Inspired Leaks: A New Form Of Diplomacy For The UN?

In a surprising departure from best practices for a multi-lateral organization, the UN last week leaked to the media an email purportedly sent by one of its demining experts in a thinly veiled move to pressure the government of Sri Lanka on allegations of human rights violations by its forces during the last stages of the conflict with the Liberation Tigers of Tamil Eelam which ended in May 2009.

Beginning a new wave of anti-Sri Lanka propaganda, the report was widely carried by media worldwide, and cast further doubts on the impartiality of the UN. It alleged that a leaked UN email claimed the discovery of cluster submunitions in the former LTTE stronghold of Puthukudiriyuppu.

The AP report carried in the Washington Post stated: 

The Associated Press obtained a copy Thursday of an email written by a U.N. land mine expert that said unexploded cluster bomblets were discovered in the Puthukudiyiruppu area of northern Sri Lanka, where a boy was killed last month and his sister injured as they tried to pry apart an explosive device they had found to sell for scrap metal.

The email was written by Allan Poston, the technical adviser for the U.N. Development Program’s mine action group in Sri Lanka.

“After reviewing additional photographs from the investigation teams, I have determined that there are cluster sub-munitions in the area where the children were collecting scrap metal and in the house where the accident occurred. This is the first time that there has been confirmed unexploded sub-munitions found in Sri Lanka,” the email said.

During the final weeks of the war, tens of thousands of civilians and Tamil Tiger rebel fighters were trapped in a tiny section of Puthukudiyiruppu as attacking government forces closed in on them.

Lakshman Hulugalla, a Sri Lankan government spokesman on security matters, said the military had not used cluster munitions in the war against the Liberation Tigers of Tamil Eelam.

“We are denying that information,” he said.

The U.N. did not immediately respond to an AP request for comment.

UN’s Allan Poston however, responding to an emailed query by this writer admitted that he was the concerned Senior Adviser and suggested that the query be made from the Sri Lanka Mine Action Centre. 

“It is suggested that you contact the Sri Lanka National Mine Action Centre (NMAC), which is the entity leading mine action in Sri Lanka.  The United Nations Development Programme’s (UNDP) role is to provide technical assistance to NMAC. In addition, there is a standard procedure within UNDP for engagement with the media and as the concerned Senior Adviser I would defer to the senior management of UNDP,” the email received on Thursday stated.

Madhushala Senaratne, Communications Associate at the UNDP to whom the email had been copied also declined a response from the UNDP and requested that the NMAC be contacted. However, NMAC’s Monty Ranatunge could not be contacted via telephone and did not respond to an email.

Sri Lanka’s Media Centre for National Security firmly denied that the armed forces used any cluster munitions. In a Press Release Friday, it said:

The rehashed allegation in international media that the Sri Lankan Armed Forces used cluster munitions during the Humanitarian Operations is baseless.  It is a repetition of similar allegations that were made earlier on several occasions and is not based on any facts.

The UNDP official quoted in the news report has confirmed that his email to superior officials in the UN Headquarters, which was quoted by the media, was only meant to explore the possibility of obtaining further assistance for Mine Action Program in Sri Lanka and that he made no reference to alleged use of cluster munitions by the Sri Lankan Forces.

The Sri Lankan Forces comprehensively defeated the LTTE in May 2009 and liberated over 290,000 hostages who were forcibly held by the terrorists as a human shield. Neither ‘Cluster Munitions’ nor illegal weaponry were used.  The Sri Lankan Armed Forces used only carefully planned precise military actions in this humanitarian endeavor. 

The leak of the email from the UN’s secure internal email system and a later allegation by an unidentified medical officer (in another story by the same AP writer) appeared to have been carefully timed to coincide with UN Secretary General Ban Ki-moon’s three-day visit to New Delhi. 

However, the current allegations follow a pattern set on earlier occasions when so-called human rights organisations made subjective pronouncements in support of wild claims against Sri Lanka.

Hardly 24-hours after the AP news report alleging the discovery by the UN of cluster submunitions in Sri Lanka, another report by the same AP writer alleged that an unidentified medical worker had seen an injury caused by an unexploded cluster bomblet. 

The report published Friday by ABC News on its website stated:

A Sri Lankan man was wounded in the final months of the country's bloody civil war by an unexploded cluster bomblet that tore into his leg and buried itself in the gash, a medical worker who saw the injury told The Associated Press on Friday.

The revelation, along with a photograph that purports to show the wound, added further credence to accusations cluster munitions had been used during the final months of the war.

Many of the thousands wounded in the government offensive against ethnic Tamil rebels in northern Sri Lanka also had burns consistent with those caused by incendiary white phosphorus bombs, the medical worker said. He spoke on condition of anonymity out of fear of reprisals from the Sri Lankan government.

Adding credence to the view that that the leak was UN inspired was the fact that the UN Secretary General repeated some unsubstantiated allegations against Sri Lanka during his visit. In an interview with the Times of India he said:

But in the course of the final few months of the military operations, it was also seen that unfortunately, tens of thousands of people were killed and human rights have been seriously violated. I have been urging president Rajapakse and his government to address this issue for sustainable social and political path. Accountability should be taken. I have established a panel of experts and Sri Lankan government, upon strong urging from the international community has instituted their own Lessons Learnt and Reconciliation Commission. They made good recommendations. It's important for President Rajapakse to implement the recommendations of the LLRC as well as my panel of experts.

Ban Ki-moon understandably, made no mention of the leaked email. His Panel of Experts’ Report was also leaked prior to its official publication. This writer has dealt extensively with the report in an earlier article and called for its withdrawal. The UN has made no attempt to investigate the leaks.

Unsubstantiated allegations contained in the report have been recycled in the media and have helped a former UN staffer sell his book worldwide, on his version of Sri Lanka’s conflict.

The Washington Post report referring to the email from the UN Mine Expert also stated:

Alan Keenan, Sri Lanka project director for the International Crisis Group, said the revelation “makes more clear than ever the need for a thorough and independent investigation of alleged violations of the laws of war by both the government and the LTTE, which only an international body can provide.”

Curiously, the UN Panel of Experts Report to the UN Secretary General also relied on unidentified sources that are not known to have had recourse to Sri Lanka’s judicial system. The recent case of the deportation of an Australian national who was involved in Sri Lankan politics after over-staying his visa has brought to the surface the possibility of a large number of asylum seekers whose applications have been approved by the host countries and given immunity by providing them with new identities.

The current wave of anti-Sri Lanka propaganda appears to be part of a concerted PR campaign in support of attempts by the exiled LTTE activists to haul Sri Lankan leaders before the international court of justice on charges of war crimes and conveniently timed to coincide with the visit to India of the UN Secretary General.

However, UN conventions and international best practices are quite clear that domestic mechanisms must be exhausted before any international interventions can be invoked with regard to violations of international humanitarian law or international human rights law unless they are ineffective or cause undue delays. Sri Lanka’s legal system is being constantly upgraded with international donor assistance and has not been found wanting in this regard.

A news release by the US Embassy in Colombo today, states that Deputy Assistant Secretary (DAS) of State for Plans, Programs and Operations Walter D. Givhan visited Sri Lanka from April 26 to May 2. DAS Givhan serves in the U.S. Department of State Bureau of Political-Military Affairs and is responsible for providing executive leadership, management, and guidance for U.S. government global security assistance programs and policies. The release further stated:

While in Sri Lanka, DAS Givhan held meetings in Colombo and visited Kilinochchi and Vavuniya.  In the North he met with various Non-Governmental Organizations to discuss the progress of demining activities in the region.  During his field visits to demining sites, he discussed the challenges facing demining and provided support to the ongoing demining process. While in Colombo, DAS Givhan met with Defense Secretary Gotabhaya Rajapaksa, Army Commander General Jagath Jayasuriya and Navy Commander Vice Admiral D.W.A.S. Dissanayake to discuss the military bilateral relationship and support towards demining.

The U.S. has provided over $34.5million to aid Sri Lanka’s demining activities since 1993. In 2011, the U.S. donated $2.5million for demining, and increased this support to $5million in 2012.  The U.S. Government will continue to assist Sri Lanka in its demining activities to allow Sri Lankan families to move back to their homes.

Significantly, the US Embassy release makes no mention of the allegations attributed to the UN staffer’s mail.

Neither has the UN mentioned about Sri Lanka using cluster munitions in the various reports, although its current ten-year project is due to end this year. The UN Secretary General’s amplification of the unsubstantiated claims regarding those killed during the last stages of the conflict in Sri Lanka has been viewed with disfavor by the country’s leadership according to a media report. The Island in a report datelined April 29, 2012, stated: 

A statement attributed to UNSG Ban Ki-moon regarding the final phase of the conflict and post-war reconciliation efforts will be taken up by the Sri Lankan government once the former South Korean diplomat returns to New York from Myanmar.

Authoritative sources told The Island yesterday that External Affairs Minister, Prof. G. L. Peiris had instructed Sri Lanka’s Permanent Representative at the UN, Dr. Palitha Kohona to take up the issue as the comments attributed to the UN chief were inappropriate. The comments were made in an exclusive interview with The Times of India during a brief visit to India before he left for Myanmar.

The Sri Lankan government feels that the UN chief’s statement is unfair and could be exploited by the LTTE.

The UN Secretary General should investigate the leaks and raise the bar for UN activities around the world. Else, the bulk of the UN membership is likely to lose confidence in the only multilateral organization that binds the majority of nations together, as well as on the UN’s Chief Executive Officer. END.

UN Refused to Cooperate in Preparing Facilities to Receive 250,000 IDPs in 2009

A Sri Lanka Government official charged that UN agencies, INGOs and NGOs had refused to cooperate in preparing facilities to receive 250,000 IDPs in Vavuniya at the end of the conflict.

A batch of LTTE cadres rehabilitated by the Sri Lanka Government await their reintegration to society at the Vavuniya Town Hall, April 2011. (Photo: Ranjit J. Perera)

Vavuniya Government Agent, Mrs. P.S.M. Charles told this writer in an exclusive interview last year, that the government decided to proceed to prepare the infrastructure to receive at least 250,000 people (at the Menik Farm) after the UN agencies, INGOs and NGOs had a heated argument with the GA and refused to cooperate. She also said that the government around the same time sent food and essential items for 400,000 people knowing very well that it was an over-estimation, on the basis that even the LTTE cadres were citizens of Sri Lanka.

She also spoke of how the government on its own organised a food convoy to LTTE held areas following a delay in the WFP getting security clearance from its own security advisors. 

Listen to extracts of the interview held at the Vavuniya GA’s Office on April 25th 2011.

(The interview was conducted as part of a documentation process and has not been published before. The decision to publish extracts was made in fairness to the large number of people who value the new found freedom in Sri Lanka and yet are helpless in the face of the heavy international media barrage in view of the US sponsored resolution on Sri Lanka due to be tabled at the 19th Session of the UNHRC.)

Ban Ki-moon Should Reject the Report of the Panel on Sri Lanka and Restore Confidence in the UN

An analysis of notices published by the UN Panel of Experts (POE) calling for submissions and email correspondence this writer has had with the Panel show that the Panel has effectively denied the citizens of Sri Lanka an opportunity to be heard by the Panel.

The POE has surreptitiously given more time for detractors of the Government of Sri Lanka (GOSL) by publishing on scribd.com a notice calling for submissions which few were aware of.  Even an emailed reply to those who enquired less than two weeks before the end December 2010 deadline, did not mention the impending deadline although it had been extended for reasons best known to the POE.

They have in this manner systematically favoured the receipt of submissions against the Government of Sri Lanka (GOSL).

Compelling evidence demands that the UN Secretary General Ban Ki-moon should officially reject the Report of the Panel of Experts (POE) on Sri Lanka for not adhering to accepted norms of objectivity, transparency and accountability.

Sri Lankans Denied Opportunity to Make Submissions

It was in 1952 that the UN began its work in Sri Lanka, three years before the country was formally admitted as a member state of the world body. Despite having been in the country for sixty years, the UN did not see it fit to publish in the local media, its call for submissions. An enquiry directed to the UN offices in Sri Lanka by this writer via their website asking whether the UN in Sri Lanka was involved in publishing any notices in the local media on behalf of the POE calling for submissions from Sri Lankans, remains unanswered.

According to a recent report by Nielsen Sri Lanka, internet users in Sri Lanka represent only 14 percent of the population. Despite huge advances in recent years, the use of traditional media is a must for effective mass communications in Sri Lanka.

The UN has thus effectively denied the citizens of Sri Lanka the opportunity to be heard before the Panel. Yet, the recommendations have been recycled by interested parties clothing the so-called “credible allegations” in a veneer of respectability, to the point of becoming indictments against the GOSL. These allegations are made without a shred of evidence and no recourse to the legal system of Sri Lanka.

Panel Report Fails on Accountability

The UN Panel of Experts (POE) Report on Sri Lanka should have been a clear-cut document that embodied facts with substantiating evidence based on international norms and best practices and some clear recommendations based on its terms of reference, for the UN Secretary General to act upon. Instead, it has stirred controversy and been widely condemned in Sri Lanka, by the very people whom it was intended to benefit.

That this report could have far reaching implications for Sri Lanka need hardly be said. The wider implication however, is that it could prove a precedent for all member countries of the United Nations.

That precisely is the reason that the UN Panel of Experts Report on Sri Lanka should be subject to exacting standards of accountability; and it is there that it fails.

The Panel has failed to adopt a methodology by which they could arrive at impartial conclusions and has created a serious doubt as to whether it was pursuing an agenda designed to indict Sri Lanka for ‘war crimes’.

Flaws show up in Email Response

It was on October 18, 2010 that the POE invited submissions with a deadline of December 15, 2010. However, this notice was not published on the UN website. Having found the notice posted on Scribd.com via a search on the internet, this writer sent an email on October 21, 2010 seeking further information. Since no reply was received, a reminder was sent to the POE on November 21, 2010.

On December 18, 2010 the following reply was received:

Dear Sir, Madam,

Thank you for writing to the Secretary-General's Panel of Experts. The Panel appreciates the time you have taken to your share your contribution with it.

The Panel is unable to reply to each individual given the volume of messages received.

The responses to a number of frequently asked questions are thus set out below.

Q.: Can I write in Sinhala or Tamil?

A.: Yes, though English, being the Panel's working language, is preferred. 

Q.: Is my submission confidential?

A.: Yes, your submission will be treated as confidential. Neither your name nor identifying particulars will be specified in the Panel's report.

Q.: When will the Panel make its report?

A.: The Panel anticipates submitting its report in January 2011.

Q.: Will the Panel's report be made public?

A.: The report is to the United Nations Secretary-General. He will decide whether to make the report public.

Q.: Can I speak to the Panel in person?

A.: The Panel has a limited time for its work and has therefore chosen to request contributions in the written form detailed in the notice.

Q.: Can I make multiple submissions?

A.: You are requested to raise all issues you wish to raise within the one, single submission. 

Q:  Can I send my submission in hard copy to a physical address?

A.: Yes. You may send materials to the following address within the timeframe set out in the notice:

  

  Secretary-General's Panel of Experts on Sri Lanka

  UN Secretariat (Library Building, L-0330 L)

  New York, NY 10017

  United States of America 

Q:  Can I submit non-written materials, such as photographs and film clips?

A.:  Yes. Please enclose such materials as attachments to your email or mail them to the above address.

Thank you again for taking this opportunity to be in contact with the Panel.

Yours sincerely,

Secretariat of the Panel of Experts

Reluctance to Mention Deadline

Significantly, the POE did not mention the new deadline in the reply. The change of deadline was reflected in an amended notice published on scribd.com which was sourced through an internet search. It is this amended notice that has since been posted on the UN website where the filename identifies it as revision 1. (Note the revised filename.)

A December 20, 2010 Inner City Press report stated:

In the run up to the initial December 15 deadline, Inner City Press asked Haq and his office about bounced e-mails and Federal Express overnight packages of evidence which the Panel refused or could not receive. Haq said that he thought an extension would be announced -- but then did not announce one.

On December 20, having received more complaints about packages refused by the Panel, Inner City Press again asked Haq about the projected extension. Staring down at note, Haq said it is extended to the end of the year. (Emphasis mine.)

Lack of Transparency

An obvious lack of transparency on the part of the UN can be observed. That this writer received a reply in December just two weeks prior to the deadline which was not mentioned in the mail, and nearly two months after the initial enquiry, suggests deliberate action on the part of the UN POE. The contents of the report suggest that the Panel was selective in its collection of submissions and wished to deny submissions from affected persons in Sri Lanka.

For a clearer understanding of the methodology employed by the Panel, the UNSG should identify the dates on which the various announcements were officially made on the UN website and the dates on which the various submissions were made to the Panel. It should be quite revealing.

The results of a flawed methodology should not be used to tarnish the reputation or cause harm to Sri Lanka as a member state of the United Nations.

Analyses of the POE Report by an Eminent Sri Lankan

Godfrey Gunatilleke, Chairman Emeritus and Senior Advisor of the Marga Institute (a leading development studies think-tank in Sri Lanka) has aptly deconstructed the UN POE Report and its criticisms into three key areas that warrant analysis.

Firstly, although the Panelists must have impeccable credentials, Gunatilleke has shown how they do not qualify. As he points out, all three of them have either personally held or belonged to organisations which held, views critical of the Government of Sri Lanka (GOSL) thus making them less likely to come to objective or impartial conclusions with regard to the GOSL. As Gunatlilleke outlines further:

“One set of responses to the report which seeks to reject it outright deals with issues concerning the appointment and status of the panel, the mandate given to the Panel and the way the Panel has interpreted it, the composition of the Panel and the capacity of the panel to arrive at fair and impartial conclusions particularly regarding the actions of the Sri Lankan Army (SLA) and the Government of Sri Lanka (G0SL).  Many of these criticisms question the bona fides of the initiative taken by the UNSG.

A second category of responses deal with more substantive issues relating to the central part of the report – the issues of accountability and the case made against the government in particular. These issues relate to the methodology the panel has adopted, its transparency, the sources it has been able to access, its account of the last stages of the war based on these sources, the framework of accountability it has adopted and the conclusions it reaches. 

A  third  category  focuses  on  the  parts  of  the  report  which  deal  directly  with  the  process  of domestic accountability and the Panel’s recommendation for improving that process.”

Panel Has Exceeded the Mandate

In para 51 of the Report the Panel states:

“While the Panel’s mandate precludes fact-finding or investigation, the Panel believed it essential to assess whether the allegations that are in the public domain are sufficiently credible to warrant further investigations. Determining the scope and nature of these allegations allows the Panel to properly frame the accountability issues, which arise from them. The Panel has determined an allegation to be credible if there is a reasonable basis to believe that the underlying act or event occurred. This standard used by the Panel  - that of a reasonable basis to believe that the underlying act or event occurred – gives rise to a responsibility under domestic and international law for the State or other actors to respond.” (Emphasis mine.)

The Panel has proceeded to do exactly what it was specifically excluded from doing; fact-finding or investigation. It has also proceeded to be the prosecutor, judge and the jury at the same time, while going way beyond its mandate by freely interpreting the legal responsibilities of a member country of the United Nations and towards it (interestingly) by unnamed actors.

Critical Assessment by Sri Lanka’s Business Community

The recently released Sri Lanka Private Sector Assessment of the Panel of Experts’ Advisory Report to the UN Secretary General has also criticized the manner in which the Panel has determined allegations to be ‘credible’.

“The  POE  claims  that  it  treated  an  allegation  as  credible  only  when  the information  was  “based  on  primary  sources  that  the  Panel  deemed  relevant  and trustworthy”.  Contrary to this claim, which suggests that the allegations  were  substantiated  by  victims  and  witnesses  present  on  the  ground,  the  POE seems to have relied exclusively on uncorroborated open sources for some of its findings.”

“While it is noted that at this juncture there is no expectation to have the exact identities of the  witnesses interviewed disclosed, necessity  for confidentiality  does  not  preclude  the  POE  from  identifying  the  categories  of the witnesses so interviewed, such as victims, members of the Sri Lanka Army (SLA),  Government  officials,  members  of  the  NGOs/INGOs, journalists  etc.” (Emphasis mine.)

Contradictory Positions on Confidentiality

In comments on the Lessons Learnt and Reconciliation Commission (LLRC) the Panel Report states at para 312:

The history of previous Commissions of Inquiry in Sri Lanka shows a pattern of non-disclosure of findings and recommendations undermining public confidence in the process, dramatically reducing the practical impact of the work undertaken and possibilities for follow-up and making it impossible to assess whether the work of that commission responded to its mandate. (Emphasis mine.)

Could this be a statement about Sri Lanka’s Lessons Learnt and Reconciliation Commission by an eminent Panel of the august body? One appointed by the Secretary General himself to advise him on accountability in Sri Lanka? Or, could it be that they were thinking of themselves and substituted the LLRC in a moment of amnesia? Yes, have they forgotten what they’ve written elsewhere in their report that their own records are subject to 20-years of secrecy?

As the Sri Lanka Private Sector Assessment notes:

“Further the POE has classified “nearly all of the Panel’s substantive records as strictly confidential.” Therefore, “nearly all” of the  material  purportedly supporting the POE’s conclusions will remain confidential at least for the next twenty  years.  While  the  necessity  for  such  extensive  confidentiality  for sources providing information to support a private advisory to the UNSG can be appreciated, since the advisory has been released into the public domain by the  UNSG, “natural  justice” necessitates  the sources  or at the very least the nature/character of those sources to be revealed to the public.” (Emphasis mine.)

UN Needs to Reestablish Public Confidence in its Ability to Carry Forward the Objectives Specified in the Charter

The UN is the only body of its kind and its General Assembly is the only forum where countries discuss, debate and seek consensus as a body, on matters that affect human beings in an increasingly globalized world. Any subversion of the powers of the General Assembly by individual countries – however powerful they may be – or by any of the myriad agencies of the UN would only create chaos.

Institutions which under the guise of championing human rights seek to advance vested interests and have observer status at the UN should be periodically reviewed to ensure that the UN is not made a vehicle for the interests of a powerful few.

The flawed manner in which the Panel has sought to discharge its mandate makes it imperative that the UN Secretary General should officially reject the Report of the Panel of Experts on Sri Lanka and withdraw same from the UN’s presence in the public domain so that Sri Lankans, as indeed the world population, can restore their confidence in the United Nations as presently constituted, as a body capable of upholding the Charter. END.