Standing United, to What End!

CEYLON TODAY | Published: 2:00 AM Apr 6 2021
Columns Standing United, to What End!

By N. Sathiya Moorthy

Ruling SLPP Chairman Prof. G. L. Peiris has called up the Nation to stand united to face off ‘war crimes’ investigations deriving from the resolution passed at the 46th session of the UNHRC. At present Education Minister and war-time External Affairs Minister, Prof. Peiris, a constitutional expert in his right, has also thanked the support extended by Opposition SJB Parliamentarian Harsha de Silva, in demanding opportunity for the Government to ‘examine available information and evidence’.

Translated, the two leaders, independent of each other, may have challenged the UN to produce the Darusman Report for public dissection on its contents and evidentiary value. The report by the three-member panel was cited as the basis for the US-initiated UNHRC Resolution of 2012. The latter, in turn, has been the basis for all that have followed, including the ‘co-authored resolutions’ of recent years. It is also the basis for the resolution now passed by the 46th session, directing the Office of the High Commissioner for Human Rights (OHCHR) to commence investigations into the war-crimes. 

The Darusman investigation was ‘sold’ as an effort for personal use and reference by the Secretary-General. Both the draft and final reports promptly were ‘leaked’ to select sections of the Western Media, no questions asked, no probe ordered, no ‘accountability’ established or punishment handed down. The Government of war-time President Mahinda Rajapaksa then sought a copy of the report for it to read and react to the contents. 

The UNSG office then said that the report(s) would not be published for another 20 years. Yet, the report(s) for the private consumption of the SG were forwarded to the OHCHR, who in turn cited its findings that 40,000 persons were killed during the war, in the Sri Lanka part of the bi-annual report to the UNHRC.

Ironically, the US-led initiators of the March 2012 UNHRC session, based their accusations on a probe report that they had not read, and yet passed condemnation based on the single figure of 40,000 dead. All follow-up resolutions, including the ‘consensus reports’, derived their legitimacy and credibility only from the Darusman Report, whose existence alone is known to the world outside the UNSG Office, which is supposed to be the repository of the conscience(s) of individual sovereign nations that comprise the UN General Assembly (UNGA).

Witch-hunting mechanism?

It is this dichotomy that Peiris and De Silva, separately and in their own ways, have sought to expose. From it also flows the question, if the OHCHR staff mandated by the 46th session to investigate Sri Lanka would have access to the Darusman Report – or not. If so, why? If not, why not? 

If it is the former, why then can’t the ‘accused’ be given the relevant documents, based on which alone he (in this case, Sri Lanka) could defend  himself – or, even make amends to his past conduct. If it is the latter, that is, the OHCHR staff cannot access the Darusman Report, then the question arises: Is the West setting out a witch-hunting mechanism, to ‘fix’ Sri Lanka, rather the ruling Rajapaksas. 

The alternative conclusion is that the West wants to harass Sri Lanka, and with the Rajapaksas (alone) at the cross-wires. This argument gains greater credence if one considered that the previous Government of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe got away with extension after extension for adhering to the contents of the ‘co-authored resolutions’ that their own Government had attested – until they both lost power, and the Rajapaksas returned, in turn.

A further question is if the UNHRC would not, again at the instance of the West and the Rest, order another investigation or information-collection as they may choose the term, as and when required. They can also rule, for their part, that the current investigation’s findings should not be published, nor should a detailed copy handed over to Sri Lanka, for its response.

Fair enough, the UNHRC process is not even quasi-judicial, for it to adopt legal norms applicable to criminal prosecution. Having said that, it needs to be conceded that it is only an extra-diplomatic, political initiative. Then, it is ‘our offender vs their defender’, just as it is ‘our terrorist vs their terrorist’. 

The irony in the case of Sri Lanka is this. In most other cases, invariably the West chooses an irritating Nation to irritate it. Here, it is not just the nation, but also there is a regime of choice – one for targeting and another for protecting. 

As Foreign Minister who worked on the co-authored resolution for a time since 2015, Mangala Samaraweera has since advised the Government not to antagonise the international community, and thus the UNHRC. Well said, yes, but within the country, he may well be asked to explain how and why he took the decision, when the central issue, then and since, is access to Darusman Report.

Knocking at UNGA

The wag may argue that the resolution was ‘actually defeated’ in the UNHRC, it having gathered only 22 votes in support against a total of 47, and thus it’s 22-25 against the resolution. Then he won’t have an answer if asked why could not the 14 abstentions taken to mean that they too were a vote against Sri Lanka and for the resolution, which got only 11 ayes – 36-11.

Thankfully, no one in the country has come up with such preposterous arguments. The Government has talked in clear-cut strategy terms, with Foreign Minister Dinesh Gunawardena telling Parliament that they would take it all to the UNGA, where the probe team’s $ 2.8- B budget will have to come up for clearance. In the absence of a judicial process where the Nation can challenged the process without presenting the Darusman charge-sheet to the accused state-actor, the UNGA is the only bet that it can count on.

The UN Security Council is the next best place, at least from a purely Sri Lankan perspective. With China and Russia, two of the five P-5 veto-members backing it, Sri Lanka may feel more comfortable in the UNSC than the UNHRC. Of course, there are exemptions when the veto won’t work. 

As may be recalled, the US & Co tried only the UNSC route first, not long after the war ended. But they could not convince China and Russia in their informal consultations – and there it went to the UNHRC, a western creation without a veto vote. That way, more skeletons that they leave around, greater are the chances of the UNGA itself winding up the UNHRC, though that distance may be a little farther away now for Sri Lanka’s immediate comfort.

Targeting the forces

Clearly, by asking the Nation to stand united by the armed forces, Minister Peiris was only addressing the Sinhala polity, especially the SJB Opposition, the SLFP ally (?) and also the miniscule minorities of the JVP and also the UNP, the Nation’s GoP. For his part, ex-Minister Samaraweera has said that the past resolutions did not target the armed forces.

But from what little was made available about the contents of the Darusman Report officially, the cases mentioned there all involved military personnel. Some of the reported cases, like the aid-workers killing and the Trincomallee beach boys’ death were seen as the handiwork of some ‘rouge soldiers’, even by Government investigators, so to say. 

The natural follow-up should be to haul them up before the Nation’s Criminal Courts. Whether the President of the time could grant a pardon to those found guilty, if any, is technically outside the purview of ‘accountability’. It falls within the four walls of the Nation’s Constitution, which the UNHRC or the UNGA cannot contest beyond a point. 

But even that has not happened, and that’s the painful fate of the domestic process. Yet, the West should ask their Sri Lankan friends like Mangala Samaraweera and his then boss, Prime Minister Wickremesinghe, why they did not take forward the findings of the Truth and Reconciliation Commission (TRC) or the Justice Paranagama Commission.

It’s not as if the Wickremesinghe Government should have accepted either or both reports, their findings and recommendations. If they could the commission’s findings unsatisfactory, the Government could have scraped them, and appointed a panel of their choice to work on the same. In doing so, the Wickremesinghe Government could have also asked the friendly UNSG’s office, if they could spare a copy of the Darusman Report for the domestic probe team to begin somewhere – and also reach somewhere. 

Ground realities

Taking ex-Minister Harsha de Silva’s support to logical conclusion, it can be surmised that the domestic Opposition to the Rajapaksas that the West was used to is not the one they find here now. That was also among the reasons why the Nation’s GoP had been going downhill for long, especially with the new-generation voters, who are here-and-now people. 

It’s sad the UNP, despite its multiple capacities and skills, could not easily shed its inclination towards the West, beginning with its pre-Independence origin. That was the time when the Nation’s elite, Sinhala, Tamil and Muslim, would pull out their woollens in Colombo when it was winter in London. Post-Independence, instead of winter in London, it was the winter in Washington, New York or both. 

This has also been the problem with the Tamil Diaspora leaders, settled in the West, never ever thinking of returning to the Nation and settling down in their ancestral homes in Jaffna or Mannar, Trinco or Batti. Unfortunately, the domestic Tamils that they keep egging on and to great effect, are still on this land, though their feet are not firmly rooted in the soil, whether in political or economic terms.

The post-war Tamil youth want to go westward to greener pastures. There you have Germany, which voted for a UNHRC Resolution that implied rights violation under the incumbent Rajapaksa regime – and yet chose to deport 31 Tamil asylum-seekers back to Colombo, for facing the music? Is it a case of the left hand not knowing what the right had had just done?

In Sajith Premadasa, the breakaway SJB Opposition has a leader whose ears and eyes are too close to the ground for a President’s comfort. But in him, there is a political leader, still, with his ears to the ground – like was the case with his father, President Ranasinghe Premadasa, who was slain by the LTTE. 

It is only for the Rajapaksa leadership of the Government and the ruling party to make the right moves, and you may now have the entire Sinhala community ‘ganged up’ against the West, and in defence of the Nation’s armed forces. Who knows, it could well make talks of another ‘regime-change’ unworthy for consideration, as there may be little for the West to choose from, now than in the past.

(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])

CEYLON TODAY | Published: 2:00 AM Apr 6 2021

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