By Dayan Jayatilleka –
Does President Sirisena know what Foreign Minister Mangala Samaraweera is up to or has he been kept in the dark, which isn’t a safe place to be, depending on the company? Does the Parliament or do Mr. Samaraweera’s Cabinet colleagues know what he is up to—and I don’t mean in his spare time?
Mr. Samaraweera has fashioned a trident, a three pronged policy on human rights, accountability and reconciliation which undermines Sri Lanka’s sovereignty, national security and national interest. What are the three prongs of the trident?
- An agreement with the UN High Commissioner and his office for a six month interval in which the High Commissioner hopes to gain access to “new information” which will lead to a “stronger” report in August 2015.
- A domestic mechanism to investigate allegations, which will be “developed” by working together with the UN High Commissioner and his office, and worse still, will involve “technical assistance” from “international rights watchdogs” i.e. international human rights NGOs—which by the way, are advocacy groups, not recognized or acknowledged sources of ‘technical assistance’.
- Another process of a Truth Commission to be evolved in conjunction with South Africa, though the South African government has made it explicit that the TRC of that nation is not for export and transplantation.
This is clear from a news item by Dharisha Bastians in the Daily FT, amounting to a scoop of sorts. It reads as follows:
“A special Task Force on Reconciliation and Transitional Justice has been established within the Foreign Ministry, Minister Mangala Samaraweera said. The Task Force will liaise with other ministries and line agencies working on reconciliation and transitional justice issues, Minister Samaraweera told the Daily FT. “We didn’t ask for a deferral of the UN investigation report as a delaying tactic. We will take a two-pronged approach with a Truth Commission to advance reconciliation and a domestic mechanism to investigate the allegations of rights abuses,” the Foreign Minister said. Minister Samaraweera, who heads to Geneva for the 28th Session of the UN Human Rights Council in Geneva next week, said the Government was reaching out to the UN and even international rights watchdogs for ‘technical assistance’ with the domestic mechanism. “We are also going to be talking to the South Africans regarding the setting up a Truth Commission to help to build trust between communities and promote reconciliation,” he said.” (‘Task Force for Reconciliation and Transitional Justice at Foreign Ministry, Dharisha Bastians, Daily FT, Feb 27th 2015)
Thus the unelected minority administration of Prime Minister Wickremesinghe, through its Foreign Minister Samaraweera is planning on (a) a Geneva bureaucratic mechanism and inquisitorial process which even our neighbor India voted against, being granted more time and space to ferret out more information (b) a so-called domestic mechanism which will actually be a joint venture with two international partners, not just the one: the Office of the High Commissioner as well as international human rights NGOs which have consistently taken a hysterically prejudiced stance against Sri Lanka, its armed forces and its war of liberation from terrorism. (c) A Truth Commission which is inapplicable to contexts such as the Sri Lankan war.
Foreign Minister Samaraweera is using two concepts which make no sense in the Sri Lankan context. The first is that of Transitional Justice.
- Transitional Justice (TJ) comes into play when there is a transition that is systemic in character, i.e. when there is seismic shift from a one–party totalitarian dictatorship (Communist ruled), a military dictatorship (Pinochet’s Chile) or a civilian-military junta ( El Salvador).
- Even then, Transitional Justice finds no place in some very important transitions such as the first wave of democratic revolutions which overthrew dictatorships in the 1970s: Spain, Portugal, and Greece. It was decided that it would be far too lacerating and would destabilize the democratic transition itself, to undertake such inquiries.
- In Asia, matters are clearer still. The Philippines and Indonesia which underwent the most dramatic transitions from dictatorship to democracy chose not to delve into the past, for reasons of social and institutional stability.
- Transitional Justice is also relevant only in the context of a negotiated or essentially non-violent, if sometimes extra-electoral, transition. TJ does not make an appearance when there has been outright victory in war, especially if the victor has been the armed forces of the legitimate state. TJ is a component of a consensual negotiated endgame, such as those in South Africa, El Salvador and Guatemala. Sri Lanka’s was an all-out war in which the Tigers forsook the numerous possibilities of a negotiated end to the conflict and thereby forfeited the right to transitional justice arrangements. On the other hand the Sri Lankan armed forces delivered a total military victory unlike those of many other countries over their enemies, and thereby the Sri Lankan armed forces should be logically regarded as having placed themselves beyond being subject to transitional justice processes.
- It must be noted that not every country in which there has been a negotiated endgame to the conflict have engaged in a Transitional Justice process, with Britain and the Good Friday agreement being case in point. If Transitional Justice was not deemed a prerequisite for Reconciliation in Northern Ireland, why should it be deemed imperative in Sri Lanka?
The other concept that Foreign Minister Samaraweera makes utterly inappropriate use of is the Truth and Reconciliation mechanism of South Africa. In the first place the context is not merely different but the exact opposite of that of Sri Lanka. In South Africa the struggle was for majority rule. In Sri Lanka, democratic majority rule existed and the LTTE fought against it, continuing in armed forms, a reactionary anti-democratic struggle begun decades before. Tamil nationalism was antidemocratic and reactionary from the inception, as Dame Barbara Ward confirmed in her 1957 lectures at the University of Ghana, published in 1959 as ‘Five Ideas That Change The World’ (with a Preface by Prime Minister Kwame N’Krumah, later ousted by a Western backed coup). She said: “…since the achievement of Independence and the introduction of adult suffrage, the Tamils have feared to be outvoted…” (p.15)
In the second place the ANC came to the negotiating table. It didn’t kill its negotiating partners or its own representatives as the LTTE did—but that is because the ANC was a genuine liberation movement and the LTTE wasn’t. The TRC was a byproduct of the roundtable process that ushered in a new South Africa in which majority rule was instituted. Not incidentally, the ANC rejected calls for federalism and its most progressive intellect, Joe Slovo, white, Jewish leader of the South African Communist Party and close comrade of Nelson Mandela, strongly rejected the idea of a “pluri-national federal” South Africa, and was a strong advocate of a democratic, multicultural unitary state—a solution that the TNA rejects out of hand.
A TRC that issued from such a context has no relevance for Sri Lanka. Can one really imagine any ex-LTTE cadre or currently active one from overseas, coming before the TRC and confessing that he or she slaughtered elderly women worshipping at the sacred Bo tree in Anuradhapura in 1985 or burnt alive young TELO activists in the streets of Jaffna in 1986 or hacked little Buddhist monk acolytes in Arantalawa in 1987? Can one imagine Sri Lankan Navy personnel owning up to the bayoneting of a baby on board the Kumudini boat in 1983? Even if they did so, how would that help, rather than harm, the atmosphere for Reconciliation?
What then is the answer? It is to stick explicitly to the letter and spirit of the LLRC recommendations, which entails nothing less and nothing more than the independent investigation of the residual issues identified and de-limited by the Report.
If anyone, including the UN High Commissioner attempts to push Sri Lanka beyond that, the new Government should re-enlist the support of India, Brazil and South Africa, and move a blocking Resolution in self-defense of national and state sovereignty.
Meanwhile Foreign Minister Samaraweera and his Prime Minister must stop telling untruths on on the public record. Their claim, in Parliament and even to an audience of Buddhist monks (which makes the Hon. Prime Minister guilty of the most mendacious musaawaada), is that President Mahinda Rajapaksa agreed to an accountability mechanism—they sometimes say an international investigation – in his May 23, 2009 Joint Statement with Ban Ki-moon and later in the May 2009 Resolution in favor of Sri Lanka which obtained a near-two thirds majority in the UN Human Rights Council (on my watch, I might add). The relevant portion of the May 23, 2009 Joint Statement read as follows: “The Secretary General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances.”
As for the Resolution of May 27th 2009, it simply stated in paragraph 10 that the Council “Further welcomes the visit to Sri Lanka of the Secretary-General at the invitation of the President of Sri Lanka, and endorses the joint communiqué issued at the conclusion of the visit and the understandings contained therein”.
The “understandings contained therein” were that the Government would take unspecified measures to address grievances regarding an accountability process with regard to human rights and humanitarian law violations. The “Government will take measures to address those grievances” is hardly a smoking gun; no evidence of any commitment to an accountability mechanism, domestic, international or hybrid. Indeed it is a model of diplomatic ambiguity. The LLRC and the Disappearances Commission, are the measures that the previous Government took, as promised, to address those grievances. That Government’s lapse was in failing to fully implement the LLRC report. That is all the new government has to do.
*Dr. Dayan Jayatilleka was a Vice President of the UN Human Rights Council, elected to represent the Asian Region in 2007-2008