War crimes

“It is lamentable that the Government of Sri Lanka continues to divert attention from the central truth in this matter – that is, the problem of impunity for serious human rights violations…”

Press released by the International Independent Group of Eminent Persons (IIGEP), 30 April 2008

The report of the United Nations Fact Finding Mission on the Gaza Conflict, released last week, resonates deeply with Sri Lanka’s current fixation on war crimes allegations. The UN mandated mission was headed by Justice Richard Goldstone concludes that “While the Israeli government has sought to portray its operation as essentially a response to rocket attacks in exercise of its right to self-defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole.” Castigating Israel for violating Geneva Conventions, the mission recommends international legal actions against both Israel and Hamas for war crimes and possible crimes against humanity. The Economist report on the release of the report notes that the Israeli Prime Minister, Binyamin Netanyahu, “has given orders for a diplomatic campaign to discredit the report and counter the mission’s effort to have Israelis charged with war crimes.” Israel did not cooperate with the fact-finding mission. A letter to Justice Goldstone from Amb. Aharon Leshno Yaar, Israel’s Permanent Representative to the UN in Geneva noted that the Israeli Defence Force (IDF) had undertaken its own investigations and that  “Israel’s decision not to cooperate with the Mission is… without prejudice to its conviction that any allegations of wrongdoing by Israeli forces in the course of the conflict must be investigated, and where appropriate, prosecuted.” Reminiscent of Sri Lanka’s erstwhile International Group of Eminent Persons (IIGEP), a key recommendation of the mission is to establish an independent committee of experts in International Humanitarian and Human Rights Law to monitor and report on any domestic legal or other proceedings undertaken by the Government of Israel in relation to its own investigations. The mission’s report brings out a number of other striking similarities between the tenor and behaviour of Israel and that of the Sri Lankan government, both during war and in response to a process of investigations into alleged war crimes.

Our domestic debate on allegations of war crimes is presently informed and framed primarily by a video broadcast by England’s Channel 4, the President’s claims that the war was conducted with zero casualties and news of moves by US based Tamils Against Genocide (TAG) to obtain commercial satellite imagery and through subsequent image analysis prove the occurrence of war crimes in the Vanni. The usual conspiracy theories thrive. Anyone for example who questions the zero casualty theory propounded by the Executive is necessarily in cahoots with one or all of the parties, usually from the West, hell bent on regime change. Together with the uncertainty over the extension of the EU’s GSP Plus trade concessions, and sustained domestic and international condemnation over the continuing internment of Tamil IDPs in Menik Camp, it is understandable the government feels under siege, and perhaps rightfully so. Of concern here is that instead of addressing its own failures, the government’s pushback is anchored to the vilification of civil society and sections of the international community, including the United Nations. Prospects of meaningful accountability for the government’s policies and practices during war, reconciliation and peace in this context remain extremely bleak.

For example, the termination of the Secretariat for Coordinating the Peace Process (SCOPP), at a time when its operation and mandate is most critical and the recall of Dr. Dayan Jayatilleka, whose views on constitutional reform and IDPs were increasingly discordant with government policies and practices, suggest that the mere absence of war is, to this President and his government, perfect peace. To doubt or qualify this peace, defined by and seen through an exclusive Sinhala Buddhist mindset, is to be a killjoy and traitor to boot. Sadly then, to a much greater degree than the significantly flawed design and implementation of the peace process under the CFA, the Rajapakse regime’s approach to and understanding of peacebuilding is indubitably geared to ferment more violence. Reconciliation is an inevitable collateral. But there’s the rub. Knowing what really went on in the war, and the accountability and reconciliation that can follow, are vital for processes of healing and forgiving. To rebuild trust and positive relations between peoples who share an unequal yet common trauma of war and violence requires the restoration of, above all, human dignity. Menik Farm today is the anti-thesis of this vital need. Yet, the readership of this column emphatically do not represent a significant quotient in Sri Lanka who actually want or see any need for accountability and reconciliation thus defined post-war.

Three key narratives, each myopic and biased, will inform this on-going debate on accountability and war crimes. One will be defined primarily by pro-LTTE diaspora to hold the Rajapakse administration accountable for war crimes. Satellite imagery analysis by Tamils Against Genocide (TAG) may bring about evidence of war crimes and crimes against humanity. Ranting and raving aside, there is nothing the Rajapakse government can do about it. TAG’s primary sources are in geo-stationary orbit and their key witnesses are already in foreign countries. The government will obviously contest the evidence tabled, but we can be fairly certain that war crimes by the LTTE will be, at best, mentioned en passant. Eyewitness accounts such as that from Damilvany Gnanakumar published recently in the British press concur with a number of other narratives from those in the Vanni at the time of indiscriminate shelling by the Army. But while Gnanakumar’s compelling account must be appreciated for what it is and not summarily dismissed as propaganda, it does not help us address, for example, disturbing footage from an unmanned aerial drone released in May this year by the government showing what it said were LTTE cadres firing indiscriminately at people trying to flee along a beach. In comparison, Justice Goldstone’s report clearly notes that Palestinian armed groups “failed to distinguish between military targets and the civilian population” in Southern Israel and that their deliberate targeting of civilians would constitute war crimes and crimes against humanity. It also notes that these armed groups contributed to heavy civilian casualties in Gaza from Israeli retaliatory fire after it launched attacks from built-up, civilian areas. The damning parallels here to the LTTE’s tactics against Tamil civilians are obvious, and must be interrogated as part of any war crimes investigations.

The Rajapakse government exclusively defines the second narrative. In its maddeningly farcical description of war as a “hostage rescue operation” and a “humanitarian mission with zero casualties”, it is obvious that the government will violently clamp down on any concerns raised over the actions of the armed forces. Critical reports from the UTHR (J) and statements from V. Anandasangaree point to the systemic and sustained targeting of Tamil civilians in the Vanni by the armed forces. They also raise concerns over the circumstances surrounding the capture and death of Prabhakaran. These concerns, from actors who were never supine apparatchiks of the LTTE or remotely interested in its revival, tellingly do not feature in the mainstream Sinhala media. The result is a public, partly because they unquestioningly consume myopic media, who will resolutely oppose calls from political parties, civil society and the international community to investigate war crimes and accountability. Mirroring the government, such calls will be seen as an affront to our sovereignty, undermining our national security and based on hypocrisy and dual standards. This same public, particularly if the EU’s GSP Plus trade concessions do not come through, contains elements that can and will be easily and effectively mobilised violently against some key actors in civil society. Examples of whipping up emotions in this regard already abound in government-controlled media. Meaningful public discussion and debate on allegations of war crimes, or even on the strengthening of domestic human rights instruments so comprehensively undermined by government, is in this context a non-starter.

The international community informs the third narrative on war crimes. In an article on Sri Lanka’s bizarre post-war foreign policy published recently on Groundviews, the author succinctly notes that,

“The confrontational stance has additionally become a election gimmick to display the regime’s bravado in confronting world powers to the largely insular rural electorate whose patriotic fervour can be easily manipulated in order to divert their attention from their own as well as the nation’s dire economic straits. The regime constantly highlights the double standards and hypocrisy of the West with regard to war crimes and human rights abuses in order to vindicate themselves of the very same injustices which is a puerile and pathetic form of defence, to say the least.”

The fiasco over Bob Rae earlier this year and the deportation and public vilification of the UNICEF spokesperson are two examples in a litany of incidents this year alone that reveal the chutzpah of the Rajapakse regime. But the underlying and enduring challenge of international calls for investigations into war crimes is that it places at grave risk domestic actors, including independent journalists, writers and human rights activists perceived to be supporting such investigations. Also, using war crimes investigations as a means of regime change by some is a covert agenda that seriously undermines processes of restorative justice and is self-defeating to boot. The Rajapakse regime will not be dislodged by international pressure, and the West must be acutely sensitive to this. Any statement calling for accountability and recommending that human rights conditionalities must be imposed on and pegged to all bilateral aid and trade even post-war, will be seen and portrayed as evidence that the West, along with its local agents, is hell-bent on regime change. Invariably, reactions to this self-serving conspiracy, from a deified, venerated government and particularly from the Executive and those closest to him, will be visceral and violent.

These three narratives, inextricably entwined, give very little space for serious truth telling and reconciliation in Sri Lanka. Writing in the New York Times last week, Justice Goldstone noted that,

“Absent credible local investigations, the international community has a role to play. If justice for civilian victims cannot be obtained through local authorities, then foreign governments must act. There are various mechanisms through which to pursue international justice. The International Criminal Court and the exercise of universal jurisdiction by other countries against violators of the Geneva Conventions are among them. But they all share one overarching aim: to hold accountable those who violate the laws of war. They are built on the premise that abusive fighters and their commanders can face justice, even if their government or ruling authority is not willing to take that step. Pursuing justice in this case is essential because no state or armed group should be above the law.”

However, it is unlikely that the Rajapakse regime will be shamed by any war crimes investigations in the near future. At the risk of annoying some, it may be that championing war crimes investigations is precisely what the international and domestic human rights lobby should NOT be engaged in at present. Arguably more urgent would be advocacy that flags continuing violations of human rights post-war, not least of 260,000 IDPs interned in hellish conditions. Investigations into war crimes rarely explore the underlying causes of violent conflict. Systemic racism, a rampant Sinhala Buddhist majoritarianism in all aspects of governance and culture, growing social and economic inequality – these are enduring challenges of post-war Sri Lanka that the defeat of the LTTE has brought into sharp relief and if unaddressed, will lead to repeated situations where crimes against humanity are alive.

With some patience, it is entirely possible that the growing nepotism and intra-party strife in the SLFP will undermine the government’s power, with no outside intervention necessary or needed for regime change. Then, not now, would be the time for naming and shaming for architects and perpetrators of war crimes alive today have few places to hide. Digital evidence and testimonies of their vile handiwork, once recorded, does not fade away with time and cannot be censored. The stigma that such material can arouse in the countries and neighbourhoods perpetrators may escape to when their domestic power wanes can be a powerful weapon of social accountability, long after crimes were committed, and beyond the control of international jurisprudence, their personal lawyers and goon squads. As Justice Goldstone notes in the New York Times,

“As a service to the hundreds of civilians who needlessly died and for the equal application of international justice, the perpetrators of serious violations must be held to account.”

That said, truth telling takes time, courage and an enabling environment. We must be patient and strategic.

Published in the Sunday Leader, 20th September 2009

Eyes Wide Open

On my instructions, due to the priority given to the policy of zero civilian casualties the security forces are limiting themselves to rescue operations of the entrapped civilians held hostage as a human shield by the LTTE. – Address by President Mahinda Rajapakse to the diplomatic community, 7 May 2009

“Firing should stop,” Mr. Anandasangaree, a former MP and the leader of the Tamil United Liberation Front party, said in an interview. “The government has no business to kill people like this.” He said he believed the latest casualty figures because he had heard them directly from a doctor at the hospital that received the dead and injured. “These are 100 per cent true,” he said. “We can’t trust the LTTE’s version, but this is from the horse’s mouth.” – Interview with V Anandasangaree in Canada’s National Post, 11 May 2009

A day after torrential rain resulted in widespread flooding in Menik Camp in late August, I published online the first images of what conditions were really like for IDPs interned inside. The photos, taken from a mobile phone, were low resolution but clearly showed the scale of catastrophe. Amongst many who expressed shock and outrage at the Rajapakse government’s inhumanity so evident in these photos, a particularly revealing comment came from an individual called ‘Sunday Sinha’ who noted,

“Your images don’t bear any date or time-marks, and we wonder why. Could it be that your images are doctored, just like many LTTE images were in the last days and weeks of the war?”

To which my response was,

“I’ve yet to see a time-stamps and dates on photos published on the Ministry of Defence and Army websites… Prove they are. Go on. Fetch the evidence. And by the same token of scepticism, why don’t you question the images and video released by government during and after war?”

‘Sunday Sinha’ has yet to prove these images were doctored, or for that matter point to any time and date stamped photos published by mainstream media journalists who are actually in Menik Camp covering what is happening on the ground.

One encounters a similar pattern of vehement denial and accusations of falling prey to LTTE propaganda with the video broadcast by Channel 4. Let me be very clear about this. Media literacy rightly teaches us to be sceptical of content such as the photos I published and the video broadcast by Channel 4. New media, such as mobile videos and photos published on the web, allow for new perspectives to emerge. Sometimes these perspectives bear witness to events that we may otherwise have not known about, or add fresh perspectives to events we may only have been told a specific version of. But any camera is a still or moving frame, and no frame covers all angles. So interlocutors who question the bona fides of Channel 4 in broadcasting this video are partly right – we cannot be sure that what we see is real and without context, temporal information or the original video file for digital forensics, its veracity must be held up to scrutiny. Obviously, the government will seek to prove it is well-staged LTTE hog-wash, others will see it as evidence of war crimes with a view to using it as evidence in campaigns of accountability, justice and punitive sanctions against the Sri Lankan government. This thrust and parry of competing worldviews is not new. The President and V Anandasangaree, one of the most senior Tamil politicians in government and hardly a supporter of the LTTE, showed a remarkable difference of opinion during Vesak this year. Whereas the President believes he conducted a rescue operation with zero civilian casualties, V Anandasangaree claimed otherwise. Unsurprisingly, only one of these worldviews found sustained and unquestioned publication in Sinhala and English media. Videos such as the one broadcast by Channel 4 allow for a critical, open contestation between what the government wants us to believe, and what some of us know is a far more bloody, outrageous reality.

This is inconvenient for those who want to keep believing government propaganda. Calling the government’s bluff that this video is false, Philip Alston, U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions said last week that “There’s nothing on the surface to indicate that it is not authentic and, if that’s the case, it would raise very grave concerns”. Alston went on to note that the Sri Lankan government had a poor record investigating such cases. “Given the not-very-happy record of such investigations in the past, it would in my view be desirable that this be an international investigation, which would ensure its independence and impartiality”. Alston was being diplomatically polite. Successive Sri Lankan governments have with complete impunity executed civilians. The Rajapakse regime’s emblematic red sash is deeply symbolic of its own complicity in terror. As Amnesty International notes in Twenty Years of Make Believe: Sri Lanka Commission’s of Inquiry published earlier this year, “Commissions of Inquiry have not worked as mechanisms of justice in Sri Lanka. Presidential Commissions have proved to be little more than tools to launch partisan attacks against opponents or to deflect criticism when the state has been faced with overwhelming evidence of its complicity in human rights violations.” To expect this government to conduct any meaningful investigation into the veracity of this video, and those that in invariably surface in the months and years to come, reminds us of the Sinhala proverb “Horaga Ammagen Pena Ahanawa Wage”.

This same report notes that Sri Lanka’s formal justice system is in tatters. It is a raw nerve for the government, particularly in light of vehement and growing local and international condemnation of the sentence handed down to journalist J.S. Tissainayagam. The judgement also comes in the context of growing media reports that suggest Sri Lanka stands little chance of getting the EU’s GSP Plus trade concessions, vital for our garment industry, because of its terrible human rights violations. This is cogently expressed in The Economist last week when it noted that rarely has a government soiled its reputation as dramatically as Sri Lanka’s, and quotes a confidential report from the EU submitted for government review,

“Widespread police torture, abductions of journalists, politicised courts and un-investigated disappearances have all played a part in creating a state of “complete or virtually complete impunity in Sri Lanka”. The internment of the Tamil displaced, which the government claims is necessary to weed out the last Tamil Tiger rebels and to protect them from munitions left in their fields, is “a novel form of unacknowledged detention”.

Prefiguring the EU’s trenchant and wholly justified critique, I noted in my last column that what was needed in Sri Lanka was not more support to maintain these horrendous, inhuman IDP camps, but the international and local impetus to dismantle them and allow inhabitants to return to their homes. It is interesting to speculate whether the Channel 4 video combined with the EU’s confidential draft report contributed in large part towards Tissa’s judgement. Tissa’s incarceration, his treatment in prison, and his case are no small warnings against independent journalists who wish to hold government accountable for its actions, particularly during war and now increasingly in the domains of security, reconstruction and rehabilitation in the North and East. The revealing combination and conflation of high security zones and special economic zones, coupled with new army installations, new cantonments and the resulting demographic shifts colour any appreciation of post-war development and the demarcation of land. Tissa’s predicament suggest that few journalists will dare explore these vital issues rigorously, or name the countries that are guiding and funding these developments.

Ergo, it may also be the case that, public optics aside, the government does NOT really want an extension GSP Plus and the attendant conditionalities that run counter to a growing totalitarianism. A government that sees victory in and the resulting absence of war as peace is unlikely to take kindly to growing concerns of war crimes, human rights abuses and a supine, subservient judiciary to boot. And well beyond the significant war-centric human rights abuse, Nipuna Ramanayake’s case and the fiasco in Angulana suggest that under this government, the Rule of Law exists, akin to minority rights, only as a legitimate aspiration of our peoples. It does not really exist in fact.

We must also ask why journalists who trespass private property now charged under the Prevention of Terrorism Act (PTA), despite assurances by the pathetically disempowered Media Minister that the PTA will not be used to clamp down on media freedom? Is it because the owner of the property these journalists trespassed on is really the key agent, even above the judiciary, of the PTA’s application and interpretation? The Sunday Leader editorial today submits that the PTA facilitates arbitrary and capricious official conduct, including torture and also makes serious incursions into the freedom of expression and the media. Sri Lanka’s post-war descent into totalitarian rule by a frothing, murderous fraternity is disturbing because it is occurring without shame or disguise. The corruption, the abuse of power, the hypocrisy, the lies, the rabid racism, the violence – they are all out in the open. This degree of impunity, mirroring the LTTE’s chutzpah, is worrying. It reveals that democracy is hostage to the whims of a powerful few, who are really answerable to no one. It suggests that there is little local and international actors can do to stop this manic lawlessness. It reveals that truth-telling and reconciliation are non-starters, whatever photos, videos and other narratives that make it out to the public domain.

It reveals that eyes wide open, though validation, collusion, ignorance and indifference, voters are supporting a brutish regime that will never bring a meaningful peace to a country that so richly and urgently deserves it.

Published in The Sunday Leader, 6th September 2009

Imagining peace

A pause
Quiet footfall of zephyr
At this base of white
evening lines come in a quiet
pāli hush.

Eyes open, undulating stones warm the ancients
who see
light meditations in
a chiaroscuro of hope.

Peace comes easy here, for now,
after uneasy undercurrents have shifted
white and saffron interplay.

To imagine peace, what memory chains
to escape crimson strokes
and see inside out on silhouette tracings
What we really are.

To imagine a time when a tiny hand in mine,
her smell, a father’s cooking, a mother’s embrace,
the lightest brush of skin
breath of one’s nape
tongue flicks of desire.

Our ordered lives, this order of life,
to imagine as different requires
no accident, no hero. No patriot
commands or paltry gods.
No enfilade must disturb, no cerise cuts
must mar peace anew.

Then.

Imagine, to imagine peace!
Would it be any different, really? Would we be, any different?
wounds erased, sounds faded
Leave now, yet remember this hope, this moment,
this imagined peace and its warm embrace
against looming shadows
at rest.

[Written for Saskia Fernando Gallery exhibit at the Colombo Art Biennale, 10 - 14 September 2009]