Friday, 13 June 2014 01:00
With less than a month before the UN investigation is officially launched, the Government is still grappling with how to respond to one of its most existential crises
After months of stony silence on the subject, President Mahinda Rajapaksa finally addressed the question of a controversial UN investigation his Government will be facing during a function in Medirigiriya, Polonnaruwa on Tuesday.
And he passed the buck.
It will be Parliament that will be the final decider on Sri Lanka’s cooperation with the UN investigators, President Rajapaksa said, since it was in the Legislature that the people’s will resided.
“They want to come here and investigate things. They want to dig this and dig that. They want to go everywhere. To find out if we have committed war crimes,” thundered the President, as he addressed schoolchildren at the Medirigiriya Maha Vidyalaya, where he was ceremonially opening a science laboratory, typically named ‘Mahindodhaya’ (Awakening through Mahinda).
With budgets and investigators now in place, the Government no longer has the luxury to skirt around the fact that the UN is set to launch an investigation into alleged war crimes committed by both sides to the Sri Lankan conflict between 2002 and 2009. The debate on Sri Lanka’s extent of cooperation with the UN investigation could be taken up in Parliament as early as next week.
Scarcely before the words had left the President’s lips on Tuesday, a resolution was submitted to Secretary General of Parliament Dhammika Dassanayake, resolving that the UN inquiry would violate the sovereignty of Sri Lanka and damage the domestic reconciliation process. Nine MPs have been signatories to the motion, including Monitoring MP for the Ministry of Defence and suspect in the murder of SLFP strongman Bharatha Lakshman Premachandra, Deshamanya R. Duminda Silva.
Patriots and traitors
Officially, the question before Parliament will be whether the Sri Lankan Government should grant visas to the team of UN investigators who will demand unimpeded access to victims and witnesses willing to testify to their experiences during the last seven years of the war. In reality, the debate will centre around patriotism and treason, the defenders of the armed forces and their betrayers. Any Parliamentarian voting to grant the UN team access will be condemned as traitors and Tigers – and this will almost certainly include the TNA bloc.
Leader Ranil Wickremesinghe will instruct his Parliamentary group to abstain or vote in favour of the resolution. The UNP continues to wage a battle against itself, trying to salvage what is left of the Party’s Sinhala Buddhist support, persistently believing it can take the votes of the minorities and moderates for granted. It remains to be seen whether the JVP, which has been vocal on the human rights issue recently, will take a different position.
With a two-thirds majority in the House, President Rajapaksa needs only to issue the relevant instructions to his MPs and watch the farce unfold. It will amount to no more and no less than the impeachment drama that was puppeteered by the top echelons of the regime and staged in grand style in the building beside the Diyawanna Oya.
Yet, President Rajapaksa’s decision to throw the ball into Parliament’s court is revealing. Rarely do the regime’s movers and shakers permit constituent allies, party strongmen or MPs to partake in the crucial decision-making processes about how the country is governed. The Rajapaksa administration, in its nine-year reign, is best known for the autocratic tenor of its governance. A democratic sharing of views is rarely entertained, and when it is, it has little impact on how and when decisions are eventually made.
The ruling family spare no pains to take full ownership of the triumph over the LTTE. The victory in the war is a singularly exclusive Rajapaksa success story. The ruling siblings consistently paint themselves, to the exclusion of all others, as the protectors of the terror-free nation, the supra-patriots, the sole deliverers of eternal liberation from the Tiger menace.
Yet, for some reason, when it comes to making one of the most fundamental foreign policy decisions of its tenure, the regime is looking for Parliament to share responsibility; to prevent the decision to keep UN investigators out of the country from being a Rajapaksa-only decision.
On Monday, President Rajapaksa convened a SLFP Central Committee meeting, drawing on support and consultation of his own party that is largely disregarded in all other matters of governance. To make legislative moves, the regime must rely on its bedrock of SLFP political support, especially in an era when other constituents, chief among them the nationalists who would ordinarily be staunch allies in such a battle, are proving particularly unwieldy.
Suddenly, collective responsibility has become desirable for the regime. A resolution in Parliament against the UN investigation would also contribute to creating a sense of legitimacy with which to meet the international calls for cooperation with the probe.
In Geneva on Tuesday, Sri Lanka’s Permanent Representative to the UN Ambassador Ravinatha Aryasinha already informed the UN Human Rights Council of the Government position: “Categorical rejection” of the Resolution moved by Washington in March and adopted with a majority of 23 votes, in the 47 member body, and the “comprehensive investigation emanating from it”. Parliament, when it debates and votes on the motion next week, will rubber stamp this position.
For all the chest-thumping bravado, for all the rousing speeches about the defence of the motherland against neo-imperialist invaders, could it be, and is it possible, that the Rajapaksa regime is rattled?
Last week, in a letter dated 5 June, the Office of the High Commissioner of Human Rights (OHCHR), notified the Sri Lankan Government through its Permanent Mission in Geneva about the investigation’s terms of reference and the broad structure of the inquiry. As mandated by the UN Human Rights Council Resolution that was adopted in March, the probe will be run primarily by OHCHR staff, and supervised by a coterie of senior experts who will work with the team for a period of 10 months, on a pro bono basis.
Officially, the UN Investigation Team will be operational for a period of 10 months, from mid-June 2014 to mid-April 2015. According to a spokesperson from Pillay’s Office, the team will consist of 12 staff, including investigators, two forensics experts, a gender specialist, a legal analyst and various other staff with specialised skills.
On 3 June in New York, the UN’s Administration and Budget Committee approved the investigating team’s 2014 budget of $ 1,192,000. The estimated total cost of the probe will be $ 1,460,900, but the remaining portion will only be assigned to the team for the 2015 period that it will be in operation (January-April 2015).
The team will meet for the first time, including external experts, in Geneva in July.
Access for investigators
Through the Sri Lankan Mission in Geneva, UN High Commissioner for Human Rights Navi Pillay has also requested access for the UN investigators into Sri Lanka between the period July-November 2014. Once the investigation begins, the experts and investigators will be travelling separately to three different parts of the world to gather witness and victim testimony and access other relevant sources of information.
Once this process is complete, compiling a report to be submitted to the UNHRC’s 28th session will be the task left to the investigators. By this time, the forensics experts that will serve on the team for a period of three months would also have completed analysis of the digital body of evidence – photographs and amateur video footage pointing to alleged atrocities committed during the final stages of the war in Sri Lanka.
The UN Human Rights investigators will also have access to satellite images purporting to show heavy shelling of the Government designated No Fire Zones in Puthukkudiyirippu, already studied by UN Secretary General Ban Ki-moon’s Panel of Experts, led by Marzuki Darusman.
As it grapples with how to deal with the problem of “the investigation,” the Government propaganda machinery has also swung into high gear, to begin the process of discrediting the senior most UN staffer who will essentially run the investigation on behalf of the OHCHR. It has used this strategy of personalising its international battles several times before, to great effect domestically.
The list of ‘individuals’ pursuing vicious agendas against Sri Lanka is extensive. Navi Pillay, the ‘Tamil Tigress’ in the UN, Louise Arbour, her predecessor with an axe to grind, Marzuki Darusman, the shadowy author of the Panel of Experts report on Sri Lanka, former US Ambassador Patricia Butenis – instigator of conspiracy, David Miliband, former British Foreign Secretary and diaspora sympathiser, Gareth Evans, who co-chaired the international committee that conceptualised the Responsibility to Protect principle; these individuals have been cast in stone as Sri Lanka’s international enemies.
In almost every case, the vicious personal attacks on individual ‘conspirators’ has had a counterproductive impact internationally. But the strategy persists, perhaps because in the Government universe, everything is local.
The Beidas question
Sandra Beidas, a UN officer with more than 20 years’ experience in the field and extensive expertise in conducting human rights investigations, has been appointed Senior Coordinator of the probe on Sri Lanka, a UN P5 level position.
Beidas was embroiled in controversy with the South Sudanese Government after a report compiled in 2012 by the UN Mission in South Sudan (UNMISS), of which she was a member, failed to meet with approval by the authorities when it accused the South Sudan Army of torture, rape, killings and abducting civilians during the civilian disarmament campaign in Jonglei State.
In November that year, Beidas was declared persona non grata by the South Sudan Government and given 48 hours to leave the country. Navi Pillay and her office have consistently maintained that the Government of South Sudan had failed to provide the UN any satisfactory evidence of misconduct by its staffer and that Beidas’ expulsion therefore was a breach of its obligations under the UN Charter.
The Sri Lankan Government is using Beidas’ run-in with the South Sudanese Government in 2012 to call her credibility into question, particularly because the Government in the world’s newest state accused the UN investigator of ‘unethical conduct’.
Similar objections are to be raised by the Government, when the OHCHR formally announces the name of Dame Silvia Cartwright as one of the experts who will supervise the probe. Cartwright has been repeatedly asked to step down on grounds of being too closely associated with prosecutors, as an international judge in the Khmer Rouge war crimes tribunal by lawyers for members of the Kampuchean regime being prosecuted by the UN/Cambodia joint tribunal.
‘Campaign of defamation’
Pillay’s office is reacting strongly to what it calls a “campaign of defamatory comments” aimed at Beidas, which commenced after she was announced as the Coordinator of the Sri Lanka investigation team. Following the incidents in South Sudan, the UN has never had reason to call Beidas’ credentials into question and the diplomatic incident has been put down to the Government’s anger at the accusations levelled against its military in the UNMISS report.
“Her expulsion from South Sudan was related to the UNMISS Human Rights Division’s mandated and legitimate activities to investigate allegations of violations, and we believe her work in South Sudan fully complied with the professional standards of human rights staff working in an integrated mission such as UNMISS,” an OHCHR Spokesperson told the Daily FT this week.
It is profoundly ironic and indicative of the desperate position in which the Government of Sri Lanka finds itself, that it must hold up the Government of South Sudan and defence lawyers for the bloody Khmer Rouge regime as standard setters of ‘ethical conduct’ by senior UN officials and internationally-renowned jurists. But for the Government, stripping the investigative panel of its legitimacy and credibility will be the cornerstone of its strategy.
The ruling administration is unlikely to engage with the probe on an official level, but plans are in the offing to send unofficial representation to make the case on its behalf before the investigative team. This mechanism is permissible, and where the evidence is credible, it will be entertained by the investigators. The Government will seek to counter allegations against its own troops through this mechanism, and may use the unofficial delegations to highlight offences and atrocities committed by the LTTE.
While it is a fact often dismissed or ignored in Colombo’s rhetoric about the UN probe, the period from 2002-2006, that is also covered in the investigation’s mandate, will consist largely of inquiries into crimes committed by the Tigers. This should be a cause for celebration, as far as the Government is concerned, because it has bleated repeatedly for five long years that the international community has ignored the crimes of the LTTE in its push for accountability in Sri Lanka.
Patron and protector
Except that in the past five or six years, the Sri Lankan Government has proved to be the greatest patron of former LTTE monsters, many of them involved in active politics for the ruling coalition, holding ministerial portfolios and positions in provincial councils run by the UPFA.
When child soldier recruiters Karuna Amman, Iniya Bharathi and Pillaiyan are named LTTE war criminals by the UN investigators, who are likely to hear testimony of their misdeeds during the war in the Eastern Province, will the Government of Sri Lanka have to give their ex-Tiger loyalists up or continue to grant them State protection?
In 2012, the ‘Draft Conclusions on the situation of children and armed conflict in Sri Lanka’ adopted by the Security Council Working Group emphasised the need for accountability and called on the Government to ensure that those responsible for violations and abuses committed during the armed conflict were held accountable. Karuna, Pillaiyan and Iniya Bharathi, who was sworn in as an Eastern Provincial Councillor for the UPFA on Wednesday, have all been previously listed by the UN as those responsible for recruiting children for armed combat.
As it screams for international scrutiny of LTTE misdeeds, the Government walks on thin ice, with some of the top living LTTE commanders in its midst and among its ranks. The UN investigation on Sri Lanka is, therefore, a devastating crisis for the Sri Lankan Government. It cannot allow the prosecution of soldiers for fear of what those prosecutions may reveal about the chain of command. And in spite of the rhetoric, it cannot realistically call for international action against the LTTE, when the organisation’s top commanders are now members of the ruling party.
Post-war to post-conflict
Sri Lanka officially entered its post-war phase five years ago. Half a decade later, the country is yet to make the transition into a post-conflict society. Introspection that began five years ago would have delivered an entirely different looking country today. But introspection requires political maturity and statesmanship. It requires a long and painful look at the mistakes of the past and genuine political will to embark on a journey of reparation and healing for all communities. Blaming Sri Lanka’s problems on the rest of the world, the Tiger rump and mercenaries seeking to destabilise the regime was the easier, less painful road.
So post-war Sri Lanka is heir to the state that actively seeks out new conflict, born of militarisation, oppression and suspicion and hatred of the other. After waging war against itself for 30 years, Sri Lanka is once more embroiled in the politics of racism and hatred.
This week, the UNHRC June sessions began in Geneva and Sri Lanka’s human rights record was back in the international spotlight. At home, anti-Muslim violence raged in the hill town of Badulla and on the streets of Aluthgama. More mosques were relocated, more Muslim-owned shops besieged. Tamil journalists were forcibly evicted from hotels in Colombo and Negombo while attending a workshop organised by Transparency International. The Bodu Bala Sena group hurled insults and racial slurs at members of the legal fraternity. Tamil widow and disappearances campaigner Jeyakumari Balendran remains in TID custody in Boosa. There is a price still on the heads of human rights activists Ruki Fernando and Father Praveen Mahesan.
And still the Government wonders why, when it tells the world about its fragile domestic efforts to achieve reconciliation that will be hampered by an intrusive UN probe, no one cares to listen anymore.