Cold war in the tropics: China, India vie for Maldives

By C. Bryson Hull  ADDU CITY, Maldives | Wed Nov 16, 2011

(Reuters) - On the pristine equatorial shores of the Maldives, an archipelago best known for luxurious resort hideaways swathed in coral reefs and cerulean seas, India and China's regional cold war is warming up.

Stretched across 90,000 sq km (35,000 sq m) of the Indian Ocean southwest of India, the Sunni Muslim nation of 1,192 islands finds itself sandwiched between the two Asian rivals, and both flexed their muscles at a meeting of South Asian nations hosted by the Maldives last week.

China preceded the heads-of-state meeting of the eight-nation South Asian Association for Regional Cooperation (SAARC) by opening its first embassy in the Maldives, a ceremony attended by Vice Foreign Minister Zhang Zhijun.    Full Story>>>

SLFP seniors accuse “Mafia” Gota

  Tuesday, 15 November 2011 

Senior minister of the SLFP are displeased with Defence Secretary Gotabhaya Rajapaksa also known as “Mafia Gota” for undue interference in the affairs of senior party ministers following the war victory.

The Ministers have now openly criticized the Defence Secretary saying that the UPFA that managed to win every local government body even in the North and East lost the Colombo Municipal Council (CMC) because of his actions.

The Ministers say that supporters of the governing party have criticized the campaign launched by the Defence Secretary together with MP Kudu Duminda for the CMC elections after sidelining the Colombo District UPFA leaders.

----------------------------------------------------------------------------

FLASH: Court orders Duminda’s arrest »

Tuesday, November 15, 2011

The Colombo Additional Magistrate today issued a warrant for the arrest of government MP Duminda Silva over the Mulleriyawa shooting incident.

Additional Magistrate Prassana Alwis issued the order to the CID based on the ‘B’ report on the Mulleriyawa shooting incident in which Presidential Advisor Bharatha Lakshman Premachandra was killed.

Duminda Silva is believed to be receiving treatment at a hospital in Singapore after being transferred out from the Sri Jayawardenapura hospital by his family.

--------------------------------------------------------------

President’s saffron robe donating pooja at Sri Maha Bodhi forand on behalf of Duminda

———————————————————————————

“Duminda Silva is not my man, he is Gota’s man” MR said to Bharatha and Rathnasiri

Gota’s man and Gota “Duminda “Duminda Silva is not my man, he is Gota’s man” MR said to Bharatha and Rathnasiri
By Colombo Telegraph
Silva is not my man, he is Gota’s man” President Mahinda Rajapkasa said to both Bharatha Lakshman Premachandra and former Prime Minister and senior Minister Rathnasiri Wickkramanayake.Informed sources told the Colombo Telegraph that, three months ago, Bharatha had complained to the President that Duminda Silva had given a contract to underworld thugs to murder him. President Rajapaksa had subsequently ordered the Criminal 

Duminda Silva’s Rs. 17 million fraud crashes – Dumnida threatened Insurance boss

Sri Lanka takeover bill may hit rating, investor sentiment-Moody's

Mon Nov 14, 2011

* Shows govt intervention in economy-Moody's

* Bill casts doubt on private property rights-Moody's

* Country's 10-yr bonds unmoved despite statement

By Shihar Aneez

COLOMBO, Nov 14 (Reuters) - Sri Lanka's asset acquisition bill may increase investor uncertainty in the post-war economy and hit the country's credit rating as it creates doubt about private property rights, Moody's Investors Service said on Monday.

Sri Lanka's parliament on Wednesday passed a controversial law that will allow the state to acquire enterprises or assets it deems underperforming or underutilised.

The government, however, specifically listed one underperforming enterprise and 36 underutilised assets in the bill, mainly either leased or sold by the state at a discount in the past, and assured it will be a one-time event.

"The government's seizure of assets creates ambiguity around the protection of private property in Sri Lanka," Moody's said in its Weekly Credit Outlook.

"Despite authorities' statement that this is a one-off move ...the measure may undermine the predictability of future policies and increase investor uncertainty, which would make it credit negative for Sri Lanka," Moody's said.

President Mahinda Rajapaksa's administration was strongly criticised by opposition parties and leading business chambers for expediting the bill without public discussion or allowing the properties' holders to argue their side.

"The use of the fast-track procedure, which we believe limits public scrutiny, largely reflects the tendencies of the current government to exert strong and direct influence over the economy," Moody's said.

Since the end of its 25-year civil war in 2009, Sri Lanka has been working to improve the investment climate, including making fiscal and tax reforms under the guidance of the International Monetary Fund.

However, the government has re-nationalised a number of formerly state-owned assets and there have been repeated complaints that politics have played a role. Rajapaksa has a two-thirds parliamentary majority that gives him wide freedom.

Despite Moody's report, Sri Lanka's 10-year bonds, maturing in 2020 and 2021 hardly moved on Monday and were quoted at a cash price of between 102.50/103.50 and 101.7012/102.7012 respectively.

The bill included Hotel Developers Lanka Plc, which runs the five-star Hilton Colombo hotel, and 6,300 hectares of land owned by Pelwatte Sugar Industries Plc .

Shares in Pelwatte Sugar have fallen 15.5 percent and those of Hotel Developers Lanka have dropped 27.1 percent since the market first got wind of the proposed bill on Nov. 1. Trading in both has been halted since Wednesday. (Editing by Bryson Hull)

Caught In A Web Of Lies, Intrigue And Political Witch-Hunting

Tuesday, November 15, 2011

By Imaad Majeed

The government has taken extra measures to impose restrictions on the local media by blocking news websites alleged to have engaged in “character assassination” and “invasion of privacy”.
Secretary for Ministry of Media and Information, W. B. Ganegala said, “the ministry will introduce a code of ethics and media guidelines.”
Mudslinging and biased reporting are not new phenomena in the scope of Sri Lankan media, with newspapers and television channels taking sides and sometimes even defaming public figures. In the recent past, media outlets have been attacked, stoned, burnt, their editors arrested and in the worst instances killed in the interest of protecting influential parties. Of late, focus has turned from print to web media, where anyone can run a news website taking whatever bias suits them, attacking who ever they hold a grudge against.

Read More »

Indian former foreign secretary boycotted in Jaffna

[TamilNet, Tuesday, 15 November 2011, 00:25 GMT]
Students and faculty of the University of Jaffna boycotted an address by India’s former foreign secretary (2004-2006) Shyam Saran, who visited Jaffna on Monday at the invitation of India-Sri Lanka Foundation and the University of Jaffna. As a result, the audience for Mr. Saran’s address at the Kailasapathy Auditirium of the university turned out to be mainly the SL military personnel occupying Jaffna. Speaking on India’s neighbourhood policy, Saran denounced international solutions to the question of Tamils in the island and advised them to seek ‘domestic’ solutions through talks. Shyam Saran was one of those met by Norway’s team that evaluated the failed peace process. The stand that India will sit on international solutions but insist on its own involvement alone was evident in an earlier statement of recently retired foreign secretary Nirupama Menon Rao too. 

The occupying SLA had to rush its personnel to fill the seats of Kailasapathy auditorium as students boycotted the event

Ambassador Shyan Saran addressing the audience

Attended by SL colonial governor for the occupied north, Maj. Gen. Chandrasri and the head of the Indian diplomatic mission (Deputy High Commission) in Jaffna, V. Mahalingam, Shyam Saran in his address said that the relations between India and Sri Lanka have come closer more than ever, thanks to the SL President Mahinda Rajapaksa.

India has currently taken up the projects to develop the KKS harbour and the Palaali Airport. In the next stage, India should take up the project to bridge Rameswaram and Thalai-Mannaar to link India and the north of the island, Shyam Saran said.

The picture he was painting was that the North could play an important role and could be benefited by the close ties developing between India and Sri Lanka through the North of the island.

A postgraduate in Economics, Mr. Shyam Saran is currently a Director of the Bangalore-based corporate Wipro Ltd, specialised in information technology services.

Belonging to 1970 batch of Indian Foreign Service, Mr. Saran after retirement as foreign secretary in 2006 served as Indian Prime Minister’s special envoy on nuclear issues and was also involved in National Security Advisory work until 2010.

He was tipped to become the National Security Advisor (NSA) after MK Narayan’s retirement but the choice of the Establishment went in favour of his junior, Shiv Shankar Menon.

Meanwhile, answering questions at a panel discussion in Oslo on Friday during the release of Norway’s evaluation report on the failed peace process, former US Deputy Secretary of State, Richard Armitage said that in the current context of the India, China and the US rivalries, Sri Lanka has come to the fore and it is a “front centre.” 

The US earlier was preoccupied with other issues after 9/11 and was concerned little about understanding Sri Lanka, but now there is much interest, he said.

Eezham Tamils in the island and in the diaspora are increasingly enraged at India’s stand neither helping an international solution nor coming out with its own in stopping genocide and in appropriately addressing the chronic national question in the island. 

The war itself was fought internationally, Eezham Tamil political circles point out. 

Considering the unfolding realities, Eezham Tamils are sceptical about trusting India alone for any solutions, especially after its complicity with Sri Lanka in coursing an internationally abetted war towards genocide. 

Both in Tamil Nadu and among Eezham Tamils, a tendency considering the Establishments in New Delhi and Colombo as common enemies escalates in recent times.

The way the former Indian foreign secretary’s address took place in the University of Jaffna was symbolic of the military approach upheld by the New Delhi and Colombo Establishments that is now widely viewed as “Asian model of conflict resolution,” political observers in Jaffna said.

Ensure accountability: US tells Lanka

Monday, November 14, 2011

The United States says Sri Lanka must ensure accountability for serious violations of human rights during the war.

Deputy U.S Assistant Secretary of Defense for South and Southeast Asian Affairs Robert M. Scher told a conference in Galle today that during his visit to the country he will make it clear that the United States needs to see continued progress in promoting the rights of all Sri Lankans.

“I will discuss areas of mutual interest and security cooperation, such as maritime security, and I will make it clear that the United States needs to see continued progress in promoting the rights of all Sri Lankans and in taking concrete steps to bring about reconciliation with the Tamil population.  Further, we believe that a serious effort by the Sri Lankan government to ensure accountability for serious violations of human rights during the war is critically important, and the only way to truly solidify the peace you and your people worked so hard to achieve,” he said.

The US official said that the Obama administration has made it clear that it will pursue policies that include both engagement with those with whom the US share interests and on behalf of improvements in human rights.

“These two approaches are not in competition, but must, by necessity, be pursued in conjunction with each other,” he added.

Dutch to close the net on old genocide suspects

Dutch to close the net on old genocide suspects

ARTICLES - ARTICULOS

Jeudi, 10 Novembre 2011

The Netherlands is striving to close the net on old genocide cases and alleged mass killers. The Dutch parliament on Thursday approved a bill that will extend the possibility of detecting and prosecuting genocide. The bill - which will now go to the Senate - allows the Netherlands to better address genocide and war crimes suspects retroactively and to work closer with international criminal courts. The proposed bill stipulates that cases dating back as far as 1966 could be dealt with. At present, the Netherlands has sufficient jurisdiction to prosecute foreigners suspected of international crimes, including genocide. But that law applies only to crimes committed after 1 October 2003. For older cases, the Dutch Genocide Convention Implementation Act applies, whose jurisdiction is limited. This has attracted hundreds of people accused of serious atrocities to settle in the Netherlands in the belief that they would be protected from legal action. It has given the Netherlands an image as a safe haven for such people. Full Story>>>>

Fear and Loathing in Post-War Sri Lanka

By Gibson Bateman, November 11, 2011    
Human Rights

Originally published in The Mantle

Sri Lanka’s bloody twenty-six year civil war is over. The Sri Lankan government, led by President Mahinda Rajapaksa, can rightfully claim a resounding military victory over the Liberation Tigers of Tamil Eelam (L.T.T.E.). It would be misleading, however, to call Sri Lanka a post-conflict society. There is no question that the underlying tensions of the conflict remain.

Sri Lanka is a diverse country with historical ties to five ethnic groups (the two largest being Sinhalese and Tamils) and four religions: Buddhism, Hinduism, Islam and Christianity. Sinhala and Tamil-speaking people have occupied the island for more than two thousand years. Historically, political disagreements have been based on religion. The political marginalization of the Tamil people (Sri Lanka’s largest ethnic minority) lies at the heart of many conflicts.

While Sri Lanka gained independence from the United Kingdom in 1948, tension over ethnicity and the creation of an official language in the country began to fester decades before liberation. In the decades following independence, violence erupted sporadically and the perception (amongst Tamils) that the government favored the Sinhalese (the country’s ethnic majority).

The recent civil war between the country’s Sinhalese majority and Tamil separatists was fought largely over questions of federalism, the devolution of power from the country’s central government to local governments, and the L.T.T.E.’s desire for a separate state. Most of the fighting occurred in the country’s North and East, although the L.T.T.E. also launched various attacks in Colombo, the nation’s capital in the south. Full Story>>>

Gold Coast to host Commonwealth Games – Public money wasted for propaganda to get it to Hambantota

SATURDAY, 12 NOVEMBER 2011

Gold Coast has won the rights to host the 2018 Commonwealth Games - and the $1.1bn debt that comes with it - with a victory over Hambantota in Sri Lanka. The decision was made at a meeting of the Commonwealth Games Federation on the Caribbean island of St Kitts. Gold Coast, in south east Queensland, won by 43 votes to 27.

Sri Lanka government spent Rs.400 million for one advertising firm to launch a propaganda project to get the Games to Hambantota in Sri Lanka and a group of 250, most of them without any connection to sports including Anarkali Akasha and three chefs, had gone to St Kitts to influence the voting on behalf of Sri Lanka. More than Rs.200,000 had to be spent for each person participating in this propaganda gimmick. The Gold Coast was hot favourite and the government spent public money in billions to promote an event that would never be successful and would not bring any benefit to Sri Lanka.

A report issued about a month ago by the Commonwealth had stated that Sri Lanka was not a secure place to hold the Games. The attempt to get Commonwealth Games to Hambantota is also marked as an instance that the power struggle among Rajapaksas came to the fore. It is no secret that Mr. Basil Rajapaksa was not in favour of getting the Games to Sri Lanka.

Australia has hosted the games four times previously in the event's 80-year history. It has hosted the Games at Sydney in 1938, at Perth in 1962, Brisbane in 1982 and Melbourne in 2006.  Sri Lanka was bidding to host the games for the first time. The Games ahs been held in Asia twice, 1988 at Kuala Lumpur in  Malaysia and in New Delhi in 2010.

Meanwhile, JVP Parliamentrian Vijithe Herath speaking at a media meeting yesterday (11th) said the government was preparing to spend Rs.265000 million for the Games and this would exceed 25% of the expected income of the government for 2012 he pointed out. He said Rs.400 million has been already spent for propaganda to get the Commonwealth Games to Hambantota.

INDIA, LTTE MET ’SECRETLY’ BEFORE SRI LANKA TRUCE: ERIC SOLHEIM

  November 13, 2011
Oslo, Nov 13: Indian officials met in “secret” with the LTTE ahead of Sri Lanka’s 2002 truce although New Delhi considered the Tamil Tigers a terrorist group, Norwegian cabinet minister Erik Solheim has revealed.

The former envoy to Sri Lanka also said - confirming for the first time ever an IANS report of 2008 - that India played a covert role in events that led to the Tamil Tigers and Colombo signing a ceasefire agreement (CFA) nine years ago.

The repository of tremendous information related to the Tamil Tigers, Solheim spoke at length to IANS at his office here after addressing a meeting over the weekend where a report was released on Norway’s role in Sri Lanka’s peace process.

According to Solheim, the minister for environment and international development, Indian officials held a “secret meeting” with the Liberation Tigers of Tamil Eelam (LTTE) before the CFA was signed in February 2002.

Solheim declined to say where the meeting took place or who participated in the meeting from the two sides.

If true, this would be the first known meeting between Indian officials and the LTTE since New Delhi banned it in 1992 for assassinating former prime minister Rajiv Gandhi a year earlier.

Solheim also added that contrary to public knowledge, the Indian government, then led by the Bharatiya Janata Party (BJP), played a key behind-the-scenes role in the framing of the Norwegian-sponsored CFA.

He said he himself held several meetings with India’s national security adviser and officials of the Indian intelligence agency Research and Analysis Wing (RAW) as Colombo and the LTTE inched towards the CFA.

He said some meetings with RAW officials took place at the New Delhi airport.

IANS had reported the Indian covert role but without naming RAW due to a request from sources who gave details of the intelligence agency’s involvement in the CFA - which until then was seen as an exclusive Norwegian baby.

The CFA ushered in months of peace in Sri Lanka before falling apart. The LTTE and the Sri Lankan regime went to war again in 2006, leading to the decimation of the Tigers in May 2009.

Solheim told IANS that as Sri Lanka’s and LTTE leaders quietly discussed the CFA in 2001-02, New Delhi was kept informed of each and every development. India, he said, gave “sound advice” and “constantly good and refreshing inputs”.

He said India did not want any “major international player” to get involved in the peace process and even suggested which countries should be part of the Sri Lanka Monitoring Mission (SLMM), a Nordic body meant to oversee the CFA.

Indian officials made it clear to Solheim, he said, that they were bitterly opposed to any break up of Sri Lanka and that “Tamil Eelam would never be acceptable”.

Solheim added that LTTE ideologue Anton Balasingham, who died of cancer in 2006, understood India’s importance in the region and maintained that “nothing done contrary to Indian interests will ever work”.

But LTTE chief Velupillai Prabhakaran, who met Solheim about 10 times in all, starting in 2001, was an “absolute amateur” in international politics even though he was a “military genius”, the minister said.

Balasingham also complained to Solheim that both Prabhakaran and LTTE intelligence chief Pottu Amman insisted for months that their group had no role to play in Rajiv Gandhi’s killing.

“They tried to convince Balasingham that they had nothing to do with it,” Solheim recalled. He quoted Balasingham as saying: “I did not believe the story, and they eventually stopped lying to me.” (IANS)

Anti narcotics unit IP and wife killed in 2006 were also by the notorious kudu (drugs) magnate cum politico

(Lanka-e-News-14.Nov.2011, 3.45AM) According to police sources ,the politico cum leading kudu (drugs) magnate is behind the assassination of chief police inspector Douglas Nimal, who was attached to the anti narcotics division , and his wife in the year 2006.

Douglas Nimal and his wife were murdered by assassins when they were traveling in a Van in the Nawagamauwa police division .

The police investigation pertaining to Douglas Nimal and his wife had been completely suppressed. This murder has been recorded in the Nawagamuwa police crime register GCR 157 /2006 , and a B report had been presented to the Kaduwela Magistrate In that B report B.5462/2006 nothing had been mentioned about the suspects. No statement of any suspect had been recorded either.

What is most strange and startling is , no investigation had been conducted or any progress made in the investigation until today following the murder of the chief inspector and his wife.

The police sources say , this kudu magnate cum politico had been involved in the murder of anti narcotics unit police officers , and the investigation into the Chef inspector and wife were suppressed and relegated to oblivion on this kudu politico’s pressures.

‘I will exterminate you’ -Tangalla Mayor threatens Hospital Director with death

(Lanka-e-News-14.Nov.2011,3.45AM) Tangalla Mayor Anil Selvahandedhi had threatened the Director of the Tangalla Hospital Dr. Nimal Abeysiriwardena with death over a dispute stemming from non clearance of garbage by the Tangalla municipal Council on time.

The removal of part garbage accumulating in the Hospital comes under the purview of the Municipal Council. This dispute had arisen because this garbage disposal had not been duly carried out.

The Mayor who had stormed into the Hospital on 13th has got involved in a heated dispute with the Hospital Director . He had claimed that it is he who has power over Tangalla , and after pointing the finger at the Director has warned him ominously, ‘ I will exterminate you’

Following this dire threat , the Tangalla base Hospital Doctors and the Hospital working staff have begun a strike. Owing to this the Hospital is now not functioning normally , and only emergency cases are being treated , reports say.

Yet another white Van abduction : Nugegoda Book shop owner is the victim this time

(Lanka-e-News-13.Nov.2011, 11.55PM) On the 11th night , the notorious white Van which had allegedly been used by the Govt. in the abductions and murders of citizens, had abducted a bookshop owner. Kapila Chaminda Bandara is the owner of ‘ Millenium bookshop’ at Nugegoda . On the 11th night at about 7.30 p .m., six individuals who came in the Van had claimed that they were from the CID , and forcibly taken Bandara into the white Van, and caused the abduction. When the trishaw drivers in the vicinity had strongly opposed this , the individuals who abducted Bandara had told , they are from the CID.

When Bandara’s relatives made subsequent inquiries , they had been told the CID hasn’t taken such a person into custody. They have then made a complaint to the Mirihana police. The SSP in charge of the Mirihana police division is the notorious and infamous Deshabandu Tennekoon.

Close friends of Bandara say, the latter who is a father of two children had not been involved in any politics, but is one who bitterly and openly criticized the govt.

About two years ago , using the white Van , the Rajapakse regime had caused about 500 cases of abductions and disappearances. A majority of the victims were Tamils and Muslims , and Roshan Perera , a Sinhalese youth who was abducted at Walpola. Later journalist Prageeth Ekneliyagoda was abducted.
During that period , Mahinda Hathurusinghe who was the Brigadier and Colombo commanding chief, and presently a Major General and the Commanding chief of Jaffna , was accused of being responsible for these white Van abductions. 

In any case , it is most significant to note that those who were abducted under the Rajapakse regime via the white Vans have never been seen again. Not a single victim had been brought before the law.

International unity on criticism of Sri Lanka’s conduct: Armitage

[TamilNet, Monday, 14 November 2011, 10:45 GMT]
Expressing dismay at the “chauvinistic attitude” of the Sri Lankan state, former US Deputy Secretary of State Richard Armitage said on Friday the international community was united in its criticism of Sri Lanka’s conduct in the north and east and that SL President Mahinda Rajapaksa would not be welcomed internationally unless conditions there improved. “I don’t think anyone disagrees that the Tamil people have been mistreated and are continuing to lack – across the board – fundamental freedoms, dignity, etc,” Mr. Armitage told the audience. 
“Much to my dismay the government of Sri Lanka is still caught up in a chauvinistic attitude,” Mr. Armitage said.
“I don’t think they’ve been far sighted enough in their approach to the north and east. There has been a somewhat lessening of violence there, somewhat lessening of the abductions and things of this nature, but not sufficient.”
“From the US point of view we are quite dismayed at the lack of progress in human freedoms, human rights, etc, and I made that view known [to SL President Rajapaksa].”
“But what to do about it is the question. [Firstly] the international community is generally coalesced around the fact that the north and the east particularly need protections, and the government of Sri Lanka has to move in that direction. … That is the united message the international community gives.
“Second, I don’t think President Rajapaksa is going to be widely welcomed internationally – across the board – until there is some movement. Maybe that’s the wrong strategy, but that’s the way things are going.”
“I think in two conversations with President Rajapaksa he actually understood - better than I had thought – what the government has to do.”
Mr. Armitage speculated that SL President Rajapaksa might be constrained by chauvinist political forces. However, Mr. Solheim suggested otherwise. 
“[Rajapaksa] has the strongest position of any Sri Lankan President ever; huge majority in the parliament, huge electoral victory, fantastic – from his point of view – military results,” Mr. Solheim said.
“So why is he not using this opportunity to reach out to [the Tamils] and find a settlement?," the failed peace broker wondered.
Asked about India’s expectations after the end of Sri Lanka’s war, Mr. M.R. Narayan Swamy, Executive Editor with Indo Asian News Service (IANS) said:
“The expectations [of India] are the same as the rest of the international community. Nobody wants Sri Lanka to develop into a state where [the Tamils] feel permanently a minority – politically, culturally, in every sense of the term. If in the past the Sri Lankan state gave the argument there was the problem of the LTTE, they can’t advance that argument anymore.”
Meanwhile, in a news feature appeared in IANS on Sunday Mr. Narayan Swamy highlighted Solheim revealing a secret meeting between the LTTE and the Indian officials ahead of 2002 CFA. 
Solheim declined to say where the meeting took place or who participated in the meeting from the two sides. “Solheim also added that contrary to public knowledge, the Indian government, then led by the Bharatiya Janata Party (BJP), played a key behind-the-scenes role in the framing of the Norwegian-sponsored CFA,” the IANS feature reported. 
Discussing the peace process and the evaluation report in a panel meeting conducted at the release of the report on Friday, apart from Messrs Armitage, Solheim and Narayan Swamy, the other speakers were Milinda Moragoda (former Sri Lankan Minister and government peace negotiator), Prof. Gunnar M. Sørbø, (team leader for the evaluation), Dr Jonathan Goodhand (Reader in Conflict and Development Studies, SOAS and deputy team leader for the evaluation) and Dr Suthaharan Nadarajah (lecturer with Centre for International Studies and Diplomacy, SOAS – who was not involved in the evaluation). The panel was chaired by Ms. Frances Harrison, Head of News at Amnesty International and former senior BBC correspondent.

"Charming Betsy" not so charming towards defendant Silva

[TamilNet, Monday, 14 November 2011, 00:05 GMT]
November 17th is D-day to the costly defense marshaled by alleged war-criminal ex-General Shavendra Silva. He must submit a reply to plaintiffs' brief filed on the 8th during the pre-trial motion phase of the civil case initiated by two Tamil plaintiffs in the Southern District Court of New York. Facing a strong legal response by the plaintiffs' attorney, Ali Beydoun, to establish personal jurisdiction for the court to hear the case, including arguments against claimed immunity, and alternate arguments based on an exception to immunity under international laws when egregious crimes are committed, defense attorneys have a formidable legal task ahead to convince the Judge to dismiss the case, informed legal sources said. Plaintiffs have used in the jurisdictional argument, "Charming Betsy," a case that provides binding precedent to the interpretation of international law. 

Timothy G. Nelson, defendant's attorney

Shavendra Silva, retired Army General

"The irony of asserting diplomatic immunity in war crime-based civil litigation against Silva, a UN official, illuminates the flagrant disparity between the international community's (IC's) rhetorical pledges to uphold fundamental human rights, and the reality of the IC's reluctance to enforce these rights when the IC perceives that upholding these rights will contravene geopolitical considerations," a spokesperson for US-based activist group, Tamils Against Genocide (TAG) said.

"Notwithstanding the outcome, these advances in the stages of civil procedure against Silva in a US court is the first instance in post-independence Sri Lankan history of a Sri Lankan Army official being held accountable in front of a neutral magistrate for atrocity crimes targeting Tamils. As this case suggests, what appears increasingly certain two years into Mu'l'livaaikaal's aftermath, is that justice for Tamils will be enforced from outside Sri Lanka, and not within," the TAG spokesperson added. 

In this case, which references domestic and international treaties and laws, the court and attorneys will be diligent in carefully interweaving but not mixing the following two issues in the legal analysis:

• jus cogens law (accepted by the international community of states as a norm from which no derogation is permissible, and includes the prohibition of genocide, torture, crimes against humanity, and war crimes) applies to U.S. courts and presides over the hierarchy of legal norms in that space.
• interpreting domestic and international laws within American jurisdiction requires recognition of the enacting history and of evolving legal standards. Past cases provide binding or persuasive precedent to some of the 'conflicts' in sources of law.

• Shavendra's Motion to Dismiss

• Opposing motion to defendants motion to dismiss

Within this broad legal framework, plaintiffs' brief outlines arguments that defendant Silva cannot claim absolute immunity, and therefore the court possesses jurisdiction, as follows:

Ali Beydoun, lead counsel for plaintiffs
The court has jurisdiction because (a) Silva violates Jus Cogens (compelling law) norms, (b) diplomatic immunity does not attach to claims of torture and extrajudicial killing completed prior to becoming a diplomat, (c) international law denies Silva immunity in this case, (d) legislative history demonstrates Congress's desire to allow civil actions against diplomats, and the Court has an obligation to interpret treaties consistent with Congressional intent (e) the Court has an obligation to interpret federal statutes consistent with international law ("Charming Betsy"). Silva is not entitled to immunity under domestic US statutes flowing from treaties because (a) the Vienna Convention confers immunity only for official acts or unofficial acts during a diplomat‘s mission and (b) Section 11 of the Convention on Privileges and Immunities of the UN does not confer immunity, and (c) Section 15 of the UN Headquarters Agreement does not confer immunity. Plaintiffs further argue that international law precludes a defendant accused of torture and war crimes from being afforded immunity. Plaintiffs state that their claims are based on Silva's violations of universal human rights treaties whereas (a) Silva bases his arguments on instruments that occupy a lower status in the normative hierarchy of international law, and (b) Silva invokes the protection of principles that yield to Jus Cogens norms and do not immunize him.

In Murray v. Charming Betsy, 6 U.S. 64, 118 (1804), the Supreme Court of the United States, said that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." Charming Betsy provides binding precedent on this case.

Shavendra Silva with Jegath Dias recalled to Colombo on fear of war crime prosecution

Plaintiffs in this case argue that the Court's determination of Defendant Silva's motion to dismiss must take into account not only the treaties and the bilateral agreement that Defendant Silva cites, but also the jus cogens norms, which have binding force upon all states and protect fundamental human rights. Jus cogens norms require defendant Silva to be held accountable for his crimes in Sri Lanka.

The case against Shavendra Silva was filed on behalf of two Tamil plaintiffs by Ali Beydoun, director at American University Washington College of Law’s UNROW Human Rights Impact Litigation Clinic and a Senior Partner at SPEAK Human Rights & Environmental Initiative.

The D-day is also nearing for the District Court of the District of Columbia to rule in early December on the service of process to Sri Lanka's President Mahinda Rajapakse, regarding whether Rajapakse should have legal representation to answer charges filed in the civil suit by three Tamil plaintiffs.