By Dharisha Bastians –

Dharisha Bastians

Since 2004, President Mahinda Rajapaksa has been on a remarkable winning streak.

In April that year he wrested the Premiership from former Foreign Minister and Chandrika Kumaratunga confidant, Lakshman Kadirgamar after the newly constituted United Peoples’ Freedom Alliance led by the SLFP won its first parliamentary election. He waged a second battle for the SLFP presidential nomination the following year and against all odds, ascended the presidency in November 2005. Against his successful campaign to defeat the LTTE in May 2009, the curse of incumbency stands little chance. Ever since, politically, and electorally President Rajapaksa has been an unstoppable force – with three notable exceptions in the past 10 years.

The first was in March 2012, when the US led resolution calling on the Rajapaksa Government to deliver on a promised political solution to the Tamil people and investigate certain pesky allegations about the last phase of the war against the LTTE passed at the UN Human Rights Council in Geneva, despite the regime’s best efforts. The following year, the US sponsored a second resolution, roughly along the same lines, but pushing a little harder on the same issues. The 2013 resolution forced the Government into conducting the Northern provincial election that culminated in third and humiliating defeat, when the country’s main Tamil party, the Tamil National Alliance was swept into power provincially with a two thirds majority.

Today when the UN Human Rights Council adopts a resolution that mandates an international inquiry into allegations of major human rights violations in Sri Lanka during the last seven years of the war, President Mahinda Rajapaksa will taste his fourth and perhaps most bitter defeat of all.

When a powerful incumbent becomes so accustomed to winning, defeat on any level becomes excruciatingly difficult to bear.

For three years, the Sri Lankan Government has fumbled to find ways to deal with the international losses. Belligerence became armour, the creation of enemies and conspirators helped to soften the blows and active alignment with the world’s most notorious states and human rights violators had lulled the regime into complacency that it had somebody fighting in its corner. In the meantime, the Government has also continued to shock the world with a blatant disregard for the fundamental rights of its citizens. It has systematically undermined the rule of law and independent institutions, including the judiciary with the illegal sacking of its own Chief Justice. Five years after the end of the military conflict, it has stoically refused to deliver on a devolution package for the Tamil minority community to address decades of marginalisation and discrimination that gave rise to separatist militancy and a terrorist outfit deemed one of the most ruthless in the world.

All these ghosts of the Government’s own making will haunt Sri Lanka in the Swiss city of Geneva today. When the Council convenes to debate and vote on the resolution to promote human rights, reconciliation and accountability in Sri Lanka this morning, the US led effort is likely to garner between 22-24 votes in the 47 member body. The Government is likely to secure more than the 13 votes it obtained in 2013 with 13 new member states at the Council this year, including several African states it has actively wooed for the express purpose of support at the UN human rights body. The abstentions will be a mixed bag. Japan is likely to abstain at the vote and South Korea’s silence throughout the Council session and the informal discussions may also be pointing to an abstention. The government can justifiably claim credit for Japan’s decision because it was essentially bound to the holding of the Northern provincial poll last September. If South Korea abstains, it would point to Sri Lanka’s success in having partially turned a ‘yes’ vote for the 2013 resolution into an ‘on the fence’ in 2014. South Korea, or the Republic of Korea (ROK) as it is officially known, could also still be in play for the US, after President Rajapaksa recently reversed a decision to gift a baby elephant to the Korean Zoo because the calf was born on 18 May 2009. Whether the reversal was only a result of the accident of the elephant’s birth, Sri Lanka being loath to part with such a symbolic animal or linked to South Korea’s decision on the US resolution is uncertain. A traditional US ally, ROK’s support for the resolution would immediately disqualify the country to be worthy recipients of baby elephant ‘Dinuuda’, so inadvertently bound to the regime’s Victory Day ethos.

But it is South Africa’s likely abstention that will likely be the heaviest blow for the Government. For months, the Government has mulled, or appeared to mull over a South African style Truth and Reconciliation in collaboration with the African National Congress. While the idea has been largely abandoned after a Sri Lankan ministerial delegation visited South Africa for discussions on the mechanism found the two countries had “more differences than commonalities’, the regime has been content to keep hope of a TRC alive as pressure mounted for an international inquiry at the UNHRC. None of this has been lost on the South Africans, who dropped a reference supporting Sri Lanka and domestic mechanisms at the eleventh hour during a speech at the UNHRC’s High Level Segment earlier this month, creating major confusion. The ANC will seek to retain a degree of neutrality in case Sri Lanka has a change of heart, but it is unlikely to make any further concession to this possibility. For the Government the problem with South Africa’s decision is that it will influence several other key African states at the Council. Despite the best arguments of External Affairs Minister G.L. Peiris that abstentions also amount to votes against the resolution (famously pronounced after the Council voted in 2012, but never attempted again), it is an indisputable fact that abstentions help a winning side, since resolutions at the UNHRC require only a simple majority to be adopted.

Fortunately the Rajapaksa administration had planned well ahead for the eventual UNHRC defeat, by holding an election less than 24 hours after the vote on the resolution was to have concluded. A minor scheduling error resulted in a 48 hour lapse instead between the passing of the resolution and the poll, with the Council taking the resolution up one day ahead – on 27 March – in order to reserve the final day of session on Friday (28) for ‘any other business.’ But the Government is likely to make use of the extra day with aplomb. On Saturday, voters in the Western and Southern provinces will go to the polls with dire warnings of international invasions and a motherland under siege ringing in their years. And President Mahinda Rajapaksa would have sweetened his UNHRC defeat with a resounding peoples’ mandate endorsing his rule.

But for all the chest-thumping bravado that christened the Government’s Geneva 2014 campaign, too many things have gone hopelessly off-script. Not least, President Rajapaksa’s own stump speeches. He kicked things off with a bang in February, making hysterical speeches about international attempts to take him to a fictitious ‘electric chair’. The rhetoric altered drastically as the election campaign waned. UNHRC resolutions were powerless he told supporters at UPFA rallies, they could impose no sanction on a sovereign state. “When I went to Israel, the Government told me that about 60 resolutions were passed against Israel at the UNHRC – but nothing happened. They said in the end they just left the Council,” he quipped, with a broad grin. In Maligawatte on Tuesday (25) the President got to the heart of the matter. “I don’t care if we win or lose in Geneva,” he told an election rally, “I know that the people will deliver a victory at the election – I care about that.”

Unfortunately his Government cares more about the international storm than they like to admit.

Sustained and systematic international pressure forced the regime to rollback a major act of defiance against the UN last week, with the unconditional release of human rights activists Ruki Fernando and Father Praveen Mahesan who were arrested under the Prevention of Terrorism Act. The spectre of LTTE resurgence has been well and truly propagated, with security crackdowns in the North and fear-mongering in the South. The tale of LTTE resurgence will galvanize the South into supporting the Rajapaksa Government, defenders of the nation at Saturday’s election, while also casting doubts internationally about the security situation in the island’s North. Terrorism elicited sympathy from the West during the war and it may have succeeded in giving Western powers at the Council pause in the present context, if Sri Lanka had not eroded its credibility so badly with these countries in the intervening years since the end of the conflict.

The regime’s messaging has also been haywire this week, as pressure mounts in Geneva. Earlier this week, Minister Nimal Siripala De Silva struck an oddly defeatist note, saying tiny Sri Lanka must at least be proud that even though it was fighting a losing battle against the mighty power of Washington, it had refused to bow to pressure. Minister Peiris went before the chief monks of all four Buddhist monastic orders in Kandy on Tuesday and informed them that countries moving the resolution were seeking to create anarchy in order to invade and set up an alternative administration in Sri Lanka.

But it was the circulation of the third draft of the US resolution in Geneva on Monday that really showed the strain on the regime’s collective nerves. The only major change in the third draft resolution was the inclusion of a time frame of violations in Sri Lanka that will be probed by the Office of the High Commissioner for Human Rights (OHCHR). The matter came in for debate at the final informal discussion on 18 March, as reported last week, and the co-sponsors decided the investigation timeline should match the focus on the domestic process Sri Lanka had undertaken when it established the Lessons Learnt and Reconciliation Commission.

In Operative Paragraph 8 of the third draft of the resolution, the co-sponsors called on the OHCHR to “undertake a comprehensive independent investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka, during the period covered by the Lessons Learnt and Reconciliation Commission, and establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedures.”

The LLRC had a mandate to study the conflict in Sri Lanka between February 2002, when the ceasefire agreement was signed, and May 2009, when the LTTE was militarily defeated.

In 2002, President Mahinda Rajapaksa was not part of the picture. Ranil Wickremesinghe’s UNF Government had just been ushered into power in Parliament, to begin a shaky political cohabitation with President Chandrika Kumaratunga. Wickremesinghe’s Government signed the CFA with the LTTE and commenced several rounds of peace talks with the Tigers while Scandinavian truce monitors – the Sri Lanka Monitoring Mission (SLMM) – flew in to watch over the interim ‘peace’.

For Rajapaksa Government aides on Monday, it was like Christmas came early. A senior Presidential aide fired calls to several media personnel informing them that the Government was “pleased” with the latest US draft. The aide noted that if the time period covered by the OHCHR probe was to be 2002-2009, it was not merely President Rajapaksa who was at grave risk of being investigated, but also two other heads of Government. The theory was posited that New Delhi had made an intervention with the US delegation to have the time-frame inserted.

But there was a flaw in the argument.

Between 2002-2005, Sri Lanka was enjoying a tenuous peace, even though large swathes of territory in the North and East were controlled by the Tigers. Minister G.L. Peiris, then the UNF Chief Negotiator was attempting to hammer out a peace agreement with the LTTE’s Anton Balasingham in various capitals around the world. A brief glance through the SLMM monitoring reports would lay bare the fact that the chief protagonist of offences, atrocities and truce violations in the ‘ceasefire years’ was the LTTE. The Tigers stepped up child recruitment, amassed weapons and regularly breached the rules of the ceasefire agreement. Sri Lankan troops adhered to the conditions of the truce and were for the most part, well behaved. It was this benignity in the face of ongoing LTTE aggression and repeated violations that led right wing groups in the country to push for Wickremesinghe’s ouster, saying he was weakening the strength and morale of the armed forces. If anyone needs to worry about a probe by the OHCHR into the ceasefire years, it is SLFP Vice President and Minister Vignayamurthi Muralidharan alias Karuna Amman and former UPFA Eastern Province Chief Minister, Pillaiyan. Both Government allies were then rival commanders of the LTTE in the East, renowned for wide scale child conscription, a war-crime under international law.

Hostilities recommenced in 2005-2006 provoked by the LTTE and leading to the Fourth and Final Eelam War, under President Mahinda Rajapaksa’s watch.

The Government may not realise it yet, and this may not have been the intention of its insertion, but the mirroring the international probe with the LLRC time-frame is a poetically perfect strategy. The investigation will find the LTTE guilty of atrocities, and will therefore be difficult to discredit on the grounds of bias. But the probe will also look into the final phase of the war, a period the Rajapaksa administration remains skittish about.

And while the latest amendment to operative paragraph 8 of the resolution effectively denies the OHCHR a mandate to probe ongoing violations in the post-war phase, it would be misplaced to assume that current human rights issues in Sri Lanka do not matter, according to diplomatic sources.

In fact it was to human rights abuses in real time that the US, UK and several other country delegations referred in their statements before the Council yesterday, following the presentation of UN High Commissioner Navi Pillay’s report.

Ironically, when President Rajapaksa won the first of his string of victories over the late Minister Kadirgamar in 2004, it was with the veiled threat that if he were to be denied the Premiership in favour of the Tamil Minister, a sea of saffron robed monks would march from Hambantota to President’s House in agitation. Having already garnered the support of the JHU and other hardline monks, then MP Rajapaksa vowed to mobilise the saffron army against Kumaratunga, who mistrusted her long time cabinet minister and would have preferred to keep him in the shadows. In a strange twist, those same saffron armies, now taking the form of the Bodu Bala Sena, Sinhala Ravaya and other ethno-religious groups who are spewing invective against minority religious communities in the country are hastening the defeat of President Rajapaksa’s Government internationally. Nearly every reference to Sri Lanka at the UN Human Rights Council has singled the country out for the targeting of minority communities and attacks against places of religious worship. “What efforts has the government made to prevent these attacks and hold perpetrators accountable?” the US Delegation charged during its statement to the UNHRC yesterday.

Since March 2012, the UNHRC in Geneva has been the one battle President Mahinda Rajapaksa cannot win and for the Government, it is an ominous foretelling of the future.

Domestic losses and international losses look very different on paper. Domestic losses are easily reversible, and can always be mitigated by the use and abuse of executive power. Defeats internationally often translate into short term victories domestically for the Rajapaksa Government, as the people rally in support of a war-winning President.  But the real trouble for Sri Lanka is that its Government has not only lost the support of its international partners and former allies, it has also lost the plot in terms of seeking reparation and reconciliation for its own sake. Five years after the end of the war, the veil has been lifted, and the international community has seen through every pledge and every ploy. Increasingly, the Rajapaksa administration is becoming an unviable partner in the international process. Without a dramatic volte-face in the very near future, Sri Lanka will have lost the international community, and that loss will eventually seal the fate of the Rajapaksa regime. As it stares into the abyss of a war crimes inquiry, there are other night-terrors the regime will have to brace for – economic sanctions, travel bans, asset freezes – still a long way off but now almost certainly part of its future.

And the first whispers of that impending storm will reverberate in the Palais des Nations in Geneva, when the Council votes today.

Courtesy Daily FT