By Dayan Jayatilleka –

Dr. Dayan Jayatilleka

While the penumbra of the US resolution on Sri Lanka has softened, the core, the essence, remains. The Sri Lankan side has succeeded only in watering down the inessential, or to switch metaphors, in changing the décor. The crux of the matter remains unchanged. The core remains intact. The essence is unchanged. It is deeply inimical and insulting to Sri Lanka. There will be a Special Court with the Special Counsel and if this isn’t bad enough, this court will not be purely Sri Lankan in composition. The resolution says that a “Sri Lankan mechanism” will need Commonwealth and foreign judges, defense lawyers, prosecutors and investigators.

The Operative Paragraph 6 reads:

“…affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defense lawyers, and authorized prosecutors and investigators…”

This is not a “Sri Lankan judicial mechanism”. This is the infamous hybrid. It is quasi-colonial because we have not seen a combination of Sri Lankan and foreign judges or lawyers since the days of British colonialism. That’s how far back this resolution takes us. This is the model of the Planter Raj, with local kanganies.

The issue of a special court with an international component, with international participation, is what the TNA asked for, and is has got it, thanks to the US and more so, thanks to the Government of Sri Lanka. No wonder the TNA says: “…In particular, we welcome the draft resolution’s call on Sri Lanka to involve foreign and Commonwealth judges, lawyers, investigators and defenders in a judicial mechanism to be set up in Sri Lanka that would be mandated to try international crimes… We also wish to note our appreciation of the government’s assent to this text and its willingness to co-sponsor it in the Human Rights Council. A court established on these lines would represent a dramatic break from the past and could herald the beginning of an end to impunity.”

The resolution also calls for the non-retention in the armed forces of anyone found “credibly implicated” by an independent administrative procedure of the violation of human rights during the war. Please note that it is not anyone found guilty by a court of law, military or civilian, but by an ‘independent administrative process’. Operative Para 8 shows that the US-GoSL resolution hopes to purge the Sri Lankan military –including its intelligence units. It reads:

“…include ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law including members of the security and intelligence units.”

The only problem I have in analyzing this resolution is that I cannot figure which is larger: the hypocrisy, the cowardice or the moral outrageousness. Is the hypocrisy of the West larger or smaller than the supine cowardice of the Sri Lankan Government? Are either of those factors smaller or larger than the ethical travesty and moral outrageousness of what we have signed up to?

The West that atom-bombed Hiroshima and Nagasaki, dumped Agent Orange on Vietnam and still refuses to pay compensation for deformed babies, used depleted uranium in the Iraq wars, wants Sri Lanka which did nothing remotely like this, to set up a criminal justice mechanism with foreign judges and lawyers and to sack any member of the armed forces found to be credibly suspect by an independent administrative process.

What the foreign component does is reject out of hand the potential of Sri Lanka even under this new government to regenerate our institutions and processes without an external presence and participation. The new Sri Lankan government has accepted this judgment—not on its predecessor but on itself.

It is noteworthy that the US resolution does not trust the Sri Lankan state and government because the text clearly prescribes a monitoring role over the whole process for the UN High Commissioner for human rights who is mandated to report back to the Council as to whether his report has been implemented. What this means is that Sri Lanka has agreed to implement the draconian recommendations of the OHCHR report! If Sri Lanka had not agreed to do so, it couldn’t have subscribed to the resolution and agreed to do no less than co-sponsor it. So the Government of Sri Lanka has agreed to place the noose around our country’ neck.

“Requests the Office of the High Commissioner… to present an oral update to the Human Rights Council at its thirty-second session, and a comprehensive report followed by discussion on the implementation of the present resolution at its thirty-fourth session” (Op. 18)

The cowardice of the Sri Lankan government isn’t contained mainly in the fact that it hasn’t pointed out the hypocrisy of the prescriptive West—as I used to in Geneva – but in the fact that it had other options.

As a new government friendly with both the West and India, it could have explained that any special judicial procedure, most particularly one that has a pronounced foreign component would be a vote of no-confidence against a reformist Sri Lankan administration.

We could have used the Desmond de Silva–Maxwell Paranagama (second mandate) Report to give the Council members something to think about. It would have armed our friends in the Council with arguments and would have strengthened our hand at negotiations. The government chose not to do so.

We could have used as a deterrent against the recommendation of foreign judges, the credible prospect that we, as a country with a new liberal-reformist government, could have mustered a sufficient number of votes in the council to defeat the US resolution or lose narrowly—either of which would have been a moral victory. Instead, we did none of these things. The reason is that the present government is not a friend of the West; it is a stooge, a mere lackey of the West. The new government of Sri Lanka does not negotiate with the West on essentials; only on the trimming. On the essentials, when the West says “jump” the new government asks “how high?”

The prescription of foreign judges and the purging of armed forces members, who have not been found guilty by a Sri Lankan court of law, shows that the West is not a firm friend of Sri Lanka. Friends do not prescribe alien over-lordship on the institutions of other friends. Meanwhile the acceptance of the resolution by the Government shows that our government is not a friend of Sri Lanka.

The West and India have 80 million Tamils to think of—most of them voters. One can understand the electoral and social compulsions, as well as the knee-jerk colonial habit of tilting to the minorities and the older policy of every empire: “divide and rule”.

What is reprehensible is that the Sri Lankan government, in its acceptance of the formula of special courts and foreign participation, and its co-sponsorship of the resolution saying such, shows that it shares the Empire’s view of its own country.

Malcolm X scoffed at the domestic slaves, the “house niggers” who, when their slave owning masters were ill, felt the identification so deeply in their bones that they used to query “we sick, Massa?” Malcolm X emphasized the “we”, which indicated that the “house nigger” was so pathetic as to identify more with the White master than with his or her fellow oppressed, working in the field, the “field niggers”.

The present Government has the soul of a “house nigger”. Frantz Fanon had such elites and their supportive social strata right, when he wrote of “Black Skin, White Masks”. The UNF government has internalized colonialism and its values. It represents what is called a comprador capitalist class; a class that sees itself as an intermediary between the Western master and the locals; elite that is the enforcer of Western will and whim; a class that has no independent will or existence, still less a national vocation and an independent project. This is a bloated puppet regime that will be a pliant supplicant in relation to the West and India and a ruthless overseer towards the patriotic masses.

The third aspect is that of the ethical travesty and overturning of natural justice. It is one thing to try those who may have wittingly and willfully killed or tortured noncombatant civilians, such as those responsible for the Trinco 5 murders. Our laws, lawyers, judges and courts can do that job. What the resolution calls for is quite something else. Sri Lanka faced, fought and defeated a ruthless fascist-separatist enemy which practiced suicide bombing terrorism and the dismemberment of sleeping villagers including children. We didn’t set up special courts to try those whom we captured or surrendered. Still less did we try them before special Courts with Chinese, Russian, Pakistani and Cuban judges! We rehabilitated and released eleven thousand former Tiger combatants. The ones who are behind bars were those held responsible for especially ghastly crimes. Some are unsuccessful Black Tiger suicide terrorists. That’s how merciful we were.

Now we are asked to try and punish those who may have committed excesses against the enemy. We are asked to try those who saved us from terror and reunified our country, in Special Courts, with foreign judges. Those who gave weapons and equipment to the Tigers will decide the fate of those who fought them and gave political leadership to that fight. If this is not an utterly shameful overturning of the moral order, I do not know what is.

*Dr. Dayan Jayatilleka was Sri Lanka’s Ambassador/Permanent Representative to the UN in Geneva and a Vice-President of the UN Human Rights Council.