By Laksiri Fernando –

Dr. Laksiri Fernando

Former defeated president, and now a Kurunegala MP, Mahinda Rajapaksa, has issued a statement saying, “I think it would be appropriate to make known to the public my observations on the recently released report on Sri Lanka by the OHCHR.” Of course it is ‘appropriate,’ but he has not made much observations on the substance of the report going rambling on other matters. He says that ‘My government did not cooperate with this investigation for many reasons, foremost of which was that it was instituted outside the established procedure of the UN Human Rights Council (UNHRC).”

If it was proposed to institute ‘outside the procedure’ (Resolution 25/1), then it was up to the members of the UNHRC to rectify it, and if his representatives failed to convince about the ‘correct procedure’ at the Council, then the new procedure has to be accepted as a valid one and deliver his regime’s responsibilities accordingly. This is what he has failed, ‘for many other reasons,’ among which might be his or his regime’s complicity of ‘war crimes’ that he is silent about.

He goes on in his statement to castigate the Office of the Commissioner for Human Rights (OHCHR). To him, “The OHCHR’s independence is questionable because it is funded for the most part not through the regular budget of the UN but through ‘voluntary contributions’ from the very Western states that sponsored the resolution against Sri Lanka.” Now MR’s statement is issued, as it says, to the general public in Sri Lanka. It is not relevant for them to know the so-called connection between the funding procedure and the lack of independence of the OHCHR unless it is proven through the substance of the report. It goes on saying “Furthermore all the important staff positions in this body are held by Westerners who make up half the cadre of the OHCHR.” The whole argument brings the OHCHR and the Commissioner into disrepute, and for a former head of state to do so is equal to rejecting the UN institutions in a nihilistic manner.

If there are genuine staffing issues, as it says, in the OHCHR, these could be rectified in a cooperative manner with the Commissioner and those have no relevance in rejecting the UNHRC report. The Commissioner, Zeid Ra’ad Al Hussein, cannot be called a ‘Westerner.’ Ravina Shamdasani, the Special Spokesperson of the OHCHR who came to Sri Lanka recently and gave a well-balanced interview on the report (Sunday Observer, 20 September 2015) cannot be called a ‘Westerner.’ It seems, her “call for all Sri Lankan’s to study the report in depth” is more valid for our former president.

The statement goes on to quote the Ambassadors of Pakistan and India, in that order, on what they said when the resolution 25/1 was discussed in March 2014. Those have no much relevance today.

What is revealed particularly in respect of Pakistani statement is the cynical attitude towards human rights, which MR seems to share with that Ambassador. What might be more relevant is to state that one of the advisors to the present OHCHR report is none other than the former President of the Human Rights Commission of Pakistan, Ms. Asmar Jahangir.

The main accusation of MR against the OHCHR report is political which appears in the following paragraph.

“Some speculate that this report may have been watered down because a new government has been elected to power. If that is true, then the Pakistani Ambassador HE Akram would have been right in telling the UNHRC on 27 March 2014, that this resolution is “All about politics and not about human rights.” Be that as it may, I don’t see this report as having been watered down. The most that can be done with a report of this nature is to recommend the setting up of a war crimes tribunal and that has been done.”

It is not a speculation to say that there is a considerable ‘change of attitude’ of the OHCHR in the report towards Sri Lanka ‘because a new government has been elected to power.’ That was part of the mandate for the investigators to report, any progress or otherwise since the last Council. This is not hidden but clearly stated in the report.

Of course those who consider human rights cynically and consider ‘human rights only as political weapons’ would naturally consider even the UN organizations to act completely in this manner. I myself was a witness to MR’s cynical attitude towards human rights when he came to Geneva in 1989/9 period.

Of course there can be overlaps between ‘human rights and politics’ even at the UN, particularly at its different forums. We are in a process of evolution. I myself has criticized such occasions. These are matters to be balanced diplomatically and try to get the best out of such situations both for human rights and for a country’s best interests. However, if leaders in such positions like ‘heads of state’ or ‘ambassadors’ consider “all [these] about politics and not about human rights,” then both human rights and a country’s interests might be in jeopardy. That is exactly was the situation under MR.

MR’s worry perhaps is understandable when he says, “Be that as it may, I don’t see this report as having been watered down.” It is he who wanted a ‘watered down’ report at the expense of truth and justice. More so at the expense of the country and the people. However his extended fear is not correct when he says, “The most that can be done with a report of this nature is to recommend the setting up of a war crimes tribunal and that has been done.” Then he contradicts his assertion with the following statement, “Neither the OHCHR nor the UNHRC has the authority to set up an international war crimes tribunal.”

There are so much of misconceptions or wilful misrepresentations in the statement. It is said, “Sri Lanka cannot be taken before the International Criminal Court (ICC), because we are not a signatory to the Rome Statute under which the ICC functions.” Of course ‘Sri Lanka’ cannot be taken before the ICC ‘as a country,’ even if Sri Lanka is a signatory to the ICC. It is the perpetrators of crime who would be taken before the ICC if at all. The ICC has provisions, to take perpetrators before it, under the Prosecutor’s powers, even if the person’s country has not ratified the statutes. The approval of the UN Security Council is not necessary for this purpose. It is clear since 2009 that no one has that intention or basis to take anyone from Sri Lanka to the ICC. But the possibility is still there.

The whole purpose of investigations for Sri Lanka is ‘truth, justice and reconciliation.’ I might only add ‘reform.’ It is primarily as part of justice that war crimes would and should be investigated. That is very clear from the present OHCHR report, whatever its weaknesses or disagreeable observations and recommendations. As part of justice, it is obvious that the international community and the right thinking Sri Lankans want the perpetrators to be punished. In my personal view, some punishments could be commuted, depending on the mandate of the court, if the perpetrators genuinely admit the guilt, repent, apologise and agree to compensate. It was MR who was boasting that he is ready to go to the ‘electric chair’ although it is well known that even for war crimes, capital punishment is not given. His knowledge of international matters seems to be quite pathetic.

The statement has made a big fuss about the claim that there are no names mentioned in the report. This is particularly aimed at the present President Maithripala Sirisena. To refute the claim, it says, “But a prominent journalist D.B.S. Jeyaraj has pointed out that the names of important military personnel and units have in fact been mentioned in the report in a manner designed to incriminate and direct investigations even though those names have not been linked to specific incidents.” Why based on DBS Jeyaraj, if MR has or his ‘statement writer’ has read the report and understood it correctly? It must be for habitual name dropping.

The whole exercise of the statement is aimed at two objectives. (1) To refute the positions taken and/or claims made by the members of the present government in respect of the report, and (2) to create a climate that a major calamity is going to happen to the country as a result of the report. It is on that basis that MR urges the government to reject the report. The pertinent question here is whether Sri Lanka is going to benefit by rejecting the report. On the contrary, constructive or critical engagement is the best and correct policy that Sri Lanka should follow.

MR has taken some pains, in four long paragraphs, to defend his policies during his tenure, that tantamount to near breakdown of relations with the West (US and EU), even referring to the Rubber-Rice Pact with China in 1952. There is some semblance of balance in his utterances here, perhaps as afterthought. However, what he has terribly failed to understand is that during that period that he refers to, there was no internal war in Sri Lanka, then Ceylon, and there were no major human rights violations or war crimes!

He has even dropped names (i.e. John Kerry) to say that his relations with the US was good. It is completely erroneous for him or his ‘statement writers’ to consider, however, that foreign policies of democratic countries are governed by “purchases made, contracts awarded and opportunities provided for investors.” That understanding about international relations is quite archaic. This also must be the reason that his administration paid millions and millions of dollars to a US lobbying company to improve relations between the US and Sri Lanka without success. Money, Money and Money seem to be his political thinking. No principles. What he has terribly failed to realize or state is that the resolution 25/1 which gave rise to the present OHCHR report was mooted by the US last year, in March 2014.

The most habitual for him even in this statement is to consider Sri Lanka as his fiefdom. It is clear from the following sentence.

“In ruling a country, there are occasions when one has to go against the wishes of powerful nations in order to serve the interests of the people.” (My emphasis).

It is the thinking of Muammar Gaddafi or Saddam Hussein. If he were ‘ruling the country,’ then he is responsible to the people as well as to the international community for what happened during that period in terms of human rights violations and war crimes. If he were to clear his name then he has to come forward and take up the responsibility.

We are living within a global community. Both international humanitarian law and human rights law are part of the international law to which Sri Lanka has undeniable obligations, moral, customary and legal. The rejection of the report is no excuse from those obligations. It is cynical and undiplomatic. The most positive aspect about the present OHCHR report is that it recommends to investigate the war crimes within the context of human rights violations. That would be the best learning process for Sri Lanka; its political leaders, advisors, the defence forces, the police, the bureaucracy and the people.