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

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