Prior opinions?

17/02/2015

From the outset, Sri Lanka’s Presidential Commission on Missing Persons has been beset by controversy. We have previously written about our concern that it is little more than an attempt to undermine international attempts for accountability via a discredited mechanism containing inherent conflicts of interest.

Since the demise of the Rajapaksa regime there have been further revelations, with the Sunday Times alleging that theCommissions lead international legal advisor, Sir Desmond de Silva, was paid a salary of around £60,000 per month.Subsequent allegations suggest that payments to Sir Desmond, the others five international legal advisors (David Crane, Geoffrey Nice, Avdhash Kaushal, Ahmer B Soofi, and Motoo Noguchi) and another British QC (Rodney Dixon) totaled around £660,000.

We have now been sent photographs, reproduced below, from a credible source which purport to depict a legal opinion Sir Desmond De Silva drafted for the Government of Sri Lanka in February 2014, some five months before he was appointed to the Presidential Commission on Missing Persons. If authentic, he exonerates the Sri Lankan Government of war crimes in this opinion.

We have written to Sir Desmond to ask him whether he did indeed provide such an opinion, which would suggest that he had already formed a view on one of the key questions the Commission was tasked to address.

The Commission was asked to consider “whether such loss of civilian life is capable of constituting collateral damage of the kind that occurs in the prosecution of proportionate attacks against targeted military objectives in armed conflicts and is expressly recognized under the laws of armed conflict and international humanitarian law”. The opinion Sir Desmond allegedly authored states “my opinion is that the great mass of civilian deaths during the last stages of the war were regrettable but permissible collateral damage.”

Were he to have written such an opinion, it would cast significant doubt on his credibility and that of the Presidential Commission on Missing Persons. It could be seen to conflict with Sri Lanka’s domestic legislation, which protects the notion that Presidential Commissions are independent (the reality notwithstanding) as well as with the code of conduct for barristers, as expressed in the UK Bar Standards Board handbook (in particular rules C13, C21.10, and C8, and Core Duty 4), and potential grounds for a complaint.