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Shunning Parliament where he was listed to speak on the Geneva report last Friday, where his ‘no show’ had wrapped him in a silence that far outweighed all the gold in King Solomon’s fabled mines, Mahinda Rajapaksa found comfort in seeking refuge at his political office in Narahenpita’s Abayaramaya Temple on Sunday, to give voice to his considered opinion on the Human Rights Council’s report on Lanka’s alleged war crimes.

There, closeted amongst an audience of ‘yes’ men given to uttering sadhu, sadhu at every turn, he delivered his sermon at his temple conclave adding the Mahinda Chinthana spin to distort the effect of the Geneva report whilst concealing the cause without any fear of embarrassing interruptions like the occasional hoot or the awkward question that he may have encountered had he spoken thus in Parliament.

He charged that the countries that sponsored resolutions against Sri Lanka in the Human Rights Council will be the same countries that provide funding for the judicial mechanisms consisting of the judges, prosecutors, investigators and lawyers set up under that resolution. “By what stretch of the imagination are we to believe that the cause of justice will be served by such an arrangement?” he asked.

Does Rajapaksa hold the view that the international judges so appointed will be the paid minstrels of these foreign powers and will sing for their supper in the manner a now exorcised local phantom of court once did?

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

Mahinda Rajapaksa: Temple sermon

The folly of adopting Rajapaksa’s blinkered view that international judges will prostitute their objectivity and impartiality for money is that the same view can be taken against the Lankan Government’s proposal for a purely domestic court to hear the alleged war crimes charges. Thus in such an impasse the compromise proposal to set up a ‘hybrid’ court may not only be reasonable but may be the only solution.

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

Even whilst dealing with run-of-the-mill cases, a judge will refrain from hearing a case where there is a possible personal interest involved. In such an instance he will step down and let another judge adjudicate. Even if the personal interest is so far remote as not to prejudice him in any manner, he will still judiciously decline to hear it for he does not wish his judgment to be tainted even by the suspicion of partiality. That is the high standard demanded of the bench which the judges scrupulously follow.

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

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

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

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

Thus when Mahinda Rajapaksa slams international judges on the basis that their judgment will be shaped and swayed by money paid, he forgets that the international community in return can slam Sinhala judges and claim their opinion is spawned and spurred by tears wept for their own dead.

For instance, in the Paranagama Commission report there is one observation which calls for scrutiny. It is as follows:
“The commission accepted that shelling by the SLA undoubtedly led to a significant number of civilian deaths, but the commission stresses that this was an inevitable consequence of the LTTE’s refusal to permit civilians to leave their control in order to use them both as a shield and a pool for recruitment, even when the GOSL permitted a ceasefire on April 12. No government could be expected to permit young children to be forced into the front lines without taking all available measures to put an end to such ruthless exploitation of a civilian population.”

What does this paragraph mean? Has the Commission, which comprises four Sinhalese and one Tamil, gone out of its way to find that the Government acquitted itself creditably by putting an end to the ruthless exploitation of civilians by the Tigers, even though the measures used meant that the ‘exploited civilians’, children included, also became the ‘expended’, also became the casualties?

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

A legal opinion, no matter how pricey it is or — according to Rajapaksa — how well argued it maybe is still only an opinion forwarded for legal adjudication. To arbitrarily suggest that such an opinion would have bowed over western nations and made them render a ‘walkover’ to Lanka borders on the preposterous. Incidentally Rajapaksa tells us that the “The Island” web edition published all these legal opinions in full some months ago’. Then what makes him think that these opinions had not been taken into account by the relevant parties.

But see for yourself how iron clad the ‘foreign expert legal opinion’ truly is and ponder whether its conclusions are so watertight that it would have sunk the anti-Lanka war crimes project as Rajapaksa claims it would have, had but the present Government ‘circulated the written opinions of these international experts to the members of the UN Human Rights Council’.

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

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

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

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

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

Faced with such an insurmountable bar and denied the assistance of the ‘proportionality’ principle to justify the army’s military attacks on the basis that the military benefit far outweighed the resultant civilian casualties, the foreign legal experts resort to take the position that the principles of proportionality as found in Additional Protocol I and which are applicable only to international conflicts, should nevertheless be taken into account when considering the Lankan conflict even though it is an internal conflict not governed by the Additional Protocol I.

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

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

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

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

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

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

It must be noted that a commission of inquiry is only bound to give an opinion as to whether grounds exist to form a legal charge. A court of law, however, has to decide upon guilt and this must be done without the slightest trace of partiality.

Finally, why did locals-only Rajapaksa hire foreigners to assist the Paranagama Commission? Were there no Lankan lawyers competent enough to be given the brief? Or was it that in international eyes it would not have carried weight; not have been accepted as a credible opinion, would not have lowered the heat the Rajapaksa regime then faced? For the same reasons perhaps, President Sirisena agreed to a hybrid court since, in international eyes, a purely domestic court may not be accepted as credible for all its suspected prejudices.