he latest “Geneva Report on Sri Lanka, or the Report of the United Nations Human Rights Council (UNHRC) on Sri Lanka, was released on September 16 in Geneva during its currently ongoing 30th session.
Ironically, this is happening at a time when the very heat of the current struggle of the European Union (which, incidentally was a major force behind the UNHRC report on Sri Lanka) in its bid to cope with the massive influx of Syrian refugees, is being felt strongly across the whole of Europe, including Geneva. The Syrian refugee crisis has virtually engulfed and shaken the European Union, the 2nd largest economy in the world with all its economic and technological might.
It is a known fact that the Syrian crisis was virtually initiated and fuelled by the West which acted with vested interests for a regime change in Syria – basically to topple the Government of the Syrian President Bashar Al-Assad. However, the ultimate consequence is the present massive humanitarian crisis with a devastated and weakened Syria – a part of which is being governed by Al Assad, with the ISIS and the Kurds controlling parts of the country and a few other ethnic and religious groups struggling for autonomy.
On the domestic political front, it is extremely important that the two major national political parties namely the UNFGG and the UPFA act in perfect consensus on the matter
The way the present humanitarian crisis resulting from the massive exodus of Syrian refugees is being handled by Europe is perhaps in stark contrast to the way a humanitarian crisis of comparative magnitude was handled by Sri Lanka, as a developing country, during and after the last battle against LTTE terrorists in Puthumaththalan in May 2009. Puthumaththalan, which is a lagoon bordered area on the North-Eastern coast, ended up as the last bastion of the retreating LTTE terrorists, who had been forcibly taking along with them in their retreat the civilians who were living in those areas where the LTTE was successively losing ground in the face of the advancing security forces. The LTTE was using those civilians as a human shield to defy the advancement of security forces.
The LTTE was ranked as the most ruthless and dangerous terrorist organization in the world at the time. They were in possession of their own Navy with submarine capabilities, light aircraft, and was notorious for its Nazi-style ruthlessness, suicide bombers, and genocide of entire villages in the name of ethnic cleansing.
The phenomenal success of Sri Lanka’s security forces in defeating such a dangerous and powerful terrorist outfit has since been continued to be closely studied, behind the scene, with great enthusiasm by the military think tanks of those Western nations, whilst their politicians and diplomats are resorting to ‘human rights tactics’ to demean Sri Lanka’s success in the international stage.
The phenomenal success of Sri Lanka’s security forces in defeating such a dangerous and powerful terrorist outfit has since been continued to be closely studied, behind the scene, with great enthusiasm by the military think tanks of those Western nations, whilst their politicians and diplomats are resorting to ‘human rights tactics’ to demean Sri Lanka’s success on the international stage.
Let us turn to the UNHRC report. First and foremost it is heavily biased towards the “not-so-secret” vested interests of its proponents, sponsors and supporters. The much talked about ‘reconciliation’ is the last thing that the recommendations of the report could bring about, if implemented.
The report recommends the investigation of the alleged human rights violations in Sri Lanka since 1982. This would simply amount to rubbing salt on old wounds: Technically, the incidents that took place during India’s intervention -- the IPKF operation during 1987-1990; recorded killings and disappearances of 60,000 persons during the JVP insurgence of the same period, and the grave massacres of unparalleled brutalities committed by the LTTE, including chasing out at gunpoint of all Sinhala people living in the North in 1987, and all Muslims in 1991; should be investigated. Fundamentally, the present report is no different from the controversial Darusman report.
Sri Lanka could certainly submit a report in response. However, as far as the UNHRC’s approach toward Sri Lanka’s human rights question is concerned, what is more pertinent is the resolution that the current 30th session is scheduled to adopt on September 30. Technically, however, the fact remains that, unlike a resolution by UN General Assembly or the Security Council, no resolution passed by the UNHRC could be involuntarily enforced without express approval and consent of the member State in question.
Perhaps the most controversial recommendation in the report concerning the implementation mechanism is the ‘hybrid’ court of inquiry. The extent of involvement of the foreign Judges, demarcation of jurisdiction or the participation of foreign technical or legal experts, among other things, remains undefined, and hence ambiguous.
The provisions governing the system of courts of law of the Republic of Sri Lanka, and their jurisdiction, are given in Articles 4, 13 and 105 of the Constitution, and the actions of any Court of Law operating outside these constitutional provisions will become simply unconstitutional and illegal. This means that, even if the Government decides to accept the resolution, drafted on the basis of the report, the approval of the Parliament would still be required for its implementation. Hypothetically, the resolution, if implemented, could only result in a nationwide crisis, the end of which, if ever, would be furthest from ‘national reconciliation’. The 12,000 Tiger cadres who were released to society from detention would have to be re-arrested and tried, and approximately another 300,000 personnel from the three armed forces, police, and the civil defence force, who were in service while anti-LTTE operations were being conducted would have to be tried. In the meantime, there is no way that numerous economic criminals, including certain INGOs, who were aiding the terrorist activities through provision of funding, and certain foreign intelligence agencies, would have to be probed.
The Hague Conventions of 1899 and 1907, along with the Geneva Conventions, the latter comprising four related treaties adopted and continually expanded from 1864 to 1949 representing a legal basis and framework for the conduct of war, are the first formal statements of the laws of war and war crimes in the international law. The modern concept of war crime was further developed under the auspices of the Nuremberg Trials based on the definition in the London Charter that was published on August 8, 1945. On July 1, 2002, the International Criminal Court, a treaty-based Court located in the Hague, came into being for the prosecution of war crimes committed on or after that date. It is important to note that the ICC works on the principles of complementary, complicity and complexity in its operation. Complementary denotes that the ICC would seek to complement, rather than substitute or supplant, the domestic Courts of Law, while the complicity deals with the need to trial those who have aiding and abetting the crimes, in addition to their direct perpetrators. Complexity concerns such issues relating to indirect involvement in wrongdoings.
Perhaps the most controversial recommendation in the report concerning the implementation mechanism is the ‘hybrid’ court of inquiry
While some provisions of laws of war, such as the Geneva conventions, have become part of international customary law, and are binding on all States, certain other conventions are binding only on individual states that have ratified them.
The hybrid system of Courts of Law to deal with war crimes is a subsequent development, and was adopted in respect of the conflicts in East Timor and Sierra Leone, of course, with the consent of the respective States.
Whilst attributing the report of the UNHRC and related issues to the vested political interests of its proponents and sponsors, one cannot forget the serious flaws on the part of the government of Sri Lanka in its approach to handle the issue. In the first place, there were contradictory statistics: as for the casualty figures for example, while the initial statement was ‘zero-casualty’, it was subsequently changed to 5000 and then to 11,000. Then came perhaps the strategically costliest diplomatic blunder by the then Sri Lanka’s permanent representative to UN in Geneva, Dr. Dayan Jayatilleke, who pledged to the International Community that Sri Lanka was committed to implement the 13th Amendment in full.
In the meantime, the actions taken by the Government to hold the Northern PC elections, without taking measures to rectify the grave demographic distortion created by the LTTE through ‘ethnic cleansing’, resulted in a distorted Provincial Council in the North, which was working on a separatist agenda. Furthermore, certain internal mechanisms instituted by the Government such as LLRC grossly overstepped their mandate by venturing into make unwarranted recommendations on devolution of power. Similar trends were observed in respect of the Udalagama Commission and the Maxwell Paranagama Commission. Further, Mahinda Rajapaksa administration made another blunder by inviting foreign figures such as Desmond de Silva and the SAS officer Holmes, which led to allegations of war crimes being levelled against individual officers of the forces by name.
In the present context, what should be the position of the Government of Sri Lanka on this issue? In the first place, the Government has to agree in principle to a free and fair inquiry into the alleged war crimes. However, it should be clearly based on the cardinal principle that the security forces commanded by the democratically- elected Government of the sovereign State of Sri Lanka were reacting to the aggression of a terrorist outfit that was threatening the State, its security and territorial integrity. It should be noted that, had the concept of aggression not been taken cognizance of in the numerous armed conflicts that have taken place in the contemporary history of the world, there would possibly be millions of charges of human rights violations on the grounds of violation of rights of ‘aggressors’, ranging from Nazis of World War II to ISIS terrorists, against the legitimate States who reacted to such aggression! While those who were aiding and abetting the aggressor should be dealt with in terms of the principle of complicity, such acts as expelling of persons from North and East etc., should be appropriately dealt with in terms of the principle of complexity.
Nevertheless, any acts of violation committed by individual officers of the security forces -- going beyond the norms of their legitimate orders and acting mala-fide should be investigated whilst firmly recognizing the role of the security forces of a sovereign State in containing the actions of an aggressor. The judicial mechanism to deal with such investigation should be exclusively local, undertaken strictly within the existing constitutional and legal framework of the country, but in conformity with the reasonably applicable international norms and standards.
On the domestic political front, it is extremely important that the two major national political parties namely the UNFGG and the UPFA act in perfect consensus on the matter, within the far more condusive environment created by the present Government of national consensus. Adequate and effective measures should be made on the international front to create the widest possible international consensus in dealing with the issue. In the past, countries such as Russia, China and Pakistan have supported Sri Lanka at the UNHRC, whilst India supporting on one occasion, voting against on another, and abstaining on another occasion. It is important to ensure that Sri Lanka continues to get their support, while avoiding a confrontational course with Europe and the United States, which remain Sri Lanka’s major export markets to date. In the meantime, it is also important to strengthen our position in the African and Latin American regions. Building broader international consensus in favor of Sri Lanka’s position on the issue should be guided by the need to prevent further international sympathy for separatists.
In the meantime, it is critically important that the Tamil Society of Sri Lanka begins to understand and act responsibly on the issue with a pragmatic view of broader national interest rather than of the socioeconomically invalid and historically unfounded doctrine of separatist interests which were brought to a disastrous culmination by their terrorist manifestation in the form LTTE. The country has been decidedly free from any significant incidents of racist violence since the elimination of the LTTE and its leader Velupillai Pirabaharan. It is high time that the pro- separatist political elements in the Tamil Society cease to propagate any further the baseless, unfounded, and disastrous separatist ideology, which is detrimental to the whole nation, including the Tamil Society. Such false propaganda as exemplified by the claim that, after the war, there were 60,000 families in the North with no adult males, whereas the truth in stark contrast is that Wanni and Mullaitheevu districts of the North are the only districts in Sri Lanka where the male population is greater than female, according to the 2011 census.
Building national consensus over party politics and ethnic fault lines, making it a cornerstone of the foundation for building international consensus in favor of the country, would be the prudent approach in wading through the issue, thereby enabling the nation to realize its full potential for rapid socioeconomic development in the years to come.