By Dayan Jayatilleka –
Dr. Dayan Jayatilleka
One thing I’ll say for Prince Zeid al Hussein: he’s a straight talker, clear, firm, strong and pointed, i.e., effective in his expressions of opinion, however unfair, absurd and frankly ridiculous they are. It’s a pity I cannot say the same about the representatives of the government of Sri Lanka, led by Minister Samaraweera. The UN High Commissioner and his Office are on the attack against Sri Lanka and its institutions. Where is our equally strong defense and counterattack on behalf of our country and the truth, by our representatives? Where does that leave us?
When you have an aggressive prosecuting attorney on one side and a passive defense attorney on the other, then you have a client who is in serious trouble. That’s Sri Lanka’s position at the UN in Geneva today. On the one hand there is UN High Commissioner for Human Rights, Zeid al Hussein’s strong aggressive attack on Sri Lanka in his remarks introducing the report issued by his office. On the other there is the pre-emptive sellout by the Sri Lankan government represented by Minister of External Affairs Mangala Samaraweera.
Zeid Al Hussein himself admits in his opening remarks and in the Q&A that followed, that the Report is “rather unique”; that it is the first of its kind on human right violations by his Office. In this at least he is honest. The obvious question is why on earth should Sri Lanka submit to or comply with an unprecedented procedure? Why should our country go along with the product of a process that states which have committed infinitely vaster horrors for much greater periods of time and repeatedly, have not? Why should we be the first in line? Why should we be the guinea-pigs? Why should we put our heads on a chopping block as no one else has? Why should the Sri Lankan government, state and people submit to this discrimination; this institutional and diplomatic apartheid?
There is no pretense of even-handedness in Prince Zeid. In his opening remarks he spoke of crimes committed by the Sri Lankan state and “not only by [the state] but also by the LTTE”. So the LTTE are merely an “also ran” in the list of those culpable. Zeid implicitly rules out the possibility that the alleged crimes were committed by individuals in the heat of passions such as revenge; he rules out that these are aberrations, when he says that there was clear planning at institutional and command level.
Prince Zeid accuses us of “international crimes”, i.e. of “crimes of interest to the international community…war crimes, crimes against humanity”. He accuses us of “indiscriminate shelling” and “sexual violence”. We have an answer readily at hand: the reports of Sir Desmond de Silva QC and his colleagues, who were the internationally renowned experts advising the Paranagama Commission. While their report should be immediately tabled in Geneva, they could also be asked to draft our response to the OHCHR report.
The game that is going on is clear. It’s the old one of good cop, bad cop. Zeid plays the bad cop and demands that our collective head be cut off. The Americans will come in and play the good cop, saying, no, we shan’t take the rap for trying to cut their heads off ; we’ll just ask the Sri Lankans themselves to fall on their sword or commit ritual hara-kiri. Mangala Samaraweera has already agreed to the deal which is why he spoke of new statutes for a special criminal justice mechanism with a ‘Special counsel’ (read Prosecutor). What is it that the existing laws and institutions cannot do? What is that would require new statutes and legal structures for ‘criminal justice’ and ‘accountability’? The only possible answer is the presence of a foreign component; foreign involvement in the domestic legal process!
The Sri Lankan Ministry of External Affairs has already indicated that it will agree to a consensual resolution to be moved by the USA at the UNHRC on September 30th. This would mean that Sri Lanka will agree to a hybrid mechanism with foreign involvement, but under the guise of a ‘domestic mechanism’ to be set up by new legislation. The ‘consensus resolution’ formula will mean that sri lanka’s friends and those states who would be opposed to this model because of the violation of sovereignty that it entails and the dreadful precedent it sets , would be preemptively silenced. Not only will they be unable to speak up for us, they will be unable to speak up for a principle which is in their own interests simply because Sri Lanka will be used as a willing human shield by the US.
While Zeid’s example in the Q&A about the prosecution of former president of Chad does indicate that Mahinda Rajapaksa is indeed a target, his entire presentation shows that the primary target is the Sri Lankan state and armed forces and the war itself—our war of liberation from terrorism and for the reunification of our country. His target is nothing other than history—the verdict of history on the Sri Lankan state, its armed forces and our victorious war. The target is our self-pride as a society; our pride in ourselves as a country and people that defeated a ferocious terrorist army. Zeid and his office have provided ammunition for generations the world over, to vilify Sri Lanka. Their discourse and Report gives the pro-Tiger Diaspora the argument that their beloved Prabhakaran lost only because the Sri Lankan armed forces waged a war replete with war crimes. This is the worst possible reviling of the reputation of our dead heroes and their sacrifices—not least of those who gave their lives to breach the bunker-bund complex of the LTTE and save hundreds of thousands of civilians.
The weeks from today to September 30th will show whether or not Sri Lanka has a neocolonial puppet regime which is committed to returning this country to colonial rule, where foreign judges and lawyers sit in judgment of our citizens, our soldiers, our elected former leaders. A Government that does not defend the country’s sovereignty; a government that does not protect the State and the nation’s institutions from external threat be it physical, economic, legal or diplomatic; a government that does not protect the dignity of the nation; a government that does not counterattack against hypocrisy, unfairness, lies and calumny—such a government loses its legitimacy to rule; its legitimacy to govern.
Hooter / September 17, 2015
What Dayan forgets to mention is that most of this could have been avoided if we implemented some of the local and other international obligations which rather straight forward. His friend Rajiva Wijesinghe keeps on repeating them. So this is the pitfalls of a stubborn dictator who thought the sun would never set on his rule.
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Sri-Krish / September 17, 2015
Dayan,
Why didn’t you enlighten Fidel Castro and Che Guevara While they were exporting revolution across, Latin America and Africa with Patriotism and Smart patriotism while they ignorantly practising Internationalism.
Before his demise Castro will embrace American imperialists.
What will happen to our dear friend Dayan?
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Above the Rest / September 17, 2015
Former President Mahinda Rajapakse took two huge risks when he launched all-out war on the LTTE.
The first one was the risk of SL armed forces losing the war. That would have delivered the Eelam. To lead the armed forces, MR, or his brother, wisely picked the only man who would have delivered the goods. And, Sarath Fonseka delivered. To take all the credit for themselves, the Rajapakses destroyed the hero, and put him in jail. There were no repercussions because it was too late for Prabhakaran or his deputies to mount rearguard action. And, people like Dayan went mum.
The second risk was, irrespective of who won the war, the so-called human rights organisations would have come after the winner or both the winner and the loser. Like his choice of the armed forces commander, MR picked the right person to defend Sri Lanka against accusations of HR violations. Not many would have done that job well, but the man MR picked achieved the impossible and successfully defended SL and its leadership. The Rajapakses were more generous in the way they treated Dayan, but he was not given the credit he deserved, and was dumped from his position and discarded like a rotten fish. That act of discarding Dayan Jayatilleka has come back to bite not only the Rajapakses, but the reputation of Sri Lanka too.
It is not out of place for the current President and the PM to seek Dayan’s advice about saving Rajapakse fron the UN.
To start the process, I hope Dayan would offer his services to the current leadership of the country.
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alex / September 17, 2015
If you read the UN report this is not just about the war. Sri Lanka has committed systematic crimes, with command responsibility against Tamils. Systematic torture and rape. In the new world of International justice the only answer to this is not to commit the crimes. No a lot of people are going to jail, with Gothabaya top of the list.
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Above the Rest / September 17, 2015
“Sri Lanka has committed systematic crimes”
Alex, can you name one country that hasn’t committed systematic crimes?
It’s much easier to write down the countries that have committed HR violations, arrange them in the chronological order, and start to punish them starting from the oldest crime.
Sri Lanka’s turn will come, but it will be a long time coming.
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Shrikharan / September 18, 2015
Above the rest
You cannot justify your crime by quoting others committing the same crime and not being punished
That does not give you the excuse commit ‘systematic crimes’.
Be a good person and complain of other’s crimes and seek justice for the victims. But do not copy bad example and commit crime and then complain as an excuse for you to escape!
If you want rule of the jungle then you may have it!
Some bigger nation with expansionist ideas might well take your advise and attack and capture Sri Lanka and then say what you just said “can you name one country that hasn’t committed systematic crimes?”
“X’s turn will come, but it will be a long time coming.”
Will you accept your own statement back to you then when it is your turn to be a victim?
Then you cannot go back against your own ‘rules’ and you just said it, ‘the big fish eats small fish’ and that is the rule. You want this rule when you are the ‘big fish’ but not when you become the ‘small fish’ and when you want justice double quick! What’s good for the goose is good for the gander. Sorry my dear friend you cannot have it. This is what is called double standards.
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Above the Rest / September 18, 2015
“You cannot justify your crime by quoting others committing the same crime and not being punished”
It is not just ‘others’ Shrikharan. It is those who pass judgement on Sri Lanka. They should first take a good look at themselves. In every war, there are HR violations. That is inescapable in war.
If the judge and the jury are known, or even alleged, to have previously committed the same crime as the accused, would anyone respect their judgement? Should anyone respect that judgement?
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Shrikharan / September 18, 2015
Above the Rest
“In every war, there are HR violations. That is inescapable in war.”
I am not sure what you mean by HY violations. I agree about ‘collateral damage’. But I do not accept the type of killings shown on the famous channel 4 release when prisoners were blind folded and shot. I will not accept rape. If so it should be investigated and perpetrators of the crime punished. Certainly many crimes cannot be proven.
Just to your conscience can you answer me, if your own daughter was raped by a soldier or your son blind folded and murdered like what was shown in the Channel 4 then you must have the courage to say what you just told me and you will sleep peacefully telling “In every war, there are HR violations. That is inescapable in war.”. Please tell this to your child too!
Please before you make certain statements think how it will hurt the victims. I will tell you the army or anyone should never be punished for something they did not commit. But if anyone has committed whatever side Sri Lankan military or the LTTE should be punished and that is what justice is.
An accused cannot be also a judge for the case against him! That is against all norms of justice. Just because you are a qualified judge, that does make you eligible to hear case against you. Nobody will believe your verdict, you make on your behalf either way! This is the only way for reconciliation. If not this will be sticking out for many generations to come.
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Shrikharan / September 18, 2015
Above the Rest
I quote you, “In every war, there are HR violations. That is inescapable in war.”
Continuing further to my reply to you, may I add to your statement,
In every war, there are HR violations. That is inescapable in war, but the perpetrators of such crime will also be persecuted and punished and that too is inescapable.
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Above the Rest / September 19, 2015
…..but the perpetrators of such crime will also be persecuted and punished and that too is inescapable.
Ha Ha Ha! Was Hiroshima a HR violation? Were the perpetrators ever punished?
In case you did not know, they were not. That was because Japan started the war and the world felt that they deserved it. The LTTE started the war. A war in which friend or enemy or the innocent civilians were not distiguishable. LTTE regarded many Tamil political leaders including Amirthalingam, many Tamil militants including Uma Maheshwaran, many Sinhala civilians, including those who were waiting for a bus at the Colombo bus stans on that fateful day, many people who were busy working for a living in the Central Bank building on that day in 1996, etc. etc. as their enemies. Was anyone from the LTTE punished by the UN? The punishment was finally meted out by the armed forces.
Thanks to that, the situation has improved vastly – clear proof that the armed campaign by the LTTE for Eelam was the cause of a huge majority of the killings.
The result of similar action by the armed forces in the South in the late 80s had the same effect.
The lesson is clear. Armed action by the LTTE and the JVP started the killings. A majority of the killings was the direct result of the campaigns launched by the LTTE and the JVP. There were definitely those who used the situation to engage in killings for the own purposes. If they can be separated from the war, punishment can be meted out.
The blame for all the killings done by the armed forces in conducting the war should fall directly on the leaders of the LTTE at the time and the leaders of the JVP at the time. Both had their due punishment which ended the dark chapter. Just like Japan and Germany had their due punishment. If anyone was tried for war crimes, it was the Germans. Because they started the whole thing. Just like the LTTE/JVP.
About the channel 4 movie that you have referred to, tell me which court would punish an unknown accused for killing an unknown victim, when the evidence is a TV program, with a strong possibility that the whole thing was made up in a TV studio, or by the LTTE propaganda unit? Where is the connection to SL authorities?
And one more thing please: if you want to continue this discussion, let us keep the personal stuff out. Don’t ever expect me to answer hypothetical questions where you cite my family. Let us remain civilised. Sri Lanka, whether it be the north, south, east or west has fortunately moved away from the dark abyss that it was heading for.
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lankan / September 19, 2015
Let’s not confuse two different things here. In any war, there are civilians who are caught in the crossfire which may not be the result of the soldiers ‘fault ‘. The circumstances may have made it difficult to prevent it when considering the status of the battlefield etc.. Such incidents are usually not punishable by any Sri Lankan law or International Law.
On the other hand if people were systematically abducted, tortured and killed in some army camp that is a crime under Sri Lankan law.
So are you arguing , even in the second case above, there is no need to punish the criminals? In other words are you saying it is OK to break the Sri Lankan law for those crimes? Yes or No?
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Above the Rest / September 19, 2015
Dear lankan,
The answer to your last question is: NO.
“if people were systematically abducted, tortured and killed in some army camp that is a crime under Sri Lankan law”
The trouble is until proven guilty, under Sri Lankan law, or for that matter under the law in most democracies, those who are alleged/supposed/accused/suspected to have committed those crimes are to be considered innocent. The problem is could these accusations be proved in the court of law under Sri Lankan law?
The other question is who do you mean when you say ‘people’? Were they the same ones who, on behalf of the LTTE, systematically abducted, tortured and killed those who were considered enemies of the LTTE? For example ‘people’ who killed Rajini Thiranagama, Neelan Tiruchelvam, Yogeswaran, Rajiv Gandhi, etc., etc., etc., etc.? If they were, I’d say that is what the army is there for.
By ‘people’ if you mean those who had nothing to do with terrorism, I’d agree that if the culprits can be found, and charges against them be proved in courts, by all means go for it. But then if the SL armed forces were going after ‘people’ who had nothing to do with terrorism instead of fighting the LTTE and killing the terrorists, how come Prabhakaran is dead? Not by cyanide but killed by the SL armed forces?
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lankan / September 19, 2015
Good,
So you say ‘NO’ which means you agree it is NOT OK to break Sri Lankan law.
And I agree with your point the no one is guilty until their crimes are proven.
Now there are serious allegations about abductions, torture , rape and murder of a very large number of people. Some of them could be regular members of the LTTE who had committed murders and other crimes themselves. Others might be innocent children forcibly recruited by the LTTE and kept in their camps. Yet others might be ordinary civilians who had nothing to do with the LTTE. Yes others are people who were members of the LTTE who responded to the call by the Goverment forces to surrender who were later allegedly murdered.
Under Sri Lankan law. If any of those people, (from Hardcore LTTE murders to innocent civilians) were abducted , blindfolded and shot in the head, with or without torture or rape, that would be a criminal offence. In the case of hardcore LTTE members, the security forces can only hand them over to the police who would them pave the way for legal proceedings. And a court of law could even deliver death penalty. But a member of the security forces cannot kill even a member of the LTTE unless the killing was in a battlefield or in a setting ware it was not practical to prevent it.
In the case of civilians getting killed. There is usually no such excuse.
If there are serious allegations, It is the legal responsibility of the law enforcing arms of the SL government to investigate and punish all who were responsible. Failing to do that is a breach of SL law as well.
Now that is Sri Lanka’s law. Now I ask you again. Do you think it is OK to break it? :-)
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Native Vedda / September 19, 2015
Above the Rest
Are you one of those Mole people living in Urban Caves?
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Above the Rest / September 19, 2015
Silly question Native. If ‘Above the Rest’ is in a cave, where would that leave ‘the Rest’, including the Hon. Native?
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Ram / September 19, 2015
Persecution IS punishment, often undeserved. We cannot prosecute the terrorists who have gone to the Maker(s) nor the ones who were rehabilitated and let loose into the civil society.
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alex / September 17, 2015
One question Dayan. If Sri Lanka is so able to carry out prosecutions on its own, why is Karuna still free? He carried out the cold blooded murder of 600 policemen and Sri Lanka made him a minister. It seems the UN is right, Sri Lanka is incapable of prosecutions.
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Pot Shot / September 17, 2015
Sour grapes!
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human / September 17, 2015
Dayan, you ask “Why should we be the first in line?”
Once upon a time when young men were brutally tortured and murdered in a different part of our country by shady gangs operated by politicians ‘above the law’ , your hero Mahindha was the one who went to Geneva asking for sanctions against Sri Lanka because of .. let me say the dirty word… ‘human right violations’. The same Mahindha who, like you, is now worried about traitors and international conspirators destroying Lanka’s image. Your king screamed about HR those days not because the victims were ‘Sinhala Buddhist’ who he claims to care about these days, but because it was politically convenient for him to do so at that time. That bit should be obvious to someone who claims to know something about political science.
But Can you answer a simple question Dayan? If your own Son or Daughter happens to become a victim of these kind of horrible crimes, if they were taken in a white van, tortured , sexually assaulted , killed , and if all the system within Sri Lanka can do for you is create an endless list of ‘commissions of inquiry’ to pass the years while the perpetrators remain above the law, would you not be the ‘first in line’ to Geneva or any other institution in any part of the world which gives you any hope of justice? Would you give a damn about if the men who committed the crime happen to be Tamil or Singhala Buddhists? Or if they happen to be ‘War Hero’s or Terrorists? Can you give me an honest answer to this?
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Shrikharan / September 18, 2015
human
Well said. I sincerely hope Dayan lives to see his family member become a victim of the crimes he is trying best to defend. I will then shout at him that he is bringing the country to disrepute just for one victim when he tried his best to defend the ‘nation’ when there were minimum 40,000 victims.
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human / September 18, 2015
Shrikharan
I wouldn’t want any of Dayan’s innocent family members to get hurt in any way simply because Dayan doesn’t seem to understand the horrors behind the words ‘HR violations’. No human being, (not even Dayan! :-)) deserves to suffer like that.
While Dayan’s defense of the Former King whose regime is guilty of horrendous crimes against innocent civilians is rather pathetic, Dayan himself is a rather harmless animal with a rather simple ambition.
Almost all of Dayan’s recent posts have a unifying theme. They are all job applications addressed to his former master– with the hope that the king might come back to power and change his mind about the usefulness of Dayan to his regime. He loves to remind everyone what he seems to consider the biggest achievement in his life, his Geneva speech which he seems to think had some effect on the outcome in Geneva at that time – while I would argue that the outcome was a result of a number of factors that have nothing to do with Dayan – But that is a different story.
We should actually thank Dayan for entertaining us. OK his writing has being too predictable to be interesting – I can only skim through it real fast. But look at the number of comments! He at least sparks discussions that are entertaining!
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Shrikharan / September 18, 2015
Dear Human
Thank you for enlightening me. I agree Dayan was not directly involved in any of the atrocities committed. I could say he is like a lawyer taking one side or the other and he is paid for it, but knows very well where the guilt ball lies.
Having said this, certainly a judge cannot take sides like a lawyer.
I believe all these wrong attributes come from wrong religious teaching “pray and you will be rewarded, pray and your sins will be forgiven”. So people subconsciously tend to feel they could balance their ‘bad’ with prayers! Similar thinking of a school child who is weak in studies, attempts to compensate by sucking the teacher expecting to be rewarded with extra marks! Do you think it is fair by the teacher to reward the student because the student paid pooja to the teacher. No! Same with God, he too will not reward for mere pooja’s but only for being a ‘good man’. Praying or not praying is immaterial!
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saras / September 17, 2015
Where is the [Edited out] Rajpal Abeynayake now? What has he got to say about the UNHCR findings?
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CWE Takaran Hora / September 17, 2015
This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/
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rew / September 18, 2015
“bucket mouth”
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ELDORADO / September 17, 2015
I like your reasoning “Above the Rest”. MR had some rotten advisors otherwise he would have still had the Army man and Dayan and he may have
still been in power if not for his Astrologer, it also goes for those hangers on around him. But then who knows where we would have been as a country.Everything happens for the best. We comment in retrospect. Lets hope the current leaders have the gumption to stand against those trying to intrude on our sovereignty. ” Que Sera Sera”
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shankar / September 17, 2015
“Prince Zeid’s War On Sri Lanka”
and dayan’s war on prince Zeid.
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Sylvia Haik / September 17, 2015
Dear Dr. Dayan Jayatilleka,
You were one of the idiots at the forefront carrying Mahinda Rajapakse on your shoulders when he was refusing to co-operate with the UN when our enemies were accusing us of war crimes. Our defence of just calling them liars was pathetic when we had ample opportunities to prove the accusers wrong. The moron that you are, you endorsed it. That played well to the gallery but they nevertheless investigated without our co-operation, but with all the fabricated videos and witness statements in the pot, they reached what would have been extremely dire conclusions. No thanks to you, but with a new administration we seem to have earned back our credibility and given the opportunity to investigate the accusations ourselves, which ought to be cherished instead of your nitpicking.
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The Rogue Ayer / September 18, 2015
Dr Dayan,
Congratulations. Instead of being down and out you continue attracting lots of attention. 115 comments so far.
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NAK / September 18, 2015
So far it still is a shadow court(hybrid?)No perpetrators no victims!
What do they really want? surly not reconcilliation.Now that the stick has been shown lets see what the carrot looks like.
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imad / September 19, 2015
“When you have an aggressive prosecuting attorney on one side and a passive defense attorney on the other, then you have a client who is in serious trouble.” – you say.
You need a fundamental shift in your mindset.
Why Sri Lanka should be seen in an adversarial court system context. This is justice and reconciliation time.
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Above the Rest / September 20, 2015
“Under Sri Lankan law. If any of those people, (from Hardcore LTTE murders to innocent civilians) were abducted , blindfolded and shot in the head, with or without torture or rape, that would be a criminal offence.In the case of hardcore LTTE members, the security forces can only hand them over to the police who would them pave the way for legal proceedings”.
That is your opinion. Thankfully the authorities did not interpret the SL law that way. Had they done that, the Tamils would by now be suffering under the dictatorship of the cyanide king. Thanks to the correct interpretation, they are today living in peace and participating in the process of choosing who governs them. Mind you, they had the opportunity to play a big role in defeating Rajapakse.
Nowhere in the world are the security forces required to handover suspects to the police. You are talking BS.
“But a member of the security forces cannot kill even a member of the LTTE unless the killing was in a battlefield or in a setting ware it was not practical to prevent it”.
You have confused conventional warfare with guerilla warfare. Your theory does not apply to guerilla warfare where there are no battlefields or uniformed troops. The biggest weapon of a guerilla is that he/she appears as a civilian and engages in war. That is what Prabhakaran and the LTTE exploited knowing very well that they would be putting civilians at the risk of death. Was the Colombo Central bus station or the Central Bank a battlefield? According to your theory a terrorist who comes with bombs strapped to his body should be handed over to the police by the security forces to initiate legal proceedings. Your ideal world is not what was in the areas where the LTTE (for three decades) and the JVP (in 1971 and 1987-1989) were active.
Against both the LTTE and the JVP the government had to deploy troops. Was that against SL law?
Against both the LTTE and the JVP the troops deployed by the democratically elected government had to use tactics that would match the guerilla tactics. Was that against SL law?
That is what this discussion is all about. That is what the UNHRC is out to punish the SL authorites for.
About the killing of innocents and the alleged rape that you harp on (based on the Channel 4 movie), let us see whether there is any proof together with identified victims and identified perpetrators. If they are identified and the charges proved, I agree that the perpetrators should be punished.
Unfortunately that is not what we are discussing. You guys are out to punish the Rajapakses for defeating the LTTE, and specifically for the killing of Prabhakaran. At least have the guts to say it in public.
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