All is Fair in Love, War and UNHRC

By N. Sathiya Moorthy | Published: 2:00 AM Apr 20 2021

By N. Sathiya Moorthy

Reports that an organisation identified with Yasmin Sooka, one of the three members on the Darusman panel, that held Sri Lanka guilty of ‘war-crimes’, is matched only by war-time Foreign Minister Rohitha Bogollagama pointing to UNHRC chief Michelle Bachelet ticking off the British chair of the Core Group on rights violations. Bogollagama’s finger-pointing comes after British peer, Lord Nasbey repeatedly referring to war-time Colombo Embassy missives to the British Home Office, that put the number of Tamil dead much less than the unproven 40,000 put out by the panel of which Yasmin Sooka was a member.

As the adage goes, ‘all is fair in love and war’. To this, one may now have to add UNHRC, and by backward integration, the Office of the UN Secretary-General. None should tire by repeatedly referring to the sham of an ‘international probe’ ordered by then UNSC Ban ki-Moon, for his personal consumption, but which after motivated and un-investigated leaks, found its way to the UNHRC, which in turn passed what still remains a politicised judgment. Bogollagama’s reference to the UK’s Overseas Operations (Service Personnel and Veterans) Bill, and pointed position of High Commissioner Bachelet that the Bill would undermine the nation’s key human rights obligations, brings out the contradictions in the West’s approach to handling lesser mortals and their nations.

According to Media reports, Sooka’s International Truth and Justice Project (ITJP) has announced in Johannesburg a 50-page dossier that it had submitted to the UK Foreign, Commonwealth and Development Office, calling for incumbent Sri Lanka Army (SLA) Commander, Gen. Shavendra Silva to be ‘designated’ under the United Kingdom’s Global Human Rights (GHR) Sanctions Regime, which came into force in the midst of global Covid crisis last year. The ITJP claims to have “an extensive archive of evidence on the final phase of the civil war in Sri Lanka, meticulously collected by international prosecutors and lawyers. The testimony of victims and witnesses, many now in the UK, was vital in informing this Submission, and making the linkages to Shavendra Silva and those under his command.”

Interesting, it should seem. Ironical, it equally is. Between them, the Darusman Report in its time and Sooka’s ITJP report now have set out the ‘standards of evidence-collection and reliance’ of the international probe that they have sought for and on Sri Lanka, especially war-crimes. Clearly, this is not the kind of evidence jurisprudence that the British Courts have been following for centuries. It is also the kind of evidence that the British colonial rulers left behind in and for Sooka’s South Africa, which also threw up UNHRC chief in Navi Pillay, who headed the Sri Lanka resolutions of 2012-13, from the frontline.

This is because under the British Commonwealth penal laws and criminal procedures, you are innocent until proved guilty. Two, no accused can be held to be guilty until ‘proven beyond reasonable doubt’. Three, all such proceedings before holding someone guilty under the law provides for the production of evidence for the accused to defend himself, and also disprove the charges, if he or she could. But here we have the IJTP, which is a product of British-South African jurisprudential environment, produces a document, which it has not shared with the ‘accused’ (nation and/or person) and wants a third-nation to ‘designate’ him. But for a short, interim, intervening period between naming someone and offering him the opportunity to disprove the charges, all such ‘designations’ are meant to hold someone guilty without evidence, as much as one wanted. It is a personalised/politicised adaptation of the UNHRC process, which was invented to side-step and scuttle the veto-power available to the P-5 Nations in the UN Security Council (UNSC).

It is a western State structural weakness that Sri Lanka too has adopted in the name of the Prevention of Terrorism Act (PTA). It may have served some purpose – real, surreal and wholly imaginary – at the height of the JVP insurgency in its time and the LTTE terrorism for three decades later. Hence, it is also time that Colombo revisited the processes, procedures and the law as a whole, and did something positive about it. If nothing else, you cannot sit inside a glass house and throw stones at others. Needless to say, for Sri Lanka or Gen. Silva to argue that the charges against the nation and/or the person does not hold evidentiary value, will be laughed at. The employed phraseology would then be thrown at them, more than any law books or international codes in the matter.

It is another matter that the Sooka panel has not found nothing wrong in the war-time conduct of then Army Commander, the decorated Field Marshal, Sarath Fonseka, including restraining those below him, starting with Gen. Silva. No, it is not to argue that Fonseka, now a politician on the other side of the aisle from the ruling Rajapaksas. But it is only to show the world how ‘balanced’ the Sooka Project has been. More of it may fall out of the cupboard if and when the source of IJTP’s funding for this project especially comes to be known.

Panic-button or what

Incidentally, Gen. Silva is the first senior military official from the nation who has been named for ‘war-crimes’, by any international outfit of Sooka’s ITJP kind. Does it mean that more such ‘revelations’ would make its way to the UNHRC in the coming weeks, months and years – for the High Commissioner of the day to update the Council in its bi-annual sittings. Another question is if the IJTP project is only a beginning of the UNHRC investigations that the Council voted 22-11 with 14 abstentions last month. Or, will it stop at the UK’s door-step, as the UNHRC process may take its time – and its own twists and turns.

On the ground, however, the Government, independent of which party or leader is in power, needs to draw out a strategy accompanied by small doses of tactic, to ensure that the nation’s soldier class, both serving and retired, do not feel demoralised and dis-spirited, going into bouts of despair, after learning about what has been done to someone as high as Gen. Silva in the pecking order. If none else, at least his subordinates and solider-colleagues in the war-time 58th Division needs reassurance, especially because the Sooka report has included them, too, though only in the passing while naming Gen. Silva. 

In doing so, the Government needs to study the processes and procedures followed by such other nations similarly-placed, and how they have defended themselves and their men in uniform. In doing so, Colombo needs to understand the tactical employment of a cohesive strategy, which is what the predecessor Government of Prime Minister Ranil Wickremesinghe did. Every Sri Lankan knew that the Ranil leadership too would not do anything to harm the nation’s armed forces, but they knew how to carry the international community and the local Tamil polity, all at the same time. Discretion, as they say, is the better part of valour.

It was also not that the West did not know that Ranil was leading them all up the garden path. But he made them feel it was enjoyable, or was the best of the available options for them in the strategically-located island-nation in the Indian Ocean. In doing so, Wickremesinghe also walked an extra step forward to accommodate China, the West’s post-Cold War adversary, on the Hambantota debt-equity swap-deal, by rendering them dumb, if not making them all feel that it was for their own good. 

Irony, but true

Former Minister Bogollagama’s reference to High Commissioner Bachelet pulling up Core Group chair in the UK, though not in relation to the Sri Lanka resolution, is relevant here. It is a Bill that Education Minister and ruling SLPP Chairman G. L. Peiris had referred to, ahead of the UNHRC vote this year. As Peiris pointed out, the UK double-standards stands out when the new law seeks protection for its armed forces from ‘torture charges’ overseas, even while wanting to haul up their Sri Lankan counterparts over the coals, that too without following the legal and judicial processes that the British Courts follow in the case of criminals within the country, whether uniformed or not. 

This is the irony that is turning out to be true. Yet, there is no denying that the Government cannot fight all its battles at the same time, starting with the Covid pandemic, and including the economy, which is in really bad shape. Given the severity of Covid Phase-II the world over, it is not known which of it would be the worse, Covid proper or its economic fallout. Needless to say, the nation cannot put all its eggs in one basket, that of China, and hope to retrieve and revive the economy in good time. The simple reference point is the Chinese way of doing business, rather development funding. 

There are no local suppliers, nor are they local employers, starting with the unskilled labour upwards, with the result, the individual and the Treasury stand to benefit even in a very small way. From nuts to aeroplanes, if that is the phrase, that are required for China-funded projects, all of them come from China. That is another irritant for the West. It is not about Sri Lanka asserting its ‘strategic independence’ someday, but the impossibility of the existing and emerging situation, which they are unable to stomach. 

Then, there are the Tamil groups inside the country and outside. Their demands are more realistic and manageable than those of their western backers. It’s more so in terms of their political demands, including furtherance of the devolution process and package. The Rajapaksas attempted it in the post-war scenario, but the negotiations with the TNA did not go too far, despite some form of meeting-point on very many sensitive issues. Maybe, the Government should revive these negotiations, both inside and outside of the Constitution-making process. Then, take those resolutions to the UNHRC, and whoever wanted to haul up either a Gen. Silva or the Sri Lankan State to the coals – and not make an electoral issue of it all nearer home, which can only prolong the agony, also for future generations to come!  

(The writer is Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: [email protected])

By N. Sathiya Moorthy | Published: 2:00 AM Apr 20 2021

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