By H. L. D. Mahindapala –

H. L. D. Mahindapala

Despite all the hot air pumped to float the UNHRC Resolution A/HRC/30/L. 29 its future is not guaranteed as the stormy atmospherics which seem to be gathering over the horizon are putting a heavy strain on the stability of the Siri-Wicky regime and, more importantly, its ability to deliver the truck load of promises contained in the Resolution, mainly to win applause from abroad. Ranil Wickremesinghe, who is carrying the heavy load, seems to be driven by a self-motivated compulsion to implement the grand reformist plan in the Resolution. Right now he is engaged in some fancy footwork to market his underhand attempt to feed defenders of the nation as dinner to the foreign judicial piranhas. Though Wickremesinghe is putting on a brave front he too is not sure of the consequences of the far-reaching and complex reforms proposed in the Resolution. And among other things, he appears to be groping in the dark not knowing how to put things together, or how to hold the centre together as various component parts of the centre are finding it uneasy to cohabit even for the next two-year – the time limit he has placed on his proposed “national government.”

To begin with, the political, legal and logistical mechanisms needed to kick start the implementation of the Resolution L. 29 will take a considerable time. It is going to be a costly process, financially and politically. Like the unfulfilled and unattainable transformation promised in the “100-days” there is a great deal of airy-fairy expectations waiting to come out of the paper on which they were written. Right now the Resolution L. 29 is floating like a pie in the sky for the simple reason that no one has the foggiest idea about the methodologies needed to implement the Resolution, or the extent to which the foreign judges will override the powers of local judges, or show where it is going to end once the Pandora’s Box sent from Geneva is opened. Some speculative pessimists believe that it is possible for the end to come before the beginning.

The operational aspects are so humongous that there are serious doubts about the chances of the Siri-Wicky duo implementing the Resolution L. 29 to the satisfaction of all stakeholders. If the Siri-Wicky duo can do the trick they will go down in history as the biggest reformers ever. But the Resolution itself contains all the inter-twining and intractable complexities of gigantic proportions that each one of them has the potential to be a roadblock to bring the process to a grinding halt. Questions will rise all the way. For instance, will the Siri-Wicky duo have the skill, the know-how and the political capacity to bring a closure to the international and domestic problems that they seek to resolve through the implementation of the Resolution? Is the Resolution going to be the panacea that will take the nation over the hill? Or will it create more problems than the existing ones and drag the nation into a deeper quagmire? In fact, there are those who now predict that even the fake “national government“, which is tasked with the mission of seeing it through, will soon cease to be “national” or even a “government”. If that happens Resolution L. 29 will go down with it.

That, of course, is a saga of its own which has to be dealt separately. My concern right now is different. I am concerned about the Resolution itself and some of its contents which will have serious consequences both to the UNHRC and the Sri Lanka. The ramifications of UNHRC Resolution run in several directions. However, in clause after clause, the Resolution L.29 repeats the overall objectives. It emphasises the necessity to pursue 1) truth-seeking; 2) justice; 3) reparations and (4) and non-recurrence of the violence that led to the violations of human rights. These four objectives are written into Resolution L. 29 as the main goals that should be achieved by both the national and international signatories.

The greater share of achieving these goals is put on the shoulders of Government of Sri Lanka (GOSL) not only as a co-sponsor but also as the main party responsible for its implementation. In general, all other parties too are expected to act collectively to get at the truth, deliver justice and reparations and prevent the recurrence of the violence that led to the violation of human rights of all communities. One thing is certain : these four main goals can be achieved only if the full range of crimes are investigated.

Of the four goals listed in the Resolution finding the truth is the first and primary requirement for the resolution /achievement of the other three goals. But this cannot be achieved if in a 33-year-old war (from May 1976 – May 2009) investigations are confined to a selected phase, ignoring the totality of the war crimes and crimes against humanity committed during full length of “the longest running war in Asia.” It was a war launched by the Tamil leadership to break up the nation into two ethnic entities. The appropriate date that marks the beginning of political violence that led to the Vadukoddai War (a.k.a. Eelam War) is May 14, 1976 when the Tamil leadership passed the Vadukoddai Resolution urging the Tamil youth to take up arms until they achieve Eelam. It was, for all intents and purposes, a declaration of war in which the Tamil leadership decided to take up arms against the democratically elected state. This was also the first time that a Sri Lankan community officially declared war to dismember the nation. The escalation of violence began after the Tamil leadership endorsed and legitimized violence as a means of achieving Eelam.

So the investigation of the violence that led to the violations of human rights should begin from May 14, 1976 when the Tamil leadership legitimized an armed conflict as a means of achieving Eelam. The war declared by the Tamil leadership dragged on needlessly for 33 years, despite direct interventions by India and the international community to end it. However, the focus is confined to the last few weeks / months of the war. Selecting arbitrarily one fragment of “the longest running war in Asia” cannot lead to the discovery of the full truth. Only the investigation of the full range of crimes committed during the war can yield the truth. Besides, the four objectives highlighted in the Resolution demands a comprehensive survey of the crimes committed by all the combatants in the war and this cannot be achieved by limiting the investigations to a period that would exclude one or the other combatant.

The necessity to cover the full range of the violations and abuses of human rights is recognized clearly in the Resolution. Operational clause 7 states: “7. Encourages the Government of Sri Lanka to reform its domestic law to ensure that it can implement effectively its own commitments, the recommendations made in the report of the Lessons Learnt and Reconciliation Commission, as well as the recommendations of the report of the Office of the High Commissioner, including by allowing for, in a manner consistent with its international obligations, the trial and punishment of those most responsible for the full range of crimes (emphasis mine) under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and violations of international humanitarian law, including during the period covered by the Lessons Learnt and Reconciliation Commission;”

Clearly, no period is excluded in the Resolution. Nor has any state /combatant involved in the war in Sri Lanka been excluded, though only GOSL and the LTTE have been named. This means that the Resolution is open for the investigation of “the full range of crimes committed by all combatants. The incremental escalation of violence that began with the passing of the Vadukoddai Resolution on May 14. 1976 too demands that the “full range of crimes” must be included to arrive at the whole truth. Only an investigation covering the “full range of crimes” committed throughout the Vadukoddai War can lead to a comprehensive understanding of the truth. Greater the comprehensiveness greater the truth / meaning.

Any attempt to limit “the full range of crimes” would distort the history, pervert the meaning and take us further away from the truth. For instance, it could lead to the false conclusion that violations of human rights occurred only in the last weeks of a 33-year-old war. Besides, to confine investigations only to the last weeks would be a calculated move designed to exclude a guilty party or two who played critical roles in the 33-year-old war. A noticeable feature of the anti-Sri Lankan resolutions / commentaries / reports at the UNHRC and other fora has been to put the blame on GOSL and paint it as the guilty party with, of course, passing and partial references to the LTTE. The fundamental flaw in Resolution L. 29 is that, unlike the other previous resolutions, the GOSL too has gone out of the way to voluntarily accept guilt almost in toto. This is a bizarre situation. One has to go to the magic realism in Gabriel Garcia Marquez to find a parallel situation. In one of his masterpieces a man goes in search of his lost donkey only to find it standing patiently in a queue in front of the slaughter house, implying that the donkey has voluntarily given himself up to be slaughtered. In all respects the Siri-Wicky government has been acting as the miserable donkey standing in front of the UNHRC slaughterhouse waiting to be cut and chopped into marketable pieces.

Another factor that distorts the ground reality is that, in the remaining ruins of the post-war period, the only combatants that are left to face the charges of violations of human rights are those in the GOSL. The LTTTers mentioned are either dead or have escaped into foreign countries – countries which are accusing Sri Lanka of violating human rights. But if “the full range of crimes”mentioned in Resolution L. 29 is to be investigated then a) the UNHRC, b) the proposed hybrid judicial mechanism and c) the GOSL will have to broaden the scope and bring to book all involved parties. The “full range of crimes” should include all combatants in the battlefields and those who provided material assistance to the Tamil Tiger terrorists in various capacities. So the focus should fall on all three combatants in the battle fields : 1. Sri Lankan security forces, 2. LTTE and 3. the IPKF. None of these combatants can be excluded. But the Resolution which insists on investigating “the full range of crimes” has left out the IPKF and focused only the GOSL and the LTTE.

If the Resolution is implemented in a partisan way to grant impunity to any single party then it loses its validity as an instrument of serving justice and fairness to all victims of the Vadukoddai War. The universal principles of human rights should be applied evenly across the board and all parties, without exception, should be investigated and held accountable. The co-sponsors of the Resolution has referred to only GOSL and the LTTE by name. But if, as stated in the Resolution, “the full range of crimes under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and violations of international humanitarian law” are to be investigated then it is imperative that the UNHRC, judges, prosecutors and investigators must include the third party, India, which played a decisive role in initiating, promoting, harbouring, training, financing, motivating, arming and exporting Tamil terrorists to destabilize Sri Lanka. India not only gave material assistance to Tamil Tiger terrorism violating international humanitarian law and international law dealing with sovereign states but also committed gross war crimes and crimes against humanity when its forces were operating in the North and the East. The silence of the UNHRC reports and the resolutions on these grave violations of human rights questions not only the impartiality of this UN instrumentality but also the commitment to human rights of those sponsoring the UNHRC Resolution.

Investigating “the full range of crimes”, as stated in the Resolution, makes it obligatory to place India on the same footing as the other two. If all three combatants are investigated for crimes against humanity and war crimes then it is possible to consider the Resolution as a viable mechanism to get at the truth, provide justice and achieve reconciliation. But when every word in the Resolution is written in to try only two parties and leave a major player like India out what are the possibilities of arriving at the truth or achieving reasonable justice? It is imperative that the investigators, prosecutor/s, and judges should investigate the role of India because, according to operative clause 4 of the Resolution, the Government of Sri Lanka, the primary implementer, is committed to “undertake a comprehensive approach to dealing with the past”, which means that no single party can be excluded. India has been a key player in all phases of terrorism – past and present — in Sri Lanka. Removing India from the Sri Lankan crisis is like removing Hanuman from the Mahabaratha : the Indian destroyer that set fire to the whole of Sri Lanka. Sri Lankan crisis would not have dragged on so long, nor would there have been grave violations of human rights if India, with its high moral postures in the international stage, allowed Sri Lanka to solve its own problems. India came in the guise of a problem-solver but ended up as the destructive Hanumanic force that worsened the conditions for all Sri Lankans.

In one of the side sessions held at the UNHRC in 2012, presided by Mahinda Samarasinghe, I spoke focusing on the negative and destructive role of India. Samarasinghe cut in to say that India came in at our invitation. That is true. But we didn’t invite India to violate human rights of Sri Lankans. We invited India to eliminate the fascist terror and protect human rights. The Hanumanic role of India must be factored in at every stage by those seeking the truth and justice for the Sri Lankan victims. If UNHRC is serious about its commitment to human rights then India should not be allowed to avoid its responsibilities and obligations under international humanitarian law and international law. Those charged with implementing the UNHRC resolution cannot ignore it either, because one of the four conditions stipulated in the Resolution is to take measures for “the non-recurrence” of the violations of human rights. Documented historical records prove that it is the unwarranted intervention of India in Sri Lanka’s internal affairs that led to the escalation of violence to an unprecedented scale. Besides, only India can guarantee that there will be no recurrence of the violence it exported to Sri Lanka. The failure of the UNHRC Resolution to name India as one of three parties involved in violations of human rights undermines its credibility to be an instrument committed to find the truth. Truth, justice, reparations and non-recurrence of violence highlighted in the UNHRC Resolution cannot be achieved by allowing India to get away scot free.

President Sirisena and Prime Minister Wickremesinghe have sold the nation down the river by admitting primary guilt and even inviting foreigners to come over and punish the Sri Lankans who defended the nation. But they have never raised the violations committed by India on Sri Lankan soil in any fora. They have been denigrating President Mahinda Rajapakse and his forces as guilty parties who should pay the price for saving the nation. But they have never raised the issue of India not only failing to save the nation from the terrorism they exported to Sri Lanka but also their war crimes and crimes against Sri Lanka victims. For instance, on one occasion the subhuman IPKF raided the Jaffna hospital and slaughtered surgeons, doctors, nurses and patients purely on suspicion of harbouring LTTE cadres. If India is excluded from investigation who is it who will be liable to pay reparations for the victims of Indian atrocities?

Looking at the Indian role from any angle it is abundantly clear that the investigators and prosecutors cannot get anywhere near the truth without investigating the role of India in the past. To proceed with the investigations without including India will be an exercise in futility and absurdity. Only the investigation of the role of India will, as stated in the same clause 4 of the Resolution, “help to advance accountability for serious crimes by all sides (repeat, “by all sides”) and to achieve reconciliation.” The total responsibility of implementing the provisions of the Resolution “fully and credibly” falls on the broad shoulders of the UNHRC, GOSL and the investigators, prosecutors and the judges . The co-sponsors of the Resolution cannot pussy foot around with the unambiguously stated provision of the Resolution to investigate “the full range of crimes”. In clause 4 this is elaborated to emphasize : “ if implemented fully and credibly, will help to advance accountability for serious crimes by all sides (emphasis mine) and to achieve reconciliation.”

So will the co-sponsors and UNHRC conduct a “fully and credibly” valid investigation covering “the full range of crimes .. by all sides”? Or will they drag only the Sri Lankan forces and others in the chain of command before the proposed hybrid court? Both America and Sri Lanka, the co-sponsors, state in the Resolution emphatically that it is “the responsibility of States (plural, which include India) to comply with their relevant obligations to prosecute those responsible for gross violations of human rights and serious violations of international humanitarian law constituting crimes under international law, with a view to ending impunity.” So why was India not included in the Resolution?

It also states in the preamble: “Recognizing that the investigation into alleged serious violations and abuses of human rights and related crimes in Sri Lanka requested in Human Rights Resolution 25/1 was necessitated by the absence of a credible national process of accountability.” If the UNHRC is motivated to investigate Sri Lanka by the absence of a credible national process of accountability how come it has not moved to investigate India because of its “absence of a credible national process of accountability”. India should have been investigated by India not only with regard to Sri Lanka but also for committing war crimes and crimes against humanity in Bangladesh, Kashmir, the sacred Golden Temple of the Sikhs in Amritsar?

Morality in the international community depends of the quantum of power a nation can muster to violate human rights. America poses as the most moral nation – it even wins Nobel Peace prizes for peace — because there is no power on earth to take it to an international tribunal. And even if an international court passes judgement against it ( example: ICJ’s judgment on America’s covert war against Nicaragua ) America can kick that into the wastepaper basket without any fear of repercussions. Will Prince Zeid Ra’ad al-Hussein summon a special session of UNHRC and pass a resolution against America for bombing the hospital in Kunduz, Afghanistan, or for supplying cluster bombs to the Saudis who use them mercilessly against the Yemeni civilians?

India too is in that privileged class. UNHRC has allowed India, which killed, raped, and abused human rights of Sri Lankans, to get away with impunity? The female suicide-bomber who killed Rajiv Gandhi is known as a rape victim of the IPKF. This reflects the intensity of anti-Indian feelings in Jaffna. The Siri-Wicky regime and TNA go on bended to India and exonerates India of all the crimes committed on Sri Lankan soil. But it vilifies Mahinda Rajapakse the leader who saved Sri Lanka from its subhuman terrorist monsters exported to Sri Lanka. What is worse, the Siri-Wicky regime, which has no substantial achievements to its name, is screaming from rooftops that their invitation to foreigners to take over the judiciary with powers to punish the Sri Lankans as their greatest victory. India, on the contrary, will not let any mother’s son to touch any of their forces who had served the nation.

The silence of the so-called human rights activists on India’s criminal conduct too speaks of their hypocrisy. Why hasn’t Paki Saravanamuttu or Jehan (Pacha) Perera invited Radhika Coomaraswamy to deliver one of her sermons on human rights? Will they eve join hands and demand that the IPKF soldiers who had committed war crimes and crimes against humanity in Sri Lanka should be brought before the imported court and tried? Or will all these human rights activists go back to their high living now that they are assured that India will be exempted from any charges and ONLY the Sri Lankan defenders who fought to save the human rights of all Sri Lankan will be brought to trial?