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On Sri Lankan Killings, As Alston Asks Rajapaksas, Why Not UN’s Nambiar?

[Inner City Press, Monday, 21 December 2009 18:03 No Comment]

 UN's Ban and Nambiar, Alston's questions on killings not yet shown While the UN in New York has been mute about the admission by Sri Lanka’s former General Sarath Fonseka of orders by Presidential brother Gotabhaya Rajapaksa to kill those who sought to surrender, an independent rapporteur for the UN Human Rights Council in Geneva Philip Alston wrote to the government on December 18 formally requesting answers.

If the past is any guide, the Rajapaksa administration will either not provide direct answers, or will issue vituperative denials. It did this in response to video footage depicting Sri Lankan soldiers killing bounded and naked people, footage that has since been authenticated.

So one wonders, given not only the UN’s role in the final days of what even it called the "bloodbath on the beach" in Sri Lanka, but especially UN chief of staff Vijay Nambiar’s reported role in the deadly surrenders, why Rapporteur Alston has not already demanded answers from the UN itself.  Nambiar was present with Ban at the Security Council stakeout on Monday morning, click here for the Inner City Press story.

On December 15, Inner City Press asked the UN spokesman, Martin Nesirky

Inner City Press: John Holmes has appeared on an interview with CNN’s [Christiane] Amanpour, and seemed to confirm that during the final days of the fighting in Sri Lanka, that Vijay Nambiar was telephoned by leaders who sought to surrender, who ended up being killed. So, there is a big controversy right now in Sri Lanka about the charge that the Defence Minister, with whom Mr. Ban has met, gave the orders to kill surrendering prisoners. I wonder if it’s possible, is that… Number one, can you, it’d be good to hear instead from Holmes about Nambiar, or maybe from Mr. Nambiar, but what was the UN’s role in these attempted surrenders? And where does it stand on Mr. Ban’s call for accountability or some type of an outside investigation or panel of inquiry into possible war crimes?

Spokesperson Martin Nesirky: What Mr. Holmes said yesterday, he speaks for himself in this particular case; of course, I am not going to amplify what he said. He knows what he’s talking about. What I would suggest is that you let me find out some more details and then I can answer you with more certainty.

Inner City Press: All right. Maybe from Mr. Nambiar on some basis, because I think he’s confirmed that he got these calls from people who ended up being killed while waving white flags. So, it seems important to nail down what happened.

Spokesperson Nesirky: Once he’s back in town, we’ll see what we can do.

After that, with Nambiar in Copenhagen ostensibly unreachable by the UN, he gave a quote to the New York Times trashing a former UN official fired for openly blowing the whistle on what he called the UN’s cover up of electoral fraud in Afghanistan. So on December 17, Inner City Press again asked

Inner City Press: Earlier this week there was an issue that came up with Mr. Nambiar and his role in the deadly surrender at the end of the Sri Lankan conflict, and you were like, well, when he comes back we’ll talk to him. Clearly he is reachable, apparently, to at least the New York Times. Mr. Nambiar, I mean. Is he in Copenhagen? Is that where he gave those comments?

Spokesperson Nesirky: I will have guidance.

Later, the UN inserted into the transcript an answer — but not about Nambiar, much less the killings in Sri Lanka:

[The Spokesperson later announced that the reason Peter Galbraith's appointment as Deputy Special Representative of the Secretary-General for the United Nations Assistance Mission in Afghanistan was terminated was that the Secretary-General determined that such action would be in the interests of the Organization. Further elaboration would not be appropriate at this time since Mr. Galbraith has chosen to challenge the termination of his appointment.]

Now Alston writes to the Sri Lankan government, but not to the UN’s own Vijay Nambiar, Secretary General Ban Ki-moon’s chief of staff. Ban Ki-moon will speak before Christmas about Copenhagen. What about extrajudicial killings, and the UN’s own role? Watch this site.

Here is Alston’s letter to the Permanent Representative of Sri Lanka to the United Nations office at Geneva

18 December 2009

Excellency,

I have the honour to address you in my capacity as Special Rapporteur on extrajudicial summary or arbitrary executions pursuant to General Assembly resolution 60/251 and to Human Rights Council resolution 8.3.

I write to your Excellency’s Government with regard to the circumstances of the death of three senior representatives of the Liberation Tigers of Tamil Eelam (LTTE), Mr. Balasingham Nadeshan, Mr. Seevaratnam Pulidevan and Mr. Ramesh, as well as of members of their families, in the night of 17 to 18 May 2009.

According to information I have received:

On 17 May 2009, the day before your Excellency’s Government announced that its forces had completely defeated the LTTE. Messrs, Nadeshan, Pulidevan and Ramesh were trapped with other senior cadres of the LTTE in a small area north of Vellamullivaikkal. Through intermediaries they sought to establish contact with your Excellency’s Government to inquire how they could surrender to the Sri Lanka Army (SLA). The reply, coming from the Secretary of Defence in your Excellency’s Government and from a Members of Parliament who is at the same time a senior adviser to the President, and conveyed through the intermediaries, was that they should walk towards the positions of the SLA in a way that made their intentions clear and holding a white cloth. The Commander of the SLA 58th Brigade, the unit on the front line with the last LTTE position, however, received a telephone call from the Secretary of Defence instructing him to order his forces to shoot those surrendering. When Messrs. Nadeshan, Pulidevan and Ramesh walked towards the SLA positions carrying white cloths in the first hours of 18 May 2009, soldiers opened fire on them and killed them. An unspecified number of family members of the three men were killed as well.

These allegations were made by the Commander of the Sri Lanka Army at the time of the events and subsequent Chief of Defence Staff (now retired) General Gardihewa Sarath Chandralal Fonseka, in an interview to the newspaper The Sunday Leader. The accounts of journalists embedded with the SLA 58th Brigade confirm some of the alleged circumstances of the death of Messrs. Nadeshan, Pulidevan and Ramesh and their families.

While I do not wish to prejudge the accuracy of these reports, I would like to refer your Excellency’s Government to fundamental legal rules applicable to all armed conflicts under international humanitarian law and human rights law.

Common Article 5 (applicable to armed conflict not of an international character) of the Geneva Conventions of 1949, to which your Excellency’s Government is a party, dictates that "[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their and those placed hors de combat by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely [....]". To this end the following acts are and shall remain prohibited at anytime and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds".

Similarly, an authoritative study of customary international humanitarian law finds that attacking and killing persons who are recognized as hors de combat is prohibited. Persons hors de combat include anyone who clearly expresses an intention to surrender, provided he or she abstains from any hostile act and does not attempt to escape (Rule 47 0f the Customary Rules of International Humanitarian Law identified in the study of the International Committee of the Red Cross).

It is my responsibility under the mandate provided to me by the Human Rights Council to seek to clarify all cases brought to my attention. Since I am expected to report on the death of Messrs. Nadeshan, Pulidevan and Ramesh, as well as of the members of their families, I would be grateful for the cooperation and observations of your Excellency’s Government. In particular in relation to the following questions:

1. Are the allegations summarized above accurate, If not so, please share the information and documents proving their inaccuracy.

2. What information does your Excellency’s Government have on the family members of Messrs. Nadeshan, Pulidevan and Ramesh allegedly killed on 18 May 2009.

3. Please refer to the results of my military, police, judicial and other inquiry or investigation carried out in relation to the allegations summarized above.

I undertake to ensure that your Excellency’s Government’s response to each of these questions is accurately reflected in the report I will submit to the Human Rights Council for its consideration.

Please accept, Excellency, the assurances of my highest consideration.

Philip Alston

Special Rapporteur on extrajudicial, summary or arbitrary executions

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