By Laksiri Fernando –

Dr. Laksiri Fernando

When Sanja De Silva Jayatilleka wrote about “This September in Geneva: Sri Lanka at the UNHRC,” I expressed my agreement on two main points, having realised that the government inaction or ‘meek submission’ (like the other extreme of the previous government’s ‘aggressive denial’) not only might harm the national interest, but also would derail the reconciliation process that the present government is keen in promoting in the country. My proposal was ‘constructive and active engagement’ with the UN Human Rights Council (UNHRC) and not outright rejection or denial of the UN concerns. The two points I highlighted were the following in respect of the Report of the Working Group on Enforced or Involuntary Disappearances on its mission to Sri Lanka.

Two Points

(1) Sri Lanka should have and should even now record (strong) reservations on the inclusion of an unsubstantiated sentence from a HR High Commissioner’s speech which would prejudice the Council. Otherwise it would create future repercussions. (2) Sri Lanka should have and should at least now request clarification or modification of the wording in Para 6 which claims ‘deliberate massive and systematic’ war crimes for many decades. An undiplomatic question here is what the hell the UNHRC or the Working Group was doing all these decades? The sentence on which the suggested reservation to be placed was the following.

“In its report on its investigation on Sri Lanka, the Office of the United Nations High Commissioner for Human Rights stated that “there are reasonable grounds to believe that a number of military cadres, who had laid down arms and were thus hors de combat, were unlawfully killed after having surrendered unarmed to the security forces” and that “a number of LTTE cadres, such as those belonging to the political wing, and other individuals not or no longer taking direct part in hostilities, including children, were also extra judicially executed.”

The reasons are clear. (1) UNHR Commissioner’s statement has no direct relevance to the Working Group’s Mission to Sri Lanka. (2) The Commissioner’s statement says “there are reasonable grounds to believe” without any evidence. (3) It is a pre-judgement which could again prejudice the Council. This is already done once. (4) It has the appearance of building up of a case for ‘genocide’ perhaps with political motives. (5) What was suggested is placing of a ‘reservation’ and not a rejection of the whole report.

Second, I suggested a request of ‘clarification on or modification’ of Paragraph 6 which Jayatilleka also has highlighted. The paragraph reads as follows.

“Enforced disappearances have been used in a massive and systematic way in Sri Lanka for many decades to suppress political dissent, counter-terrorist activities or in the internal armed conflict. Given the context in which they occurred, many enforced disappearances could be considered as war crimes or crimes against humanity if addressed in a court of law.”
The reasons are again clear. (1) The claim is farfetched saying ‘used in a massive and systematic way’ for an unspecified ‘many decades.’ (2) The claim or rather rhetoric can be build up for a ‘genocide’ claim already in circulation. (3) Although ‘counter-terrorism’ is mentioned, there is no mentioning of the LTTE Terrorism that the country and all communities were inflicted with. (4) There is a clear accusation of the government only.

Constructive Engagement

If a government does not at least place ‘reservations’ and ask for ‘clarifications and modifications’ on what is placed before the UNHRC, that is not constructive engagement but meek submission. The past regime’s ‘zero-casualty’ claim or denial should not be an inhibition, if the present government is straight forward and genuine in its efforts to find the truth and move for reconciliation. It has to be underlined that the incidents referred to in the quoted statement in the report pertains to the period in which the present President was the Acting Commander in Chief. Therefore, inaction would be suicidal.

The present government and the Ministry of External Affairs should take an active and a positive role in the UNHR Council proceedings particularly because there is a clear imbalance in its present approach where ‘genocide’ or ‘near genocide’ is highlighted in dubious ways while ‘terrorism’ is not at all recognized or discussed as an ‘international crime,’ ‘war crime’ or at least as a threat and a ‘catalyst for massive human rights violations.’ It is not clear whether this lacunae or neglect merely stems from (1) the non-recognition of terrorism as an international crime in the Rome Statutes or (2) whether this is part of a political scheme where Sri Lanka could be kept submissive or under continuous suspense. In the case of the Working Group, it is possible that the first is the reason, but in the case of the UN Secretary General or even the UNHR Commissioner, the second also might be possible. The SG’s ‘off the cuff’ rhetoric in his recent visit to Sri Lanka is one example.

Even if terrorism is not directly recognized as an international crime in the Rome Statutes, there are so much of customary as well as codified law where it should be considered as an international crime. There were codified law under the League of Nations. Therefore the UNHRC should be persuaded to recognize the problem and its role in the war and events in Sri Lanka. In my opinion, that is also the reality, however un-excusable some of the actions and behaviour of the military during the war and the last stages of the war. Those should be investigated impartially including the alleged incidents of the killing of the surrendered political wing leaders and some LTTE cadres. Even overseas judges could have been involved if not for the present appalling imbalance in the UN approach to the human rights violations and possible war crimes in Sri Lanka not recognizing ‘terrorism’ as a crime. The danger of this imbalance or the soft corner for ‘terrorism’ is the possibility of its resurrection in the country in the same or in a different form.

A Discussion

When I made my brief comments in the Colombo Telegraph, as quoted previously, a person named Ajith, who used to previously engage in many conversations, raised the following questions, which might linger among many people in the country. He was particularly referring to my reservations on the UNHR Commissioner’s statement.

“If you [don’t] agree with the statement, can you deny with substantial evidence that it is not deliberate, it is not massive and it is not systematic war crimes for many decades. You can start with colonization to change demography, Sinhala only Act, language based standardization, and 1958, 1962, 1977, 1981, 1983 and 1983-2015. How do you want to rephrase the sentence?”

I didn’t rephrase the sentence, as it is not up to me, but gave the following answer (now slightly edited) which might be useful for any frank and open discussion on the subject.

“I suggested to place a reservation because (1) it is not a finding of the mission which came to Sri Lanka and (2) the Commissioner made the statement based on the Darusman Report of which many of the sweeping accusations were not substantiated. In addition, I must say that if the UN produces reports of the Darusman type, whether on Sri Lanka or elsewhere, then the credibility of the UN and the accusations would be highly suspect. I have been the chief representative of the World University Service (Geneva) to the Human Rights Commission during 1985-1991, and I have never seen that type of an unprofessional report.

Now you have given some events of discrimination and violence against the Tamils from colonization to 2015. I can agree that when taken together, the discriminations, violations and violence are massive. But I doubt whether all those were systematic. If it is systematic then who was behind? Of course, one can accuse the State or the Sinhalese. First, I don’t think a ‘collective guilt’ could be placed on a whole community, whether the Sinhalese or the Tamils for any violation. Second, when we refer to the State, it was governed by the elected representatives. Whether colonization, Sinhala only or standardization, those were policies however discriminatory. The correction of those have to be done through the democratic process, while I agree that majoritarianism is an obstacle.

But the most important question is whether they are war crimes? Let us forget about layman’s understanding of the International Criminal Law. But how can the UN appointed professionals indulge in such interpretations? In respect of 1958, 1977, 1981 or 1983, I agree that there were organized elements behind the violations and all perpetrators should have been punished. But what the hell the UN was doing all these days? What about 1971 and 1987-91? We have to agree that Sri Lanka has been and still a violent society. Many of the human rights violations in Sri Lanka or other countries occur because of conflicts. In these conflicts there are of course perpetrators and victims, but not in a black and white manner.

What about Terrorism?

It is my concerned view that those who accuse Sri Lanka of ‘massive and systematic war crimes’ particularly genocide have to confront two challenges, if they are sincere and genuine. First is the democratic character of the state system, however lopsided and defective. Second is the non-recognition of ‘Terrorism’ as a war crime in the present international criminal law. I really don’t know your view on ‘terrorism.’ Can you kindly explain?

Of course there are all indications that there were human rights violations which would tantamount to war crimes particularly between 1983 and 2009 on both sides. (You cannot consider the previous events war crimes, because there was no War! (I think people like you should refrain from mere rhetoric.) The events between 1983 and 2009 should be investigated. I have written about some of the clear cases. I think because of the accusers’ political rhetoric, some of the perpetrators can easily escape in the political melee. On my part, I consider terrorism as a war crime. It was considered when the Rome Statutes were drafted, but dropped for convenience because of the lack of an agreement. That is how the UN works! Don’t trust too much.