By Izeth Hussain –

Izeth Hussain

Sri Lanka is on the brink of a revolutionary transition from quasi savagery to civilisation. My main focus in this article is on the domestic dimension of our ethnic problem and not on its international dimension. My argument that we are on the brink that I have mentioned is premised on one incontrovertible fact: all civilized societies have sanctions against crime and in so far as a society has a culture of impunity it is to that extent a quasi savage or a totally savage society. With the support of, and under pressure from, the international community – which in the present context really means mainly India, the West and the white Commonwealth countries – the present Government can take appropriate action on the crimes committed both by the Sinhalese and the Tamils from 2002 to 2009. We will thereby move from quasi savagery to civilisation If on the contrary that is prevented by the Sinhalese racists who have frustrated every attempt at ethnic accommodation since 1958, we will continue to remain in our present quasi savage state.

In the preceding paragraph I have focused on incontrovertible fact. I now move into the controversial area of the pressure exerted on us by the international community, which has taken the form of the UNHRC Resolution adopted consensually on September 30. The most important subject of controversy has been that of “hybrid courts”. The popular misconception is that they are courts consisting of local and foreign judges. Hybrid courts are really a sub-category of international courts. Wikipedia defines international courts as follows: “International courts are formed by treaties between nations, or under the authority of an international organization such as the United Nations – this includes ad hoc tribunals and permanent institutions, but excludes any courts arising purely under national authority”, The Resolution does not envisage any treaty with another nation about setting up a special court, or one that is under the authority of an international organization. The correct position is that the Sri Lanka Government had already decided to establish a special court – established under “national authority” – to deal with violations of humanitarian law etc, and the Resolution merely requires us to include in it Commonwealth and other foreign judges, prosecutors and investigators. There cannot be the slightest doubt that what is envisaged is technically not a hybrid court.

But does not the inclusion of foreign judges etc make it a hybrid court in all but name? The counter argument is that we had English Chief Justices from 1948 to 1955, and no one held that we had thereby compromised our sovereignty. We even allowed recourse to Britain’s Privy Council without that charge being made. I recall that some years ago Lee Kuan Yew, annoyed by the fact that the best Singapore lawyers would not opt to join the judiciary, threatened to appoint foreign judges to the Supreme Court. Lee was not exactly the kind of leader to brook the slightest attaint on the sovereignty of his country. So, there seem to be very plausible arguments to show that the special court would not be a hybrid court in all but name.

But I believe that it would be disingenuous to stop at that without considering possible further counter- arguments. The important point is the reason why a foreign presence is required in the special court. The ostensible reason is that we lack expertise in international humanitarian law – that is the law relating to war crimes. That may or may not be so, but we all know that another reason has loomed large in the minds of the international community: they have no confidence in the impartiality of our judges. It is arguable in that context that some degree of attaint on our sovereignty is implied. But we must consider yet another argument. Assume that a special court without a foreign presence delivers absolutely impartial judgments. The international community won’t believe a word of it. So our best interests require that we agree to a foreign presence. I believe that in effect the special court will amount to a domestic process but not a purely domestic process.

I support the Government on its co-sponsorship of the Resolution and going for its consensual adoption. First of all, we must acknowledge that the present situation is not of its making. It is the consequence of the MR Government winning the war in 2009 and proceeding relentlessly thereafter to lose the peace. The confrontational positions adopted by that Government at Geneva worsened the situation year after year. I believe that the present Government had no viable alternative to agreeing to a process that is not fully domestic. The Opposition has argued that it should have rejected the Resolution and gone for a vote. Certainly our staunch allies in Geneva, most of whom have sorry records on human rights, would have stood by us and the Resolution could have been defeated. But the Government unlike the Opposition had to consider the consequences that could follow. Very probably unilateral sanctions would be imposed by the US and other Western countries, the impact of which would be much worse than the suspension of GSP+. The Government cannot be blamed if it thought that a consensual approach would serve the national interest better.

In conclusion I must revert to the first paragraph of this article and point out that what ultimately matters is not what goes on in Geneva but what goes on within Sri Lanka. The external dimension is really important only in relation to India. What, after all, are we required to do? We are required among other things to take credible action over alleged rape of Tamil females by our soldiers. Why should that requirement outrage us? If we are outraged, it certainly means that ours is a quasi savage society. And what about Buddhism? As far as I am aware Buddhism, unlike Islam and Christianity, does not have behind it a tradition of humanitarian law. But surely any reluctance to take credible action over crime would be contrary to Buddhist principles.

In the external dimension it is only India that really counts. If there were no Tamils in Tamil Nadu there would be no Tamil ethnic problem in Sri Lanka. India would not care two hoots about what happens to the Tamils here. It is only because of the fall-out in Tamil Nadu from what happens to the Tamils here that there is a Tamil ethnic problem. If successive Governments refuse to take credible action over alleged war crimes, there could well come a time when India believes that the only solution for the ethnic problem would be Eelam.