The War Crimes Game: Pyrrhic Victory that was Geneva and its Aftermath

(Courtesy of Ceylon Today)

By Nayantha Wijesundara
The oral update of the UN High Commissioner for Human Rights, Prince Zeid, made on 28th June at the 32nd Session of the UN Human Rights Council carried no surprises for the reader who is familiar with how Sri Lanka has been treated by that office in the past. Both in substance and form it was little more than the fitful laments of the TNA or the pro-separatist elements of the Tamil diaspora.

In fact, they could have very well dictated the High Commissioner’s report containing the oral update. Much of the oral update was just errant nonsense.
As a whole, the oral update, based on the observations made by a jaundiced eye, displayed a reckless and imprudent impatience in demanding institutional reforms including far- reaching reforms to the armed forces, a colonialist’s mentality in interfering in purely domestic issues and, of course, a total blindness to the ground realities of Sri Lanka. Suffice it to observe at this juncture, that the update considers only the Tamils and is conspicuously silent as to the need to win-over the Sinhalese for any reconciliation agenda to work out. Of course, there are the customary negative remarks about the supposedly extremist elements of the Sinhalese. The report castigates and demonizes the Sinha Le movement (which was in reality little more than a bumper sticker campaign and a few speeches and protest marches) and the antics of Gnanasara Thera, but conspicuously omits to mention the extremist elements of the Tamil and Muslim communities. The High Commissioner says that he “… is concerned by continued aggressive campaigns in social media and other forms (such as the Sinha Le bumper sticker campaign) which stoke nationalism against ethnic, religious and other minorities.” The question arises as to how on earth the Sinha Le bumper sticker campaign is an issue of international importance for the High Commissioner to specifically mention it in his oral update on the situation in Sri Lanka. While adding nothing constructive to the dialogue, the High Commissioner’s exclusive focus on the Sinhalese nationalism cuts a caricature-like image of him and reduces the oral update to the level of a ‘garden variety’ type by an NGO pretending to uphold human rights.

 
Be that as it may, the vitriolic and divisive rhetoric of Northern Chief Minister Wigneswaran, the stoning of buses carrying Sinhalese Buddhist pilgrims to Jaffna, radicalization of the Tamil youth in Jaffna, the rape of Wilpattu and how it possibly fuels ethnic conflict, Islamic radicalization, are all omitted in the High Commissioner’s update. What seems to bother him is the ‘aggressive social media campaign’ of the Sinha Le movement. The general drift of the oral update is that it is the Sinhalese elements who are the instigators of extremism and ethnic violence in Sri Lanka. Of course, the Sinhalese have had and continue to have their share of bad apples, but they are not the only community that has extremists and racists within it. For instance, even the main political leadership of the Tamils is as racist as any racist could ever be. By homing in on the Sinhalese only, the High Commissioner loses whatever credibility he may have had among the Sinhalese. If the office of the High Commissioner for Human Rights is to be involved in the reconciliation process, such loss of credibility may make it that much more difficult to win over the Sinhalese. That is not a good sign for sustainable peace. The prejudicial and one-sided update of the High Commissioner can create a sense of victimization among the Sinhalese and even radicalize the moderate elements of the Sinhalese community, making the reconciliation dialogue that much more strained.
The update speaks of reconciliation and the need to have all the stakeholders on board to succeed, although it barely even admits the presence of the Sinhalese in the island. The High Commissioner’s update and recommendations are, in short, a recipe for disaster. However, it must be noted that the assumptions made in the update and its approach towards reconciliation is similar to that of the present government which seems to be divorced of any sense of reality as it has adopted a ham-fisted approach in subduing the Sinhalese by calling anybody who voices the concerns of the Sinhalese an ‘extremist’, ‘racist’ or ‘traitor’. The present administration has shown extreme prejudice against the Sinhalese in its reconciliation dialogue. From the statements of the prime movers and shakers of this government, to the manner of appointment of task forces and secretariats to coordinate reconciliation efforts, the government shows an arrogance and immaturity which could drag Sri Lanka into another violent phase. This time, the violence may originate from the South. What both the government and the UN must realize is that they cannot just wish away the Sinhalese. The Sinhalese, being the overwhelming majority of the country must be constructively included in the dialogue and their aspirations too must be reflected in the reconciliation agenda. Also, what is most worrying is that there are signs that the government is losing credibility in the eyes of the armed forces. The breadth and width of the powder keg that is Sri Lanka at the moment cannot be over-emphasized. The government which panders to all whims and fancies of the UN and the Tamil political leadership would be directly responsible if the keg were to blow sky high. The way the UN acts with regard to Sri Lanka raises legitimate suspicions as to whether they are actually interested in peace or whether they want the island to descend into another phase of violence paving the way for further intervention and control by Western States.

 
Returning to the oral update, the High Commissioner had made a curious statement to say that “the new Constitution will also be important in facilitating the establishment of the transitional justice mechanisms envisaged by the government, for instance, the criminalization of international crimes in national law or allowing for the involvement of international judicial personnel.”
This statement is very important. As of late, Sri Lankans discover what their government’s plans are from statements made by the UN or from international media, because it seems that the government does not trust the citizenry or does not believe in discussing plans first with the public or just does not wish to be bothered entertaining different views. A good case in point was co-sponsoring a resolution in Geneva in October 2015 promising the international community that the government will establish an international(ized) war crimes tribunal, an issue which was not first discussed with the people or at least in Parliament. So, this statement in the oral update could be taken as part of the action plan of the government which the people have just heard from an outside player.
What this statement basically means is that the government might first adopt a new Constitution and that Constitution will facilitate the involvement of international personnel to adjudicate on war crimes allegations. Reading between the lines, what is obvious is that the present Constitution does not allow for such international involvement because if it did so, there would have been no need for the High Commissioner to emphasize that the new Constitution should allow for such international involvement. Of course, we do not need the High Commissioner to tell us that the present Constitution does not allow for such involvement as it is crystal clear. However, what this statement shows is that both the UN and the government are aware and concerned that the present Constitution does not allow for such international involvement. This brings us to what the government did in Geneva in October 2015 by jumping in to embrace the involvement of foreign judges and lawyers to try those alleged to have committed war crimes. The co-sponsoring of the resolution amounts to a conscious violation of the Constitution, a matter not to be taken lightly. It is opportune to note that this is not the first time something like this has happened when a UNP Government was in power, if one were to remember the treacherous ceasefire agreement of 2002 which handed over control of large portions of land and territorial sea to the LTTE in total violation of the people’s sovereignty which is the hallmark of our Constitution. The individuals involved in and those concerned with the government’s efforts to adopt a new Constitution must be extra vigilant now because in addition to the spectre of federalism, the new Draft Constitution may also have provisions, albeit subtly hidden beneath layers and layers of legal jargon, facilitating foreigners to come and sit in judgment of Sri Lankans in their struggle against separatist terrorism.
The High Commissioner, being aware of the government’s apparent attempt to shift its policy with regard to the composition of the War Crimes Court as evidenced by certain statements made by the Prime Minister, had this to say: “A key question remains the participation of international judges, prosecutors, investigators and lawyers in a judicial mechanism. In late May 2016, while addressing a large group of senior military officers, the Prime Minister was reported to have again ruled out international participation in a domestic Sri Lankan justice mechanism. The High Commissioner remains convinced that international participation in the accountability mechanisms would be a necessary guarantee for the independence and impartiality of the process in the eyes of victims, as Sri Lanka’s judicial institutions currently lack the credibility needed to gain their trust. It is also important to keep in mind the magnitude and complexity of the international crimes alleged, which the OHCHR investigation found could amount to war crimes and crimes against humanity.”
It seems the High Commissioner is firm on holding the government to its promises that were made internationally in October 2015. The way things are unfolding now, the Tamil political leadership, the diaspora and the UN will not consider anything less than an international(ized) war crimes prosecution to be an acceptable mechanism. The amateurish foreign policy move by endorsing such demands in October is already starting to backfire and the government will have to decide soon whether it is going to lose the confidence of the vast majority of the Sri Lankan public or the UN. This is a matter that will have direct relevance when assessing the credibility of this administration both internationally and domestically.

 
Having said that, the Minister of Foreign Affairs had this to say in Geneva on 29th June 2016 in response to the High Commissioner’s update: “While dealing with the low-hanging fruit immediately, we have strategies and plans to deal with the more serious and controversial issue of setting up a judicial mechanism with international assistance. Sri Lanka is no stranger to international assistance and participation with many investigative and forensic experts having worked with us in the past. Of course, there are varying views on the nature, level and role of international participation. Divergent views are indicative of a healthy democracy and consultative process. Despite such divergent views, however, I can assure you that the mechanism that is finally set up will be one which has the confidence of the stakeholders, especially the victims, with fair trial and due process guarantees.” The minister still seemingly wants an international(ized) prosecution. It would be interesting to observe how he will go before his electorate in the deep South in the future. He may disregard the local electorate for the moment while he remains in that plush office although he will, eventually, have to face the public.

 
Despite the several commentaries by apologists for the present administration, the High Commissioner’s update was no stamp of approval for what the government has done so far. It was a list of what the government will have to do. The High Commissioner reiterated that the government will have to do all things that he decrees for it to retain any credibility internationally. However, attempting to fulfil the High Commissioner’s wish-list may signify the end of the present administration just like the ill-fated ceasefire agreement did in 2004 to the then UNP- dominated Government.

 
As events unfold, the ‘victory’ that the Prime Minister claims to have won in Geneva may very well prove to be a pyrrhic victory. At what cost have you won over that band of Westerners who style themselves the ‘international community’ Mr. Prime Minister? At what cost?

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