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Sarath Fonseka, the former army chief in Sri Lanka, was released on Monday 21th of May after the necessary formalities to give him the pardon were completed and the order to the prison authorities given.

As Commander of the Army in 2009 he is considered, alongside President Rajapaksa, as one of the principal architects of the Sri Lankan Government's victory against the LTTE (Liberation Tigers of Tamil Eelam). Thus they are responsible for ending three decades of war but also for the thousands of civilians killed in the last months of fighting.

After a public disagreement with Mahinda Rajapaksa he resigned from the army and formally announced his candidature in the 2010 Sri Lankan Presidential election. He was arrested two weeks after his defeat, on the 8th of February 2010.
He appeared before a court martial on charges of corruption relating to military procurements and conspiracy against the Government, the latter charge being linked to his alleged seeking of elected office while still in uniform - a crime under now abolished emergency legislation. He was sentenced to thirty months in jail and consecutively stripped of his title of general and deprived of his pension.

The following November Fonseka was sentenced to three more years in jail, again under emergency legislation, for "propagating a false rumour". This was a reference to the so called "white flag" interview, in which Fonseka told a Sri Lankan newspaper that the Defence Secretary Gotabaya Rajapaksa ordered surrendering leaders of the Tamil Tigers to be shot.

The jailing of Fonseka was highly criticized in Western countries, with the USA in particular insisting he was a political prisoner. Fonseka was released three days after a meeting between the Sri Lankan Foreign Minister, Gamini Lakshman Peiris, and the American Secretary of State Hillary Clinton. Clearly therefore the release can be seen as an attempt to appease the USA following the tensions created by the USA's Human Rights Council resolution. As such it can be seen as proof of the efficacy of the international community's recent slightly more robust Sri Lankan foreign policy.

The Government may also be of the, perhaps correct, view that Fonseka's release will also further fragment the deeply divided opposition - although Fonseka is theoretically suspended from public life for five years. It may also be part of the Government's eternal game of cat and mouse with Fonseka. Clearly it was previously thought he knew too much to be put on trial and knew too much to be released. And given his army ties, it was harder for them to try to permanently silence him as they have others. And so they have attempted to balance carrots and sticks to just the right degree to ensure his continued silence. Now that Fonseka is out, it remains to be seen if we will learn more about the horrific crimes perpetrated against civilians in the final stages of the war or if the Government have once again got the balance right.

But amidst the general euphoria surrounding his release it appears many, although by no means all, of those who oppose the Rajapaksas (both in Sri Lanka and abroad) are making the same mistake they made in 2010, and are turning an uncritical eye towards Fonseka's own past: the enemy of your enemy is not necessarily your friend, particularly not when they are one of the world's most brutal war criminals. Of course all victims of rights violations should be treated equally, but it would be a shame if it becomes apparent that the USA has spent a disproportionate amount of political capital on one of the Government of Sri Lanka's most secure, and least sympathetic, victims.

As we said at the time, "Fonseka led the Sri Lankan army during the final offensive of 2009 and had direct command responsibility over the troops filmed by Channel 4 engaging in a number of war crimes. He has also been linked to a number of murders of civilians, including the journalist Lasantha Wickrematunga. While he was behind bars for the wrong reasons, it is certainly not to Sri Lanka's credit that the tally of those responsible for war crimes committed by the Sri Lankan army who are currently in jail has fallen from one to zero."

Labels: War crimes

A couple of weeks ago it was revealed that the Sri Lankan army used cluster munitions, some of the most dangerous weapons in the world, on their own people. The government of Sri Lanka had previously claimed only the LTTE had used cluster munitions (something that may well also have happened).

Weaponry such as cluster bombs – illegal under international law in 102 countries (but not in Sri Lanka as they never signed the treaty) – by their very nature target civilians. Cluster bombs are controversial weapons consisting of a canister which breaks apart to release a large number of small bombs. They can cover a large area and do not have precision guidance. Many do not explode on impact with the result that, like landmines, they litter the ground with the potential to explode years later.

The effects of cluster bombs and land mines are only too familiar with children around the world still being maimed and hurt long after these weapons were deployed. Examples of this are a dime and dozen across Africa and the Balkans, especially Kosovo. A report by the Cluster Munitions Coalition (CMC) in 2011 mentions that CMC wrote to President Rajapaksa in February 2009 asking for clarification on whether Sri Lanka had cluster munitions capabilities, they haven’t had a reply.

But elsewhere the Sri Lankan government not only denied having used cluster munitions, they emphasised that they did not have any military capabilities to deploy them. Despite these strong refutations, evidence of Government use of cluster bombs was found in 2012.

For years survivors of the civil war claimed that they had been subject to attack with white phosphorous and cluster munitions. The Government of Sri Lanka always claimed these claims were fabrications, but now that the use of cluster munitions has been demonstrated questions will continue to be asked about the use of white phosphorus - which is illegal under international law. This is yet another reason why an independent international investigation into the Sri Lankan civil war is needed.

Labels: United Nations, War crimes

The Government of Sri Lanka are masters at the art of intimidating their critics into silence. However, like most bullies, they tend to pick on those who find it difficult to fight back – either because they are currently living in Sri Lanka or because they have Sri Lankan family members who might suffer the ill effects of any attempt to be more vocal. But the reach of the Government seems to be growing, as was demonstrated by the recent and ongoing intimidation of Matthew Lee.

Matthew Lee is the man behind Inner City Press, a non-profit news organisation that made its name in the 1990s by exposing the way banks circumvented fair finance laws to avoid lending money to people in the South Bronx. Latterly he, and they, have concentrated much of their investigative journalism on the United Nations. He reported extensively on the UN’s shortcomings with respect to Sri Lanka, and covered our interventions on the IMF, Shivendra Silva and the UN internal review.

This story starts in September of last year with a screening of “Lies Agreed Upon” – a government of Sri Lanka propaganda film which was expertly deconstructed by the International Crisis Group. Matthew Lee wrote a piece about how the screening, in the Dag Hammarskjold Auditorium of the UN, was organised by the President of the UN Correspondents Association (UNCA), Giampaolo Pioli, without going through the normal process of consultation for such screenings. He then further revealed (although he acknowledged it was “possibly unconnected”) that Pioli rents a flat to the Sri Lankan Permanent representative to the UN (and suspected war criminal) Palitha Kohona.

We previously wrote about the ongoing saga of Prageeth Ekneligoda’s disappearance and the bizarre claims of the President’s lawyer (and Former Sri Lankan Attorney General) that Prageeth was alive and well and living abroad.

Today he was finally compelled to testify under oath in the Magistrate’s court investigating his disapperence. And he said that his statement was based on hearsay, and that contrary to what he said there, he actually had no idea where Prageeth is.

Here’s a report from the courtroom.

Former Attorney General and Senior Legal Advisor to the cabinet Mohan Peiris provided his testimony over a statement he made at the UN Committee Against Torture (CAT) on November 9, 2011 in Geneva, that Prageeth Ekneligoda was alive overseas.

Mr Peiris confirmed having participated at the 47th UN CAT in November 2011, and said this meeting was held at a time when there was widespread anti-Sri Lankan sentiments being expressed in many quarters.

But Mr. Peiris rejected making the statement as laid out in the document as he read the UN transcript of his statement provided to him by Mrs. Ekneligoda’s lawyer. “I mentioned that an investigation is being carried out on the disappearance of Prageeth Eknaligoda but some foreigners who were not satisfied with my statement continued to question me for nearly three hours. If I recall correct, I responded to a U.S. lady’s question and mentioned that the government and the justice department had received intelligence information that Prageeth Eknaligoda was living overseas, but it was mere hearsay and we forwarded that information to be investigated” he said.

When Mr. Peiris was asked by Mrs. Ekneligoda’s lawyer whether he could name the source of his information prior to leaving for the UN sessions, State Counsel objected saying that a public official cannot be asked to reveal information about what he says and does in the course of his official duty, especially if such revelation would be inimical to the country's interest or reputation and/or if such revelation would result in any harm to the people of this country. 

Mrs. Ekneligoda’s lawyer pointed out firstly that Mr. Peiris is not a public official coming under the Public Service Commission and secondly that no harm would come to any citizen of this country as a result of Mr. Peiris' revelations. As for the country's interest or reputation, the lawyer observed that contrary to State Counsel's fears, Mr. Peiris' revelation would only help enhance the reputation of the country and its judicial processes. State counsel then quoted relevant laws and countered that Peiris is a public official. Mrs. Ekneligoda’s lawyer also quoted Case Law where it had been shown that the judge had powers to ask a public official to reveal his sources of information. State counsel contested this position and insisted on the Court upholding his objection, in spite of the fact that Mr. Peiris himself offered to Court to answer the question.

At this point Court invited Peiris to answer the question. Mr. Peiris said that he does not remember who or what the source of his information was and that he was processing nearly 100 files a day at the time and that remembering such details was not possible.

Mr Peiris drew the Magistrate’s attention to the UN Charter and explained that that the UN forums had complete freedom of speech and that public officials representing various countries in the forum were subject to independent discharge of duty and had legal immunity. He appealed that the UN Charter must be honored at all times. He went on to conclude by saying that he wished he could shed more light, but that “I have no information that the corpus is alive or not and I do not think the government does either and that God only knows where Ekneligoda is".

He also said his statement should not be misinterpreted for political gains as it brings disrepute to the country.

The next date was fixed for 10th July, 1.30pm 

Mr. Peiris was provided special treatment not provided to other witnesses in this or other cases, when the unusually large Police contingent present outside Courts, arranged for his car to be taken inside the court premises and barred many of the journalists from entering the premises. Mr. Peiris thereby avoided speaking to or even being photographed by the many journalists that were waiting outside.

Video streaming by UstreamThe statement on Prageeth comes at 1:48:21. Our (unofficial) transcript is as follows:

"our current info is that Mr Ekneligoda has taken refuge in a foreign country. We don't say this... it's not something that I am saying with a tongue in my cheek, it's something that we are reasonably certain of. This is coming.... this is information that we have got through the [unclear] circles that this has been played out for different reasons. I think I shouldn't say more because the matter has been investigated."

It doesn’t sound particularly like Mr Peiris was saying the information was being presented as hearsay – or that the investigation is ongoing. And

“Mr Ekneligoda has taken refuge in a foreign country. .. it's something that we are reasonably certain of”

is somewhat different to

“I have no information that the corpus is alive or not and I do not think the government does either and that God only knows where Ekneligoda is".

No doubt the UN Committee Against Torture will be interested to know that Mohan Peiris has tesitifed under oath that the information he gave them is wrong.

In the meantime the case of Prageeth’s disappearance will not go away. Recently the US State Department listed Prageeth’s disappearance as one of their key cases for media freedom. Prageeth's wife Sandya has tirelessly lobbied for years to have this case investigated. Her seven month campaign brought Mohan Peiris to court, but the matter will not rest until we find out where Prageeth is.

We recently blogged about the case of the disappeared cartoonist Prageeth Ekneligoda and his wife Sandya's quest for information and justice.

We now have some good news: yesterday the appeals court upheld the decision of the magistrates court that former Attorney General Mohan Peiris should be compelled to testify next week as to the bizzare claims he made to UN bodies that he knows where Prageeth is hiding.

We received this report from the courtroom:

The Appeals Court in Colombo heard the case of Prageeth Ekneligoda’s disappearance today, May 31, at 10:00am. The Court gathered to receive an update of the current proceedings at The Magistrate Court in Homagama. The Magistrate had made an order May 17 to summon former Attorney General Mohan Peiris for testimony. Testimony would revolve around a statement he made at the UN Committee Against Torture in Geneva on November 9, 2011 that Prageeth Ekneligoda was alive overseas. 

Today the State Counsel from the Attorney General’s Depart requested the Appeals Court to overturn the decision of the Homagama Magistrate to summon Mohan Peiris, on grounds that he made the statement while on government duty within his capacity as senior legal advisor to the cabinet. State Counsel argued that Peiris said that on government orders and officials are not required to disclose communications where “the public interest would suffer.” The State Counsel later argued that Peiris should not be “harassed” for carrying out government instructions. 

The Appeal Court ruled that the Homagama Magistrate is acting on the instructions of the Appeals Court to hear this case and had the freedom to summon Peiris. The Judge said that Peiris’s testimony should not be “pre-empted” and clarified that being summoned cannot be regarded as harassment. The Appeal Court Judge did point out that there was provision for the Appeals Court to hear a revision application if one is made, but ruled out a second objection from the State Counsel to postpone the scheduled hearing at the Magistrate Court on June 5. The case will be heard at the Homagama Magistrate on June 5 at 1.30pm and the Appeals Court will gather again on July 23 to hear the Magistrate’s proceedings at 9.30am.

It is now vital that, on the 5th of June, Mohan Peiris divulges all the information he has. We have updated our appeal with that in mind - so please do take a moment to write a letter and help Sandya in her quest to find her husband.

Cartoon by Stephff, Burma. Part of the Cartooning for Peace and Reporters Without Borders series of cartoons commemorating Prageeth's disappearance