirror of 29.3.08 wherein he states that "if the Government is now seeking to invite a new IIGEP"] and thereupon advises the Government to "get some magistrates from different South East Asian Countries, or police officers who are not eminent persons ………………". In their exhibited arrogance of mocking the region of Southeast Asia, these allegedly "Independent" and "Eminent" persons clearly expected us "natives", including the Government and the Commission to pay homage to them and obey their every whim and fancy. Since this did not happen, they departed making wild accusations and ventilating their anger at every possible target. It is good lesson for our government not to grant eminence to such purported "eminent persons" who disgrace our country by acting outside their mandate. This is the obvious consequence of foreign interventions, and the government is now made to look stupid when they blow hot and cold against such so called human rights tourists to whom they once rolled out the red carpet.


The IIGEPs have come to Sri Lanka with `minds filled with gross prejudice against our Country and our Government possibly at the instigation of some NGOs and INGOs, and therefore acquired a settled `opinion' arrived at arbitrarily, that our Security Forces must be found guilty of the several acts of murder which are the subject matter of the inquiries pending before the Commission, regardless of the evidence. Their mandate does not give them the right of making public statements on the affairs of the Commission and such related matters of the Commission. Their rights are limited to reporting to the HE the President, the President of the Commission and to notify the Attorney General. No more. However, acting outside the warrant issued, they have sought to make public declarations to humiliate, expressly or impliedly, the aforesaid reporting authorities and more so prime national establishments.

The four `public statements' made by the IIGEP which had no mandate to make, but made, are, ex facie severely damaging to the Government, the Security Forces and their counsel, were obviously timed to coincide with meetings of the UN Human Rights Commission in Geneva and were clearly designed to create an international climate of opinion hostile to the Sri Lanka in general and the Security Forces in particular, so as to intimidate the Commission into arriving at findings against the Security Forces even in the absence of any credible evidence which establishes their guilt, with the implicit threat of their issuing further public statements saying "We told you so" in the event of their not arriving at such findings against the Security Forces or arriving at findings against anyone else including the LTTE.

While we do hope that the Commission would not succumb to such blatant and insidious attempts at intimidation,, we placed relevant objections openly before the Commission, so they do not succumb to such endeavors. They are as follows:-

a) When Mr. S L Gunasekara who appeared for the STF was cross-examining the witness Ponnudorai Yogarajah who was giving evidence from some foreign country through video conferencing on the 19th March 2008, [in the Trincomalee Case], one Savage, an Assistant of the IIGEP who was in that foreign Country had the audacity to take the witness away while he was being questioned without the leave of the Commission with the peremptory statement "I am concerned about the witness so have adjournment (sic) this witness is not fit to go on thank you", thereby impeding the cross-examination and publicly showing utter contempt for the Commission in the course of the hearing while it was the Commission and the Commission alone which had the authority to decide whether the witness was not fit to go on, particularly since the witness himself did not say so. The Commission, however, did nothing: it did not even reprimand Savage.

b) When the cross examination of the witness was resumed on the next day, another Assistant, one Milner, who was also in that foreign Country, displayed even greater contempt for the Commission and impeded the cross-examination further by arrogantly usurping the authority of the Commission displaying a pronounced "culture of impunity" by having the insolence to purport to determine that some questions Mr Gunasekara asked were irrelevant and/or inadmissible and directing the witness not to answer them, although it was the Commission and only the Commission that had the authority to make any such determination and/or disallow any question Once again, the Commission did nothing and did not even reprimand Milner. This conduct of Milner was all the more reprehensible and the passivity of the Commission all the more disquieting when one considers the fact that, none of the questions which Milner purported to over-rule had been objected to by Mr. Ranjit Abeysuriya P.C. who led the evidence of the witness.

c) The following week Mr. Gomin Dayasri who was appearing for the Army in the Muttur Case objected to Commissioner D Nesiah participating as a member of the Commission in the Muttur case because of his close nexus to an NGO named the Centre for Policy Alternatives and had given the Commission the address, telephone and facsimile numbers of that NGO as being his address, telephone and facsimile numbers and was described as a core staff member holding the designation of consultant while the said NGO was granted representation as a interested party by Counsel and was participating in the inquiry in such capacity. The identical objection was taken by Mr. Gunasekara a day or two later in the Trincomalee case. The IIGEP who show great anxiety to maintain the purity of the proceedings has selected to remain silent. Surely, the principles of natural justice are known to them?

d) When Mr Gomin Dayasri was cross-examining witness R. Perera a senior officer of ACF in the Muttur Case and had elicited from him, the most material and useful evidence that the murdered Aid Workers of ACF had told him they were scared of the LTTE who were all around the ACF office. However the Commission compelled only him to cut short his cross-examination, which limitation was not directed to any other counsel of any other party who were given all the time so desired. When Mr Dayasri complained of discriminatory practice against him only on time restrictions; one Commissioner accused Mr Dayasri of repeating the same questions(correctness of which allegation Mr Dayasri challenged instantly, at which time, no material was presented to substantiate the allegation made by the Commissioner and the said Commissioner remained silent)The said Commissioner did not level any such accusation at Mr Abeysuriya PC who continually repeated the same questions in the Trincomalee case.

The accusation leveled ad nauseam by the IIGEP against the Attorney General and the officers of that Department that they are disqualified from assisting the Commission on the ground of an alleged conflict of interest is unsupported by an iota of evidence. Although the Commission has functioned with officers of the Attorney General's Department assisting it for over one year, the IIGEP has been unable to point to even one act that those officers or any of them have committed that they ought not to have committed or to one act which ought to have been committed that they or any of them have failed to commit. Accordingly, the irresistible conclusion that arises is that they have made the said accusations on nothing more `substantial' than blind prejudice.

What should be, but is not even more strange, but confirms that prejudice beyond doubt is the fact that the IIGEP which never ceases to protest against the non-existent conflict of interest of the Attorney General and his officers, has maintained a deafening silence about the manifest conflict of interest of Dr Nesiah of which there is ample evidence, and the incredible fact of his continuing to be a judge in his own cause as stated above which is against all norms and standards of conduct in our Country. Whether or not the"International Norms and Standards" referred to by the IIGEP reach up to ours in respect of this matter we do not know.

Mr Dana Urban an Assistant to the IIGEP made an application to have the the French International NGO, the ACF, in their absence from the inquiry on the opening day of public sittings, be given representation to watch the interest of the 17 deceased workers who worked at the ACF office in Mutur. Thereupon on the next date of inquiry an appearance was made by counsel for the ACF. Most of the witnesses before the Commission, blamed the ACF for being so insensitive to the conditions in the area and holding their 17 workers captive on their directions of the office in Trinco to the office in Mutur without permitting them to move to a refugee camp or permit the said workers to make their way to safety in a secure ground. Notwithstanding these allegations the ACF, who had a resident French lawyer in Sri Lanka to monitor affairs in the case, as stated by their official witness, suddenly withdrew their local counsel and jettisoned the case and deserted Sri Lanka notwithstanding the application made on behalf of the ACF by the IIGEP to obtain representation at the inquiry, so as to enable them to watch the interest of the deceased. Ironically the IIGEP makes no stricture on the international NGO for their callous conduct or their failure to fulfill their assigned engagement or to provide the necessary supporting evidence before the Commission. It is indeed bewildering that the IIGEP are totally silent on this subject especially as they were so vociferous in obtaining the right of representation to the ACF in the Mutur case.


The IIGEP has repeatedly asserted, in their latest `Public Statement' and their Press Conference that "The Government should respect and implement the internationally agreed doctrine of command responsibility……..where superiors of those who have committed criminal acts may also be held responsible". The question of the Government implementing this doctrine could only arise IF the Commission finds any members of any of our Security Forces guilty of any of the crimes under investigation. That doctrine would be irrelevant if the Commission does not come to any such finding. The Commission has not arrived at any such finding: indeed, with the inquiries being still incomplete it has, quite properly, arrived at no findings. Therefore this is undoubtedly a premature pronouncement made by the IIGEP to lead the Commissioners to reach such a finding so that heads of our security forces can be tried, as desired by them as war criminals in international tribunals.These pontifical statements of the IIGEP therefore, leave no room for doubt that their approach to their mandate,suffused as it is with perversity, is to seek to ensure that our Security Forces [whose members suffer untold hardship and risk their lives day in day out to restore peace in our land by ridding it of the malignant cancer of terrorism] and their Commanders must be presumed to be guilty regardless of the evidence and crucified to appease some perverted segments of international opinion.

The conduct of the IIGEP also shows that their sanctimonious references to the doctrine of "command responsibility" notwithstanding, none of them has so much as "lifted a finger" to cause their own countries to follow this doctrine. Thus, for example:-

a) The Chairman of the IIGEP PN Bagwati of India has not, to the best of our knowledge and belief, made any demand that either the Commanding General or any of the officers of the IPKF should be punished for all or any of the unspeakable crimes against humanity committed by members of the IPKF against Tamil Civilians, some of which make the Trincomalee and Muttur Murders pale into virtual insignificance [see `The Broken Palmyrah' by the UTHR(J) pp.210 to 280]. These crimes against humanity include the Mass Murders committed by the IPKF at the Jaffna Hospital on the 20th October 1987 when they entered the hospital and indiscriminately murdered patients, doctors, nurses and attendants by shooting and exploding grenades indiscriminately [ibid - pages 265 to 272].

b) It was/is, indisputably a horrific crime against humanity for armed forces of affluent countries to invade the sovereign State of Iraq with the most advanced weaponry ever devised, murder Iraqis and destroy their property on their soil, depose its Head of State, hunt and murder the relatives of its Head of State and hunt, capture and lynch that Head of State on the provenly fraudulent pretextof there being Weapons of Mass Destruction [which most of those affluent countries had/have in plenty] in Iraq.

So also was/is, it equally indisputably a horrific crime against humanity for the armed forces of affluent countries to invade the sovereign State of Afghanistan with the most advanced weaponry ever devised, murder Afghans and destroy their property on their soil, merely because it was suspected that a Saudi Arabian terrorist named Bin Laden who was suspected of having instigated the acts of terrorism against the USA on "9/11" was residing in that Country.

Hence, on the doctrine of "command responsibility" not only the Commanders of those Armed Forces, but also the Heads of State/Government responsible for instigating those horrific on-going crimes against humanity, notably, George W Bush and Tony Blair bore/bear that command responsibility.

Yet, to the best of our knowledge and belief no member of the IIGEP from any Country including the UK and the USA who have played a leading roll in these despicable crimes have, despite their much touted alleged "Independence" and "Eminence", demanded the punishment of anyone responsible for such crimes or invoked the doctrine of "command responsibility" which they so freely preach to us in a situation in which that doctrine is yet irrelevant.

Another matter about which the IIGEP has kept berating our impoverished Country is the absence of a `Victims and Witness Protection Scheme' . The IIGEP was well aware of the fact that we, like most third world countries, did not have such a scheme. It was in the full and complete knowledge of this fact that they accepted the invitation of the President. Why then, do they, thereafter, berate us for this fact.

The silly allegation in the IIGEP's Public Statement that the deficiency caused by the lack of "witness protection and assistance….. became more pronounced after counsel for the Government forces [namely, ourselves] were given standing ………the Commission has not always intervened on behalf of affected witnesses in a way that is sensitive to the needs and trauma of the witnesses and their families and is consistent with international norms and standards relating to vulnerable witnesses. Counsel for the Government forces has (sic) often adopted court-room styled cross-examination tactics which may intimidate the witnesses and discourage them from revealing the truth.This may negatively impact on the Commission's ability to fulfil its mandate"

As in the case of their grossly irresponsible allegations against the Attorney General, the IIGEP has failed to point to a single inappropriate or irrelevant question asked by any of us nor have they specified the alleged "international norms and standards" which outlaw that which they pejoratively refer to as "court-room styled cross-examination tactics" and dictate that a different styled cross-examination should be adopted for witnesses who have suffered trauma. In Sri Lanka most witnesses are members of families that have experienced traumatic experiences and judges and counsel have wide experience in handling such witnesses to elicit the truth which is paramount This is another effort to make the Commissioners stifle the cross examinations of the counsel for the security forces which may have led to the time restrictions being placed only on their counsel-a practice so far not extended to counsel of any other party.

     








Based on publicly available documents



Whatever the Courts may be in the countries of the IIGEP, Courts of Law in our Country are honorable institutions designed to dispense justice where no unfair "cross-examination tactics" are permitted in respect of any witness. Cross-examination is the principal means by which falsehoods uttered by a witness can be exposed. It is a vital weapon to protect persons or institutions wrongly accused of various crimes. The fact that a witness had suffered trauma by the loss of a member of his family is no guarantee that the sworn evidence he gives is true: nor is it a circumstance that precludes him from committing perjury. Accordingly, the interests of justice demand that those affected by the evidence given by such witnesses who contend that the whole or a part of such evidence is false should be given the opportunity of cross-examining them as they would, any other witness whose evidence they challenge. To do otherwise would be to impede the Commission in the discharge of its function to ascertain the truth. No person can be deemed to be "Eminent" if he is unaware of these basic facts of life.Thus, the fact that the IIGEP while knowing the above facts has seen fit to make the aforesaid allegation is indisputably a circumstance that points unerringly to the manifest bias of the IIGEP and their disregard for the truth.

 
Two other factors that must be borne in mind in this regard are:-

a) that the witnesses referred to by the IIGEP being witnesses who are now resident abroad in some Country/Countries unknown, it should be obvious to even the IIGEP that they cannot possibly be in need of protection against intimidation from Sri Lanka; and,

b) that since cross-examination commences only after evidence in chief when the witness has had the amplest of opportunity of giving such evidence as he wished, whether true or false, no style of cross-examination, whether "court room" or otherwise [assuming that a `non- court room style of cross-examination' exists] which is designed to expose falsehood could conceivably so intimidate the witness so as to prevent him from speaking the truth.

These self-evident facts make crystal clear the facts:-

a) that what the IIGEP mean by "Witness Protection" is protection from cross-examination and protection from the exposure of the falsehoods uttered by the witness/witnesses concerned; and,

b) that to the IIGEP "truth" means whatever is said by a witness against any of our Security Forces.

While there is a wealth of evidence indicative of the manifest bias of the IIGEP against our Security Forces and in support of those opposed to them such as the Foreign Funded NGOs, we cite but one glaring example of that outrageous situation to keep this statement within manageable limits.

When the Muttur Case was taken up on 3.3.08, one Dana Urban `QC', [the rough equivalent of one of our `PCs'] an Assistant of the IIGEP moved for a postponement on the ground that the foreign NGO, ACF was not represented. The said application was very properly refused by the Commission on the ground that ample notice of the public sittings had been given and no application for representation had been made by ACF. Thereafter Bagwati, the Chairman of the IIGEP whose appearances at sittings of the Commission were deplorably few, had made an application for a cancellation of the sitting fixed for the following day which the Commission, inadvisably accepted on Bagwati's request seeking a meeting with the Commission as informed to us and cancelled the following day's sitting. Did such a meeting which can be held at any time warrant the cancellation of the sittings especially as the IIGEP are placing strictures on delay. On the next date of the Inquiry, the ACF had the opportunity of being represented by Counsel. Accordingly, Bagwati's said application for a postponement, which was, most regrettably granted by the Commission, was designed to undermine and nullify as far as possible, the order of the Commission refusing the unfounded application for a postponement by the Assistant Urban QC.

Another interesting circumstance vis-à-vis the touching concern displayed by Urban for the dictates of transparency which, according to him, demanded that ACF be represented, is that it did not extend to the Armed Forces in that the inquiry in the Trincomalee case in which the STF is accused proceeded for several days while the STF was unrepresented or the Police or para militaries are still not represented in the Mutur casebut neither Urban nor any of his colleagues or masters in the IIGEP made any application for a postponement to enable the STF/Police/Para Militaries to be represented. Is this the equal or fair treatment or justice as contemplated by the IIGEP.

These are but a few of the circumstances that establish the incurable bias of the IIGEP against our Country and its Forces.

All we who, with a genuine and well justified belief that our Nation, comprised as it is of all racial and ethnic groups who inhabit it, owes a debt of gratitude to our Security Forces for their total commitment and monumental sacrifices on behalf of all citizens [including the acolytes and `alms gatherers' of treacherous foreign funded NGOs] demand that they should not be sacrificed at the `altar of political expediency' to satisfy and appease any person/s, institution/s, and/or organization/s however much money and/or influence they or any of them may have.

Criticism of  IIGEP by SCOPP Sri Lanka 

Sri Lanka slams Sir Nigel Rodley's "Sanctimonious Bluster"
Secretariat for Coordinating the Peace Process
https://lankaweb.com/news/items08/300408-4.html

The Plodding Nature of the International Eminent Persons
Secretariat for Coordinating the Peace Process
https://lankaweb.com/news/items08/240408-2.html

Criticism of  IIGEP by Others 

IIGEP move a part of a conspiracy
https://lankaweb.com/news/items08/230408-7.html


The Attorney General yesterday criticised an international advisory panel, saying its resignation from a human rights inquiry appeared part of a conspiracy to force the country to accept UN monitors.

Attorney General C.R. de Silva said the 11 members of the International Independent Group of Eminent Persons (IIGEP) attended less than 10 per cent of the human rights commission's meetings - sending their assistants instead - and did not have enough firsthand knowledge to criticise it.

He also accused the group of timing its highly critical reports on the commission process to coincide with meetings of the U.N. Human Rights Council and other sensitive events. "It's a strange coincidence. Why was this done ? It leaves room for a lot of inferences," de Silva told reporters.

When asked if the experts were part of a conspiracy against the Government, he said, "That is the only inference that any reasonable man can draw."

With their criticisms, the experts tried to paint Sri Lanka as a nation with crumbling institutions that required international monitoring, de Silva said. The Government has rejected such a mission as an infringement of its sovereignty.

The commission of inquiry was formed in 2006 to investigate 16 cases of human rights abuses, including the killing of 17 local workers for the international aid group Action Against Hunger during fighting in eastern Sri Lanka.

The commission has not resolved any of the cases, and the international panel - appointed by President Mahinda Rajapaksa to advise the commission - complained about the slow pace of the probe.

It said the commission was underfunded and was not getting the cooperation of the government.

Several outgoing panel members said they did not believe the commission was doomed to failure.

They hoped the government would adopt their suggestions and the inquiry would be able to identify the perpetrators of the crimes, they said.


IIGEP Assistants by Douglas Wickramaratne U K
https://lankaweb.com/news/items08/290408-2.htm

IIGEP Assistants Douglas Wickramaratne UK 

When I was in Geneva attending the 5th Sessions of the Human Rights Council in June 2007 I seriously began to wonder about the role played by the International Independent Group of Eminent Persons (IIGEP). As usual they had rushed a report critical of GOSL to coincide with the HRC Sessions.

At a meeting organised by ICJ , the IIGEP representative MR Dewey could not offer any explanation to a number of questions raised . One such question was whether it was true that an IIGEP member and one of its Assistants paid an unsoilcited visit to the Kantale Magistrate hearing the case of the 17 aid workers that were killed. As to the role of the Attorney General, I raised the question whether they were aware that in UK,where I live, the AG is appointed by the Prime Minister and he attends cabinet meetings. Whereas in Sri Lanka the AG is not a political appointment.

Following day (14th June) I witnessed a very interersting event. I was at the restaurant , which is the main meeting point for all delegates, when I observed an IIGEP Assistant David Savage in deep conversation with LTTE representative from France and an ex priest Emanuel. The assistant was taking down copious notes for nearly half hour.As he was leaving the restaurant I approached him and asked him whether I could speak with him for a few minutes. He said that he was in a hurry and could spare me just three minutes.

When I replied that it would be difficult for me to counter in three miutes , the LTTE version that had been given to him he blew his top. He denied taking down any notes and said that I should not have been watching him. He said in a somewhat threatening manner he was a police officer from Australia and that I should not repeat to anyone that he took down notes. I asked him whether he was ordering me to deny a scene which I witnessed. Then the man who denied writing a single word said that the only writing he did was to give his address to them. He wrote down his name and email address:dsavage@iigep.org and Jai Hilton number 94 77 387 6005 (note is in my possession). Again he stressed the fact that he gave a similar note only and no notes wre taken. He was obviously agitated.

The next day I spoke with the LTTE man and casually asked him about the notes that Mr Savage took down. He was very upset that I had noticed it and said " oh I had studied with David in Australia and gave him a few names of our ex- classmates."
Was the Assistant going beyond his impartial status?

I hope lessons will be learnt from this sorry episode of inviting foreigners to meddle in the ountry's affairs.

lnvestigations  undertaken by Commission & IIGEP

Case No. 2: The killing of seventeen (17) aid workers of the international non governmental organization Action Contra La Faim. in early August 2006;

Case No. 5: The killing of (five) 5 youths in Trincomalee on or about 2nd January 2006;

Inquiries undertaken by Commission & IIGEP

Case No. 2: The killing of seventeen (17) aid workers of the international non governmental organization Action Contra La Faim. in early August 2006;

Case No. 5: The killing of (five) 5 youths in Trincomalee on or about 2nd January 2006;

Inquiries completed by Commission & IIGEP

None

Investigations & Inquiries Completed by Commission after Departure of IIGEP

Case No. 3: The alleged execution of Muslim villagers in Muttur in early August 2006 and the execution at Welikanda of 14 persons from Muttur who were being transported in ambulances

Case No. 7: Death of fifty one (51) persons in Naddalamottankulam (Sencholai) in August 20

Case No. 11: Killing of ten (10) Muslim villagers at Radella in Pottuvil police area on 17th September 2006;

Case No. 12: Killing of sixty eight (68) persons at Kebithigollewa on 15th June 2006;

Case No. 15: Killing of ninety eight (98) security forces personnel in Digampathana, Sigiriya, on 16th October 2006;

Inquiries undertaken but not completed. 

Case No. 2: The killing of seventeen (17) aid workers of the international non-governmental organization Action Contra La Faim. in early August 2006.

Case No. 5: The killing of (five) 5 youths in Trincomalee on or about 2nd January 2006.


Investigations & Inquiries not undertaken at all.

Case No. 1: The Assassination of the Foreign Minister of Sri Lanka Hon. Lakshman Kadirgamar, PC;

Case No. 4: The assassination of Mr. Joseph Pararajasingham, Member of Parliament on 25th December 2005.

Case No. 6: The Assassination of the Deputy Director General of the Sri Lanka Peace Secretariat Mr. Ketheesh Loganathan on 12th August 2006.

Case No. 8: Disappearance of Rev Nihal Jim Brown of Philip Neri's Church at Allaipidi on 28th August 2006.

Case No. 9: Killing of five (5) fishermen and another at Pesalai beach and at the Pesalai Church on 17th June 2006.

Case No. 10: Killing of thirteen (13) persons in Kayts Police area on 13th May 2006.

Case No. 13: Incident relating to the finding of five (5) headless bodies in Avissawella on 29th April 2006.

Case No. 14: Killing of thirteen (13) persons at Welikanda on 29th May 2005.

Case No. 16: Assassination of Mr. Nandarajah Raviraj, Member of Parliament on 10th November 2006. (Added later)



Outcome of the Investigations / Inquiries 

1. Extract from Country Reports on Human Rights Practices for 2015 United States Department of State • Bureau of Democracy, Human Rights and Labor (253187pdf)


On October 16, Prime Minister Ranil Wickremesinghe tabled two reports in parliament as a prelude to debate on the same scheduled for October 22. Although the investigations detailed in these reports refer to events dating back to 2006, this was the first time their findings were made public.

The first report was by the Commission of Inquiry Appointed to Investigate and Inquire into Serious Violations of Human Rights (also known as Udalagama Commission or UC), established by former president Mahinda Rajapaksa in 2006.

The second was by the Presidential Commission of Inquiry to Investigate into Complaints Regarding Missing Persons (also known as Paranagama Commission or PC), also established by former president Rajapaksa in 2013.

The UC was tasked with investigating 16 of the country’s most high-profile cases of human rights violations, which occurred from 2005 to the date of its appointment.

Some of these cases included the killing of 17 aid workers of the international nongovernmental organization (NGO) Action against Hunger in 2006; the killing of five youths in Trincomalee (also known as Trinco Five) in 2006; the killing of Foreign Minister Lakshman Kadirgamar; and the killing of Tamil National Alliance parliamentarian Joseph Pararajasingham in 2005, among others.

Civil society often criticized the PC and UC’s operations for their inefficiency, flawed methodology, overt intimidation of victims who gave testimony, and concerns that it was established largely to exonerate the military for its prosecution of the war.

The UC completed proceedings in only seven of the 16 cases it was charged with investigating, citing insufficient time for the remaining nine. It concluded the LTTE terrorist group committed killings in a majority of cases investigated but also found the military culpable in others.

The PC report accepted Sri Lankan Army (SLA) shelling caused a substantial number of civilian deaths but stressed “this was an inevitable consequence of the LTTE’s refusal to permit civilians to leave their control in order to use them both as a shield and a pool for recruitment.” Its findings thoroughly rejected the suggestion that “civilians were either targeted directly or indiscriminately by the SLA as a part of an alleged genocide plan.”

The PC asserted the military lacked the credibility to probe charges against itself of having committed gross violations of human rights, necessitating an independent judicial investigation with some degree of international involvement to establish the facts.

2. Newspaper Report of an interview with Justice N. K. Udalagama, after the winding up  of the Commission .

 https://www.sundaytimes.lk/090621/News/sundaytimesnews_16.html

It is reproduced Below:

The Commission acted as a deterrent: Justice Udalagama
Judge recommends permanent body to probe violations
By Chandani Kirinde


Two and a half years after the Presidential Commission of Inquiry headed by retired Supreme Court Judge Nissanka Udalagama was appointed to look into cases of serious violations of Human Rights occurring since August 1, 2005, including the assassination of former Foreign Minister Lakshman Kadirgamar, the killing of 17 aid workers of the French INGO Action Contre Le Faim in Mutur , the killing of five youths in Trincomalee and the disappearance of Rev. Nihal Jim Brown of Philip Neri's Church at Allaipidi on August 28, 2006, it’s term came to an abrupt end last week with hearings into only seven cases concluded

The Sunday Times spoke with Commission Chairman Justice Udalagama to ascertain his views on the workings of the Commission.

Why did the term of the Commission end abruptly?

A: The term of the Commission was extended every six months, but this time when we wrote to the President and sought a further extension, we were asked to submit a report on the cases into which we had concluded hearings. We had concluded seven of the cases and the report will be handed over by next week.

What cases have you completed?

A: We had to leave out the Lakshman Kadirgamar case as indictments had already been filed in Courts. We concluded our investigations into the killing of the 17 aid workers, the five students in Trincomalee, the Muslim villagers in Mutur in early August 2006, the execution at Welikanda of 14 persons who were being transported in ambulances from Mutur as well as the deaths that took place following an air attack at Sencholai. The other two cases were the bomb attacks on a bus carrying Navy personnel at Digampathana, Sigiriya and the claymore mine attack on a bus at Kebitigollewa, both of which were carried out by the LTTE.

What were the conclusions you arrived at with regard to some of these cases?

A: According to two witnesses in the Sencholai case from whom we heard evidence, the students had been taken by force in a bus from their school and forced to undergo armed training. Three girls survived the attack and one died later in Vavuniya Hospital. One came before the Commission and gave evidence. The other gave a statement from Hospital.

The killing of the aid workers is one case that drew international attention, Are you satisfied with the conclusion you have reached into this case?

A: I can’t say I am fully satisfied because not every witness could testify. There were two important witnesses, one a woman labourer who was the last to visit the ACF office before the incident took place .She sought asylum and now lives abroad. The other is a policeman who had seen the whole episode. He too is abroad. They were vital witnesses but would not give evidence.

Why could they not testify?

A: In the aid workers case as well as the killing of the five students, through the assistance of the International Independent Group of Eminent Persons (IIGEP) that was appointed to assist us, we heard testimony from several witnesses through the video link. But we could not hear evidence of all the witnesses as the video conferencing was stopped.

Why was it stopped?

A: There was an instance when one witness was giving evidence, it was obvious that they were manipulating the whole thing. So much so that when Counsel S.L.Gunasekera was questioning the witness through the video link, a person seated next to him told him not to answer the question. So there were protests. So we were told to stop the video conferencing. Instead we were told a Witness Protection Law would be passed by Parliament soon but that also did not happen. Hence several witnesses could not testify freely.

Can you say your findings are conclusive regarding the aid workers’ killings? Are you pointing the finger at any one or group in particular?

A: We have said there were two or three possibilities. When looking at the possible time of death, Mutur was in the control of the LTTE. But within the Police Force there were home guards that had a motive to carry out such an attack. We have given the possibilities and asked the President to pursue further investigations into this.

With regard to the killing of the students in Trincomalee, are your findings conclusive?


A: The evidence we heard was that the students were shot by men in uniform. One boy who escaped with injuries and who gave evidence before a Magistrate said that they were men in uniform but he could not identify them. One of the students who was the only other eyewitness and living abroad and was willing to give evidence could not testify after the video link was discontinued. The others who gave evidence in the case were parents of the dead boys.

What about the other cases?

A: With regard to the disappearance of Rev. Nihal Jim Brown at Allaipidi in August 2006, inspite of all the effort we were unable to find his body or find anyone who saw the body. An inquiry into it would have become a futile exercise because we cannot recommend it to the High Court because the Court will not take up a case where there is no body.

What about the assassinations of TNA MP Joseph Pararajasingham in Batticaloa in 2005 and the Deputy Director General of the Peace Secretariat Ketheesh Loganathan in Dehiwela in 2006?

A: We could not start on these cases as we had no time.

The role of the International Independent Group of Eminent Persons (IIGEP) was a controversial one and the members eventually left due to disputes with the Commission last August. Did their presence serve any purpose?

A: The IIGEP was created to assist the Commission but from the beginning they were confrontational. They were questioning the independence of the Commission. They were also complaining over the delays but we were taking time for good reasons. Under the Commission of Inquiry Act, we had to have a quorum of all eight members on sitting days but this was difficult. So we had to have the Act amended by Parliament for the Commission to meet with five members including the Chairman present at all sittings. . That process took eight months.

How important is witness protection?

A: We were asked to inquire into these incidents and to do so we needed witnesses. But the situation was such that many witnesses failed to come forward. So, if we had a scheme where we could have safe houses and other methods of protecting them that would have helped us.

Do you feel that these presidential commissions serve a useful purpose or are they a waste of money?

A: One recommendation that we made to the President was that this kind of Commission must be there permanently. Since our Commission began functioning, the kinds of incidents we were investigating stopped taking place. This means the existence of the Commission acted as a deterrent of sorts. I know that members of the armed forces and police were told about the existence of such a Commission.

What other recommendations have you made?

A: There is a UN Protocol on Command Responsibility. Parliament needs to enact laws to give legal effect to it. That too we have made recommendations. The other issue is adequate compensation for victims and families of victims of such crimes. In the ACF case for example, the French NGO needs to take some of the blame for what happened and compensate the families. But the families were not adequately compensated.

Based on your report, can legal action be initiated against anyone?

A: No, that is not possible. The perpetrators of these crimes have to be found.

What about the role of the Police. Are they doing their investigations satisfactorily?

A: This Commission was unique because we were asked to do the investigations based on the premise that Police investigation was not satisfactory. This is what took up a lot of our time. We had to do what the Police were supposed to do. At the end of the police investigation, they concluded there were no witnesses and closed the cases. We put newspaper notices calling witnesses to come forward, that we will provide adequate security and bear travel costs. But I can’t say it was successful. Later the CID took over, but they too had the same problem.

Isn’t it because people have no confidence in the system?

A: One of the reasons I think is the environment prevalent in the country. If things get better, we may have more witnesses coming forward and giving evidence. It is the civic duty of a citizen to do so but we cannot force them. For example, there was a man who lost one of his sons in the ACF incident and the other son in the Trincomalee student shooting. When we went on a field visit, we met him and asked him to give evidence. He said not to ask him to give evidence saying he had already lost two sons and had two more and needed to safeguard them.

Reactions of Amnesty International

 Their comments can be accessed here:

Sri Lanka's Commission of Inquiry
Twenty Years of Make-Believe
Amnesty .Org.

https://www.google.com/url?q=https://www.amnesty.org/en/wp-content/uploads/2021/06/asa370052009eng.pdf&sa=U&ved=2ahUKEwiD-vqcopGDAxWxW2wGHZ1_DVwQFnoECAMQAg&usg=AOvVaw0obE8lMXZJpgOteVj9rJnG


Comments made by Prof. Bruce Mathews to the Foreign Affairs Committee in Canada on 30 March 2009

50 p.m.

Bob Rae Liberal Toronto Centre, ON

I'll share my time with my colleagues.

Just briefly, thank you both, Dr. Cameron and Dr. Matthews. I won't ask a question to Dr. Cameron because I feel I know him too well.

I would like particularly to ask Dr. Matthews if he could tell us a little bit more about his experience on IIGEP, because I think it might be beneficial for members to understand what that process was and what happened as a result of it.

LINKS & SHARING
 
AS SPOKEN

March 30th, 2009 / 3:55 p.m.

Prof. Bruce Matthews

Thank you, Mr. Rae. I'd be glad to do so, in a sort of encapsulated form.

The Government of Sri Lanka invited IIGEP to come to Sri Lanka. It wasn't imposed on them. By the way, I'll say right now, in case I forget to say it later, that I think this is the last time any international body will be invited by the Government of Sri Lanka, at least under the Rajapaksa government.

That's because we did our work quite thoroughly, and it was found to be too hard for the government to swallow--what we were offering in terms of what we felt our mandate was. The mandate was to observe a committee struck in Sri Lanka of Sri Lankans, including three Sinhalese, two Ceylon Moors, and two Ceylon Tamils. So, it was a multicultural panel. Many of them were lawyers. They were all distinguished people. They were all hard-working and certainly they were all honest. But they had a limited budget, and they were very carefully controlled by the Attorney General's office.

The Attorney General in Sri Lanka should not have been a part of the commission of inquiry's work, which had, as its mandate, to find out why 16 particular atrocities had occurred. The commission of inquiry should have asked the question of the whole apparatus or system of state. What is it that failed in the state, its police, and its judiciary? Why did the police and judiciary fail in not being able to solve these human rights atrocities or abuses initially? And why have they been lingering in the background for three or four years and still haven't been solved?

Instead, that commission of inquiry got itself bogged down in trying to establish an initial prospect on all of these cases, not questioning why the system failed, but going back to square one and interviewing all the so-called witnesses from the original atrocities. This took endless time. Everything was done in English and had to be translated into Sinhala. I was the only person in the IIGEP who could speak Sinhala. So it was necessary to do this and make it available in English, yet that added 30% to our time. So the sessions became extremely tedious, and furthermore, they weren't going anywhere.

We would periodically give our advice. Every six weeks we would offer our advice to the commission of inquiry, and we had two weeks in which they could respond. After they responded, we published our observations and they were in the press, and they were not always complimentary.

Some of these so-called atrocities involved just a single person, for instance, the assassination of Foreign Minister Kadirgamar. Some of them were huge cases, like the death of 137 sailors who were blown up at a bus stop near Dambulla.

But the one that was particularly poignant to us was the assassination of 17 aid workers for Action Contre la Faim, a French NGO that was working in the Muslim village of Muttur, south of Trincomalee. Bernard Kouchner, the now current foreign minister for France, was on IIGEP at that time. He really wanted to press that, so we pressed it. We found that this took 6 months of our 14 months, and still it was not a case that came anywhere near being solved, even though it was quite self-evident that it had been perpetrated by the forces of the state.

After a while it became quite clear that the directives to the commission of inquiry were coming from the Attorney General's office, or even higher. They became quite insulting to P. N. Bhagwati, who was the former Chief Justice of the Supreme Court of India and who was the chair of IIGEP. He basically said that if this didn't improve, we should resign, so we did. We resigned after 14 months.

I don't say it's a failure, just like I don't think the Forum of Federations initiative was a failure. I think we added something to it.

Release of the Commission Report

The Commission Report was not immediately released after the Commission concluded its sittings in June 2009.
It was made available to the Lessons Learnt & Reconciliation Commission at the request of its  members in 2011.
Thereafter, the report was tabled in Parliament in October 2015.
It has, however, not been released to the public.

Conclusion

This was the first time that a Commission of Inquiry was appointed with the participation of international observers. This was also the first time that a Commission of Inquiry was required to conform to international norms & standards.
Much was expected from it, but in the end its findings in a few cases did not satisfy either the international or the local community, especially the kith & kin of the victims.
Had the modalities for the conduct of investigations & inquiries been agreed upon prior to its commencement, a better outcome might have been achieved & much bickering could have been avoided. 

For example, at all Commissions of Inquiry held earlier, Counsel from the Attorney General's Department had assisted the Commissions. Therefore, the appointment of Counsel from that department to assist this Commission was nothing new. However, among other matters relating to conflict of interest, members of IIGEP/Assistants had seen officers from the department accompanying government delegations to the sessions of the OCHR , ostensibly to defend the country's human rights record & therefore they found a conflict of interest in their role at the Commission. 
The absence of a Victim & Witness Protection law was another. The need for such a law had not been realized by the government until it was raised by members of IIGEP.
At the first meeting, Justice Bhagwati himself outlined the concept of 'command responsibility ' which will be applicable in the cases under review but the occasion to apply this concept did not arise. 
Their other concerns are reflected in the public statements.
The Commission did take remedial measures, where applicable

 End.

It is considered appropriate to refer to the article reproduced below by Sunday Times Columnist, Kishali Pinto Jayawardena on 16 July 2023 on a proposed Commission of Inquiry with foreign Observers.

Circus tricks to satisfy international audiences

President Ranil Wickremesinghe’s assertion during a recent interview with the French media that the Government of Sri Lanka will invite foreign jurists to ‘observe’ the sittings of the proposed Truth and Reconciliation (TRC) Commission and that therefore, ‘no one can say that it is a cover-up,’ is political satire of the most rip-roaring kind.

I say this with tongue firmly in cheek. Typically, President Wickremesinghe pulled out what would have occurred to him as a trump card before international media. But for Sri Lankans with reasonably good memories, that proclamation of ‘foreign observers’ as a bulwark to preserve the integrity of the TRC process has terrible echoes of deja vu. For this is not the first time that a Head of State has resorted to this particular circus trick to deflect pressure.

The very last example we had was in 2007 when former President Mahinda Rajapaksa invited eleven international jurists headed by former Indian Chief Justice PN Bhagwati to ‘observe’ the sittings of the Udalagama Commission of Inquiry tasked with probing sixteen human rights violations. The incidents included two of the most egregious instances of extra-judicial killings of civilians in Sri Lanka’s turbulent history of deadly conflict.

These were the two separately carried out summary executions in 2006, of Tamil and Muslim aid workers in Mutur and the casual killings of five Tamil students who had gathered for a convivial evening on the Trincomalee beachfront before proceeding for their studies. To be clear, all these victims were conclusively established to have had no links to the separatist struggle being waged by the Liberation Tigers of Tamil Eelam (LTTE) at the time. Perhaps more than any other example, the cases symbolised the agony of innocents caught up in conflict.

How not to inquire into state abuse

At least in these two instances, if the legal process had been allowed to proceed without political interference and if the families of the victims had been granted their ‘day in court’ with punishments under law meted out to the perpetrators, much of the country’s later convulsions with ‘international justice’ may have been avoided. But that was not to be. In fact, the Udalagama Commission of Inquiry soon became a classic case study of how not to inquire into gross human rights abuse.

In a reflection that I wrote for the Sunday Times after the Commission was abruptly wound up without being allowed to complete its investigations (‘A Fitting End to a Shakespearean Farce,’ Focus on Rights, June 21st 2009), it was stressed that this ending was sadly but entirely predictable. The Government was put on inquiry as to why such tremendous amounts of money had been wasted on a useless exercise. Could not these energies and resources have been better directed towards ensuring that the legal process proceeded in accordance with Sri Lanka’s penal and criminal procedure laws?

As observed, ‘(this) concerns the near complete failure of Sri Lanka’s investigative, prosecutorial and judicial agencies to act against those who repeatedly commit abuses under cover of conflict. None of these three branches can absolve themselves of responsibility…each failure is inextricably connected to the other; cumulatively they form a pattern that surely should trouble each and every one of us as clear thinking, rational citizens.’ Victims of state terror, Sinhalese, Tamil or Muslim as the case may be, can only helplessly look on when de jure (legal) impunity is afforded to their abusers.

The 2007 farce with ‘international observers’

This propels us down a slippery slope which leads to the clamour for ‘international justice.’ So, where does this leave Sri Lanka’s multiple victims? Close to one and a half decades later, that question still stands true in respect of relevant cases tortuously dragging on in courts despite periodic promises of state law officers to ‘expedite’ the prosecutions. But the failure of the Udalagama Commission was aggravated by the near total disaster with ‘international observers’ which we need to be reminded of.

That is all the more important when the President sunnily promises ‘international observation’ yet again in the belief that this will be a panacea to cure all ills. In 2007, the begrudging agreement to bring in foreign jurists was due also to the (then) President attempting to wriggle out of a tricky situation. But the Government had badly misjudged the calibre of the observers, named rather amusingly as the International Independent Group of Eminent Persons (IIGEP).

The team, apart from the former Indian Chief Justice, included jurists such as the late Professor Nigel Rodley. These jurists of no gentle mettle had fashioned legal international norms on State accountability and dealt with States which were far more fractious than the Sri Lankan Government. Essentially, they had no problem in calling the bluff of those who tried to pull the wool over their eyes, so to speak. After just ten months of open loggerheads with the Attorney General’s Department in particular over the ‘subversion’ of the Commission, the IIGEP packed up their bags and left.

Six grounds that showed absence of political will

In a public statement released afterwards, headlined, ‘A Lack of Political Will to Support a Search for the Truth’, five reasons were detailed. Firstly, there was a fundamental conflict of interest in the Commission proceedings due to the fact that ‘…the Attorney General’s Department of Sri Lanka has played an inappropriate and impermissible role in the proceedings of the Commission and in advising the Commission on the conduct of its proceedings.’

Elaborating on this, it was pointed out that, ‘An officer (Deputy Solicitor-General) of the Attorney General’s Department has taken a leading role in two of the four cases before the Commission so far, by way of acting as lead counsel in the questioning of the witnesses.’ However, where the investigations, or allegations against government forces, including the security forces under review are concerned, ‘the Attorney General has powers, and exercised them in some of these cases, to give advice or directions to investigating officials during the original police investigations.’

Buttressing this view that a serious conflict of interest arose thereby was an opinion by two (retired) Supreme Court justices who, in their time, had formulated Sri Lanka’s public law jurisprudence. The observers also listed the absence of a credible and effective victim and witness protection programme, lack of timeliness and transparency in Commission proceedings, lack of full cooperation by State bodies and lack of financial independence of the Commission as grounds for their loss of faith.

Scandalising controversies in Sri Lanka and overseas

These five publicly stated grounds were however, just the tip of the iceberg. The carefully phrased language belied the scathing nature of the mission’s meticulously detailed and rigorously researched confidential reports on their ‘failed observation’ in Sri Lanka. These reports which were circulated internationally worsened the crisis of the State’s credibility. Those ten months had seen unprecedented antagonism directed at the observer mission by the Government which accused the observers of sending their assistants to monitor the process.

The disputes were also featured most embarrassingly outside Sri Lanka. The Indian media carried its former Chief Justice’s pained expostulations that Sri Lankan State officials including the Attorney General should respond to him in ‘courteous language.’ Finally, the process itself threw more mud on the Government’s face than if the ill-managed observation exercise had not happened at all.

Fast forward to the present, the credibility of Sri Lanka’s proposed TRC requires far more than a deftly turned Presidential reliance on ‘international observers.’ Even if the interventions of the state law office is handled with more finesse, major questions remain regarding the very same problems posed by the IIGEP, including most notably the utter failure of an effective victim and witnesses protection programme. The answer does not lie in securing massive funds to pay a proposed TRC’s staff through donor funding or otherwise.

Surely, have we not learnt this painful history lesson at least now?

Original Caption -The president’s ‘trump card’ on the proposed TRC and a history lesson,

(16 July, Sunday Times)




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